Safeguarding Traditional Knowledge and Traditional Cultural Expression Through Intellectual Property Systems
February 1, 2023
By Murphy Yanbing Chen
Traditional Knowledge (“TK”) and Traditional Cultural Expression (“TCE”) bear a record of the collective memories of indigenous people. They are stories not confined to writing. Instead, they are living, breathing, audiovisual narratives – intangible cultural heritage passed down from generation to generation. Even everyday practices such as drumming, weaving, tattooing, and storytelling bear artistic and historical value. They also provoke, invite, and ignite creativity and imagination for the modern audience while preserving, protecting, and inheriting from ancestral wisdom. Therefore, indigenous cultural materials are no longer collectibles that can be colonized, cataloged, and securitized as specimens; their immeasurable values to indigenous people and their allies are priceless.
On the one hand, the indigenous community treats their TK and TCE as community resources or communal wealth within the tribe. On the other hand, the legal world outside of these communities views TK and TCE differently. The conflicts between the “Western” legal model in protecting indigenous cultural expression and the indigenous folkloric model arise because of this fundamental conflict between the two distinct cultural value systems. Under the frameworks created by the World Intellectual Property Organization (“WIPO”), this article aims to review the Intellectual Property (“IP”)-specific legal measurements in TK/TCE comprehensively. It also highlights and partially explores the difference in the United States and Australian copyright laws with a few case studies of legal issues surrounding Aboriginal and Torres Strait Islander artworks in Australia.
The Western model utilizes international treaties, multi-national customary laws, IP laws, and contracts to establish defensive protection. Defensive protection is “a set of strategies to ensure that third parties do not gain illegitimate or unfounded IP rights.” Within the community, though, the legal efforts are for positive protection, which is “the granting of rights that empower communities to promote their traditional knowledge, control its uses, and benefit from its commercial exploitation.”
Article 1 of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, created by the WIPO in 2004, defines TK as knowledge with the following: know-how, practices, skills, innovations, and cultural expressions. Under these branches, the scope of TK includes a variety of subcategories, including biological diversity, health and traditional medicine, agricultural products, genetic resources, and plant breeding to folklore, textile, and more.
Article 3(2) of the ICIPGRTKF defines TCE as “various dynamic forms which are created, expressed, or manifested in traditional cultures and are integral to the collective cultural and social identities of the indigenous local communities and other beneficiaries.” By this definition, signs, symbols, artworks, and any authored materials made by indigenous people are TCE and part of the cultural heritage that calls for preservation.
Overall, the scope of legal protections, especially under the IP systems, is fluid geographically and contextually. They also depend on different IP laws and their compatibility with traditional materials. The three major types of IP laws—patent, trademark, and copyright—provide different levels of protection and rights. Despite how IP rights for TK/TCE exist and sometimes work well, some representatives in the indigenous community see IP laws as a lesser device in protecting their TK/TCE materials. Nonetheless, through the collective efforts of judges, lawyers, cultural institutions, tribal leaders and artists, IP laws progressed in the worldwide TK/TCE protection. Specifically, various TK/TCE documenting databases have official registration in their jurisdictions resulting from implementing IP laws. 
Copyright laws grant rights exclusively to authors and those who contributed to the creative process in making literary, musical, visual, dramatic, cinematographic, or audiovisual works. The scope of these rights under the Copyright Act of 1976 extends to works that exhibit a modicum of originality and are fixed in a tangible medium. Further, a creative work’s copyrightability limits the expression of an idea. Therefore, under the scope set forth by the Copyright Act, the eligibility for copyright or copyrightability of TK/TCE has three-tiers: 1) whether indigenous artists/artisans have the claim of their authorship matches the Copyright Act; 2) whether TK/TCE is based initially on the Copyright Act’s definition; and 3) whether TK/TCE is fixed in a tangible medium to be copyrightable.
