Privacy and intellectual property rights. Because the documentation creates a vast corpus of unedited material, most of it can’t be directly delivered to the public in order not to violate privacy and intellectual rights of the speakers and contributors. Nevertheless, FLACSO has a very transparent process through which researchers, students, speakers and other interested parties can access the material: they can directly contact the contributor and negotiate the terms of a contract by specifying the use of the material and pledging the respect of privacy and rights protection. We would really like to generate some unrestricted public material but much of its content makes it impossible to do so.
The material to be archived requires the authorization from the community and from the various contributing parties, and will be classified into the following categories:
a) Traditional stories without any sensitive content;
b) Conversations among community members, often jokes or personal information;
c) Sensible material making up of narratives and personal knowledge referring to medicinal plants, healings, rituals and shamanism, etc.
There is a strong debate around the granting of copyright over traditional knowledge or stories, or if such subjects should be considered as facts and ideas, therefore making any copyright impossible.
Speakers and researchers will come to an agreement to determine access and use levels of the documents and/or information contained in the language archive; however:
• Researchers will be able to ask for an access and publication authorization of the collected material and will have the right to use UP TO 10% OF THE SAID MATERIAL for research projects, papers or presentations.
• Researchers won’t be allowed to publish an entire text WITHOUT THE AUTHORIZATION from speakers and native documentalists. Furthermore, a representative will have to be chosen in order for researchers and any involved parties to be in contact and to require access to the material.
• The description of all the compiled information will be performed under the conditions of ISLE Meta Data Initiative (IMDI) – International Standard for Language Engineering (ISLE).
• The Ecuadorian laws referring to INTELLECTUAL PROPERTY RIGHTS will apply to all material and metadata contained in the LANGUAGE AND CULTURE ARCHIVE.
THE LANGUAGE AND CULTURE ARCHIVE is submitted to the provisions contained in the Ecuadorian Intellectual Property Law (Official Journal No. 320), which states:
“Art. 4. The rights of authors and of others holding title to their works are hereby recognized and guaranteed
Art. 5. Copyright shall come into being and be protected by virtue of the mere fact of the creation of the work, regardless of its merit, purpose or means of expression.
All works, performances, productions or broadcasts shall be protected regardless of the country of origin of the work or the nationality or residence of the author or owner of rights. This protection shall likewise be recognized regardless of the place or publication or disclosure.
The recognition of copyright and related rights shall not be subject to registration or deposit or to compliance with any formality.
What is a tangible medium?
When the recording of a speaking person takes place, the video or audio tape will permanently fix a specific speech at a specific time through a specific medium, and this fixation will become a tangible medium. The purpose of this specification comes under the consideration that in Ecuador the Intellectual Property Law protects the:
“Expressions of folklore: Productions embodying characteristic elements of the traditional cultural heritage, consisting of the whole store of literary and artistic works created on the national territory by unknown or unidentified authors who are presumed to be nationals of the country or members of its ethnic communities, which are handed down from generation to generation in such a way that they reflect the traditional artistic or literary aspirations of a community.”
RIGHTS ACCORDING TO THE WIPO
“Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.” (World Intellectual Property Organization – WIPO)
“The innovations and creative expressions of indigenous and local communities are also IP, yet because they are “traditional” they may not be fully protected by existing IP systems. Access to, and equitable benefit-sharing in, genetic resources also raise IP questions. ” (World Intellectual Property Organization – WIPO)
To tackle these issues, normative and capacity-building programs are underway at WIPO to develop balanced and appropriate legal and practical responses.
What is the relation between intellectual property “protection” and cultural heritage “preservation and safeguarding”?
Within the context of cultural heritage the notions of “preservation” and “safeguarding” are usually referring to the identification, cataloguing, transmission, revitalization and stimulation of the cultural heritage in order to ensure its maintenance or viability.
It was during the Convention concerning the Protection of World Cultural and Natural Heritage that some interest was aroused around the need for protecting the immaterial heritage, and the UNESCO started to implement a few actions to protect this form of cultural heritage. However, it wasn’t before 1989 that these actions were really consolidated (official version published in the “Records of General Conference, Twenty-Fifth Session, Paris, 17 October to 16 November 1989”, Resolutions: Annex I (digital version), vol.1, page 238-243) when the Recommendation on the Safeguarding of Traditional Culture and Folklore was adopted, and the traditional and popular culture or the immaterial and oral patrimony was defined as
“… 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. ” (UNESCO, Recommendation on the Safeguarding of Traditional Culture and Folklore [on line], http://portal.unesco.org/en/ev.php-URL_ID=13141&URL_DO=DO_TOPIC&URL_SECTION=201.html. 24/05/2011)
This recommendation really sets a precedent towards recognizing the “popular and traditional culture” as belonging to the immaterial heritage, at the same time as fomenting international cooperation and anticipating the possible measures to be adopted as regards its identification, conservation, preservation, diffusion and protection..
Due to the importance covered by the protection of Cultural Diversity, Cultural Goods and Intangible Cultural Heritage, copyrights have to be inevitably taken into consideration; it is for this matter that the fist mention ever has been recorded in: the Universal Copyright Convention (protocols 1, 2 and 3) defined in Geneva on 6 September 1952 and as revised in Paris on 24 July 1974; and subsequently in the UNESCO Universal Declaration on Cultural Diversity on 2 November 2001; in the Convention for the Safeguarding of the Intangible Cultural Heritage of the UNESCO on the 17th of October 2003; and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions on 20 October 2005.
In Ecuador, the legislation on the subject is registered in the following laws and decrees:
• Cultural Heritage Law of June 29, 1978
• Intellectual Property Law of May 19, 1998
• Culture Law of November 19, 2004
• Cultural Heritage Emergency Decree of January 7, 2008
INTELLECTUAL PROPERTY RIGHTS IN ECUADOR
According to the Intellectual Property Law in Ecuador the meaning of Intellectual Property is as follow:
“Intellectual property consists of the following:
1. Copyright and related rights;
2. Industrial property, which itself encompasses the following, among other things:
b. industrial designs;
c. layout-designs (topographies) of integrated circuits;
d. undisclosed information and commercial and industrial secrets;
e. trademarks, service marks, and commercial slogans;
f. the distinct features of stores and business establishments;
g. trade names;
h. geographical indications;
i. Any other intellectual creation intended for agricultural, industrial or commercial.” (Intellectual property law – ECUADOR)
Intellectual Property Law – Law No. 83. Official Journal 320, May 19 1998
COPYRIGHT AND RELATED RIGHTS
“Copyright is a juridical system through which authors are being granted economic and moral rights on their work, according to the terms agreed upon in the Constitution of Ecuador and the Universal Declaration of Human Rights” (Ecuadorian Institute of Intellectual Property – EIIP)
Copyright protection is based on the legal authority of authorizing or prohibiting the use of a work. The duration of the protection is granted without prejudice to moral rights that are indefinitely protected.
The rights that the author or the successor in title will exercise are:
The right to authorize or prohibit:
• Fixing or replication of the work in any medium or by any process;
• Communication of the work to the public;
• Distribution of originals or copies of the work;
• Importation of the work;
• Translation, adaptation, arrangement or other transformation of the work.
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