International Declarations and Conventions Relevant to Indigenous Music and Dance as Cultural Property.
Note: International "conventions" are legally binding on the nation states that sign on to them. "Declarations" and "Recommendations," on the other hand are not legally binding.
Overview of the Declaration is online at:
Article 27/1: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."
Article 27/2: "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."
Group rights were not yet recognized.
International copyright law that forms the basis for subsequent documents such as WIPO's 1996 treaty.
Elaboration of the UNDHR.
UN documents listed here are among many that comprise a body of "human rights instruments." A full list is available at http://www.ohchr.org/english/law/.
This convention focuses on tangible heritage. The complete text may be downloaded in your choice of seven languages at http://whc.unesco.org/en/conventiontext. By October 2006, 184 States Parties had ratified the convention.
Not a legally binding international treaty. Addressed concerns of state parties.. Note especially Articles 11 and 12 re the sui generis (needing to be considered on its own terms; outside of the normal legal definitions) nature of folklore:
11. The sui generis protection of artistic expressions of folklore is necessitated by the fact that:
(i) such expressions are being continuously transformed by their community of origin, whereas works created by individual authors are as a general rule completed in a form that is unique to their authors;
(ii) artistic expressions of folklore do not, as a general rule, have any known creator. They pertain to the entire community, which incorporates them into its social life, whereas the works protected by copyright belong to one or more known authors, who created them;
(iii) works were protected in order to encourage authors to create new works, whereas artistic expressions of folklore are protected in order to preserve important features of the identity of national communities in danger of dying out;
(iv) works are protected for a limited duration, whereas expressions of folklore require unlimited protection if the features of folklore wherein the specific nature of national identity is located are to be stratified in the social fabric.
It is these features of the artistic expressions of folklore that determine the sui generis approach to protection in respect of its scope, the ownership of the rights to be recognized, the procedures for exercising them and the penalties imposed on any violations to which they might be subject.
12. Moreover, expressions of folklore, time-honoured and hallowed by social tradition, form part of the cultural heritage as a whole. As such, they can be protected by the full arsenal of public law provisions governing the preservation of this heritage against the different violations to which it may be prey.
The Recommendation offers the following definition of folklore:
For purposes of this Recommendation: Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.
Subsequent sections of the document set forth recommendations for the identification, conservation, preservation, dissemination, and protection of folklore, as well as for international cooperation.
Several decade-later assessments of this recommendation were published in Seitel's Safeguarding Traditional Cultures: A Global Assessment (2001).
Recognizes self-identification as a fundamental criterion for determining who is "indigenous" or "tribal." Provisions with particular application to cultural expression are:
Article 5 (a) : the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;
Article 7/1: The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.
Ratified by nineteen states parties.
An overview of the TRIPS agreement is online at:
See also C. Correa and A. Yusuf, eds. Intellectual Property and International Trade: The TRIPs Agreement. Kluwer Law International Press, 1998. It defines minimum standards of protection for artistic works and inventions and sets out a means for resolving disputes using the World Trade Organization dispute resolution process.
Performers of "artistic works or expressions of folklore" may determine conditions for the recording, broadcasting, reproduction and distribution of their work, for 50 years after a recording is made. The treat defines a "phonogram" as any "fixed" form of a performance. The moral and economic rights of performers and producers of phonograms are defined, as are the rights to reproduce, distribute, rent, or make available a fixed performance.
Draft by the Intergovernmental Committee on Intellectual Property Rights, Genetic Resources, Traditional Knowledge and Folklore. This document is sometimes called the TCE Instrument. It summarizes existing legal mechanisms and international protocols.
TCEs of particular cultural and spiritual value can be registered with WIPO.
states are obligated to establish protection to prevent the reproduction, publication, adaptation, broadcasting, public performance, communication to the public, distribution and the making available to the general public of registered TCEs of particular cultural or spiritual value to the indigenous people, without the free, prior and informed consent of the relevant indigenous people..
States should establish mechanism to ensure that non-members do not acquire intellectual property rights over such TCEs.
Any regulation of such TCEs should not restrict their normal use in indigenous communities.
For one Indigenous response (from a Fellow of the Center for International Environmental Law )to the WIPO Instrument, see Palesa Tlhapi Guye's "The Gap between Indigenous Peoples' Demands and WIPO's Framework on Traditional Knowledge" at www.ciel.org/Publications/WIPO_Gap_Sept07.pdf.
This convention marks a change in language from concepts such as "folklore" to the broader concept of "intangible cultural heritage" defined in the convention as follows: "practices, representations, expressions, knowledge, skills (as well as the instruments, objects, artefacts and cultural spaces associated therewith) that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development."
(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;
(b) performing arts;
(c) social practices, rituals and festive events;
(d) knowledge and practices concerning nature and the universe;
(e) traditional craftsmanship.
Articles 1 and 2 call for respect for the intangible cultural heritage of communities, groups and individuals, for the benefit of human kind. Safeguarding initiatives must be in conformity with relevant human rights standards. The questions of who holds rights are not addressed.
The convention places an emphasis on "inventorying" ICH, calling for a "representative list" of the intangible cultural heritage of humanity as well as a list of ICH in need of "urgent safeguarding." UNESCO shifted from an emphasis on "masterpieces" in the 1990s to an emphasis on the "representative."
It establishes a fund (through the required contributions of states parties who ratify the convention) to support the making of these inventories and other activities related to the convention.
86 states had ratified the Convention by 2006. Neither Canada nor the U.S. are among them.
UNESCO Convention on the Protection ad Promotion of the Diversity of Cultural Expressions (2005). Reproduced in the International Journal of Cultural Property (2006), available online at many universities.
Signatories to this convention agree to work toward an environment in which individuals and groups can create and have access to their own cultural expressions; to foster interculturability by encouraging cultures to interact and dialogue with each other; to promote equitable access to cultures and cultural expressions. It is the sovereign right of states to promote cultural diversity.
Full text available at:
The declaration "establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world's indigenous peoples. The Declaration addresses both individual and collective rights; cultural rights and identity; rights to education, health, employment, language, and others. It outlaws discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between States and indigenous peoples" (preamble in the above website).
Note in particular:
1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and
historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for
communities, places and persons.
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oraltraditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.
Other provisions relate to education and media. In each case states parties are to ensure that the provision is enabled.