Regarding the first two tiers, TK is a communal cultural asset that passes down from generation to generation through oral history, rituals, songs, dances, and skills. They are not “original” per se, as defined by the Copyright Act. TCE, too, mostly are artistic styles that indigenous artists inherited from their inter-tribal cultural memories. US copyright laws do not protect this specific type of TK/TCE. Instead, they are effective only for the “elements of that style to the extent that it incorporates original expression.” Similar to the US approach, the Australian Copyright Act of 1968 (amended in 2017) defines authorship as copyright ownership. Therefore, in Australia, an author is legally meant as someone who “wrote or produced the relevant expression, or ‘clothed the idea in form.'” Under this interpretation, copyright protection does not apply to the Aboriginal and Torres Strait Islander creatives in Australia who practice and preserve TK/TCE but have not participated in the creation of TK/TCE.
Nevertheless, regarding the third tier, most TK/TCE are cultural assets that have no fixed forms; they exist as intangible expressions. For example, the ethnographic wax cylinder recordings of indigenous songs and spoken word poems are intangible and formless without the recording machine. The machine is the “vehicle” that can fix the songs and poems into tangible mediums. Adhered to their “vehicle,” these songs and poems might satisfy the third-tier requirement for copyrightability. However, the authors of the 19th-century wax cylinder recordings are ethnographers, not indigenous artists. Therefore, the copyright granted for their protection would belong to the author, the ethnographer, not the original indigenous creators. As a result, the indigenous ancestral creators and their tribes were stripped of the credits they deserved. Additionally, other “fixed” TCE, such as face tattoos, face paintings, and sand carvings, encountered many obstacles in obtaining copyright protection given that their medium of fixation cannot easily fit into western conventions such as canvas, papers, etc.
Despite how meeting the criteria for exclusive copyright protection is challenging for many TK/TCE, their copyright infringement battles are not always as frustrating. This is because copyright infringement goes hand in hand with derivative works and fair use. The US copyright office defines a derivative work and its adaptation rights as the “work based on or derived from one or more already existing works.” And derivative work rights are often referred to as the adaptation rights. Specifically, the original creators can sue for copyright infringement because the copying or “derivative” works did not meet the standard for fair use or fair dealing. Since using copyrighted works is unfair, these derivative works result in copyright infringement. Under the fair use/fair dealing framework, many appropriation TCE precedents vary case-by-case, and the standard of fairness the court leans toward is typically fluid and highly contextual.
Many cases from the 1990s in Australia are copyright infringement cases, where defendants appropriated Aboriginal and Torres Strait Islander’s TCE artworks through the unfair usage of TCE for commercial purposes. These lawsuits’ similar patterns illustrate the intersection between TK/TCE and fair use/fair dealing. For example, the plaintiff in Bulun Bulun v. R&T Textiles Pty Ltd was an indigenous artist, John Bulun Bulun. He sued flash screen printers for copyright infringement because the defendant used his artworks printed in the Australian National Gallery catalog without first seeking permission. The court awarded the artist damages, further acknowledged the artworks’ communal interest of the Ganalbingu people, and even granted them the protection of the customary Aboriginal laws. As a result, “the court left the question of the community’s copyright ownership open, saying that there was no need to address the issue because Mr. Bulun Bulun had been granted relief through a permanent injunction.”
Copyright laws, therefore, are a helpful defensive mechanism for TK/TCE outside of the indigenous community. Despite the hard-to-meet three criteria for copyrightability, copyright laws are oftentimes effective in safeguarding TK/TCE as intellectual properties that are victims of illicit, exploitive commercial use. They also ensure the integrity of the indigenous creators by emphasizing the importance of authorship and author’s consent in making derivative use of the original work.
Another defensive device the IP system provides for TK/TCE is Trademark. Trademark laws in service of TK/TCE focus on indigenous symbols, signs, and other artistic marks from being misappropriated and commodified. Specifically, two types of marks that are on the frontline of TK/TCE’s battle against trademark infringement are certification marks and collective marks.
A certification mark is also a “guarantee mark” in a narrower sense. The trade association registers the mark and assures the public that the goods and products sold under the registered mark will meet specific quality standards. Within the board umbrella of the certification mark, the “sub-group” that serves the exact mark identification and quality verification purposes are certification stamps (hallmarks), private and public guarantee marks, the label of authenticity, and collaboration marks.
