Key Challenges in Protecting Traditional Cultural Expressions: Insights from IGC WIPO

Across India and the world, indigenous and local communities hold living traditions – folk songs passed down through generations, intricate textile patterns woven with cultural meaning, ritual dances performed during sacred ceremonies. These are Traditional Cultural Expressions (TCEs), and their protection under international intellectual property law remains one of the most complex and unresolved challenges of our time. At the heart of this challenge sits the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which has been working since 2001 to build a legal framework capable of shielding TCEs from misuse. The IGC has, over decades of negotiations, identified several foundational issues that continue to block progress. Understanding these issues is essential for anyone studying IP law in the context of cultural heritage.

What the IGC is trying to achieve 🔗

The IGC was established in 2000 when WIPO member states recognised that existing intellectual property frameworks were simply not equipped to address the unique challenges posed by traditional knowledge and cultural expressions. As WIPO explains, TCEs are generally regarded by conventional IP systems as being in the public domain – free for anyone to use. This creates a serious problem. An indigenous folk song, for instance, can be adapted and copyrighted by a third party without acknowledging the originating community or sharing any commercial benefits with them. The IGC’s text-based negotiations, ongoing since 2010, aim to develop one or more international legal instruments to prevent exactly this kind of misappropriation.

The negotiations are far from simple. Decades of discussions have surfaced several stubborn issues that delegations have yet to fully resolve. These issues are not merely technical – they reflect deep differences in how different nations, communities, and legal traditions understand culture, ownership, and rights.

Issue 1: Defining traditional cultural expressions 🔗

The first and perhaps most foundational challenge is simply defining what a TCE actually is. Without a clear definition, it is impossible to determine what the legal instrument will protect. WIPO describes TCEs as tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated, or manifested – including traditional music, performances, narratives, names, symbols, designs, handicrafts, and architectural forms. However, this working description is deliberately broad and has not been formally adopted as a binding legal definition.

The IGC’s draft articles attempt to define TCEs as any forms in which traditional cultural practices and knowledge are expressed by indigenous peoples or local communities in a traditional context – including verbal forms, musical forms, expressions by movement, and tangible or intangible forms, or combinations of these. The Chicago Journal of International Law notes that the IGC is still finalising a widely accepted definition, which speaks to how politically and legally contested this foundational question remains.

The problem of the word “traditional” 🔗

One recurring sticking point within the definitional debate is the meaning of the word “traditional” itself. IGC Chair Wayne McCook identified the meaning of “traditional” as a key cross-cutting issue requiring resolution. Does “traditional” mean ancient? Does it require unbroken community transmission? What happens when a TCE evolves or adapts over time? Indigenous representatives have consistently argued against using a fixed timeframe as an eligibility criterion, precisely because TCEs are living, evolving expressions – not museum artefacts frozen in history. This tension between cultural dynamism and legal certainty is at the core of the definitional problem.

Issue 2: Identifying the rightful beneficiaries 🔗

Even if we can define what a TCE is, the next critical question is: who holds the right to protect it? This is the beneficiary question, and it has proven equally complex. As the International Work Group for Indigenous Affairs reports, while there is general agreement that indigenous peoples are the primary beneficiaries of TCE protection, significant disagreements persist about whether and how to include local communities, nation-states, or other entities.

TCEs are often collectively held – they do not have a single identifiable author in the way a novel or a patent does. The Library Copyright Alliance has pointed out that the idea of collective responsibility in indigenous culture does not map neatly onto conventional IP ownership concepts. Traditional copyright frameworks are built around individual authorship and fixed terms tied to an author’s lifespan. Applying these to a community-held, multigenerational expression immediately creates problems – who signs the licensing agreement? Who can authorise commercial use? Who can sue for infringement?

Trans-boundary communities and contested identity 🔗

The beneficiary question becomes even more complex when a TCE is shared across national borders. Several tribal groups and indigenous communities span multiple countries – a folk tradition might belong equally to communities in two or three different states. The IGC’s draft articles acknowledge the need for trans-boundary cooperation provisions, but no finalised mechanism exists yet. Additionally, draft text discussions at IGC sessions show that even the terminology of “indigenous peoples” and “local communities” remains bracketed – meaning member states have not reached consensus on who precisely these terms cover, and whether nation-states could claim beneficiary status over TCEs within their territories.

Issue 3: Objectives of protection – economic rights vs. moral rights 🔗

A third major issue concerns the purpose of TCE protection. What exactly should a legal framework achieve? The IGC negotiations reveal a fundamental tension between two types of protection: economic rights and moral rights.

Economic rights would allow communities to control the commercial use of their TCEs – authorising or refusing third-party reproduction, adaptation, or commercialisation, and potentially receiving royalties or other benefits. Moral rights, on the other hand, are non-commercial in nature. They protect the integrity of a TCE, prevent it from being used in a distorted or offensive manner, and require attribution to the originating community – even when no money changes hands.

