by 
Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Gunjan Arora
Introduction:
The United Nations Declaration on the Rights of Indigenous Peoples (2007) acknowledges equal human rights of indigenous peoples against cultural discrimination. Under Article 31.1 of the Resolution, indigenous people have been accorded the right to “maintain, control, protect and develop…intellectual property over [their] cultural heritage, traditional knowledge and traditional cultural expressions.” This includes manifestations of their sciences, technologies and cultures, including oral traditions, literatures, designs, sports and traditional games and visual and performing arts among others. Further, Article 31.2 enjoins the respective States with an obligation to undertake effective measures which enable indigenous people to exercise their rights successfully.
The World Intellectual Property Organization (1985) defines “Traditional Cultural Expressions” and/or “Expressions of Folklore” as tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated, or manifested. These include traditional music, performances, narratives, names and symbols, designs, and architectural forms. These are said to be included as part of the broader connotation of Traditional Knowledge. Traditional Cultural Expressions (TCEs) mirror the identity and heritage of indigenous communities. They are integral to their socio-cultural identities, embodying know-how and skills, thereby transmitting core values and beliefs. Their preservation is key to the promotion of creativity, enhanced cultural diversity, and the preservation of their cultural heritage.
According to WIPO, the several ‘uses’ of TCEs may include commercial, industrial, customary, household, public health uses as traditional medicine and fair use for research and educational purposes. Currently, there is no specific clause under any international instrument that seeks to provide any form of protection, preservation, or conservation of these rights belonging to traditional communities. Although there is a prolonged and ongoing debate on the need to preserve or protect the Traditional Cultural Expressions belonging to an indigenous community as a community based right, such indigenous communities per se have yet not been given an opportunity to exercise their discretion with respect to the manner in which TCEs are to be exploited. This article seeks to explore the idea of preserving TCEs as a separate form of IP under a sui generis system. Adopting a sui generis system for protection of rights of TCEs and associated communities would consider identifying TCEs as an independent property right, capable of being enforced as an IP. TCEs can be recognized as a unique form of expression which can be a subject matter of protection under IP. They may be preserved as a community right based on the principle of access and benefit sharing. This would ensure that the communities cannot be subjected any form of unwarranted commercial exploitation or misappropriation.
Traditional Cultural Expressions: Crafted by WIPO
The discussion surrounding TCEs is not a recent one. For the past two decades, the WIPO has been working towards granting an intellectual property rights status to TCEs. According to Vargas (2022), the need to protect TCEs as an intellectual property for indigenous communities is justified on three specific grounds: value-based, harm-based, and traditional IP-based. The value-based justification is built on the idea that TCEs are both economically and intrinsically valuable for the community to which it belongs and hence, such communities must be duly rewarded. The harm-based justification assumes that the cultural extinction, devaluation and desecration could be the result of lack of protection. Further, the traditional IP-based justification equates TCEs with any other form of work protected under IP and is based on incentivizing creativity, granting autonomy, right to self-determination, and collective ownership of communities to which they belong. Of these three justifications, although the IP-based and value-based justifications may seem more obvious, the harm-based justification may be more compelling due to the issue of cultural appropriation, propertization of traditional culture, and commercial adaptation. Graber’s (2009)suggestion to legally recognize TCEs either under IP or as a sui generis regime resonates well with both the collective right of self-determination and the collective right of self-government as endorsed by the Declaration on the Rights of Indigenous Peoples (2007).
Although TCEs were initially included within the broader ambit of Traditional Knowledge, the need to grant TCEs protection as a separate form of IP gradually gained traction. The 12th Session of the WIPO Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore (2008) considered IP protection for TK. WIPO defined the term TK to include the following: agricultural knowledge, scientific knowledge, technical knowledge, ecological knowledge, medicinal knowledge, “expressions of folklore” in the form of music, dance, song, handicrafts, designs, stories, and art work; elements of languages, such as names, geographical indications and symbols, and movable cultural properties. Any item which was not resulting from intellectual activity in the industrial, scientific, literary, or artistic fields, such as human remains, languages in general, and other similar elements of “heritage” in the broad sense, was considered excluded from the definition of TK. Hence, during this session, expressions of Folklore were considered part of TK itself.
