Safeguarding Traditional Knowledge and Traditional Cultural Expression Through Intellectual Property Systems

By Murphy Yanbing Chen

Introduction

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^[1] 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.^[2] On the other hand, the legal world outside of these communities views TK and TCE differently.^[3] 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.