Intellectual Property Rights and Traditional Form of Expressions
What are “Traditional Knowledge” and “Traditional Cultural Expressions”?
“Traditional Knowledge” refers to the knowledge systems of traditional communities, their practices, traditions and includes the intangible cultural heritage of indigenous and local community. Even though this definition of Traditional Knowledge is widely debated across the globe; the basic understanding of the term remains persistent. Another connotation given to the term is a narrow perspective which refers to the knowledge obtained through intellectual activity in a traditional context and includes, agricultural knowledge; scientific knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including related medicines and remedies; and biodiversity-related knowledge, etc.
“Traditional Cultural Expression” may be a specific form of depiction, tangible or intangible, by the folklore that is passed from generation to generation within their community. Tangible traditional cultural expressions are those which are incorporated in material object and may include productions of folk art, musical instruments and architectural forms. However, Intangible cultural heritage includes practices, representations and skills that communities recognize to be a part of their cultural heritage and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.
Why IP protection is necessary for “Traditional Knowledge” and “Traditional Cultural Expressions”?
Globalization has today prompted countries around the world to focus on protecting what distinguishes their culture from others. This includes “Traditional Knowledge” and “Traditional Cultural Expressions” which emphasize the distinct culture and heritage of their respective nations. Under the conventional Intellectual Property Systems, traditional knowledge and traditional cultural expressions are regarded as being in the “public domain” and thus free for anyone to use. The term “public domain” refers to elements of IP that are ineligible for private ownership and the contents of which any member of the public is legally entitled to use. ”Public Domain” does not necessarily mean things available for public to use, it means something other than “publicly available” – for example, content on the Internet may be publicly available but not in the “public domain” from an IP perspective. Availability of information in the public domain sometimes allows for misuse and misappropriation by corporations. For instance, any pharmaceutical company may utilize the medicinal knowledge, manufacture a drug and patent that drug and gain all sorts of benefits but not acknowledge the local community for doing so. Hence, local communities as well as the governments have demanded for protecting these under the realm of Intellectual Property that would provide economic gains for the beneficiaries (local communities).
Apart from the monetary benefits, recognizing these subject matters under the realm of Intellectual Property System would also provide the local communities as well as the governments to have a say in the usage and the mode of usage of these subject matters. Further, the moral or ethical obligations of the users would be well defined, thus fostering recognition for the local communities without unfair exploitation. However, it is essential to consider that unlike conventional IP subject matters, traditional knowledge or traditional cultural expressions involve complex legal issues as well as ethical and cultural sensitivities.
Intellectual Property system has two angles of protection of its subject matters. Firstly, ‘defensive protection’ that aims to stop people outside the community from acquiring intellectual property rights over traditional knowledge. Secondly, ‘positive protection’ that aims at granting and exercise of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation. Thus, it has become crucial to design a favorable framework at the international and national levels that protects these subject matters under the realm of intellectual property laws and prevents misappropriation and misuse and strikes a balance between intellectual property rights and public domain.
What are the actions taken at the International level?
The World Intellectual Property Organisation has formulated an expert committee known as the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), that has been working since two decades to bring out a legal instrument that would protect these subject matters under the Intellectual Property System. IGC has identified certain key issues and various member countries as well as observers have also submitted their responses.
In addition to administering and facilitating the IGC process, WIPO has been offering practical assistance and technical advice to enable stakeholders to make more effective use of existing IP systems and participate more effectively in the IGC’s negotiations. Beneficiaries of WIPO’s technical capacity-building activities range from governments to indigenous and local communities, research, scientific and cultural institutions, academia, non-governmental organizations and other members of civil society. The policy framework has been under process.
Further, various international forums have discussed the need to protect “traditional Knowledge” and “traditional cultural expressions”. These include agreements, conventions and treaties of World Intellectual Property organization (WIPO) and World Trade Organization (WTO); Convention on Biological Diversity (CBD) and Trade Related Aspects of Intellectual Property Rights (TRIPS), the work of WTO, International Undertaking on Plant Genetic Resources for Food and Agriculture (now the FAO International Treaty). Some other international treaties like: International Labor Organization, United Nations Commission on Human Rights, and United Nations Permanent Forum on Indigenous Issues have also made pertinent discussions in order to protect these subject matters.
Thus, the protection of “traditional knowledge” and “traditional cultural expression” has become crucial at both national as well as international level. It is essential to ascertain whether the existing IP legislation at the national levels or policy at the international level is sufficient to tackle the misuse or misappropriation of “traditional knowledge” and “traditional cultural expression”. Since these forms are passed from generation to generation, devising a favorable legal instrument that strikes a balance between intellectual property rights and public domain is crucial for this living body of knowledge and creative expression.
 WIPO, Glossary of Key Terms related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of World Intellectual Property Organization at 42, available at: https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_22/wipo_grtkf_ic_22_inf_8.pdf
 WIPO, “Intellectual Property Needs and Expectations of Traditional Knowledge”, WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) at 25, available at http://www.wipo.int/tk/en/tk/ffm/report/index.html.
 WIPO, supra note 1, at 40.  Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, Part III, 1982.  United Nations Education, Science And Culture Organization (UNESCO) Convention for the Safeguarding of the Intangible Cultural Heritage (2003)  WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, 2020, available at: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_933_2020.pdf  Ibid
 “Traditional Knowledge and Intellectual Property”, WIPO, 2016, Available at: https://www.wipo.int/publications/en/details.jsp?id=3858