Background Resources Commentary
			Shortcuts: View comments

1. Indigenous, local and other cultural communities justly cherish traditional knowledge (TK) and their traditional cultural expressions (TCEs) as part of their very cultural identities. Maintaining the distinct knowledge systems that give rise to TK, and sustaining the cultural life that finds expression in TCEs, can also be vital for their future well-being and sustainable development and for their intellectual and cultural vitality. For many communities, their TK and TCEs form part of an holistic world-view, and are inseparable from their very ways of life and their cultural values, spiritual beliefs and customary legal systems. This means that it is vital to sustain not merely the knowledge but the social and physical environment of which it forms an integral part. TK also has a strong practical component, since it is often developed in part as an intellectual response to the necessities of life: this means that it can be of direct and indirect benefit to society more broadly. There are many examples of important technologies being derived directly from TK. Similarly, the cultures and cultural expressions of Indigenous, traditional and other cultural communities have immeasurably enriched the cultural life of others worldwide, and have also been drawn on in many productions that have been commercially successful.

When others seek to benefit from TK and TCEs, especially for commercial advantage, this can lead to concerns that the knowledge or cultural expressions have been misappropriated and that the role and contribution of the customary holders of TK and TCEs have not been recognized and respected. One of the challenges posed by the modern age is to find ways of strengthening and nurturing the roots of TK and TCEs, even in times of social dislocation and change, so that their fruits can be enjoyed by future generations, and so that traditional communities can continue to thrive and develop in ways consistent with their own values and interests. At the same time, traditional holders stress that their TK and TCEs should not be used by others inappropriately, inequitably and without their consent and arrangements for fair sharing of the benefits; more generally, it leads to calls for greater respect and recognition for the values, contributions and concerns of Indigenous and other local and cultural communities.

So, profound hope for the future is mingled with deep apprehension. Indigenous peoples, local communities, and other cultural communities, often look upon their distinctive knowledge systems, their cultural heritage, and the ways of life and world view they represent, with deep pride and as an essential part of their continuing identity. They understandably look to others to show appropriate respect and acknowledgement for their distinctive intellectual traditions, for their cultural expressions, and for the values and beliefs that they embody. TK and TCEs are often maintained, shared and passed on between generations within the one community according to customary law and practices; these legal and cultural norms are in turn integral to the way of life and distinctive cultural identity of the community. They call for others to respect these customary norms. And these communities are not static or antique: they are living societies that continue to innovate and create. Traditional knowledge systems respond to changing needs and demands, and traditional creativity and cultural expression continue to evolve and to respond to diverse cultural and social influences.

2. Beyond these traditional communities, there is growing interest in their traditional knowledge and their cultural expressions – and this interest can take on a commercial or industrial character, such as when TK forms the basis of commercial products, or TCEs are used in design, in music or in directly commercial ways such as trademarks. From one perspective, at least some of this ‘interest’ may be considered beneficial and even valuable – it is an integral part of the way people learn from one another: research and development builds on the knowledge of others, and cultural expression responds to influences of others, the more diverse the better. But this can be exactly where apprehension and concern can arise: what might be a seen by a user as a useful research input, an exotic cultural influence, or a fashionable ethnic reference, may be seen by the original community as an unattributed, illicit or inequitable appropriation of their knowledge, their cultural expressions, even their very identity.

This kind of ‘use,’ ‘borrowing’ or ‘influence’ of TK and TCEs may be seen in legal terms as various forms of misappropriation, and may be an infringement of specific legal rights, including intellectual property (IP) rights (see, for example, the cases discussed by Indigenous lawyer Terri Janke in “Minding Culture – Case Studies on Intellectual Property and Traditional Expressions,” listed in the resources below). But the concerns run deeper than simple legal infringement, and can be expressed in terms of cultural survival. The Tulalip Tribes have stressed that misuse of TK can “cause severe physical or spiritual harm to the individual caretakers of the knowledge or their entire tribe from their failure to ensure that the Creator’s gifts were properly used, even if misuse was used by others outside of the tribe, or by tribal members who were outside of the control of customary authority. For this reason … misappropriation and misuse was not simply a violation of “moral rights” leading to a collective offense, but a matter of cultural survival for many indigenous peoples.”¹

This concern is especially acute when it concerns material of sacred or spiritual significance, where even the publication of the material, or its inappropriate use, can create severe offence. Sacred-secret materials of Indigenous peoples have been protected by the law concerning breach of confidence. Already discussed above is the case of Foster v Mountford, concerning the book “Nomads of the Australian Desert” which contained information that was imparted in confidence to the anthropologist Dr Mountford. The question of cultural survival came before the court, when members of the Pitjantjatjara Council successfully argued that the “revelation of the secrets contained in the book to their women, children and uninitiated men may undermine the social and religious stability of their hard-pressed community”. This case led to an injunction, on the basis of breach of confidence, to restrain publication of the book.