WIPO clarifies that IP protection of TCEs can include recognising exclusive rights, moral rights, equitable compensation schemes, and protection against unfair competition. However, the precise balance between these forms of protection remains contested. Indigenous representatives at IGC sessions have repeatedly warned against frameworks that protect TCEs only against economic harm – arguing that cultural harm from the misuse of sacred expressions can be equally devastating, even when no commercial transaction is involved. A sacred ceremony being performed for entertainment purposes at a commercial event, for instance, causes harm that money cannot simply remedy.

The tiered approach 🔗

To navigate this tension, the IGC has considered a tiered approach to protection, where different categories of TCEs receive different levels of rights depending on their nature and how widely they are publicly available. Negotiations at the 33rd IGC session saw one alternative proposing exclusive rights for beneficiaries to authorise third-party use, while another maintained the tiered model differentiating between, say, a secret sacred ritual and a widely performed folk dance. WIPO has also proposed differentiating between sacred and secular TCEs, with sacred expressions receiving stronger protection – though what qualifies as “sacred” has itself not been defined in the draft articles.

Issue 4: Defining misappropriation and prohibited uses 🔗

Even if the what, who, and why of protection are resolved, the legal framework still needs to specify what actually constitutes illegal or unacceptable use of a TCE. This is the misappropriation question, and it sits at the heart of enforcement.

WIPO’s FAQ on traditional knowledge defines misappropriation as the copying, adaptation, or use of TCEs by unauthorised third parties. But in negotiations, delegations have disagreed on whether to use the term “misappropriation” or “misuse/unlawful appropriation,” with each formulation carrying different legal implications. The 33rd IGC session draft articles showed alternative provisions – one aimed at preventing misappropriation and “misuse/offensive and derogatory use,” and another framing the same concern differently. The word choices matter enormously because they determine the scope of what communities can legally object to.

The public domain problem 🔗

A closely related issue is the treatment of TCEs that are already widely known or publicly available. If a traditional design has been reproduced in textbooks, displayed in museums, or sold commercially for decades, can it still be protected? IGC deliberations have had to grapple with the treatment of publicly available or widely diffused TCEs – balancing the interest of communities in reclaiming control over their heritage against the interests of the public and researchers in accessing cultural material. There is also the question of retrospectivity: should a new legal instrument cover harms that occurred before it enters into force? No consensus has been reached on this either.

The broader challenge: fitting TCEs into an IP system not built for them 🔗

Underlying all four of these issues is a structural incompatibility. The global IP system was designed primarily around individual creation, fixed terms of protection, and commercial incentives to innovate. TCEs are collectively held, intergenerationally transmitted, and often inseparable from spiritual or community identity. As legal scholars have noted, conventional copyright cannot protect collective cultural expressions that developed over time without identifiable authors, and existing terms of protection tied to an individual’s lifespan are simply inapplicable to heritage that predates any living person.

India is particularly invested in these negotiations. WIPO’s publications note India as one of the countries advocating for stronger IP rights over traditional knowledge and cultural expressions, reflecting the country’s enormous diversity of indigenous communities, folk traditions, classical arts, and tribal heritage – all of which remain vulnerable to commercialisation without adequate legal protection. The gap analyses commissioned by the IGC confirm that existing protection regimes leave significant gaps, and that a new international instrument is needed to address them comprehensively.

Progress has been made. In 2024, WIPO successfully concluded a treaty on genetic resources and associated traditional knowledge – the first WIPO treaty to address the rights of indigenous peoples. TCE negotiations, however, remain ongoing, with member states continuing to work through the same foundational issues the IGC first identified over two decades ago.

What do you think? Given that TCEs are collectively held and evolve across generations, do you believe a single international legal definition of “traditional cultural expressions” is even achievable – or would a flexible, nation-specific approach better serve the diversity of communities involved? And when a sacred ritual is commercialised without consent, should the law prioritise economic compensation to the community, protection of cultural integrity, or both – and can any IP framework truly deliver the latter?

References

1. https://www.wipo.int/en/web/igc
2. https://www.wipo.int/en/web/traditional-knowledge/resources/faqs
3. https://www.wipo.int/edocs/pubdocs/en/wipo_pub_transition_9.pdf
4. https://cjil.uchicago.edu/print-archive/wipos-proposed-treatment-sacred-traditional-cultural-expressions-distinct-form
5. https://sdg.iisd.org/news/wipo-igc-refines-draft-articles-on-traditional-knowledge-cultural-expressions/
6. https://iwgia.org/en/world-intellectual-property-organization-wipo/5161-iw-2023-wipo.html
7. https://www.librarycopyrightalliance.org/wp-content/uploads/2009/07/issuebrieftce.pdf
8. https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_22/wipo_grtkf_ic_22_ref_facilitators_text.pdf
9. https://icmagazine.org/indigenous-peoples-wipo-call-respect-sovereign-rights-prevention-cultural-genocide/
10. https://www.ictsd.org/bridges-africa/news/wipo-member-states-advance-talks-on-traditional-cultural
11. https://www.wipo.int/edocs/pubdocs/en/wipo-pub-933-2020-en-intellectual-property-and-genetic-resources-traditional-knowledge-and-traditional-cultural-expressions.pdf
12. https://www.wipo.int/en/web/igc/gap-analyses