Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions
The Contracting States,
Considering that expressions of folklore, developed and maintained by communities of various countries or by individuals reflecting the expectations of those communities, represent an important part of the living cultural heritage of mankind,
Considering that modern technology facilitates the commercialization of expressions of folklore beyond the frontiers of the countries in which they originate,
Considering that such commercialization of expressions of folklore may lead to the improper exploitation and distortion of the cultural heritage involved,
Considering that the international regulation of the protection of expressions of folklore against illicit exploitation and other prejudicial actions has thus become indispensable as a means of promoting their further development, authentic maintenance and dissemination, without prejudice to legitimate interests in having access to them,
Considering that expressions of folklore constituting manifestations of intellectual creativity deserve legal protection in a manner analogous to that provided for works protected by copyright,
have agreed as follows:
Article 1 Protected Expressions of Folklore
For the purposes of this Treaty, "expressions of folklore" mean productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community, or by individuals reflecting the traditional artistic expectations of their community, in particular:
(i) verbal expressions, such as folk tales, folk poetry and riddles;
(ii) musical expressions, such as folk songs and instrumental music;
(iii) expressions by action, such as folk dances, plays and artistic forms or rituals,
whether or not reduced to a material form; and
(iv) tangible expressions, such as
(a) productions of folk art, in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes;
(b) musical instruments;
(c) architectural forms."
Article 2 National Treatment
Each Contracting State shall accord the same protection to expressions of folklore originating in other Contracting States as it accords to expressions of folklore originating in its own territory, subject to the protection specifically guaranteed, and the exceptions specifically provided for, by this Treaty."
Article 3 Competent Authorities
1. Each Contracting State shall designate one or more competent authorities (hereinafter referred to as "the competent authority") which shall administer the protection, under this Treaty, of expressions of folklore and to ask for the enforcement of the protection in other Contracting States of such expressions originating in its own territory.
2. Each Contracting State shall, at the time of depositing its instrument of ratification, acceptance or accession, notify the Secretary-General of the United Nations, by means of a written declaration, of all designations made in accordance with paragraph (1) and giving full information concerning the rights and obligations of the authority thus designated. Any subsequent changes in the designation, or in the said rights and obligations, shall be promptly notified in like manner."
Article 4 Utilizations Subject to Authorization
1. The following utilization of the expressions of folklore shall require written authorization by the competent authority of the Contracting State in which the expression of folklore originated, if the utilization is intended to be made for profit in another Contracting State:
(i) the publication, reproduction, distribution or importation, for the purpose of distribution to the public, of reproductions or recordings of recitations or performances of expressions of folklore;
(ii) the public recitation or performance of expressions of folklore, as well as any transmission to the public by wireless means, by wire, or by any other means, of expressions of folklore or of their recitations or performances, whether live or recorded.
2. Each Contracting State shall, at any time of depositing its instrument of ratification, acceptance or accession, notify the Secretary-General of the United Nations, by means of a written declaration, of the kinds the main characteristics and the source of the artistic expressions of folklore originating in its territory the utilization of which is subject to the written authorization of its competent authority. Subsequent changes shall be notified in like manner.
Article 5 Request and Grant of Authorization
1. The application for authorization under article 4 shall be submitted by the prospective utilizer of the expression of folklore (hereinafter referred to as "the applicant"), [through the competent authority of the Contracting State of which the utilizer is a national or where he or it has his or its habitual residence or headquarters] to the competent authority of the Contracting State in which the expression of folklore originates, duly in advance; the application shall unequivocally specify, in written form, the expression of folklore intended to be used, its source, as well as the nature and extent of the intended utilization.
2. The authorization shall be given in written form without undue delay; it may be made conditional upon the payment of an equitable remuneration whose amount, in the absence of agreement, shall be fixed by the competent authority of the Contracting State in which the expression of the folklore originates. No application shall be refused, except where the intended use would be prejudicial to the honour or dignity of the originating country or community. Any refusal shall be justified in writing."
Article 6 Exceptions
1. The provisions of Article 4 shall not apply where the utilization is:
(i) for purposes of education;
(ii) for creating an original literary or artistic work.
