Towards a right of preservation for traditional cultural

expressions: carving out a sui generis regime that

combines copyright and cultural heritage law
Introduction
Renewed focus upon the need to retain our cultural diversity in an age of
globalisation creates complex challenges about how to implement a legal regime
that adequately encourages the longevity of indigenous culture. The legal
response at the international level has been fractured with the relevant
organisations working separately to develop substantive measures that fall
within their respective jurisdictions. The World Intellectual Property Organisation
(WIPO) considers the intangible intellectual creations of indigenous culture
capable of attracting rights similar to those enjoyed by copyright authors. As a
result, the objective of intellectual property (IP) lawyers working under the ambit
of WIPO is focussed upon devising a framework for proprietary and permissive
rights over indigenous creations pursuant to existing IP regimes or through sui
generis law. The United Nations Educational Scientific and Cultural Organisation
(UNESCO) considers a more holistic approach in accordance with its mandate to
safeguard cultural heritage in all its forms. Indigenous expressions fall within the
broader category of intangible cultural heritage (ICH) and are the subject of
international conventions designed to establish global frameworks for heritage
protection and conservation, specifically the Convention for the Safeguarding of
the Intangible Cultural Heritage (ICH Convention).1 Notably, the purpose of
copyright protection differs significantly from the legal protection provided under
cultural heritage laws.
Traditional cultural expressions (TCEs) are an essential part of indigenous
cultural heritage and are particularly important for developing countries which
generally have a comparative advantage in cultural diversity. The impetus
behind the safeguarding of cultural heritage in developing countries is
additionally associated with the drive for development and consequently, the
need for some sort of legal protection regime is of dual importance as it is driven
by economic as well as cultural rationales. Harnessing cultural expressions in a
way that maximises the indigenous resources of developing countries is
regarded as a vehicle for driving sustainable development. This purposive
approach to framing the cultural expressions discussion is important when
considering the multi-faceted role they play in indigenous societies, particularly
those where the indigenous population has predominant control of the state.
Many developing countries are taking deliberate steps to implement holistic
policies that prioritise their indigenous culture by making culture a key part of
their countrys strategic outlook. These policy initiatives need to be
complemented by a legal framework that similarly functions to ensure that
cultural expressions continue to play an integral role in indigenous societies and
that the benefits of maintaining cultural diversity can be spread across the social
spectrum.

1 Convention for the Safeguarding of the Intangible Cultural Heritage,

MISC/2003/CLT/CH/14 (entered into force 17 October 2003).
1

Legal debates concerning TCEs have been mired in a rhetoric that focuses on the
need for protection, focusing upon the rights of the beneficiaries or custodians
of the TCE. However, the usage of this term differs according to the field of law
being navigated and context of the situation. The concept of protection for the
rights holder under copyright law has a far different connotation than the
protection provided under the laws of cultural heritage. Protection in the
context of cultural heritage law implies protection bestowed by the state, usually
to expressions or articles contained in heritage lists for the benefit of the public.
Terms applied to ICH such as safeguarding, preservation, promotion and
enhancement are similarly focussed upon imposing responsibilities on statebased entities to take measures to ensure the viability of cultural heritage. The
public listing protection bestowed under heritage Acts contrasts with the
protection of private rights the subject of IP law, which aims to prevent
misappropriation of the protected subject matter by virtue of it belonging to the
owner. Copyright seeks to protect against unpermitted reproductions of creative
works by designating such acts infringements of the author, in which case the
author is entitled to exercise private rights of compensation against the
perpetrator. In other words, copyright operates as a preventative right to allow
legal recourse against misappropriation. Applying such a right to indigenous
expressions would possibly conflict with the role of the state to preserve and
promote indigenous expressions where they are part of a countrys ICH. As
international support for legal protection of ICH gains traction, it is yet to be seen
how copyright protection of indigenous expressions may interplay with state
based mechanisms for protecting ICH.
This essay will argue that attempts to carve out a sui generis regime for cultural
expressions akin to only IP law are inadequate. A holistic legal regime should
apply to the regulation of cultural expressions that encompasses the private
rights inherent in copyright law in addition to the public rights of cultural
heritage law. The intrinsic cultural value of cultural expressions should be
recognised to ensure that the need to preserve TCEs is held paramount. Although
an international framework exists for ICH, the ICH Convention is drafted to
designate responsibilities upon signatory states to implement appropriate
measures to safeguard ICH as it sees fit. Nation states have considerable
flexibility to determine the domestic regime applicable according to their
priorities. This differs considerably from IP conventions which strictly set out the
minimum standards of protection to be implemented, although there is currently
no convention mandating IP protection of cultural expressions. Where countries
do decide to include cultural expressions as copyright material, the more
prescriptive measures pertaining to international IP obligations are likely to
override the less cohesive stipulations of cultural heritage conventions. This
essay argues that any IP rights over cultural expressions should be subject to
countervailing measures that will ensure the preservation of cultural expressions
is given priority. Doing so will recognise the changing paradigms of culture as
part of the economic lifeblood and intellectual commons of many countries and
ensure that diversity of cultural heritage is fostered as part of the public interest.
Furthermore, the discourse defining the cultural expressions paradigm should
shift from one of protection which insinuates an exclusionary situation, where
rights are used to prevent the actions of another, to one that highlights
preservation as being a right inherent in the nature of the work itself rather than
those seeking to exercise control over it.
2

Traditional cultural expressions

From Folklore to TCEs
The obvious and initial hurdle in attempting to carve out a regime for governance
of TCEs is the difficulty in encapsulating the material under a specific definition.
Until fairly recently interchangeable usage of similar terms such as folklore,
expressions of indigenous culture and intangible cultural property contributed
further to the disparate nature in which arguments for legal protection evolved.
Each of the terms arose out of a specific legal context and the multiplicity of
terminology is indicative of the fractured discourse driving the discussion of how
cultural expressions should be protected. Monika Dommann provides a
background of the inception of the term from an IP perspective, tracing its
emergence out of proposals for protection of folklore in the 1960s. 2 The drive
for protection for folklore initially originated from Africa and stemmed from a
consideration of how to protect its unique music and stories. The issue was first
raised at a conference in August 1963 held by UNESCO and the International
Office for the Protection of Intellectual Property (BIRPI). As developed countries
encouraged developing countries to accede to international copyright
conventions such as the Berne Convention, 3 developing countries lamented that
protection was given to copyright material exported by developed countries
whereas there was no protection for analogous material exported from
developing countries.4 This push for reciprocity of legal protection for works of
creative endeavour lead to discussions of how to integrate folklore into the
copyright laws of African countries. In the end, Tunisia was the only country to
include folklore in its Copyright Act of 1966. Other African nations omitted
specific copyright protection for folklore, effectively driving for a more integrated
approached that would align better with the status of TCEs in indigenous
societies and take into account the cultural value of the works. The original basis
for reciprocal treatment of TCEs was consequently seen as an inadequate
premise for a legal regime as it would not be in effective in encapsulating the
complex significance that TCEs have as a cultural asset to indigenous
communities.
Nonetheless, the drive for developing countries to embrace copyright laws
resulted in the drafting of the Tunis Model Law for Copyright in Developing
Countries (Tunis Model Law),5 finalised in 1967. These draft provisions reflected
2 Monika Dommann, 'Lost in tradition? Reconsidering the history of folklore and
its legal protection since 1800' in Christoph Beat Graber and Mira Burri-Nenova
(eds), Intellectual Property and Traditional Cultural Expressions in a Digital
Environment (Edward Elgar Publishing Limited, 2008) 3.
3 Berne Convention for the Protection of Literary and Artistic Works, Paris Act of
24 July 1971, as amended on 28 September 1979 (entered into force 9
September 1886).
4 Above, footnote 2, 9.
5 World Intellectual Property Organisation and United Nations Educational
Scientific and Cultural Organisation, 'Tunis model law on copyright for developing
countries' (1976) WIPO Publication 812(E).
3

