A/HRC/28/57
with property rights, especially when held by corporations. It recognized, however, that the
protection of authors’ “material interests” reflected the close linkage of this provision with
the right to own property, as set out in article 17 of the Universal Declaration of Human
Rights and in regional human rights instruments, as well as with the right of any worker to
adequate remuneration.
E.
The rights of indigenous peoples and local communities
55.
Recognizing the rights of indigenous peoples to self-determination and to maintain
and develop their culture and their struggle for cultural survival, the United Nations
Declaration on the Rights of Indigenous Peoples assures indigenous peoples the right to
maintain, control, protect and develop their intellectual property over their cultural heritage,
traditional knowledge and traditional cultural expressions (art. 31, para. 1). Some
indigenous peoples consider it vital to keep certain cultural expressions and forms of
knowledge from public disclosure, to be used only by persons and in ways appropriate to
their customary laws and practices, and never commercially exploited. Some indigenous
peoples desire to benefit from the commercial potential of licensing products based on their
traditional knowledge and cultural expressions.
56.
Intellectual property regimes have historically failed to take into account the unique
concerns of indigenous peoples. For instance, trade secrecy regimes require that the
information be of commercial value; that is useful for protecting commercial secrets but not
sacred songs or folklore. Copyright regimes provide time-limited protections, meaning that
traditional cultural expressions may be regarded as being in the public domain.
57.
Moral rights might be adapted to provide protection for the collective holders of
traditional cultural expressions. Like individual authors, communities care deeply about the
right to attribution and credit, protecting their cultural works from destruction and
preventing the exhibition of their cultural expressions in ways that disparage the
community. As with individual authors, however, the right to freedom of expression
protects the right to criticism and parody, from within as well as from outside the
community, taking into consideration all circumstances of a particular case.19
58.
In 1995, the principles and guidelines for the protection of the heritage of indigenous
peoples made an important contribution to adapting the concept of moral and material
interests of authors to the specific context of indigenous cultural property
(E/CN.4/Sub.2/1995/26). Of note are the principles that indigenous peoples’ ownership and
custody of their heritage must continue to be collective, permanent and inalienable; that the
free and informed consent of the traditional owners be a precondition of any agreements for
the recording, study, use or display of indigenous peoples’ heritage; and that concerned
peoples be the primary beneficiaries of commercial application of their heritage.
59.
Efforts by States to give effect to indigenous claims over their cultural heritage vary
enormously. The WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore is continuing negotiations about a possible
international legal instrument, or instruments, for the effective protection of traditional
knowledge, traditional cultural expressions and genetic resources.
19
12
See the Deckmyn case mentioned above in para. 37.