Traditional Knowledge and Cultural Expressions: Appreciation or Appropriation? An IP Perspective
29 July 2021 | Webinar | Online
The Intellectual Property and Genetic Resources, Traditional Cultural Expressions and Traditional Knowledge Committee (IP and GRTCETK) of AIPPI has predominantly focused its studies on Genetic Resources (GR) related to Traditional Knowledge (TK). However, considering the increasing importance of Traditional Cultural Expressions (TCEs) coupled with the complaints of indigenous communities in several jurisdictions about the misappropriation and exploitation of their TCEs, the IP and GRTCETK Committee is now commencing its discussions on TCEs associated to TK at the international level. What constitutes Cultural Appreciation, and what is Cultural Appropriation? What are the dividing factors of drawing an inspiration and exploiting age-old cultural heritage? In the advent of numerous cases of Cultural Appropriation flooding newspapers and social media, discerning how to navigate this tricky landscape will be vital in both protecting the interests of indigenous cultures and safeguarding oneself from the court of public opinion.
Being creations of the mind, Traditional Cultural Expressions (TCE) are undeniably a form of Intellectual Property. However, certain hurdles exist that make it difficult for TCE to be protected under the current IP law regime. Among the problems are the lack of fixation for some TCEs, their collective ownership, identification of the original author and the often non-commercial context of TCEs.
Bearing these in mind, the webinar aims to tackle these issues by drawing in the insights and practical experiences from its diverse panel: Lily Martinet, Officer in Charge of Intangible Cultural Heritage at Maison des Cultures du Monde; Lydia Gobena, Partner at Fross Zelnick Lehrman & Zissu; Audrey Williams, Partner at Estudio Benedetti; and Lynell Tuffery Huria, Patent Attorney. This session will be moderated by Karen Abraham, Head of the Intellectual Property Practice, Technology Media and Telecommunications, Shearn Delamore & Co. They will be joined by Mr. Ralph Nack, AIPPI Second Deputy Reporter General.
Head of Intellectual Property Department, Messrs Shearn Delamore & Co.
Her practice covers all aspects of Intellectual Property, Technology, Media & Telecommunications, Data Protection and Competition Law. She has more than 30 years of litigation experience in Intellectual Property matters, appearing in the Apex Courts in Malaysia. The Malaysian law journals bear testimony of how she has been instrumental in setting precedent in IP jurisprudence thereby establishing and evolving IP infrastructure in Malaysia over 3 decades. Abraham’s practice is diverse as she is not only a well renowned litigator but an IP commercial and transactional advisor, regularly providing legal counsel on all allied IP rights.
Abraham was the first Malaysian to be appointed on the Board of the Association for the Protection of Intellectual Property (AIPPI) where she has advocated for law reforms on a global scale. Abraham is currently the co-chair of the Traditional Knowledge and Traditional Cultural Expressions Subcommittee under the AIPPI IP and GRTK Standing Committee. In Malaysia, Abraham has been actively involved in the Malaysian Bar Council Intellectual Property Committee for over 20 years.
Officer in Charge of Intangible Cultural Heritage at Maison des Cultures du Monde
Lily Martinet holds a bachelor of Fine arts from L’École Régionale des Beaux-Arts de Rennes, a law degree with a specialisation in International Economic Law and a PhD from the Sorbonne Law School. In 2014, she was admitted to the French bar. As of 2017, she teaches a course on International Cultural Heritage Law at the University of Sorbonne Nouvelle Paris 3. From 2018 to 2021, she was a Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law. Before joining the MPI, Lily was a postdoctoral research fellow at l’Institut des Sciences Sociales du Politique (ENS Paris Saclay, Université Nanterre, CNRS). As a postdoctoral researcher, she was responsible for coordinating the Osmose Program, a comparative study of national experiences in relation to intangible cultural heritage law. Lily has also worked on the implementation of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, in 2013, for the French Ministry of Culture and, in 2017, for the French National Commission for UNESCO. Her PhD dissertation on traditional cultural expressions in international law was selected, in 2019, for publication by IRJS éditions. She is as of 2021 an officer in charge of intangible cultural heritage at the Maison des Cultures du Monde – Centre français du patrimoine culturel immatériel.
Partner at Fross Zelnick Lehrman & Zissu
Lydia counsels and advises clients on international trademark, industrial design, copyright, and unfair competition issues. She develops strategies for acquiring, enforcing and assigning intellectual property rights with an emphasis on foreign laws and international treaties, and litigates international and multi-country conflicts. Lydia advises clients on related IP transactional issues in the context of IP portfolio audits and due diligence for acquisitions or divestitures. She also conducts global trademark clearance projects including analysis and evaluation of search data and related risks, investigations and negotiations relating to prior third party rights, and implementing global filing strategy. Lydia has championed countless court and trademark office decisions for major brand owners acknowledging the fame of their trademarks in jurisdictions around the world, thereby preventing the registration and – in certain instances – use of infringing third-party trademarks. She also secured one of the first criminal convictions for trademark infringement in Chile.
Partner at Estudio Benedetti
Audrey Williams is founding partner of leading IP law firm Estudio Benedetti, where she heads the Anti-Piracy Litigation Department. She graduated in Law and Political Science from Universidad Santa Maria La Antigua, Panama, and obtained an LLM from Boalt Hall School of Law, University of California at Berkeley. She has practised IP law for 30 years, including trademark prosecution and litigation, as well as copyright litigation. She is the current Vice-President of the Panamanian Association of Intellectual Property Law.
Lynell Tuffery Huria
Ko Taranaki te maunga, ko Tangahoe ko Waingongoro ngā awa, ko Aotea te waka, ko Ngāti Ruanui, ko Ngāruahine ngā iwi.
Lynell is an intellectual property expert who has assisted clients in all aspects of trade mark protection, management and enforcement. She was the first Māori Patent Attorney in New Zealand.
She has acted for a diverse range of clients around the globe, including sole traders, start-ups, whānau, hapū, and iwi organisations in New Zealand, to multinational companies across North America, South America and Asia. Lynell is regarded as one of New Zealand’s leading experts on indigenous intellectual property (IP) law in New Zealand and IP in the Pacific. She specialises in advising Māori organisations on IP issues and is passionate about helping Māori navigate the IP system. In her experience, IP is seen as expensive and not in alignment with the Māori worldview. She is committed to bridging the two world views.
She currently chairs the Indigenous Rights Committee for the International Trademark Association. Lynell has also written advice for Māori on the Plant Variety Rights Act review in New Zealand and is co-author of the paper entitled Māori Interests and Geographical Indicators – Strategic Intellectual Property Management enabling Māori whānau development. In 2018, she was a member of the organising team for the first Ngā Taonga Tuku Iho conference.