international obligations and were designed to act as the framework upon which
developing countries could implement the obligations of the Berne Convention as
well as the 1971 revision of the Universal Copyright Convention. The Tunis Model
Law specifically included folklore in the copyright regime (although it does not
grant commensurate rights to the copyright owner). Folklore is defined in section
18 as:
all literary, artistic and scientific works created on national territory by
authors presumed to be nationals of such countries or by ethnic
communities passed from generation to generation and constituting one of
the basic elements of the traditional cultural heritage;
Neither traditional nor cultural heritage are defined. Section 6 [Works of
national folklore] vests the rights conferred under sections 4 [Economic rights]
and 5 [Moral rights] to be exercised by the competent authority. Competent
authority is defined in section 18 as the person(s) appointed by the Government
for the purpose of exercising jurisdiction of copyright. Sub-section 6(3) also
requires the authorisation of the competent authority for any importation or
distribution of any copies, translations, adaptations, arrangements or any other
transformations of works of national folklore. The provisions relating to folklore in
the Tunis Model Law are indicative of the post-colonial context in which copyright
law was imposed onto developing countries. Purporting to bestow copyright
rights in a Government agency is indicative of the paternalistic attitude that was
a hangover from the colonial past of many developing countries and a rejection
of indigenous autonomy. As a result the adoption of the Tunis Model Law was
limited due to its failure to recognise the sensitivities of developing a law that
adequately endorses the rights of the community to use of their folklore.
These deficiencies were acknowledged in a subsequent international framework
for laws regarding folklore, the Model Provisions for National Laws on the
Protection of Expressions of Folklore Against Illicit Exploitation and Other
Prejudicial Actions (1982 Model Provisions).6 Like the Tunis Model Law, the
1982 Model Provisions were again developed cooperatively between WIPO and
UNESCO and hence designed to encompass issues relating to IP and cultural
heritage protection within its terms. Commentary on the document explicitly
recognises that previous attempts to frame folklore as part of the package of
rights under copyright were unsuccessful, among other reasons, due to the
nature of copyright works being a form of individual creativity, while folklore is
the creative activity of a community. Consequently, copyright was described as
an inadequate form of protection for folklore in favour of a sui generis regime. 7
The scheme mapped out by the 1982 Model Provisions stipulates a more
permissive based approach, where the utilisation of folklore requires
authorisation of the community concerned or competent authority. Utilisation
is the publication, reproduction, distribution, public recitation, publication or
other communication of the folklore with gainful intent outside of the traditional
6 Model Provisions for National Laws on the Protection of Expressions of Folklore Against
Illicit Exploitation and Other Prejudicial Actions 1982 (United Nations Educational,
Scientific and Cultural OrganisationWorld Intellectual Property Organisation).

7 Ibid, pp 4-5.
4

or customary context.8 The exceptions to the authorisation requirement are far

broader than those normally applicable to copyright and include the purposes of
education, by way of illustration within the original work of an author, borrowing
of expressions for creating an original work and incidental use. 9 The definition of
folklore is given a more expansive meaning under section 2 to also include
tangible expressions such as folk art, musical instruments and architectural
forms.
Following the development of the 1982 Model Provisions, the then Global
Intellectual Property Issues Division of WIPO was established to identify new
beneficiaries of IP protection.10 It engaged in a series of fact-finding missions in
1998 and 1999 to consider local and regional needs for knowledge, culture and
innovation.11 Subsequently, the consideration of IP rights over TCEs entered
WIPOs agenda, resulting in the formation of the Intergovernmental Committee
on Genetic Resources, Traditional Knowledge and Folklore (IGC) in 2001. As WIPO
began to actively consult more with indigenous communities about the scope of
protection to be accorded to indigenous IP, the terminology shifted from folklore
to TCEs. Rosemary Coombe argues that the term folklore was inherently
unsuitable as it connotes primitivism, superstition, backwardness and archaic
knowledge rather than a living and evolving tradition. 12 She argues that the
description of folklore by UNESCO in its 1989 Recommendations on the
Safeguarding of Traditional Culture and Folklore 13 as tradition based, collectively
held, orally transmitted knowledge is not shared by all indigenous communities,
particularly for those that have embraced modernity. WIPO has since used the
term TCEs synonymously with folklore. Nonetheless, debates about terminology
demonstrate the difficulties in specifying an appropriate definition for the subject
matter of protection and how the term is used may reflect notions of colonialism
and patriarchy towards indigenous communities. It is no wonder then that the
IGC named defining the subject matter of protection as one of the most
fundamental challenges associated with the protection of TCEs. 14

8 Section 3.
9 Section 4.
10 Rosemary J. Coombe, 'First Nations Cultural Heritage Concerns: Prospects for
Protection of Traditional Knowledge and Traditional Cultural Expressions in
International Law' in Catherine Bell and Robert K. Paterson (eds), Protection of
First Nations Cultural Heritage (UBC Press, 2009) 247, 255-256.
11 These fact finding missions culminated in the WIPO report Intellectual
Property Needs and Expectations of Traditional Knowledge Holders in April 2001.
12 Above, footnote 10, pp 260-261.
13 Folklore (or traditional and popular culture) is defined as the totality of
tradition-based creations of a cultural community, expressed by a group or
individuals and recognised as reflectingits cultural and social identity; its
standards and values are transmitted orally, by imitation or by other means.
5

What is a Traditional Cultural Expression?

Although there is no settled international legal definition of TCEs, the latest Draft
Provisions for the Protection of Traditional Cultural Expressions 15 developed by
WIPO tentatively defines the term as:
any form of [artistic and literary], [creative and other spiritual] expression,
tangible or intangible, or a combination thereof, such as actions 16,
materials17, music and sound18, verbal19 and written [and their
adaptations], regardless of the form in which it is embodied, expressed or
illustrated [which may subsist in written/codified, oral or other forms. 20
The difficulty in pinpointing a definition for cultural expressions lies in its
potential to straddle various fields of law, particularly copyright and cultural
heritage. Defining TCEs requires a deep understanding of the concept of culture
and the particular aspect of culture deserving legal protection. The context in
which cultural heritage is created and preserved is important to its meaning and
the terminology will vary depending on the region and community from which
the material is generated.21 In arguing against the justification for protection of
TCEs as a form of art under IP law, Elizabeth Burns Coleman posits that any
human rights based right to culture under Article 27 of the Universal Declaration
of Human Rights (UDHR) for TCEs should recognise the fundamental role TCEs
play in social organisation and that they are more than just an artworks. 22
Positioning them as artworks arguably dilutes their cultural significance and
renders TCEs vulnerable to commodification. Determining the relevance of
14 Draft Gap Analysis, The Protection of Traditional Cultural Expressions,
WIPO/GRTKF/IC/13/4(B) REV (13-17 October 2008) (Consultation Draft) 3.
15 WIPO Document, The Protection of Traditional Cultural Expressions: Draft
Articles, WIPO/GRTKF/IC/28/6 (2 June 2014).
16 [Such as dance, works of mas, plays, ceremonies, rituals, rituals in sacred
places and peregrinations, games and traditional sports/sports and traditional
games, puppet performances, and other performances, whether fixed or
unfixed.]
17 [Such as material expressions of art, handicrafts, ceremonial masks or dress,
handmade carpets, architecture, and tangible spiritual forms, and sacred places.]
18 [Such as songs, rhythms, and instrumental music, the songs which are the
expression of rituals.]
19 [Such as stories, epics, legends, popular stories, poetry, riddles and other
narratives; words, signs, names and symbols.]
20 Annex, p 5.
21 World Intellectual Property Organisation Secretariat, Consolidated analysis of
the legal protection of traditional cultural expressions, Document prepared by
the Secretariat, 5th sess, UN Doc WIPO/GRTKF/IC/5/3 (2 May 2003) Annex 17.
6

culture to the debate on TCEs raises complex issues of how to value cultural
heritage as a resource.
Michael Brown notes that a shift in the way we conceptualise culture is underway
spurred on by the desire for ethnic nations to have enduring rights in their own
cultural productions, including the right to control the representations of their
ideas by outsiders.23 Brown notes the impact this may have upon the public
domain and how the erosion of public domain material is itself detrimental to
cultural productivity. Although Brown is critical of the misappropriation for
commercial gain of indigenous culture, he cautions against the use of intellectual
property regimes as a mechanism for resolving the perceived injustice due to the
deleterious impact such rights would have on the greater benefit in retaining
access to public domain material. Conversely, Rebecca Tsosie argues that First
Nations control over cultural representations is required to prevent social and
cultural harm, which is of greater damage that economic harm. 24 Tsosie argues
that culture is tied to issues of power and accordingly any attempt to regulate
expressions of cultural production may affect the maintenance of power relations
by opposing groups and the ability to exercise control over specific cultural
meanings. To substantiate this argument, Tsosie makes a polemical
demonstration of the misconceptions of Indian culture perpetuated particularly
by cowboys and Indian movies. It is through such vilifying representations that
Anglo-American culture perpetuates those same systems of dominance and
control used to colonise and destroy native culture. 25 The legal approaches to
regulate TCEs must be considered not only within the cultural context of the
specific indigenous community, but also against the repercussions regulation will
have upon culture itself and the predilection of lawyers to preside over a
paradigm shift from culture as an analytic category to a legal concept. 26
A corollary to the debate about legal regulation pertaining to culture is how the
definition of TCEs may potentially impact upon the right of those seeking to claim
a benefit under any legal regime. Christoph Antons argues that the difficulty in
defining culture leads to ambiguity about the intended beneficiaries of any
commercialisation of TCEs.27 Antons notes the difference that legal protection
plays in so-called settler societies such as Australia and Canada where
22 Elizabeth Burns Coleman, 'The Disneyland of cultural rights to intellectual
property: anthropological and philosophical perspectives' in Christoph Beat
Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural
Expressions in a Digital Environment (Edward Elgar Publishing Limited, 2008) 49.
23 Michael F Brown, 'Can Culture be Copyrighted?' (1998) 39(2) Current
Anthropology 193, 194.
24 Rebecca Tsosie, 'ReClaiming Native Stories: An Essay on Cultural
Appropriation and Cultural Rights' (2002) 34 Arizona State Law Journal 299.
25 Above, footnote 24, 311
26 Luis A Vivanco, 'Review of "Who Owns Native Culture?" by Michael F Brown'
(Pt Blackwell Publishing Ltd) (2006) 11(1) Journal of Latin American Anthropology
242.
7

