Understanding the Global Debate on Traditional Cultural Expressions (TCEs)

When a luxury fashion brand sells sandals inspired by centuries-old Kolhapuri craftsmanship for over ₹1,50,000 apiece – while the original artisans earn a fraction of that – something is clearly broken. This is not an isolated incident. It is one flashpoint in a much larger, long-running global debate: how should the world protect Traditional Cultural Expressions (TCEs) – the music, dances, crafts, oral narratives, and symbols that define the cultural identity of indigenous and local communities? The answer, it turns out, is deeply contested, legally complex, and urgently relevant.

What are traditional cultural expressions? 🔗

According to WIPO, TCEs (also referred to interchangeably as “expressions of folklore”) cover both tangible and intangible forms through which traditional knowledge and cultures are communicated or manifested. This includes folk music, traditional performances and dances, oral narratives, distinctive symbols and designs, handicrafts, and architectural forms. The term “folklore” itself was first coined in 1846 and has since been used in many national copyright laws across the world, though the preferred term in contemporary international discourse is “traditional cultural expressions.”

What makes TCEs legally distinct is their nature: they are typically collectively owned, passed down across generations (often orally), not authored by a single identifiable individual, and deeply tied to the living identity of a community. This places them in fundamental tension with conventional intellectual property law, which is built around individual authorship, originality, and fixed time limits for protection.

Why the debate exists: the core tensions 🔗

The global debate on TCEs is not abstract. It arises from a very real collision of interests – economic, cultural, and legal – between communities that originate these expressions and actors (corporations, artists, or governments) who use them, often without permission or compensation.

TCEs as cultural identity and living heritage 🔗

For indigenous and local communities, TCEs are not merely artistic products. They are expressions of identity, worldview, and spiritual life. A tribal dance in Jharkhand or a Warli painting from Maharashtra is not just art – it is a record of history, a communal bond, and often, a sacred practice. As legal commentators have noted, TCEs are “inalienable, collectively owned, and sacred” to the communities that create and sustain them – a character that existing IP frameworks, designed for individual commercial exploitation over a limited period, simply cannot accommodate.

TCEs as economic assets 🔗

At the same time, TCEs are economically valuable. They are traded, licensed, performed, and commercialized globally – generating revenue through tourism, fashion, film, music, and handicraft markets. The problem is that this revenue rarely reaches the communities that created and preserved these expressions over centuries. Cultural IP researchers point out that cultural appropriation – taking a TCE and repurposing it in a different context without authorization, acknowledgment, or compensation – has been a feature of global commerce since the industrial revolution, with indigenous communities consistently on the losing end.

In 2025, when Prada’s creative director acknowledged that their sandal collection was “inspired by traditional Indian footwear,” it crystallized the economic injustice: the brand profited enormously while Kolhapuri artisans – whose craft gives the design its value – received nothing. Since Prada never actually named the product “Kolhapuri Chappal,” no existing law was technically broken. That is precisely the problem.

The three justifications for TCE protection 🔗

Legal scholars have identified three core justifications for why TCEs need protection – and understanding them helps explain why this debate is so hard to resolve.

Value-based justification 🔗

TCEs are both economically and intrinsically valuable. The communities that created them and continue to bear, practice, and transmit them deserve to be duly rewarded – both financially and through recognition. This justification asks: if the market profits from a community’s heritage, why shouldn’t that community share in the gains?

Harm-based justification 🔗

This may be the most compelling argument. Without legal protection, TCEs are vulnerable to cultural extinction, devaluation, desecration, and commercial adaptation that strips them of meaning. When Bollywood borrows freely from tribal folk dances without credit or compensation, or when a multinational sells “ethnic-inspired” products sourced from a living tradition, the harm is real and measurable – for both cultural survival and community livelihoods. As analysts note, indigenous communities practicing unique cultures are steadily losing recognition and economic gains to commercial exploitation.

Traditional IP-based justification 🔗

This argument draws a parallel between TCEs and any other creative work that IP law protects. It asks: why should a film studio’s script receive copyright protection, but a community’s centuries-old oral epic does not? Under this view, TCE protection is grounded in incentivizing tradition-based creativity, granting communities the right to self-determination, and recognizing their collective ownership – values that IP law already claims to uphold for individual creators.

Why existing IP frameworks fall short 🔗

There is currently no international mandate for TCE protection, and national laws vary enormously in the level of coverage they provide. The existing IP toolkit – copyright, trademarks, and geographical indications – offers only partial and often inadequate solutions.

Copyright law typically requires a work to be original and fixed in a tangible medium. TCEs that are oral, anonymous, communal, or ancient fail these tests. An oral narrative passed down for 500 years cannot claim a “date of creation” or an individual “author” – two things copyright demands.

Trademarks and Geographical Indications (GIs) can help in some cases. India’s GI tag system has protected products like Darjeeling tea, Kancheepuram silk, and Kolhapuri chappals to a degree. But as the Prada case exposed, GI tags have significant loopholes – a brand can copy the design without using the protected name and face no legal consequences. Moreover, GIs protect goods tied to specific geographies, leaving TCEs that are not geographically fixed entirely unprotected.

The TRIPS agreement and the international impasse 🔗

The WTO’s TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), while requiring member states to strengthen many forms of IP protection, makes no mention of TCEs or folklore at all. This silence is not neutral – it has real consequences. A 2000 UN Human Rights Commission resolution found that TRIPS implementation creates actual or potential conflicts with the economic, social, and cultural rights of indigenous communities, specifically noting the reduction of communities’ control over their own cultural values.