It’s because of this kind of case that the increasing, indeed world-wide, interest in the intellectual and cultural heritage, the traditional knowhow, and cultural expressions of Indigenous and other traditional communities can be a two-edged sword – never before has such a diverse array of traditional knowledge and cultural expressions been so widely dispersed and readily accessible, but this accentuates apprehension and concern that this will simply facilitate unauthorized, offensive, or unattributed use. There are many instances of TK holders choosing not to impart their knowledge to outsiders, because of a lack of confidence that this knowledge will be used appropriately and respectfully, that commercial and industrial benefits will be reaped from the TK without equitable sharing of benefits. While our present discussion is not directly addressing the issue of genetic resources, TK and genetic resources are often closely related to one another, as part of a community’s collective heritage and customary practices. Therefore similar concerns arise about genetic resources being used and appropriated, and benefits reaped from them, contrary to law and equitable practices; this can lead to unwillingness to grant access to such resources, for lack of confidence that they will be used fairly. For example, as noted above, a range of proposals have been tabled to deal with this concern in the international patent system.

So the challenge for the policymaker is how to promote socially beneficial, legitimate sharing and exchange of TK and TCEs, while also recognizing the rights, interests and concerns of the communities for which they form part of their very identity, and suppressing cases of misappropriation and illegitimate use. How to tackle this challenge at the international level is an area of active work and debate within WIPO, as in a number of other international forums and processes, with which WIPO works closely.



Traditional knowledge: what are the issues?

3. The wider significance of TK means that it arises in international discussions on a host of issues – food and agriculture; biological diversity, desertification and the environment; human rights, especially the rights of indigenous peoples; cultural diversity; and trade and economic development. TK has also moved towards the center of policy debate about IP. This leads to some challenging questions. Is the IP system compatible with the values and interests of traditional communities – or does it privilege individual rights over the collective interests of the community? Can IP bolster the cultural identity of indigenous and local communities, and give them greater say in the management and use of their TK? Has the IP system been used to misappropriate TK, failing to protect the interests of indigenous and local communities? What can be done – legally, practically – to ensure that the IP system functions better to serve the interests of traditional communities? What forms of respect and recognition of TK would deal with concerns about TK and give communities the tools they need to safeguard their interests?

With these questions in mind, WIPO started to work on TK in 1998. The first step was to listen directly to TK holders, learning of the needs and expectations of some 3,000 representatives of TK-holding communities in sixty locations around the world. Their insights and perspectives still guide WIPO’s work. The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (“IGC”) was established in 2001 as an international policy forum. WIPO’s work therefore ranges from the international dimension of TK and cooperation with other international agencies, to capacity building and the pooling of practical experience in this complex area.

What is traditional knowledge? Can the astonishing diversity of indigenous and local intellectual traditions and cultural heritage be bundled together into one single definition, without losing the diversity that is its lifeblood? Is it feasible or even desirable to find one form of international protection for TK? For that matter, what is it to “protect” TK: what is to be protected, and what is it to be protected from, for what purpose, and for whose benefit? These questions, important in themselves, lead to some deeper questions. What is valuable and distinctive about TK: what makes it “traditional”? How can those qualities gain greater recognition and legal protection beyond the traditional circle, indeed worldwide, but in a way that remains appropriate, useful and beneficial for the communities that maintain TK systems?

No single definition would fully do justice to the diverse forms of knowledge that are held by traditional communities; and no form of legal protection system can replace the complex social and legal systems that sustain TK within the original communities. One form of protection, but one form only, suppresses unauthorized or inappropriate use of TK by third parties beyond the traditional circle. This is the IP form of protection – recognition of the need to prevent third parties from misappropriating or misusing TK in certain ways. This has been achieved in many different ways in national laws – not necessarily by creating exclusive property rights in TK, although this approach has been taken in some cases. A common thread has been the need to refocus existing legal laws or to create new ones to clarify and strengthen the legal constraints against various forms of misuse or misappropriation of TK. There are strong calls to address this at the international level, including through the development of binding international law as an urgent priority; others have suggested that while international work and cooperation is essential, a fresh treaty may be premature.



Traditional cultural expressions: what are the issues?

4. A closely related process and debate concerns the misuse and misappropriation of traditional cultural expressions (TCEs) (or “expressions of folklore”). Indigenous and other traditional and cultural communities argue that traditional creativity and cultural expressions require greater protection in relation to IP. They cite a wide array of examples: indigenous art copied onto carpets, T-shirts and greeting cards; traditional music fused with techno-house dance rhythms to produce best-selling “world music” albums; hand-woven carpets and handicrafts copied and sold as “authentic”; the process for making a traditional musical instrument patented; indigenous words and names trademarked and used commercially.