indigenous people are a minority population in contrast to the increasing

relevant of ICH protection in Asia where many countries are grappling with
development issues post colonisation. Seeking cultural rights in settler societies
has been met with opposition in settler societies due to the relationship cultural
rights have with sovereignty and the perception that recognition of broader
cultural rights might lead to a push for greater self-determination. Seeking
protection for TCEs based on cultural rights policy would appear to undermine
the argument for IP rights as it would render TCEs subject to the reproductive
focus upon which copyright is based. The emphasis upon which rights discourse
should apply to TCEs is consequently important to determining the subject
matter to be recognised and accordingly how the legal regime for protection
should be framed.
Similarly the question of how to define traditional in the context of TCEs is also
a matter of contention. According to WIPO, the adjective traditional qualifies a
form of knowledge or an expression which has a traditional link with a
community.28 In defining traditional knowledge in the broad sense, WIPO defines
tradition-based as referring to:
knowledge systems, creations, innovations and cultural expressions which:
a) have generally been transmitted from generation to generation;
b) are generally regarded as pertaining to a particular people or its
territory; and
c) are constantly evolving in response to a changing environment. 29
WIPO describes TCEs as often being the product of inter-generational and fluid
social and communal creative processes, which reflect and identify a
communitys history, cultural and social identify and values. 30 However the
historic aspect of TCEs may not necessarily be a defining feature of the material.
Wend B. Wendland expresses the difficulty with using the term traditional as
TCEs may range from truly old and pre-existing materials that were once
developed communally or by authors unknown, through to their most recent
and contemporary expressions, with an infinite number of incremental and
evolutionary adaptations, imitations, revitalisations, revivals and recreations in
27 Christoph Antons, 'Traditional cultural expressions and their significance for
development in a digital environment: examples from Australia and Southeast
Asia' in Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property
and Traditional Cultural Expressions in a Digital Environment (Edward Elgar
Publishing Limited, 2008) 287, 289.
28 World Intellectual Property Organisation, 'Intellectual Property and Genetic
Resources, Traditional Knowledge and Traditional Cultural Expressions' (2012)
<www.wipo.int/edocs/pubdocs/en/tk/933/wipo_pub_933.pdf>.
29 WIPO, Traditional Knowledge Operational Terms and Definitions,
WIPO/GRTKF/IC/3/9, 20 May 2002 [22]
30 WIPO, Intellectual Property and Traditional Cultural Expressions/Folklore,
Booklet No 1, WIPO Publication No. 913, 5
8

between.31 Traditional may indeed be a redundant addition to the definition of

TCEs as the emphasis should instead focus upon the association of the
expression with indigenous culture. Martin A. Girsberger notes that while there is
no agreed terminology of the term, the general characteristics common to TCEs
that can be identified are:
a)
b)
c)
d)
e)

transmission from one generation to the next, rarely in writing;

consisting of the characteristic elements of a cultural community or group;
constant evolution;
creation by unknown or communal authors; and
creation as vehicles for religious and cultural expression, rather than
commercial purposes.32

Due to the difficulties involved in collating a definition that combines the

separate elements of traditional, cultural and expression, perhaps a holistic,
functional approach to the terminology is required. Cultural expressions are
regarded differently according to the national context and how they are treated
under any applicable domestic law. The changing use of this term is indicative of
the difficulties inherent in attempting to categorise a distinct part of indigenous
culture for the purposes of IP. Rather than focussing upon how to constitute a
definition from each of the distinct transient terms comprising TCEs, a purposive
approach that looks at what the matter to be legislated seeks to achieve will
more meaningfully frame that the legal regime for preservation. Such a
methodology will also guide in determining the ambit any such legal regime,
considering the difficulty in distinguishing TCEs from the broader field of
traditional knowledge.
Many commentators have argued that the distinction between TCEs and other
types of cultural property is artificial as it ignores the composite relevance of
indigenous culture and its fundamental linkage to the land. 33 Natalie Stoianoff
and Patricia Adjei have argued that the division of indigenous IP into the narrow
field of traditional knowledge which pertains to scientific and plant-based
material upon which a patent may be claimed and TCEs because of their
perceived alignment with copyright, designs and trade mark law is counterproductive as it does not reflect the totality of indigenous culture. 34 Traditional
31 Wend B. Wendland, '"It's a small world (after all)": some reflections on
intellectual property and traditional cultural expressions' in Christoph Beat
Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural
Expressions in a Digital Environment (Edward Elgar Publishing, Inc., 2008), 166.
32 Martin A. Girsberger, 'Legal protection of traditional cultural expressions: a
policy perspective' ibid.(Edward Elgar Publishing Inc.) 123, 127.
33 See for example Johanna Gibson, 'The lay of the land: the geography of
traditional cultural expression' ibid.(Edward Elgar Publishing, Inc.) 182.
34 Patricia Adjei and Natalie Stoianoff, 'The World Intellectual Property
Organisation (WIPO) and the intergovernmental committee: Developments on
traditional knowledge and cultural expressions' (Pt March 2013) (2013) 92
Intellectual Property Forum: journal of the Intellectual and Industrial Property
Society of Australia and New Zealand 37, 38.
9

knowledge and TCEs are interdependent and each respectively represents only a
part of the manifestation of knowledge for an indigenous community. Aligning
the regimes according to the arbitrary distinction of IP regimes may serve to be
detrimental to the recognition of legal rights for cultural property as it divorces
the subject matter from the geographical context which gives it meaning.
Ironically, while the scope of this essay is confined to TCEs, the limited focus is
admittedly a cause for consternation in any attempt to map out a legal regime
pertaining to cultural property.
The terminology used in this essay will abide by the international norms
discussed above and adopt the prevalent terms used in current debates while
acknowledging that such definitions may be insufficient in framing the discourse
on the issue. Despite the lack of certainty associated with the term TCEs, in the
absence of further consensus, the usage of this definition as developed by WIPO
will set the parameters for this essay as it seeks to navigate the potentially
competing fields of copyright and cultural heritage law. By complying with what
may inadvertently result in a normative framework for the division of TCEs under
copyright law and traditional knowledge under patent protection, this essay
counterintuitively conforms to the very categorisations it seeks to usurp.
However, in lieu of alternative unanimity in the field as to the scope of material
that spans copyright and cultural heritage law, the description of the
characteristics of TCEs noted above in addition to the tentative definition in the
IGC Draft Provisions will be used for illustrative purposes alongside the
simultaneous concession that the vernacular may be inadequate for mapping out
a comprehensive approach that takes into account the full spectrum of legal
issues associated with indigenous cultural rights.

Intellectual property protection

The literature on whether TCEs are appropriate for IP protection is vast. Ongoing
debates about the appropriateness of subsuming cultural material under AngloWestern IP regimes have raged since the emergence of folklore on the
international agenda. Many commentators point at the fallacy of using Western
proprietary based legal regimes to place controls over cultural material. 35 The
use of proprietary based mechanisms for preventing misappropriation of cultural
material has been regarded as commoditising cultural heritage leading many
academics to question whether such a result is advantageous, given that most
indigenous peoples are at a crucial stage of their development. 36 As Michael Jon
Andersen has cautioned, developing countries seeking to expand IP protection to
TCEs and folklore in the hope that such legal regimes may allow their peoples to
capitalise upon their cultural heritage should be wary of placing too many
controls upon folklore. Andersen likens the desire to use IP regimes to prevent
misappropriation of cultural material to the Cinderella story of cutting off part of
ones foot to fit the coveted shoe. With regard to oral narratives, the temptation
to confine TCEs within a particular legal framework may have unprecedented
repercussions upon the organic way in which narratives are woven across
35 See for example Christine Haight Farley, 'Protecting Folklore of Indigenous
Peoples: Is Intellectual Property the Answer?' (1997) 30(1) Connecticut Law
Review 1.
36 See for example Rosemary J. Coombe in footnote 10 above.
10

different cultures. Additionally, much loved fairy tales that are now part of the
public domain may also become subject to overly restrictive legal controls
impacting upon the current stable of material comprising the cultural heritage of
many different cultures. Such cultural consequences of IP law should also be
considered when questioning the often touted assumption that IP rights are
beneficial for development. Mira T. Sundara Rajan points to the impact, in
particular, that the Agreement on Trade-Related Aspects of Intellectual Property 37
(TRIPs) has had upon culture in developing countries. Rajan argues that TRIPs
imposes Western industrialised concepts, principles and standards of IP
protection on developing countries and since IP rules are subject to the general
mechanisms for dispute settlement and the enforcement of rulings at the World
Trade Organisation (WTO), the vision of culture embodied in TRIPs is potentially
coercive.38 In arguing against the need for strict economic copyright rights using
India as a case study, Rajan contends that the permissive approach of moral
rights is more aligned to the way in which TCEs are treated in Indian culture and
could more effectively be used to bridge the IP chasm that needs to be crossed
by developing countries. The ramifications that an introduced legal regime may
have upon culture and development should be at the forefront of policy makers
minds when devising any platform related to TCEs. This section will examine the
early attempts to apply copyright to TCEs, highlighting the main rationales
behind its unsuitability. Subsequently, the content of sui generis regimes will be
examined to critically assess how such regimes fail to take an integrated
approach in considering cultural heritage implications of protection, despite the
commoditisation of culture being one of the primary concerns of creating legal
regimes for TCEs that are analogous with IP.