2. Furthermore, the provisions of Article 4 shall not apply where the utilization is incidental. Incidental utilization includes, in particular:
(i) utilization of any expression of folklore that can be seen or heard in the course of a current event for the purposes of reporting on that current event by means of photography, broadcasting or sound or visual recording, provided that the extent of such utilization is justified by the informatory purpose;
(ii) utilization of objects containing the expressions folklore which are permanently located in a place where they can be viewed by the public, if the utilization consists in including their image in a photograph, in a film or in a television broadcast."
Article 7 Acknowledgement of Source
1. In all printed publications, and in connection with any communications to the public, of any identifiable expression of folklore, its source shall be indicated in an appropriate manner, by mentioning the community and/or geographic place in which it has originated.
2. The provisions of paragraph (1) shall not apply in the case of creation of original works inspired by expressions of folklore or in the case of the incidental use of expressions of folklore."
Article 8 Offenses
Each Contracting State shall punish by penal sanctions any act of
(i) wilful or negligent non-compliance with the requirement obtaining authorization under Article 4;
(ii) wilful or negligent non-compliance with the requirement of acknowledgement of source according to Article 7;
(iii) wilful deception of others in respect of the origin of expressions of folklore;
(iv) wilful distortion, in any direct or indirect manner, of an expression of folklore in a way prejudicial to the honour, dignity or cultural interests of the community in which it originates.
Article 9 Seizure
Each Contracting State shall provide for the possibility of the seizure of any object which was made or imported in a way constituting an offence under this Treaty and any returns from such offenses."
Article 10 Civil remedies
Each Contracting State shall provide for the possibility of claiming damages or other civil remedies where the utilization was made without the required authorization or payment or in any other manner causing economic harm to the State or community in which the utilized expression of folklore has originated."
Article 11 Relations to Other Forms of Protection
This Treaty shall in no way limit or prejudice any protection applicable to expressions of folklore under national laws or any international treaty protecting copyright, the rights of performers, producers of phonograms and broadcasting organizations, or industrial property, nor shall it in any way prejudice other forms of protection provided for the safeguard and preservation of folklore."
Article 12 Deposit and Signature of the Treaty
This Treaty shall be deposited with the Secretary-General of the United Nations and shall be open until... for signature by any State that is [a member of the United Nations, any of the Specialized Agencies brought into relationship with the United Nations, or the International Atomic Energy Agency, or is a party to the Statute of the International Court of Justice] [a party to the Berne Convention for the Protection of Literary and Artistic Works or the Universal Copyright Convention]".
Article 13 Entry into Force of the Treaty
1. This Treaty shall be subject to ratification or acceptance by the signatory States. It shall be open for accession by any State covered by Article 12.
2. Instruments of ratification, acceptance or accession shall be deposited with the Secretary-General of the United Nations. The Treaty shall enter into force three months after the deposit of the fifth instrument of ratification, acceptance of accession.
3. For each State ratifying, accepting or acceding to this Treaty after the deposit of the fifth instrument of ratification, acceptance or accession, the Treaty shall enter into force three months after the date of the deposit of the respective instrument with the Secretary-General of the United Nations.
4. It is understood that at the time a State becomes bound by this Treaty, it will be in a position in accordance with its domestic law to give effect to the provisions of the Treaty."
Article 14 Denunciation of the Treaty
Any Contracting State may denounce this Treaty. Denunciation shall take effect 12 months after the date on which the Secretary-General of the United Nations has received the relevant declaration."
Article 15 Notifications by the Secretary-General of the United Nations
1. The Secretary-General of the United Nations shall promptly notify the Director-General of the United Nations Educational, Scientific and Cultural Organization and the Director-General of the World Intellectual Property Organization of:
(a) signatures of this Treaty;
(b) the deposit of instruments of ratification, acceptance or accession;
(c) the date of entry into force of this Treaty;
(d) notifications and declarations received from Contracting States under this Treaty.
2. The Directors General of the United Nations Educational, Scientific and Cultural Organization and the World Intellectual Property Organization shall promptly communicate to the Contracting States any notification received from the Secretary-General of the United Nations."
Article 16 Languages of the Treaty
1. This Treaty shall be signed in a single copy in...[specify the language(s)], [all texts being equally authentic].
2. Official texts of this Treaty shall be established, after its having entered into force, jointly by the Director-General of the United Nations Educational, Scientific and Cultural Organization and the Director-General of the World Intellectual Property Organization, in consultation with the interested Governments, in...[specify the languages]."