WIPO first began examining the relationship between IP and the protection, promotion and preservation of TCEs/folklore several decades ago. It has an active program of policy development, legislative assistance and capacity-building in this area, in close coordination with work on TK. The relationship between TCEs and IP raises complex and challenging issues. Expressions of traditional cultures/folklore identify and reflect the values, traditions and beliefs of indigenous and other communities. Traditional cultural expressions, often the product of inter-generational and fluid social and communal creative processes, reflect and identify a community’s history, cultural and social identity, and values. While lying at the heart of a community’s identity, cultural heritage is also “living” – it is constantly recreated as traditional artists and practitioners bring fresh perspectives to their work. Tradition is not only about imitation and reproduction; it is also about innovation and creation within the traditional framework. Therefore, traditional creativity is marked by a dynamic interplay between collective and individual creativity. From an IP perspective, in this dynamic and creative context it is often difficult to know what constitutes independent creation. Yet, under current copyright law, a contemporary adaptation or arrangement of old and pre-existing traditional materials can often be sufficiently original to qualify as a protected copyright work.

The challenges of multiculturalism and cultural diversity, particularly in societies with both indigenous and immigrant communities, require cultural policies to maintain a balance between the protection and preservation of cultural expressions – traditional or otherwise – and the free exchange of cultural experiences. A further challenge is to balance a wish to preserve traditional cultures with a desire to stimulate tradition-based creativity as a contribution to sustainable economic development. Addressing these challenges provokes some deeper questions. To whom, if anyone, does a nation’s cultural heritage “belong”? What is the relationship between IP protection and the promotion of cultural diversity? Which IP policies best serve a creative and multicultural ‘public domain’? How, if at all, should current IP systems recognize customary laws and protocols? When is ‘borrowing’ from a traditional culture legitimate inspiration and when is it inappropriate adaptation or copying? Is there a relationship between the “preservation” of cultural heritage and the IP “protection” of TCEs, and, if so, what is it?

While the artistic heritage of a community plays significant social, spiritual and cultural roles, it can also, as a source of creativity and innovation, play a role in economic development. The use of traditional cultural materials as a source of contemporary creativity can contribute towards the economic development of traditional communities through the establishment of community enterprises, local job creation, skills development, appropriate tourism, and foreign earnings from community products. Here IP can play a role. By providing legal protection for tradition-based creativity, IP protection can enable communities and their members to commercialize their tradition-based creations, should they wish to do so, and/or to exclude free-riding competitors. The marketing of artisanal products also represents a way for communities to show and strengthen their cultural identity and contribute to cultural diversity. Here IP can assist in certifying the origin of arts and crafts (through certification trademarks) or by combating the passing off of fake products as “authentic” (through the law of unfair competition), for example. Communities have used their IP to exercise control over how their cultural expressions are used, and to defend against insensitive and degrading use of traditional works.

Traditional cultural manifestations are also a source of inspiration and creativity for cultural industries, such as the entertainment, fashion, publishing, crafts and designs industries. Many businesses today, small, medium and large, in developed and developing countries, create wealth using the forms and materials of traditional cultures. For example, vibrant publishing, music and audiovisual industries in India and Nigeria draw upon local cultural materials.



Current activities

5. WIPO’s work on TK and TCEs is diverse in character. Important elements include the report on the fact-finding consultations with holders of TK in 1998-1999, and a series of case studies, surveys of legal mechanisms, analytical tools, and practical capacity-building tools. But the recent focus has been on the work of the IGC, which is addressing the international dimension of the protection of TK and TCEs against misuse and misappropriation. Two sets of draft provisions have been developed and are currently under consideration; these aim to distil the essence of protection of TK and TCEs, as a basis for more concrete outcomes at the international level, and may in the future be the subject of ongoing consultation and debate.



Questions to consider

• Does IP misappropriate and inappropriately commodify traditional cultures, or can it enhance their integrity and appropriate cultural development and exchange in the Information Society, or both?
• Can the IP system recognize, preserve and enhance distinctive cultural identities in a globalizing international environment?
• Does protection of traditional cultural heritage necessarily restrict the free flow of information? What is the appropriate balance between cultural and intellectual exchange, and appropriate protection against misuse and misappropriation?
• How can the public interest in open access to information and cultural materials be reconciled with interests in the preservation of cultural heritage and respect for the concerns, values and customary norms of traditional communities?
• How can the IP system best support traditional communities when sharing their intellectual heritage in the Information Society, while maintaining confidence and trust that it will not be misappropriated or illegitimately used?

________________________

1 Statement of the representative of the Tulalip Tribes of Washington, document WIPO/GRTKF/IC/5/15.