Copyright
The early attempts to include TCEs under copyright law regimes faltered due to a
lack of global momentum for harmonisation. Although the Tunis Model Law was
developed in 1976 with provisions that sought to include folklore as part of the
copyright regime, it did not necessarily afford folklore the same economic and
moral rights as those granted to literary, artistic and scientific works.
Furthermore, there was no mention of folklore in the Berne Convention or TRIPs
(although protection was granted to works of an unknown authorship) hampering
any coordinated effort for a universal approach. This disconnect and failure to
understand the intricacies of TCEs may have contributed towards the decision by
many countries to omit folklore or TCEs from their copyright implementation
obligations under international agreements. Folklore is included in the copyright
law regimes of only a handful of countries, such as Tunisia and Vanuatu. In
contrast, a questionnaire published by WIPO of national experiences with the
1982 Model Provisions found that many countries have used them to some
degree in establishing their legislation, including Namibia, Mozambique, Mexico,
37 Annex 1C of the Marrakesh Agreement Establishing the World Trade
Organization, Signed in Marrakesh, Morocco, Uruguay Round Agreement (signed
and entered into force 15 April 1994) ('TRIPs').
38 Mira T. Sundara Rajan, Developing countries and the international copyright
regime: The neglected issue of cultural survival (Master of Laws Thesis,
University of British Columbia, 1999) <https://circle.ubc.ca/handle/2429/9730>.
11

Sri Lanka and Vietnam.39 However, the WIPO findings also noted that there
seemed to be little practical experience with implementation of the provisions
and the TCE regimes in many countries were not functioning effectively in
practice. The practical realities of imposing a complex legal regime on matters of
cultural heritage highlight the difficulties in bringing such material under a
legislative umbrella. This is particularly the case where the underlying legal
principles of the law being replicated have been espoused in response to an
entirely different policy situation.
Attempts to fit TCEs under copyright regimes have been likened to trying to fit a
square peg into a round hole.40 The defining feature of economic copyright rights,
to afford proprietary rights for exploitation of copyright material, is regarded as
alienating to indigenous culture. Joseph Githaiga describes how the defining
features of copyright law and its requirements for originality, material form, a
limited term and individual authorship is deficient for protecting TCEs. 41 At the
core of the debate is the fact that TCEs are communally based derivative
products that evolve along with the relationships indigenous people have to their
land, people and kinship with other living creatures that share the land.
Eurocentric individualism and economic order is evidently diametrically opposed
to indigenous holistic attitudes of life and nature. Githaiga argues that an
alternative discourse is needed for the protection of folklore derived from the
Maatatua Declaration on Cultural and Intellectual Property Rights of Indigenous
Peoples (Maatatua Declaration) drafted at the First International Conference
on the Cultural and Intellectual Property Rights of Indigenous Peoples held in
1993 in Aotearoa, New Zealand. Such platforms are regarded as progressive
advancements towards a deeper understanding of cultural rights that
conceptually embrace the universal significance of TCEs. As Githaiga also notes,
the developments in these areas are often tied with other rights being advocated
by indigenous people, such as the right for self-determination consistent with
their status as exclusive owners of their cultural and intellectual property. In
other words, the limitations of using copyright or indeed any other singular Anglo
or Eurocentric legal regime for regulating TCEs divorces the material from its
greater significance as an operational mechanism for culture.
However, other commentators argue that although less than perfect, a few
tweaks to the copyright system could assist in protecting TCEs against the
greater harm of misappropriation.42 Megan M. Carpenter believes that as IP rights
are the primary vehicle for protecting artistic, literary and scientific works
worldwide, segregating cultural material from the overriding schema denies
39 Above, footnote 21, Annex 60
40 Above, footnote 30, 150
41 Joseph Githaiga, 'Intellectual Property Law and the Protection of Indigenous
Folklore and Knowledge' (1998) 5(2) Murdoch University Electronic Journal of Law
http://www5.austlii.edu.au/au/journals/MurUEJL/1998/13.html.
42 See for example Megan M. Carpenter, 'Intellectual property law and
indigenous peoples: adapting copyright law to the needs of a global community'
(2004) 7 Yale Human Rights and Development Law Journal 51.
12

indigenous peoples a powerful shield and sword for enforcing their rights. 43 In
other words, despite being developed in an alternate Western context, copyright
law, together with trade secrets law, can and should be assumed universally as
the most effective mechanisms for protecting all cultural content. Similarly,
Cathryn A. Berryman argues that copyright can act as the protector of cultural
creations by immunising the creation from distortion, inaccuracy and
misattribution.44 By requiring the authors consent, Berryman argues that the
author can act as a self-controlling policeman of the nations culture. Berryman
appears to discard the notion that existing legal regimes fail to embody cultural
elements by pointing out that production of copyright material is often supported
by state cultural bodies with the intent that such material may eventually enter
the public domain.45 Similarly, moral rights allegedly function as the states
cultural protector by preserving authenticity. 46 By positing similar arguments in
support of unfair competition and public domain laws, Berryman contends that a
scheme of domaine public payant, that imposes a fee for use of public domain
material could be used to provide the financial means for protection of cultural
heritage. In that respect, the state should consider expanding existing legal
regimes in order to encompass folklore which will in effect place greater
protections upon cultural creations. Berrymans argument for copyright
expansion advocates a state-centric approach to cultural protection with the
benefits eventually flowing to the creators of cultural material. However, states
may not be as amenable to endorsing an agenda that would require such a
demanding interventionist approach.
A particular issue with including TCEs under copyright is the preconception that
IP is a private rights based system. Allowing private rights over TCEs may
potentially diminish state based responsibilities, particularly towards ensuring
that there remains a wealth of material within the public domain. Robert K.
Paterson and Dennis S. Karjala argue that in characterising certain social
phenomena as private, the state may justify its lack of involvement, thereby
perpetuating inequities and inequalities. 47 Like Berryman, they argue that new
regimes of IP pertaining to TCEs are unnecessary. Although copyright and patent
rights are unsatisfactory for protection of TCES, Paterson and Karjala insist that
other Western laws such as contract, privacy, trade secrets and trade marks may
suffice in providing the desired level of protection. In maintaining that the
creation of a standalone regime for indigenous cultural heritage is redundant,
43 Ibid, 55.
44 Cathryn A. Berryman, 'Toward More Universal Protection of Intangible Cultural
Property' (1994) 1 Journal of Intellectual Property Law 293, 298.
45 Ibid, 298.
46 Ibid, 300.
47 Robert K. Paterson and Dennis S. Karjala, 'Looking beyond intellectual
property in resolving protection of the intangible cultural heritage of indigenous
peoples' (2003-2004) 11 Cardozo Journal Of International & Comparative Law
633, 656.
13

Paterson and Karjala point to the existing balancing mechanisms embodied in

democratic institutions that guard fundamental human rights and social values
for both indigenous and non-indigenous peoples. Adhering to the existing
jurisprudence on established legal principles avoids the need for claimants to
define their legal rights in terms of a pre-existing category of property rights,
avoiding charges of debasement and commercialisation. 48 As has been often
noted, IP rights themselves are often insufficient in protecting TCEs against harm.
While attention turned to the development of sui generis regimes of protection,
the early models sought merely to replicate analogous IP rights to TCEs, thus
ignoring cultural aspects of preservation and safeguarding.