For TK/TCE, the certification marks that protect indigenous art in the early 2000s is the label of authenticity and collaboration mark. To illustrate, the “Boomerang Tick” is a label of authenticity. It is shaped like a hunting boomerang. The National Indigenous Arts Advocacy Association issued it for Australia’s Torres Strait Islander artists to help consumers identify and differentiate products made by indigenous and non-indigenous creatives. Overall, certification marks like the Boomerang Tick have dual purposes: 1) they can identify authentic goods and performances by crediting the certified indigenous creator and 2) they can help to educate consumers about TCE and its importance in promoting the indigenous cultural-economic ecosystem.
A collective mark “indicates membership in a union, association or other organization with shared interests in products and services.” Similar to the certification mark discussed above, the trademark holders of collective marks register them under an association or organization that sets self-regulated quality standards for goods and services. However, unlike certification marks, the use of collective marks is not required or subject to government regulation. For TK/TCE, the application of collective marks may achieve its protective purpose through individual licensing agreements with indigenous creators.
In sum, trademark laws offer three layers of protections. First, it provides defensive protection for the indigenous community against misappropriation and commodification of their symbols and marks. Second, it provides authenticity protection over false or misleading claims over the origin of TCE labels and marks. Third, it allows TK/TCE some market distinction and branding protections for indigenous-created goods or services.
A patent provides useful inventions with exclusive rights to “prevent or stop others from commercially exploiting the patented invention.” The key to determining the patentability of an invention depends on the prior art. Prior art, according to the United States Patent and Trademark Office, are “references or documents which may be used to determine novelty and/or non-obviousness of claimed subject matter in a patent application.” Novelty, Utility, and Non-Obviousness to a “person skilled in the art” are the three main requirements in any patent claim. All three must be satisfied for the USPTO to grant patent protection.
Novelty, the first element, is the most relevant and applicable to TK. Under 35 USC § 102 (a)(1), the novelty requirement does not apply to any invention published in the public domain or is publicly used, orally disclosed, or on sale. Therefore, a TK invention is not patentable if it is part of a museum’s physical or online digital collection in the public domain. For TK that may be patentable, it must also first meet the utility requirement. Hence, given the difficulty for TK/TCE to checkmark all the patentability requirements, cases of patentability for TK/TCE are rare to none. Plants breeding, genetic materials, traditional medicines, and dying techniques are a few examples of TK that do have utility purposes and can claim patent protection.
Therefore, instead of solely relying on the patent system, useful, patentable TK gains more protection from the World Health Organization, the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement, TRIPS), environmental laws, and getting registrations from international biotechnological databases.
Under the positive-negative protective framework, TK/TCE has gradually gained international recognition. However, the IP-legal tools in the US and Australia still have many drawbacks and incompatibilities with community interests in preserving TK/TCE. So instead, more alternative defensive mechanisms such as licensing, online user agreements, image tagging/ folksonomy features populated over the years. More importantly, working with indigenous communities worldwide by conducting tribal leader consultant programs and establishing digital databases are critical steps to reinforcing a positive framework from within the communities. The future of the TK/TCE landscape depends on collaboration and appreciation of the legacies and secrecies from both indigenous communities and their allies.
About the Author
Murphy Yanbing Chen grew up among 26 indigenous communities in Southwest Yunnan, China and she is partial Jingpo and partial Mongolian. She is also a DC-based professional oil painter and a JD student at the American University Washington College of Law. Intellectual property, property, and immigration laws are her favorite Art Law topics. Her career path focuses on advocating for creatives, migrants, and ethnic minorities.
