Blaylock 1Jennifer Anne BlaylockRina Elster PantalonyCopyright, Legal Issues and Policy H72.1804December 16, 2008Traditional Knowledge And World Intellectual Property Law“Congress shall have the power to…promote the progress of science and useful arts, bysecuring for limited times to authors and inventors the exclusive right to their respectivewritings and discoveries” (Article One, Constitution of the United Sates of America)United States copyright laws are based on the preceding quote from theConstitution of the United States of America. The founding fathers of the United Statesthought that invention and creativity were important in the development of a dynamic,economically strong new nation. To encourage discovery and invention they allowed for“authors and inventors” to have a limited monopoly over their works to help themeconomically continue to create new works for the public good. This brief phrase hasbeen redefined and reinterpreted throughout the years and has expanded dramatically intoa complex system of laws and regulations, but the original intent is grounded in a veryspecific set of cultural values. Other countries have developed their own ideas aboutintellectual property, sometimes in contradiction to the very idea of owning intellectual“property.” This paper will look at the ways in which the World Intellectual PropertyOrganization in collaboration with the World Trade Organization has tried to createuniversal intellectual property laws in the Trade-Related Aspects of Intellectual PropertyRights agreement (TRIPS) of 1994 and how some countries have questioned theagreement’s western-centric policies by starting a movement that advocates for theBlaylock 2additional protection of traditional cultural expressions (TCE) and traditional knowledge(TK). This paper will examine some current TK policies as they relate to film andtelevision production and moving image archiving. The paper will also evaluate if thesecurrent policies are enough protection for indigenous peoples TK or if internationallegislation is necessary. Additionally, some potential problems that could occur ifinternational TK legislation is created are identified.According to United States copyright law, copyright protection can only begranted to: (1) literary works; (2) musical works, including any accompanying words; (3)dramatic works, including any accompanying music; (4) pantomimes and choreographicworks; (5) pictorial, graphic, and sculptural works; (6) motion pictures and otheraudiovisual works; (7) sound recordings; and (8) architectural works.1 Section 102 of theUnited States of America copyright law describes what can not be copyrighted, “In nocase does copyright protect for an original work of authorship extend to any idea,procedure, process, system, method of operation, concept, principle, or discovery,regardless of the form in which it is described, explained, illustrated, or embodied in suchwork.”2 This definition is in direct contradiction with the World Intellectual PropertyOrganization’s current recommendations to support protecting traditional knowledgeunder international intellectual property legislation. Traditional knowledge is undeniablyin the realm of what United States copyright deems unprotected. Generally, traditional1 “Copyright Law of the United States of America and Related Laws Contained in Title17 of the United States Code.” Copyright: United States Copyright Office. 10 December2008 <http://www.copyright.gov/title17/92chap1.html#102> 2 “Copyright Law of the United States of America and Related Laws Contained in Title17 of the United States Code.” Copyright: United States Copyright Office. 10 December2008 <http://www.copyright.gov/title17/92chap1.html#102>Blaylock 3knowledge is defined as traditional procedures or cultural methods of operation ratherthan a tangible expression of an idea.Within some countries traditional knowledge policy has been developed as aresponse to the strict intellectual property laws in the international TRIPS agreement. TheTRIPS agreement, supported by the World Trade Organization, is based on the BerneConvention of 1886 (last amended in 1971). The basic principles of the BerneConvention are that: (a) works first published in a particular nation or works created byan author of a particular nation are protected by the laws and regulations of that nationand must be respected by all other nations, this is known as the principle of nationaltreatment; (b) protection must be automatic; (c) the work is protected independently fromthe protection in the country of origin.3 The Berne Convention also requires membernations to protect “every production in the literary, scientific and artistic domain,whatever may be the mode or form of its expression”4 and the member nations arerequired to protect said works for the life of the author plus fifty years with some limitedexceptions. There is a clause that allows for developing countries, as defined by theGeneral Assembly of United Nations, to deviate from the minimum standards in regard tothe right of translation and the right of reproduction but there are no clauses aboutprotecting indigenous peoples traditional knowledge or cultural resources. Basically theConvention is based on western ideas of intellectual property and requires all WTOmember countries to abide by the same intellectual property rules. Countries like Brazil3 “Summary of the Berne Convention for the Protection of Literary and Artistic Works(1886).” World Intellectual Property Organization. 15 December 2008<http://www.wipo.int/treaties/en/ip/berne/summary_berne.html>4 “Summary of the Berne Convention for the Protection of Literary and Artistic Works(1886).” World Intellectual Property Organization. 15 December 2008<http://www.wipo.int/treaties/en/ip/berne/summary_berne.html>Blaylock 4and India were particularly loud in the protest against the imposition of strong IP policies,arguing that these policies protected western interests but not the