Sui generis regimes

The development of a sui generis regime for traditional knowledge and TCEs has
often been touted as the most appropriate vehicle for legal protection. 49 Such
regimes have often focussed upon extending copyright and moral rights to
include TCEs. However, as WIPO has noted, it is difficult to draw a firm distinction
between sui generis and other forms of conventional protections. A number of
elements for sui generis protection could be conceived within the conventional IP
system, particularly with the addition of performers rights on the international
agenda following the drafting of the WIPO Performances and Phonograms Treaty
(WPPT) of 1996.50 Consequently a number of policy questions need to be
determined before committing to a dedicated sui generis regime. The 1982
Model Provisions were initially heralded as a first step towards a draft treaty for
TCEs and traditional knowledge by WIPO. In 1984 the Group of Experts on the
International Protection of Expressions of Folklore by Intellectual Property met to
discuss a draft treaty and, after concluding that such a measure was premature,
the matter faded from the international agenda. 51 International discussion has
progressed since with the IGC developing successive drafts on sui generis
treaties for TCEs and traditional knowledge respectively. The 28 th Session of the
Committee recommended that the second revision of the draft articles be
transmitted to the WIPO General Assembly meeting in September 2014. 52
Proponents of the treaties are hopeful that the treaties will be finalised within the
next few years.53
The Comparative Summary of Sui Generis Legislation for TCEs prepared by WIPO
in 2003 considered several different frameworks including: 54

the Tunis Model Law;

48 Ibid, 635.
49 For example see above, footnote 40, [99]-[101].
50 Above, footnote 21, Annex 7.
51 Silke Von Lewinski, 'The protection of folklore' (2003) 11 Cardozo Journal Of
International & Comparative Law 747, 754.
52 Above, footnote 15.
53 Above, footnote 33, 47
14

the 1982 Model Provisions;

the Bangui Agreement on the Creation of an African Intellectual Property
Organization (OAPI), as revised in 1999;
the Special Intellectual Property Regime Governing the Collective Rights of
Indigenous Peoples for the Protection and Defence of their Cultural Identity
and their Traditional Knowledge of Panama, 2000 and the related
Executive Decree of 2001 (Panama Law); and,
the Pacific Regional Framework for the Protection of Traditional Knowledge
and Expressions of Culture, 2002 (Pacific Regional Framework).

In seeking to include TCEs within the scope of IP law, these regimes expand upon
the standard features of copyright to include intangible works created by
communities for an unlimited term (except for the Bangui Agreement which
limits the term to 70 years after the death of the author). The tabular summary
of the provisions in each of the various regimes demonstrate disparities in
regional and global approaches to TCE and folklore protection. For instance, the
Pacific Regional Framework allows customary law to determine the resolution of a
dispute and the Panama Law states that the legislation does not affect rights in
relation to TCEs already in place. However the other documents are silent on any
reference to customary law. Although most sui generis frameworks allow for
some level of reciprocity, the inconsistent content of the various frameworks
introduce confusion into the way in which reciprocal treatment will be
recognised.
Commentators advocating for sui generis TCE and traditional knowledge regimes
similarly express caution over the implications of implementing a sui generis
regime. In considering an instrumentalist, development-oriented approach to a
sui generis regime, J. Janewa OseiTutu queries whether replicating quasi-IP rights
is a suitable mechanism for rectifying the power imbalance suffered by
indigenous populations in post-colonial societies. 55 OseiTutu postulates that the
potential distributive justice effects of a new IP right may distort the goal of
access to affordable knowledge as a public good with access to such knowledge
being in the public interest. Adoption of a protectionist economic model to
counter the detrimental impact of TRIPs may allow IP rights to intrude into
cultural spheres, to the benefit of industrialised countries. 56 The benefits of a sui
generis regime are questionable although OseiTutu acknowledges that there may
be some advantages in deploying IP for TCEs and traditional knowledge as
defensive mechanisms. For instance, in regions where there has been a constant
history of appropriation of traditional knowledge such as Africa there are
vehement proponents for stronger protection mechanisms based in and informed
54 WIPO Secretariat, Comparative summary of sui generis legislation for the
protection of traditional cultural expressions, WIPO/GRTKF/IC/5/INF/3, 28 April
2003, IGC Comm, 5th sess.
55 J. Janewa OseiTutu, 'A Sui Generis Regime for Traditional Knowledge: The
Cultural Divide in Intellectual Property Law' (2011) 15(1) Marquette Intellectual
Property Law Review 147.
56 Ibid, 160.
15

by local law and circumstances.57 Other academics question the efficacy of sui
generis regimes in light an absence of international collaboration to guard
against trans-border infringements. 58 Hence, developing consensus on the
parameters for protection of TCEs and identifying who the holders of the rights
created should be is an elusive task for which divergent treatment has been
afforded in frameworks drafted to date.

Copyright as commodification
By far the most prescient opposition to conceptualising TCEs as IP lies in the
argument that commercialisation will eventuate in an erosion of culture.
Rosemary Coomb has criticised IP protection of cultural expressions and
indigenous culture as an attempt to impose Western economic concepts upon
cultural traditions resulting in the commodification of indigenous cultural
heritage.59 Coombe, who has written widely on the topic, cautions against
attempting to reduce cultural material to IP rights as such simplification fails to
recognise basic indigenous rights as human rights. 60 The reification of TCEs
diminishes their cultural value and denigrates the special significance of the
expression. Christine Haight Farley refers to examples of how indigenous culture
has been decontextualized with respect to the reproduction of indigenous
Australian artwork for souvenirs.61 Farley regards the poaching of indigenous
symbols as an extension of the colonialist plunder mentality. Stripping TCEs of
spiritual meaning completes the invasion of indigenous heritage that started with
the theft of tangible land. In considering the political context of cultural rights,
Coombe argues that perceiving TCEs purely as cultural property disempowers
indigenous rights. TCE content straddles areas of cultural heritage law and IP,
and cannot be considered discretely. 62 Suspicious about the rationale of
extending IP rights to TCEs, Coombe queries the fragmented meaning of
protection which embodies conflicting meanings of commercialisation. She
notes that states have a long history of absorbing minority cultural traditions into
nationalised cultural patrimony. 63 As such the rhetoric of rights protection may
diffuse the debate into proprietary and possessive claims based on Western
57 Charles A Masango, 'Traditional knowledge and traditional cultural
expressions protections: prospects in Cameroon' (2014) 30(2) Information
Development 121.
58 Kilian Bizer et al, 'Sui Generis Rights for the Protection of Traditional Cultural
Expressions' (2011) 2(2) Journal of Intellectual Property, Information Technology
and Electronic Commerce Law 113.
59 Above, footnote 10.
60 Ibid, 253.
61 Above, footnote 34, 10-11.
62 Rosemary J. Coombe, 'The Expanding Purview of Cultural Properties and Their
Politics' (2009) 5 Annual Review of Law and Social Science 393.
63 Ibid, 405.
16

models of individual or corporate ownership. These controversies about how IP

protection for TCEs will affect the power dynamic of indigenous and nonindigenous peoples complicates the issue of how to regard cultural material,
bringing to the fore calls to avoid proprietising TCEs.
The reimagining of TCEs beyond mere cultural property has been welcomed by
cultural heritage scholars.64 The change in rhetoric from property to heritage is
regarded as consistent with the need to preserve and protect matters of cultural
inheritance to ensure they are passed on to future generations. The shift also
parallels global impetus for UNESCO to encompass intangible cultural heritage
within its mandate. As Craig Forrest states, all that we are is an expression of
the culture that we inherited, and which we may, or may not manipulate and
pass on to future generations. It is this notion of inheritance of receiving
something from one generation and possibly passing it on to the next, which
intuitively underpins the notion of cultural heritage. 65 As Forrest philosophises,
the way in which we conceive of and give value to cultural heritage determines
the way in which we protect that heritage. TCEs are pivotal in regulating social
structures in many indigenous communities. TCEs carry with them shared and
symbolic meanings and underlying social or kinship relations with the
community.66 Cultural heritage proponents have called for a multi-pronged
approach to recognising the intrinsic value of TCEs that is commensurate with
their moral value. The regimes associated with protection of TCEs in the IP sense
are concerned mainly with permissive rights over reproductions. WIPO
distinguishes between positive rights which allow exploitation and prevent
appropriation and defensive strategies that are more related to safeguarding
TCEs by controlling the ability of others to exercise control over derivative
works.67 IP rights have been criticised as inadequate for the purposes of
exercising the latter category of protection. In other words, copyright and
counterpart rights do not guard against prospective depletion of TCEs through
voiding them of meaning. WIPO is mainly concerned with protecting the
creativity and distinctiveness inherent in TCEs against unauthorised or
illegitimate use by third parties, including misappropriation, misuse,
misrepresentation and use that is derogatory or offensive. 68 Protection in this
perspective ignores the inherent social value of TCEs and their utility in
continuing traditional customs and sustaining social hierarchies. Creating a
mechanism for commoditising TCEs is also opposed on an ideological basis as
the Western, neoliberal premise of IP rights is seen as an imposition of the
colonialist structures that have enforced marginalisation of indigenous cultures in
64 Lyndel V Protta and Patrick J O'Keefe, ''Cultural Heritage' or 'Cultural
Property'?' (1992) 1(2) International Journal of Cultural Property 307
65 Craig Forrest, International law and the protection of cultural heritage
(Routledge, 2010), 3.
66 Tzen Wong and Claudia Fernandini, 'Traditional cultural expressions:
Preservation and innovation' in Tzen Wong and Graham Dutfield (eds),
Intellectual Property and Human Development (Cambridge University Press,
2011) 175, 179.
67 Above, footnote 21, Annex 11
17

the first place. Consequently a broader approach has been advocated that
envisions the grounding of TCEs within a cultural rights paradigm.

