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Protecting Traditional Cultural Expressions: Setting the Legal Platform

Zikonda-Kraus, Irene LU (2012) JAMM05 20122
Department of Law
Abstract
In a world where globalisation generates monotony, industry has looked at the rich cultural past of traditional cultures for inspiration to distinguish its products and services. The growing demand for access to Traditional Cultural Expressions (TCEs) by industry has led to the exploitation and misappropriation of TCEs. Despite huge profits derived from TCEs, indigenous and traditional communities tend to receive few, if any, benefits from the commercialisation of their works. This had led to a conflict between the TCE holders who want to restrict access to their works and the outside communities that want to utilise them.
This thesis examines the limitation of conventional intellectual property rights (IPRs), such as copyright,... (More)
In a world where globalisation generates monotony, industry has looked at the rich cultural past of traditional cultures for inspiration to distinguish its products and services. The growing demand for access to Traditional Cultural Expressions (TCEs) by industry has led to the exploitation and misappropriation of TCEs. Despite huge profits derived from TCEs, indigenous and traditional communities tend to receive few, if any, benefits from the commercialisation of their works. This had led to a conflict between the TCE holders who want to restrict access to their works and the outside communities that want to utilise them.
This thesis examines the limitation of conventional intellectual property rights (IPRs), such as copyright, geographical indications (GIs) and trademarks, on the protection of TCEs. Since the conventional solutions proposed for protecting TCEs are sub-optimal, this thesis will also explore the viability of protecting TCEs within an HR framework and the sui generis regime. The purpose of using an HR framework is not to restrict the access of industry to TCEs, but rather to include indigenous and traditional communities in the decision-making process and gain reasonable financial benefits.

The consensus views prevalent today is that the most favourable alternative to IP is the sui generis system, a specific set of rights which will accommodate the TCE subject matter specificities and the interests of TCE holders. This system is promoted as the ‘silver bullet’ to the protection of TCEs because it is perceived as effective and straightforward. This thesis will examine whether the sui generis regime is the ‘silver bullet’ to the protection of TCEs through the review of the Swakopmund Protocol.

However, although sui generis system is the move in the right direction, this thesis will try to illustrate that 'HR framework' seems a more viable solution. The purpose of using a HR framework is not to restrict the access of industry to TCEs, but rather to include indigenous and traditional communities in the decision-making process and gain reasonable financial benefits. (Less)
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author
Zikonda-Kraus, Irene LU
supervisor
organization
course
JAMM05 20122
year
type
H2 - Master's Degree (Two Years)
subject
language
English
id
3109267
date added to LUP
2012-11-01 12:00:24
date last changed
2012-11-01 12:00:24
@misc{3109267,
  abstract     = {In a world where globalisation generates monotony, industry has looked at the rich cultural past of traditional cultures for inspiration to distinguish its products and services. The growing demand for access to Traditional Cultural Expressions (TCEs) by industry has led to the exploitation and misappropriation of TCEs. Despite huge profits derived from TCEs, indigenous and traditional communities tend to receive few, if any, benefits from the commercialisation of their works. This had led to a conflict between the TCE holders who want to restrict access to their works and the outside communities that want to utilise them. 
This thesis examines the limitation of conventional intellectual property rights (IPRs), such as copyright, geographical indications (GIs) and trademarks, on the protection of TCEs. Since the conventional solutions proposed for protecting TCEs are sub-optimal, this thesis will also explore the viability of protecting TCEs within an HR framework and the sui generis regime. The purpose of using an HR framework is not to restrict the access of industry to TCEs, but rather to include indigenous and traditional communities in the decision-making process and gain reasonable financial benefits. 

The consensus views prevalent today is that the most favourable alternative to IP is the sui generis system, a specific set of rights which will accommodate the TCE subject matter specificities and the interests of TCE holders. This system is promoted as the ‘silver bullet’ to the protection of TCEs because it is perceived as effective and straightforward. This thesis will examine whether the sui generis regime is the ‘silver bullet’ to the protection of TCEs through the review of the Swakopmund Protocol.
 
However, although sui generis system is the move in the right direction, this thesis will try to illustrate that 'HR framework' seems a more viable solution. The purpose of using a HR framework is not to restrict the access of industry to TCEs, but rather to include indigenous and traditional communities in the decision-making process and gain reasonable financial benefits.},
  author       = {Zikonda-Kraus, Irene},
  language     = {eng},
  note         = {Student Paper},
  title        = {Protecting Traditional Cultural Expressions: Setting the Legal Platform},
  year         = {2012},
}