The tension TRIPS creates is fundamental: it pushes a global IP framework premised on individual authorship and time-limited monopolies onto a world where much creative heritage is collective, ancient, and communal. Developing countries like India, which are home to extraordinarily rich TCE traditions and are also net exporters of cultural heritage, have consistently pushed for TRIPS amendments and for a separate, enforceable international framework – but progress has been slow.

WIPO’s intergovernmental committee: two decades of debate 🔗

The most significant international effort to address TCEs has taken place within WIPO’s Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore (IGC), which has been working toward a dedicated international legal instrument since 2001. The IGC’s sessions – attended by over 400 representatives from member states, intergovernmental organizations, and NGOs – have been the main forum for this debate globally.

A key conceptual dispute within the IGC has been whether the goal should be protection (granting enforceable legal rights to TCE holders) or merely preservation and safeguarding (documenting and maintaining cultural heritage without creating enforceable IP rights). This distinction matters enormously: preservation without protection does nothing to prevent commercial exploitation.

Another critical question the IGC has tackled is the role of the public domain. Under conventional IP logic, old, unregistered, and anonymous works fall into the public domain and become freely usable by anyone. The IGC’s 17th session in 2010 resolved to exclude TK and TCEs from the definition of “public domain” in order to protect them against unjust enrichment and misappropriation – a significant conceptual shift that challenged the foundational assumption that age alone determines free access.

The IGC has also proposed a sui generis (of its own kind) protection system: a dedicated legal framework for TCEs that does not try to fit them into copyright or trademark law, but instead recognizes their unique character – collective ownership, inter-generational transmission, and cultural rather than purely commercial value. WIPO’s Draft Articles have also proposed a tiered system distinguishing between sacred and secular TCEs, with sacred expressions receiving stronger protection – though even this distinction has generated considerable debate among member states.

India’s position and stake in the debate 🔗

India has a compelling stake in this issue. The country’s cultural wealth – from Madhubani paintings and Chhau dance to Bharatanatyam and Banarasi weaving – represents an extraordinarily diverse body of TCEs. Yet, India currently lacks dedicated sui generis legislation for TCEs, relying instead on copyright law, the Geographical Indications of Goods (Registration and Protection) Act, 1999, and trademark protections – all of which have significant gaps for TCE protection.

India has been an active participant in WIPO IGC negotiations and has, along with other developing countries, advocated for amendments to the TRIPS Agreement to better reflect the interests of communities that hold traditional knowledge and cultural expressions. India’s delegation has contributed proposals to the draft TCE text being negotiated at the IGC. However, the absence of a comprehensive domestic framework weakens India’s hand in both protecting its own TCEs and setting international standards.

The way forward: what the debate is really about 🔗

At its core, the TCE debate is about three intersecting questions: Who owns culture? Who benefits from it? And who has the right to decide how it is used? The difficulty is that these questions do not have easy answers in a world where culture flows across borders, where communities are diverse and internally complex, and where powerful economic interests benefit from the current legal gaps.

WIPO’s consolidated analysis has long noted that merely asking whether historic materials should be in the public domain applies an “inappropriate survival of the fittest” approach that does not serve the communities whose creativity and stewardship created these expressions in the first place. The debate, in this sense, is also about fairness – and about whether the international IP system, built largely to serve the interests of industrialized economies, can genuinely accommodate the rights of indigenous and local communities worldwide.

What is clear is that the status quo is increasingly untenable. Incidents like the Prada-Kolhapuri controversy, or Bollywood’s unacknowledged borrowings from tribal folk forms, are not aberrations – they are symptoms of a structural gap in global IP law. Whether the solution lies in a binding international treaty, strengthened domestic sui generis laws, or a reformed application of existing IP tools, the pressure for change is mounting – and the debate is far from over.

What do you think? If a centuries-old folk design can be legally copied by any brand simply by avoiding the product’s traditional name, does the law need a fundamental rethink – or is the public domain framework still defensible? And given India’s vast repository of TCEs, should Parliament enact a standalone law protecting them before the next controversy forces the issue?

References

1. https://www.wipo.int/edocs/pubdocs/en/wipo_pub_transition_9.pdf
2. https://www.livelaw.in/lawschool/articles/prada-kolhapuri-chappal-controversy-and-traditional-cultural-expressions-protection-312272
3. https://www.culturalintellectualproperty.com/post/how-can-the-fashion-industry-treat-indigenous-people-and-craft-communities-with-fairness-and-equity
4. https://journals.law.harvard.edu/ilj/2025/03/preservation-or-protection-the-intellectual-property-debate-surrounding-traditional-cultural-expressions/
5. https://www.vintagelegalvl.com/post/safeguarding-traditional-culture-expressions-an-analysis-on-ip-laws-and-policy
6. https://www.librarycopyrightalliance.org/wp-content/uploads/2009/07/issuebrieftce.pdf
7. https://cyber.harvard.edu/copyrightforlibrarians/Module_8:_Traditional_Knowledge
8. https://www.wipo.int/ip-development/en/agenda/flexibilities/resources/tk_gr_tce_f.html
9. https://orgs.law.harvard.edu/halo/2025/03/13/preservation-or-protection-the-intellectual-property-debate-surrounding-traditional-cultural-expressions/
10. https://cjil.uchicago.edu/print-archive/wipos-proposed-treatment-sacred-traditional-cultural-expressions-distinct-form
11. https://link.springer.com/chapter/10.1007/978-81-322-3580-4_8
12. https://www.wipo.int/edocs/pubdocs/en/tk/785/wipo_pub_785.pdf