Cultural heritage protection

With the private, proprietary rights system being seen as increasingly insufficient
for providing holistic protection of TCEs, attention has turned to the rights
enshrined in cultural heritage documents to discern an appropriate method of
protection. However, as a regime having its legal basis in public rights, the
discourse of protection in the cultural heritage context shifts to that of
preservation and safeguarding in contrast to the preventative rights of IP law. 69
Safeguarding includes protection as one of a number of measures that will create
an environment conducive to the flourishing and production of cultural
heritage.70 The recognition of cultural heritage rights have their international
genesis in the Convention Concerning the Protection of the World Cultural and
Natural Heritage71 (World Heritage Convention) which established an
international register of world heritage sites to which contracting states
undertook to protect and conserve for future generations. As part of the
international regime, the convention also established a committee and fund for
resourcing the conservation projects to be contributed to by signatory nations.
The governing body of UNESCO was given ultimate responsibility for
administering the World Heritage Convention which primarily concerned sites of
tangible heritage. More recently, indigenous nations in particular have pushed
for greater recognition of intangible cultural heritage in light of the fact that
intangible heritage is often intertwined with the tangible. 72 These calls led to the
development of the ICH Convention and the Convention on the Protection and
Promotion of the Diversity of Cultural Expressions (CPPDCE). As the creation of
these documents progressed independently of the work being undertaken by
WIPO, IP did not feature prominently in the discussion of ICH leading to
accusations that the international community has shown no coherence in its
approaches to TCEs and lacks sufficient coordination. 73 Indeed the use of
disparate terminology for TCEs in the IP context and ICH in the cultural heritage
context may further add to the inconsistent approach taken in the separate
forums. The obvious overlap of subject matter prompted major international
bodies to clarify that IP regimes for TCES and cultural heritage regimes for ICH
68 Molly Torsen and Jane Anderson, 'Intellectual Property and the Safeguarding of
Traditional Cultures' (2010) Legal Issues and Practical Options for Museums,
Libraries and Archives, 18
<http://www.wipo.int/edocs/pubdocs/en/tk/1023/wipo_pub_1023.pdf>.
69 Above, footnote 21, Annex 3.
70 Above, footnote 65, 18.
71 Convention concerning the protection of the world cultural and natural
heritage, UNESCO (entered into force 16 November 1972) ('World Heritage
Convention').
72 Peter K. Yu, 'Cultural relics, intellectual property, and intangible heritage'
(2008) 81 Temple Law Review 433, 6.
18

can co-exist without conflict.74 However, there are others that claim that the
underlying rights giving rise to the respective bodies of law are diametrically
opposed, meaning that inevitably the regimes will encroach upon each other. 75

Right to culture
Arguments for a right to culture under human rights are primarily based upon
Article 27 of the UDHR which prescribes for the right of participation in cultural
life:
(1) Everyone has the right to freely participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement
and its benefits.
(2) Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author.
These rights are reiterated in the Covenant on Economic Social and Cultural
Rights (CESCR) under Article 15:
(1) The State Parties to the present Covenant recognise the right of
everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which
he is the author.
Fiona Macmillan notes that these provisions have generated particular debate as
it is frequently argued that they support the conceptualisation of IP rights as
human rights.76 However, Macmillan professes that any such claims must be
tempered by the right to freedom of expression outlined in Article 19 of the
Covenant on Civil and Political Rights (CCPR) as well as the composite rights laid
out in the covenants and other international documents. The suggestion of public
domain rights within Articles 27(2) of the UDHR and 15(1)(c) of the CESCR also
serve to balance against the suggestion that a fundamental IP right is grounded
73 Christoph Beat Graber, 'Using human rights to tackle fragmentation in the
field of traditional cultural expressions: an institutional approach' in Christoph
Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional
Cultural Expressions in a Digital Environment (Edward Elgar Publishing, Inc.,
2008) 96, 97.
74 See for example Article 3(b) of the ICH Convention.
75 Fiona Macmillan, 'Arts festivals: Property, heritage or more?' in Kathy Bowrey
and Michael Handler (eds), Law and Creativity in the Age of the Entertainment
Franchise (Cambridge University Press, 2014) 197, 207.
76 Fiona Macmillan, 'Human rights, cultural property and intellectual property:
three concepts in search of a relationship' in Chistoph Beat Graber and Mira
Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a
Digital Environment (Edward Elgar Publishing, Inc., 2008) 73, 77.
19

in human rights instruments. Macmillan argues that IP claims should be viewed

in the context of the international framework of conventions developed by
UNESCO, in particular the ICH Convention, and finds that the international
system of IP rights are often in conflict with cultural rights. 77 Although the
UNESCO conventions envisage no conflict with IP laws and contain minimal
mention of IP rights, Macmillan posits that the process of commodification
inherent in the international copyright system is antithetical to cultural diversity
and self-determination.78 This is reflected in the framing of copyright within the
international trade system of the WTO and TRIPs which are designed to remove
national barriers and discriminatory treatment. Such measures potentially have a
homogenising effect upon culture.79 Pertinently Macmillan points to the right to
culture subsisting in the public domain and the need to develop the same
architecture for preservation of culture in the intangible space as that developed
for preservation of tangible cultural property. 80 How such rights are to be
deployed is, of course, a matter of contention.
Although there is general consensus that the international human rights
documents espouse a right to culture, the precise content of such a right is
unclear.81 The disparate nature of the international communitys approach to TCE
protection further confuses the application of human rights principles to TCE
regulation.82 Part of the difficulty with sculpting out a right to culture under
human rights is the evolution of the term culture from a narrow concept to a
broader process that includes components such as language, religion and
education.83 As a result, culture, in and of itself, has not been articulated as a
freestanding human right; instead it is commonly understood as an underlying
principal of human rights law with which other rights overlap. 84 However, in
accepting an expansive anthropological view of cultural rights and by examining
77 Ibid, 91.
78 Ibid, 80.
79 Ibid, 86.
80 Ibid, 95.
81 Janusz Symonides, 'Cultural rights: A neglected category of human rights'
(1998) 158 International Social Science Journal 559.
82 Above, footnote 73, 97.
83 Georgina Lloyd, The Safeguarding Of Intangible Cultural Heritage: Law And
Policy (Doctor of Philosophy Thesis, University of Sydney, 2009) 50
<http://ses.library.usyd.edu.au//bitstream/2123/7027/1/GL_LLOYD_2009_PhD_TH
ESIS.pdf>.
84 Marina Hadjioannou, 'The International Human Right to Culture: Reclamation
of the Cultural Identities of Indigenous Peoples Under International Law' (2005) 8
Chapman Law Review 201, 204.
20

the plethora of international documents available, Georgina Lloyd maintains that

the right to culture comprises seven aspects:
1.
2.
3.
4.
5.
6.
7.

Right
Right
Right
Right
Right
Right
Right

to
to
to
to
to
to
to

take part or participate in cultural life.

cultural identity.
religious belief and practice.
cultural development.
respect/tolerance.
education.
information.85

Lloyd argues that the existence of such rights scattered amongst international
documents are vital requirements for the safeguarding of ICH and support the
encapsulation of ICH protection within the cultural rights framework. In applying
cultural rights equally to all peoples, the right to safeguard cultural identity
should be a right available for all cultural groups even when such cultures are
different to the majority within a state. In analysing the purview of rights
comprising the right to culture as a human right, the essay suggests that the
right to preservation of ICH is an intrinsic part of the human rights framework
and the submergence of TCEs within the realm of private IP rights threaten the
ability of indigenous societies to take part in their own unique cultural life.

Intangible cultural heritage

Although TCEs cross the realm into ICH, the ambit of ICH is often considered to
be broader and encompasses matters of traditional knowledge. The definition of
ICH under Article 2(1) of the ICH Convention means:
means the practices, representations, expressions, knowledge, skills as
well as the instruments, objects, artefacts and cultural spaces associated
therewith that communities, groups and, in some cases, individuals
recognize as part of their cultural heritage.
Article 2(2) lists the manifestations of ICH as:
(a)
(b)
(c)
(d)
(e)

oral traditions and expressions, including language as a vehicle of

the intangible cultural heritage;
performing arts;
social practices, rituals and festive events;
knowledge and practices concerning nature and the universe;
traditional craftsmanship.