The WIPO Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore, (2010)in its 17th session resolved to arrive at a definition for the term “Public Domain” specifically in reference to protection of TK and Traditional Cultural Expressions (TCE) or Expression of Folklore. The Committee agreed to exclude TK and TCE from the definition of “Public Domain” in order to protect them against unjust enrichment and misappropriation. The Committee proposed introducing the “Traditional Knowledge Commons” in order to restrict overlapping public domains or knowledge sharing spaces. The Traditional Knowledge Commons would be a mechanism to provide for regulated access to TK. “Public Domain” would include publicly accessible information or intellectual property which does not otherwise infringe on any legal right or obligation of confidentiality. The differences between several phrases, including “publicly available and accessible,” “publicly available but not accessible,” “accessible but protected,” and “unprotected but not accessible” were discussed to distinguish publicly available TK from publicly unavailable TK. The latter, “unprotected but not accessible,” is the one which is not available without any monetary consideration or unjust enrichment. The UNEP Convention on Biological Diversity (2009) emphasized the need for seeking an identifiable Prior Informed-Consent (PIC) from indigenous communities, holding the TK as a prerequisite when accessing traditional knowledge in order to fulfill the objectives under the legal frameworks of benefit-sharing.
The 37th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (2018) resolved to protect the TCEs under IP. This was aimed at recognizing the rights of indigenous communities and preventing the unauthorized use or unwarranted misappropriation of such TCE by any third party seeking to exploit them. The Committee agreed to define TCEs to include both pre-existing materials from the past and contemporary expressions of traditional cultures together with their adaptation, imitations, revitalizations, revivals, and recreation. Further, it was decided by the Committee that if a cultural expression is considered a traditional creation, it must be identified with a living tradition and community, which still bears and practices it. It is to be associated with the idea of collective ownership as opposed to individual ownership. A traditional creation is meant to exhibit a shared sense of communal responsibility, identity, and custodianship.
The WIPO Diplomatic Conference on Intellectual Property and Genetic Resources, Traditional Knowledge and Genetic Resources associated with Traditional Knowledge (2024) recently mandated a compulsory disclosure in patent applications for inventions which are based on Genetic Resources (GR) and/or associated TK. Contracting parties signing the Treaty are obligated to disclose the country of origin or source or identity of the indigenous people or local community of the GR and/or TK. This recent requirement raises concerns over the absence of any legal instrument for preserving TCEs as cultural heritage belonging to indigenous communities hailing from WIPO member states. Several jurisdictions currently provide for protecting TCEs originating in their respective states under Copyrights, Trademarks and Geographical Indications. Further, the Beijing Treaty on Audiovisual Performances (2012) grants performers of folklore a right under Article 15.4 of the Berne Convention for the Protection of Literary and Artistic Works (1886) access to a mechanism for the international protection of unpublished and anonymous works, including TCEs. However, the lack of any dedicated legally enforceable mechanism leads to considerable exploitation of the rights of traditional communities.
Protection of Traditional Cultural Expressions Under IP: A Critical Analysis
WIPO’s Intergovernmental Committee debates have focused on the distinction between Protection or Preservation, on the one hand, and Safeguarding or Promotion, on the other. IP grants a positive exclusive right to use work one has created and a negative right which excludes any unauthorized engagement of such work, thereby averring any unjust enrichment and misappropriation. Johnsson and Tualima (2017) state that a protection-based mechanism for TCEs under IP may not be feasible as it is a community-based right. While the rationality of protection under IP is derived from the reward theory which incentivizes the individual creator, the idea of preservation would safeguard the rights of cultural creations belonging to indigenous communities.