Abeyesekere, Indunil, The Protection of Expression of Folklore in Sir Lanka, in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law In the Asia-Pacific Region 341-362 (Christoph Antons ed., 2009). https://www.amazon.com/Traditional-Knowledge-Expressions-Intellectual-Asia-Pacific-ebook/dp/B004XVLARO
Burri, Mira, Cultural Heritage and Intellectual Property, in The Oxford Handbook of International Cultural Heritage Law 460-482 ( Francesco Francioni & Ana Filipa Vrdoljak ed., 2020). https://global.oup.com/academic/product/the-oxford-handbook-of-international-cultural-heritage-law-9780198859871?cc=us&lang=en&
Fan, Yanxiao et al., Indigenous knowledge of dye-yielding plants among Bai communities in Dali, Northwest Yunnan, China, Journal of Ethnobiology and Ethnomedicine (2018), https://ethnobiomed.biomedcentral.com/articles/10.1186/s13002-018-0274-z#:~:text=The%20diversity%20of%20dye%2Dyielding,%2C%20and%20lianas%20(1).
Fisher, William, The Puzzle of Traditional Knowledge, 67 Duke L.J. 1512-1578 (2018). https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3939&context=dlj
Gibson, Johanna, Community Resources (2005). https://www.amazon.com/Community-Resources-Intellectual-International-Globalization/dp/0754644367
Girsberger, Martin A., Legal protection of traditional cultural expressions: a policy perspective, in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 123-149 (Christoph Beat Graber & Mira Burri-Nenova ed., 2008). https://www.amazon.com/Intellectual-Property-Traditional-Expressions-Environment/dp/1847209211
Hudson, Emily, Cultural Institutions, Law and Indigenous Knowledge: A Legal Primer on the Management of Australian Indigenous Collections, Intellectual Property Research Institute of Australia University of Melbourne (2006). https://atsilirn.aiatsis.gov.au/conferences/conf06/papers/Emily%20Hudson%20Final.pdf
Jaiswal, Yogini S. & Leonard L. Williams, A glimpse of Ayurveda—The forgotten history and principles of Indian traditional medicine, Journal of Traditional and Commentary Medicine (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5198827/#:~:text=India%20has%20a%20rich%20history,%2C%20Homeopathy%2C%20Yoga%20and%20Naturopathy.
Janke, Terri for World Intellectual Property Organization, Minding Culture Case Studies on Intellectual Property and Traditional Cultural Expressions (2003). https://www.wipo.int/edocs/pubdocs/en/tk/781/wipo_pub_781.pdf
Kansa, Eric, Indigenous Heritage and the Digital Commons, in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, 219-244 (Christoph Antons ed., 2009). https://www.amazon.com/Traditional-Knowledge-Expressions-Intellectual-Asia-Pacific-ebook/dp/B004XVLARO
Leistner, Matthias, et al., Analysis of Different Areas of Indigenous Resources, in Indigenous Heritage and Intellectual Property Genetic Resources, Traditional Knowledge and Folklore 49-149 (Silke von Lewinski ed., 2004). https://www.amazon.com/Indigenous-Heritage-Intellectual-Property-Traditional/dp/9041122184
Menell, Peter Seth et al., Intellectual Property in the New Technological Age, 2021 (Clause 8 Publishing). https://www.amazon.com/Intellectual-Property-Technological-Perspectives-Secrets/dp/1945555211/ref=sr_1_1?crid=ZGPVTLXRAUJ3&keywords=Intellectual+Property+in+the+New+Technological+Age&qid=1660695262&s=digital-text&sprefix=intellectual+property+in+the+new+technological+age%2Cdigital-text%2C84&sr=1-1
Robinson, Daniel F. , Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Research in International Environmental Law (2017). https://www.amazon.com/Protecting-Traditional-Knowledge-Intergovernmental-International/dp/1138955442?asin=1138955442&revisionId=&format=4&depth=1
- Emily Hudson, Cultural Institutions, Law and Indigenous Knowledge: A Legal Primer on the Management of Australian Indigenous Collections, Intellectual Property Research Institute of Australia University of Melbourne 1 (2006) (stating that cultural materials are “collection items that reproduce, record, or depict indigenous people, cultures, knowledge, and experience…it includes artistic outputs, and archival and research material”). ↑