TCEs as are most likely to fall under the category of material listed in paragraph
2(2)(a) being folklore, (b) being performances of copyright material and (e) being
artistic works. Safeguarding for the purposes of the ICH Convention means
measures aimed at ensuring the viability of the intangible cultural heritage,
including the identification, documentation, research, preservation, protection,
promotion, enhancement, transmission, particularly through formal and nonformal education, as well as the revitalization of the various aspects of such
heritage. The operative clause of Article 11 require each state party to the
convention to take the necessary measures to ensure the safeguarding of the
intangible cultural heritage present in its territory. In doing so, the state should
collaborate and involve communities, groups and relevant non-governmental
85 Above, footnote 74, 51-56.
21

organisations and involve them actively in the management of ICH. 86 In listing

the other obligations upon state parties, the ICH Convention deploys the less
onerous terminology of shall endeavour in Article 13 [Other measures for
safeguarding] and 14 [Education, awareness-raising and capacity-building].
These measures include adopting a general policy, establishing a competent
body and generating education programmes for safeguarding ICH, among other
initiatives. The remainder of the ICH Convention is dedicated to establishing
international administrative structures for listing of matters of ICH at the
international level. Although cultural heritage law is often regarded as giving rise
to public rights to enjoy in protected material, the ICH Convention does not
purport to grant particular rights for the purposes of ICH or strong claims to
cultural property.87 Rather, it obliges state signatories to establish domestic
mechanisms to safeguard ICH, without prescribing what these duties entail.
This structure appears to be oblivious to the often fraught relationship between
the state and indigenous societies. Richard Kurin fears that placing the
responsibility upon states to establish a cultural body in order to oversee the
safeguarding of cultural heritage may result in a conflict between the state and
indigenous minorities. Having the government in charge of ICH activities could
create uneven relationships of power between cultural regulators and cultural
practitioners, where the latter might feel there was undue intrusion into the life
of their community. 88 There has been demonstrable reluctance by so-called
settler states to adopt the ICH Convention. For instance, Australia, Canada and
the United States (US) are not signatories, although the US is purportedly
reconsidering its position.89 Many perceive the lack of interest by settler
countries as a fear that increased resilience of cultural rights may lead to claims
of sovereignty. Marina Hadjioannou upholds that regardless of the legal
framework for protection, it is at the behest of indigenous societies themselves
to mobilise their own protection mechanisms for their own cultural survival. 90
States will, more often than not, exercise a selective promotion of indigenous
culture to benefit itself leading to dispossession of indigenous communities.
Hadjioannou maintains that indigenous peoples need to be in control of their own
movement and create their own forums for cultural expression to avoid
subjugation by that state.91 As a result, there has been a divergence in the way
86 Paragraph 11(b) and Article 15.
87 Christoph Antons, 'Asian borderlands and the legal protection of traditional
knowledge and traditional cultural expressions' (2013) 47(4) Modern Asian
studies 1403, 1425.
88 Richard Kurin, 'Safeguarding Intangible Cultural Heritage: Key Factors in
Implementing the 2003 Convention' (2007) 2 International Journal of Intangible
Heritage 10, 5.
89 Above, footnote 88, 10.
90 Above, footnote 84, 218.
91 Above, footnote 84, 228.
22

ICH is dealt with by settler and non-settler societies. Particularly in settler

societies, there is a general feeling of distrust of the government by indigenous
populations who have often suffered long histories of oppression at the hands of
the authorities.92 To further trust the government with responsibility for
maintaining their heritage may result in further disenfranchisement of the
indigenous population and be counterproductive to the cultural rights movement.
Despite professing to uphold the safeguarding of ICH, the convention does not
explicitly allocate private rights in the area to indigenous peoples. In continuing
the tradition of cultural heritage regimes, the ICH Convention designates the
state with responsibility and establishes the architecture for heritage listings.
With respect to TCEs, this does not resolve the cavities in protection for which IP
rights were criticised. Despite what measures a state may implement to
encourage safeguarding in the broad sense, these may be inadequate to guard
against saturation of the TCEs due to dislocation from their cultural context. To
avoid displacement of the right to culture subsisting in cultural expression, the
human rights associated with TCEs should also be recognised as private rights so
as to be capable of competing on the same field as IP rights. Dichotomising the
relationship by relegating IP rights to the private plane while cultural heritage
rights are ostracised to the public sphere encourages an incongruous approach
where the more defined doctrine, in this case IP law, has the capacity to
subjugate amorphous principles of ICH law. As Joseph Slaughter argues, the
power and prestige of the formal system of property relations which governs
intellectual property overwhelms the informal and traditional system of cultural
heritage protection.93 Consequently, this essay argues that the human rights
basis upon which a right to culture is founded should encapsulate a right to
preservation of TCEs that respects the continuation of the deployment of TCEs
within their traditional social context. Given the impotent expanse of the ICH
Convention for bestowing such a right directly in regards to TCEs, the foundation
for the right to preservation is more aptly contained in the composite UNESCO
and United Nations documents that firmly prioritise greater self-determination of
indigenous peoples. A combined interpretation of such documents foreshadows
the possibility of gleaning a corresponding private right to culture which is
underpinned by the individualistic ideology of international human rights.

Cultural rights protection of TCEs

Calls for greater representation at WIPO for indigenous involvement in drafting
TCE and traditional knowledge protocols have been mirrored by increased
empowerment of indigenous participation in other United Nations forums. The
promulgation of the ICH Convention was closely followed by the 2005 UNESCO
CPPDCE and the 2007 UN Declaration on the Rights of Indigenous Peoples (DRIP)
heralding an emergent establishment of a new international framework for the
92 Rosemary Coombe et al, 'Intellectual Property Issues in Heritage
Management' (Pt 2: Legal Dimensions, Ethical Considerations, and Collaborative
Research Practices) (2010) 3(1) Heritage Management 117, 120.
93 J. R. Slaughter, Form and Informality: An Unliterary Look at World Literature,
in R. Warhol (ed.), The Work of Genre: Selected Essays from the English Institute
(Cambridge, MA: English Institute in Collaboration with the American Council of
Learned Societies, 2011), 198-199.
23

protection of ICH.94 The CPPDCE sets out a number of guiding principles based on
human rights and sovereignty to encourage the manifold ways in which cultures
of groups and societies find expression. Importantly this convention encourages
greater involvement by the cultural industries in producing activities, goods and
services. Protection in the context of the CPPDCE means the adoption of
measures aimed at the preservation, safeguarding and enhancement of the
diversity of cultural expressions, with protect having a corresponding meaning
to adopt such measures.95 Article 6 allows states to adopt measures to protect
and promote diversity of cultural expressions within its territory, such as
measures to provide financial assistance, nurturing and supporting artists and
enhancing diversity in the media. Article 7 also obliges states to take endeavours
to encourage groups and individuals to create, produce, distribute, disseminate
and have access to their own cultural expressions. Access to diverse cultural
expressions from within their own territory as well as from other countries in the
world is also encouraged. Article 8 allows state parties to take appropriate
measures to protect and preserve cultural expressions that are under risk of
extinction or under serious threat.
The terminology used in the CPPDCE in framing the operational provisions uses
flexible terms such as may and shall endeavour. Like the ICH Convention, the
CPPDCE is framed to apply to state parties and encourages international
cooperation as well as establishing an international cultural diversity fund.
Although many of the elements in the CPPDCE are embodied in the ICH
Convention, it was felt that a separate convention was necessary to recognise
cultural identity as the product of cultural values, beliefs and traditions forming
the common heritage of mankind. These ideas arose out of the Mexico City
Declaration on Cultural Policies resulting from the 1982 World Conference on
Cultural Policies.96 Together with the ICH and World Heritage Conventions, the
CPPDCE forms one of the three pillars on promotion and preservation of cultural
diversity.97 In recognising preservation of cultural diversity as separate from the
need for safeguarding of ICH, UNESCO has highlighted that, although related,
measures to maintain diversity may differ from those involved in safeguarding
ICH. The CPPDCE is concerned with ensuring that the breadth of cultural heritage
material is sustained and not diluted in the face of the homogenising effects of
globalisation. Diversity is important to ensure sufficient representation by a
number of cultural groups so resources can be distributed across the spectrum.
Coupled with the ICH Convention, the principles underpinning the CPPDCE
continue to link issues regarding the cultural heritage of indigenous peoples with
that of self-determination. As greater contextualisation is given to indigenous
culture it becomes evident that the crux of the debate is tied to sovereignty and
a desire to reverse the displacement caused by colonisation. Consequently, a
rights-based framework is needed to ensure that cultural heritage protection is
94 Peter K. Yu, 'The competing objectives underlying the protection of intangible
cultural heritage' (2014) Parana, 2 <www.peteryu.com/parana.pdf>.
95 Article 4.
96 Above, footnote 83, 97.
97 Ibid, 81.
24

