Criminalisation of misappropriation of Traditional Cultural Expression (TCE)
An act can only be regarded as a crime if its exercise can cause harm to others. On that basis, many activities that usurp copyright and can possibly pose harm to the society have been criminalised. In relation to traditional cultural expression, model laws such as the World Intellectual Property...
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| Main Authors: | , |
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| Format: | Article |
| Language: | English English |
| Published: |
UPM Press
2015
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| Subjects: | |
| Online Access: | http://irep.iium.edu.my/46287/1/14_JSSH_Vol_23_%28S%29_Oct_2015_pg183-196.pdf http://irep.iium.edu.my/46287/4/46287-Criminalisation%20of%20misappropriation%20of%20traditional%20cultural%20expression%20%28TCE%29_SCOPUS.pdf http://irep.iium.edu.my/46287/ http://www.pertanika.upm.edu.my/Pertanika%20PAPERS/JSSH%20Vol.%2023%20(S)%20Oct.%202015/14%20JSSH%20Vol%2023%20(S)%20Oct%202015_pg183-196.pdf |
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| Summary: | An act can only be regarded as a crime if its exercise can cause harm to others. On that basis,
many activities that usurp copyright and can possibly pose harm to the society have been
criminalised. In relation to traditional cultural expression, model laws such as the World
Intellectual Property Organisation (WIPO) Draft Articles on the Protection of Traditional
Cultural Expressions (2011), WIPO-UNESCO (the United Nations Educational, Scientific
and Cultural Organisation) Model Provisions for National Laws on the Protection of
Expression of Folklore Against Illicit Exploitation and Other Prejudicial Action (1982) and
the South Pacific Model Law for National Laws (2002), as well as some national laws of
the United States of America and the Philippines have criminalised certain acts constituting
the misappropriation of traditional cultural expressions (TCEs). TCEs or expressions of
‘folklore’ are considered by many developing countries as part and parcel of their cultural
fabrics and their misappropriation as ‘harmful’ not only to the right holder’s interest but also
to the country. To that extent, the misappropriation of TCEs must be criminalised. This paper
commences with an examination of copyright protection over TCEs in Malaysia with a view
to assessing the adequacy, relevancy and efficacy of criminal sanction and ensuring effective
enforcement against misappropriation of indigenous TCEs. The article also examines
national initiatives on TCEs, particularly countries that have criminal provisions on certain
activities involving TCEs. To lend support for criminalisation, the article further revisits
the initiatives of WIPO and UNESCO. The article concludes that introducing some form
of criminal offences within the context of
copyright law is possible either through the
extension of the existing criminal provisions
or by having a special part dealing only with
misappropriation of TCEs. |
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