- See Johanna Gibson, Community Resources 39 (2005). ↑
- Id. at 7. ↑
See Daniel F. Robinson, Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Research in International Environmental Law 351(2017). ↑
- WIPO, Traditional Knowledge and Intellectual Property—Background Brief, available at https://www.wipo.int/pressroom/en/ briefs/tk_ip.html (last visited Aug. 16, 2022). ↑
- Mira Burri, Cultural Heritage and Intellectual Property, in The Oxford Handbook of International Cultural Heritage Law 446 ( Francesco Francioni & Ana Filipa Vrdoljak ed., 2020). ↑
- WIPO, Intellectual Property and Traditional Knowledge, 12-15, available at https://www.wipo.int/edocs/pubdocs/en/tk/920/wipo_pub_920.pdf (last visited Aug. 16, 2022). ↑
- See Burri, supra note 6, at 465. ↑
- See Martin A. Girsberger, Legal protection of traditional cultural expressions: a policy perspective, in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 145 (Christoph Beat Graber & Mira Burri-Nenova ed., 2008) (WIPO IGC Secretariat announced that “it is unlikely that any single ‘one-size-fits-all’ or ‘universal’ international template will be found to protect TCE comprehensively in a manner that suits the national priorities, legal and cultural environment, and needs of traditional communities in all countries”). ↑
- WIPO, supra note 5. ↑
- See Girsberger, supra note 9, at 145 (discussing Tulalip Tribes of Washington State has commented that IP laws “does not reflect the primary motives of indigenous peoples for their practices and innovations in TK and TCE.”). ↑
- See WIPO, Documenting Traditional Knowledge—a Toolkit 30, 2017 (illustrating examples of TK documentation through registrations and databases). ↑
- Peter Seth Menell et al., Intellectual Property in the New Technological Age 517, (2021). ↑
- See Burri, supra note 6, at 480-482. ↑
- Id. at 480 ↑
- Id. ↑
See Hudson supra note 1, at 55. ↑
- Id. at 56. ↑
- See Burri, supra note 14, at 480-482. ↑
- Library of Congress, History of the Cylinder Phonograph, available at https://www.loc.gov/collections/edison-company-motion-pictures-and-sound-recordings/articles-and-essays/history-of-edison-sound-recordings/history-of-the-cylinder-phonograph/ (last visited Aug. 16, 2022). ↑
Judith Gray, Returning Music to the Makers: The Library of Congress, American Indians, and the Federal Cylinder Project, Cultural Survival (Dec., 1996) (outlining potential issues with recordings of religious, secrete, sacred, and TK-related medicine, peyote, social dance and songs) https://www.culturalsurvival.org/publications/cultural-survival-quarterly/returning-music-makers-library-congress-american-indians. ↑
See Burri, supra note 14, at 482. ↑
- US Copyright Office, Copyright in Derivative Works and Compilations, available at https://www.copyright.gov/circs/circ14.pdf ((last visited Aug. 16, 2022). ↑
See generally, Australian Copyright Council, Fair Dealing: What Can I Use Without Permission?, 1-2 (Dec. 2019) (discussing the Australian Copyright Law narrowed the scope of fair dealing exception to “research or study, criticism or review, parody or satire, reporting news, enabling a person with a disability to access the material, and professional advice by a lawyer, patent attorney or trademark attorney”). https://www.copyright.org.au/browse/book/ACC-Fair-Dealing:-What-Can-I-Use-Without-Permission-INFO079 ↑
Matthias Leistner et al., Analysis of Different Areas of Indigenous Resources, in Indigenous Heritage and Intellectual Property Genetic Resources, Traditional Knowledge and Folklore 81 (Silke von Lewinski ed., 2004). ↑
See Burri, supra note 22, at 476 ↑
See Leistner, supra note 28, at 87. ↑
Id. at 89. ↑