accorded as a public and private right. Such a regime is envisaged under the
DRIP.
The prominence of indigenous rights was further enhanced in 2007 with the DRIP
paving the way for greater prevalence of indigenous protocols. Although the
wording of the DRIP has been described as vague and aspirational rather than
obligatory and its drafters seemed more interested in providing a platform for
long-term dialogue rather than short-term objectives, 98 the emphasis of the
document is clearly predicated upon recognising the right to self-determination
of indigenous peoples.99 In arguing for the need to establish a National
Indigenous Cultural Authority in Australia, Terri Janke argues that Article 31 of the
DRIP unequivocally bestows rights for protection of cultural property to
indigenous peoples.100 However, due to inconsistencies in the wording of the
Article, the DRIP does not necessarily provide for IP rights in cultural material.
Article 31 of the DRIP states that:
Indigenous peoples have the right to maintain, control, protect and
develop their cultural heritage, traditional knowledge and traditional
cultural expressions, as well as the manifestations of their sciences,
technologies and cultures, including human and genetic resources, seeds,
medicines, knowledge of the properties of fauna and flora, oral traditions,
literatures, designs, sports and traditional games and visual and
performing arts. They also have the right to maintain, control, protect and
develop their intellectual property over such cultural heritage, traditional
knowledge, and traditional cultural expressions.
In taking effective measures to recognise and protect the exercise of these
rights, states should work in conjunction with indigenous peoples. 101 By
segmenting the right for indigenous peoples to maintain, control, protect and
develop their cultural heritage and TCEs from the right to maintain, control,
protect and develop their IP over such material, the DRIP stops short of
bestowing a right for indigenous peoples to have rights in IP. In other words, it
appears that the DRIP only bestows upon indigenous peoples the right to IP in
cultural heritage and TCEs to the extent that such rights exist. Presumably, the
granting of such rights will be at the compunction of the individual signatory
state and subject to domestic law. The substantive right, framed as to maintain,
control, protect and develop cultural heritage and TCEs, is not explicit as to how
such a right may take effect. Nonetheless, the DRIP provides an overarching
framework for empowering indigenous peoples to have greater control over their
cultural heritage.
98 Naomi Mezey, 'The Paradoxes of Cultural Property' (2007) 107 Columbia Law
Review 2004, 2013.
99 Article 3.
100 Terri Janke, 'Beyond Guarding Ground: A vision for a National Indigenous
Cultural Authority' (2009) <http://terrijanke.com.au/index.php/beyondguarding/>.
101 Paragraph 31(2).
25

The rights in Article 31 are complemented by the other rights in the DRIP such as
the right to practise and revitalize cultural traditions and customs (Article 11),
right to manifest, practise, develop and teach spiritual and religious traditions
(Article 12) and right to revitalize, use, develop and transmit histories,
languages, oral traditions, philosophies, writing systems and literatures, customs
and ceremonies to future generations (Article 13). States are obligated to take
effective measures to give effect to these rights. 102 Together with the rights
under Article 31, the DRIP articulates the need for sustaining the link between
indigenous peoples and their cultural heritage. Unlike the UNESCO conventions,
the DRIP employs a rights-based terminology to decree inalienable rights to
indigenous peoples whilst simultaneously obligating states to implement such
rights. This divergence in discourse from the state-centric approach taken in the
ICH Convention is a welcome manoeuvre. However, as a declaration, the
document does not necessarily have the same force as the UNESCO conventions
and as a UN document, sits outside of the administration of UNESCO and its
charter to promote cultural heritage. Consequently, there is the possibility that
signatories may take a lacklustre approach to observing the rights prescribed
under the DRIP, with limited recourse available to aggrieved communities or
individuals in the event of non-compliance. Regardless of the standing of the
DRIP as a declaration rather than a convention, the emergence onto the global
agenda of indigenous rights clearly paves the way towards a greater
commitment to fostering cultural heritage as a resource to be passed on for
generations. As part of the UNs mandate, the DRIP expands upon indigenous
issues as purely cultural issues, looking beyond the ambit of UNESCO. As the
DRIP brings to the fore the linkages between cultural heritage, land, education,
and self-determination, it consolidates issues that have been progressing
independently in several different forums. TCEs, like other indigenous issues,
span several topics and confining the discussion to a narrow legal field does not
adequately take into account the interwoven effect of indigeneity.

A new methodology for legal protection of TCEs

As the debates concerning how differing conceptions of protection should apply
to TCEs, this essay argues that it is time for a shift away from the previous
methodologies of protection which treated TCEs as a static resource by focussing
on protections for the rights-holder instead of the value to be derived from the
cultural product. As Michael F. Brown has suggested, perhaps a change in
discourse is needed to shift from the question of Who owns native culture? to
How can we promote respectful treatment of native cultures and indigenous
forms of self-expression within mass societies?.103 Similarly, this essay postulates
that rather than posing the question of How can TCEs be protected? policy
makers should instead be focusing efforts to resolve How can TCEs be preserved
within their cultural context? Indigenous rights advocates have argued for
pseudo IP rights to regain control over cultural material. However, the resultant
accusations of reification of cultural resources have revealed how commoditising
TCEs undermines their cultural value. The desire to extrapolate quasi IP rights to
TCEs also ignores fundamental shifts occurring worldwide due to the digital
102 See for instance paragraphs 11(2), 12(2) and 13(2).
103 Michael F. Brown, Who owns Native Culture? (Harvard University Press,
2003), 10.
26

revolution.104 Copyright content is frequently being regarded as a service. The

value of copyright material is increasingly being marketed as part of a packaged
product that is transient to the demands of consumers. Content platforms such
as Spotify and Netflix are changing the way we view modern culture. If advocates
insist upon TCEs entering this domain with its changing patterns of consumption,
this essay contends that the way to do so should be premised upon how TCEs
can be supported by holistic policy initiatives to encourage participation in the
services economy. Adhering to utilitarian justifications for copyright based on
incentive and economic reward are redundant in an era of consumer driven
culture.
However the overarching human rights framework is arguably more supportive of
the right to culture than the right to compensation. The conceptualisation of the
right to culture may be found in the obligation signatory states have to
implement appropriate measures pursuant to the CESCR. Article 2 of the CESCR
requires signatory states to take steps to the maximum of its available
resources, with a view to achieving progressively the full realisation of the rights
recognised in the Covenant by all appropriate means. Article 15(2) of the CESCR
formulates the concrete obligation for signatory states to take necessary steps
for the conservation, development and the diffusion of science and culture.
Janusz Symonides believes that among the measures which are crucial for the
implementation of cultural rights, in addition to legislation, the existence of
judicial remedies should be mentioned. 105 This reading contemplates the
potential for rights in the CESCR to be litigated. Such an interpretation may allow
a person aggrieved by an apparent inability to participate in cultural activities to
take action under the civil or common law systems in assertion of cultural rights.
With respect to TCEs the right to participate in cultural life may entail that such
persons should have the right to continue to practise such traditions, provided
that such activities do not cause harm to others or are themselves an
infringement of human rights. This essay suggests that the right to culture under
the human rights framework, as inclusive as the right to preservation of culture,
should further obligate the state to provide the mechanisms for such
continuation. Based on this interpretation, in bestowing the right to preservation
of TCEs as a right intrinsic to the material itself, the framework for legal
protection may oscillate between rights and responsibilities to be wielded by the
community or the state. While the community should have rights to continue to
practise TCEs as part of their culture, the application of a right to preservation of
TCEs would potentially allow a cultural institution to intervene, for instance, for
the purposes of a cultural mapping program, archiving or for education purposes.
While these purposes are generally carved out as exceptions from IP rights, the
limited exceptions to IP regimes could inadvertently limit the scope within which
operators can function. Consequently this essay argues that the preservation of
cultural heritage as a human right requires a rights-based mechanism to provide
104 Miriam Sahlfeld, 'Commercialising cultural heritage? Criteria for a balanced
instrumentalisation of traditional cultural expressions for development in a
globalised digital environment' in Christoph Beat Graber and Mira Burri-Nenova
(eds), Intellectual Property and Traditional Cultural Expressions in a Digital
Environment (Edward Elgar Publishing, Ltd., 2008) 256.
105 Above, footnote 81, 566
27

for flexibility and breadth in the strategies used to ensure TCEs are able to
continue and survive in their appropriate cultural context.

Conclusion
The concentration on IP and sui generis regimes predicated upon copyright for
tackling regulation of TCEs developed in response to concerns that TCEs have
been misappropriated. However, creating additional rights for custodians of TCEs
only allows the misappropriation to occur in different hands. In recognition of
TCEs as a cultural resource, the focus of legal protection for TCEs should be upon
the preservation of the resource for the benefit of maintaining and continuing
traditions in cultural heritage. Policy makers should seek to understand TCEs
prior to crafting together legal regimes that focus on one aspect of the problem.
While the UNESCO conventions on cultural heritage protection and the ICH
Convention in particular advocates safeguarding of ICH, the responsibility for
doing so is vested in the state. The conventions do not create a right in the
material itself to be safeguarded from annihilation. The more effusive wording of
the DRIP may assist in compounding a rights-based mechanism to be wielded by
indigenous communities and organisations. However, the DRIP is still far from
being a universally binding document and is subject to substantially varying
domestic interpretations. Hence greater consistency is needed by nation states
to develop holistic policies that provide integrated ways forward for supporting
indigenous rights in ways that protect and preserve cultural heritage and its
diversity. The benefit of TCEs derives from their continuance as part of a living
and continuing cultural heritage. It is by recognising the service that TCEs
perform and creating a legal regime that preserves the ability for TCEs to
continue this services function that the cultural value of TCEs can be maximised.

28

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