A critical analysis of all forms of IP presents the following opportunities and impediments to protecting the rights of indigenous communities over TCEs under IP:
a) The Berne Convention (1886) deals with the protection of works and copyrights of their authors. According to the WIPO, copyright is an author’s right over his work. It is a legal term which is used to describe the rights that the creators have over their literary, musical, and artistic works. Works covered under copyrights include books, drama, music, paintings, sculptures, and films, among others. Therefore, it can be concluded that the law of copyrights and TCEs both deal with forms of literary, dramatic, musical, and artistic works. However, the difference lies in the nature of the intangible rights conferred. While copyright is a private ownership right, TCEs are community rights, handed down across generations, either orally or by imitation — it reflects the cultural or social identity of the said community. Commodification of original expressions by a third party in the form of derivative, adapted, or inspired works is a cause of conflict between the two. A claim for private ownership defies the very objective of TCEs. Once the term of copyrights comes to an end, the said work falls into public domain. However, traditional expressions, though available in the public domain, remain inaccessible. The essence of preservation and safeguarding TCEs is to ensure that commercial benefits are equally derived and shared with the communities which are recognized to have been associated with the origin of the said TCE. Preservation would safeguard against unwarranted and unauthorized claims of unjust enrichment. Nonetheless, the concept of the Collective Management Societies under the copyrights may be adopted for securing the rights of indigenous communities and their TCEs. A collective management society under the copyright system grants primitive rights to the right-holder to administer their copyrights,facilitating copyright clearance and negotiating license terms in consideration for economic rewards in the form of royalties for commercial exploitation by third parties. Every such community recognized as having a TCE may be provided the right to register their community as a collective community. Such registered collective communities may exercise the right to use and grant third party licenses. This would ensure access-and-benefit sharing of profits accrued from commercialization equally between the traditional community and the third party.
b) Trademark law deals with brand identification and distinctiveness among consumers with respect to goods and services. The purpose of trademarks is strictly commercial. Hence, trademark law may not be a feasible regime for protecting TCEs as cultural expressions are neither goods nor services. In fact, TCEs cannot be bound with commodification. They instead are nurtured as an experience by the community to which it belongs and is meant to be enjoyed equally by others. There is not meant to be any competition between the communities when allowing legitimate access of their TCEs to the general public. Consumerism is absent from the ethos of access and benefit sharing in a community. TCEs cannot be subjected to consumerism, rather they are to be preserved as an equitable opportunity of experience.
c) Geographical Indications (GIs) and TCEs are both community rights. While the latter deals with cultural expressions in the form of folklore, music and dance, performances or stories, meant to be experienced and enjoyed, the former deals with safeguarding rights of local communities engaged in manufacturing or producing goods attributable to specific geographical locations. An aspect of GIs, the registration of communities as a registered association or community capable of being recognized by way of a collective registration mark, may be implemented to preserve the rights of TCE communities. Every such TCE community may be registered under a collective association with a collective mark, equally distinctive and distinguishable to be identifiable with the community practicing it as cultural expression.
d) The Traditional Knowledge Digital Library Project (2011), an initiative in India, makes all existing TK in India available in a digital format. Establishing a similar digital library for all the TCE belonging to and coming from specific indigenous communities may also be a step towards its preservation. Such a digital library wouldsafeguard the community’s rights against misappropriation and unjust enrichment, preserve the objective of benefit-sharing, and bring recognition to indigenous communities credited for its origin.
Conclusion:
The idea of preserving the identity of indigenous communities practicing their agelong cultural expressions is to protect them against any unwarranted commercial exploitation. This may be legally enforced by recognizing TCEs as a sui generis regime. TCEs could be categorized as a separate form of IP. It may be identified as a community right where the right to administer the TCEs and its commercial exploitation vests with the collective management societies representing the interests of the indigenous community. In addition to this, creating a TCE Digital Library would further safeguard the rights of these communities against cultural appropriation, propertization of traditional culture, and unwarranted commercial adaptation. Extending the connotations of a community identity would be a step forward in preserving their right to self-determination and self-governance.
*Gunjan Arora is an Assistant Professor at Institute of Law, Nirma University.