Terri Janke, WIPO, Minding Culture Case Studies on Intellectual Property and Traditional Cultural, 134 (2003). ↑
IP Australia, Boomerang Tick—Label of Authenticity, available at https://www.ipaustralia.gov.au/tools-resources/certification-rules/772566#:~:text=The%20Boomerang%20Tick%20%2D%20Label%20of,of%20Indigenous%20arts%20and%20crafts (last visited Aug. 16, 2022). ↑
Indunil Abeyesekere, The Protection of Expression of Folklore in Sir Lanka, in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law In the Asia-Pacific Region 352 (Christoph Antons ed., 2009). ↑
- See Menell, supra note 13, at 935. ↑
See Leistner, supra note 30, at 87. ↑
See generally, Trade Marks Manual of Practice and Procedure, IP Australia (Apr. 20, 2022) https://manuals.ipaustralia.gov.au/trademark/1.-what-is-a-collective-trademark-. ↑
See Terri, supra note 32, at 134. ↑
- See Burri, supra note 29, at 476. ↑
- Brigitte Vézina, Curbing cultural appropriation in the fashion industry with intellectual property, WIPO Magazine (Aug. 2019), available at https://www.wipo.int/wipo_magazine/en/2019/04/article_0002.html. ↑
- See Burri, supra note 40, at 477. ↑
- Id. ↑
- WIPO, Patents, available at https://www.wipo.int/patents/en/ (last visited Aug. 16, 2022). ↑
- See generally, Fenn Mathew, Understanding Prior Art and its use in Determining Patentability, United States Patent and Trademark Office 5 (last visited Aug. 16, 2022), https://www.uspto.gov/sites/default/files/documents/May%20Info%20Chat%20slides%20%28003%29.pdf. ↑
Condition for patentability, 35 U.S.C. § 102 (2012). ↑
- See WIPO, supra note 7, at 14-15. ↑
- See William Fisher, The Puzzle of Traditional Knowledge, 67 Duke L.J. 1517, 1512-1578 (2018) (discussing controversy on Amazon River indigenous community’s TK on plant Quassia amara’s patented medical compound Simalikalactone E). ↑
- See Yogini S. Jaiswal & Leonard L. Williams, A glimpse of Ayurveda—The forgotten history and principles of Indian traditional medicine, Journal of Traditional and Commentary Medicine 50-53 (2017) (addressing India’s protection on allied systems of medicine). ↑
- See Yanxiao Fan et al., Indigenous knowledge of dye-yielding plants among Bai communities in Dali, Northwest Yunnan, China, Journal of Ethnobiology and Ethnomedicine 1 (2018), https://ethnobiomed.biomedcentral.com/articles/10.1186/s13002-018-0274-z#:~:text=The%20diversity%20of%20dye%2Dyielding,%2C%20and%20lianas%20(1). ↑
Eric Kansa, Indigenous Heritage and the Digital Commons, in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, 239 (Christoph Antons ed., 2009) (discussing Creative Commons licenses, for example, can curb reusers/remixers from using indigenous contents for commercial or derivative use). ↑
Id. at 230 (mentioning YouTube, Instagram, Facebook, Google and other search engines have their internal users’ guidelines and systems of reporting, flagging, and account-terminating to keep abusive, sensitive contents in check). ↑
See generally, Diane Neal, Folksonomies: Introduction: Folksonomies and image tagging: Seeing the future?, 34 Bulletin of the American Society for Information Science and Technology 1, 7-11 (2008), https://asistdl.onlinelibrary.wiley.com/doi/full/10.1002/bult.2007.1720340104. ↑
- See generally, Alondra nelson, Announcing Tribal Consultation and Public Input Opportunities on Indigenous Traditional Ecological Knowledge in Federal Policy, White House (Mar. 7, 2022), https://www.whitehouse.gov/ostp/news-updates/2022/03/07/announcing-tribal-consultation-and-public-input-opportunities-on-indigenous-traditional-ecological-knowledge-in-federal-policy/. ↑
- See Kansa, supra note 53, at 231 (discussing scientists and researchers worldwide have built many foundational databases and digital platforms to locate and study indigenous TK/TCE such as Open Context, OCHRE project, WordPress weblog, Plone, Wikis, DRM, TKRC, and TKDL). ↑