Empowering Indigenous Voices in the Protection of Traditional Cultural Expressions

When a fashion brand drapes a model in patterns drawn from a tribal community’s sacred textile tradition – without credit, consent, or compensation – it does more than copy a design. It strips that design of its cultural meaning and turns it into a commodity. This is the reality that millions of indigenous and traditional communities face globally, and it is precisely why their role in shaping the legal protection of Traditional Cultural Expressions (TCEs) has become one of the most pressing debates in international intellectual property law today.

What makes TCEs different from ordinary intellectual property 🔗

TCEs – which include oral traditions, music, dance, rituals, symbols, designs, and handicrafts – are not created by a single identifiable author working at a fixed point in time. They emerge from community-oriented creativity, are transmitted across generations, and exist in continuously evolving forms within the communities that produce them. This is fundamentally different from how conventional IP systems – which require identifiable authorship, fixation in tangible form, and a finite term of protection – are designed to operate.

For indigenous and traditional communities, TCEs are not passive cultural artifacts. They carry legal, spiritual, and social meaning governed by the community’s own customary law. A sacred textile pattern, a healing song, or a ceremonial dance may determine who can access it, how it can be used, and under what conditions – rules that exist entirely outside the framework of copyright or trademark law. Communities have consistently called for recognition of their customary law as a legitimate and enforceable system for protecting TCEs, rather than being forced to retrofit their expressions into Western IP categories.

How communities understand ownership of their cultural expressions 🔗

The most fundamental tension in TCE protection debates is the mismatch between how indigenous communities conceptualize cultural ownership and how IP law defines it. Communities overwhelmingly view TCEs as collectively owned – belonging to the group, the clan, or the lineage, not to any individual. The WIPO Intergovernmental Committee, in its 37th session, recognized this by agreeing that a cultural expression qualifies as a TCE only if it is associated with a living tradition and community, and must be understood through the lens of collective rather than individual ownership.

Beyond ownership, communities emphasize the spiritual dimension of many TCEs. WIPO’s own Consolidated Analysis has recorded widespread concern that TCEs are used without authority in disrespectful ways, causing cultural offence that amounts to an assault on community dignity. This is why communities do not simply demand economic compensation – they demand control. The right to say no to a particular use, regardless of whether it generates revenue, is as important to these communities as the right to benefit from approved uses.

The sacred versus secular distinction 🔗

Not all TCEs carry the same weight of cultural sensitivity, which is why WIPO’s Draft Articles propose a tiered rights system. Under this framework, owners of sacred TCEs – those tied to spiritual beliefs and restricted access under customary law – would receive stronger protective rights than owners of secular TCEs that are more openly shared. This matters enormously because a sacred ritual song misappropriated and remixed into commercial music causes a qualitatively different harm than the adaptation of a publicly shared folk motif. The draft framework, still under negotiation, attempts to capture this distinction by referencing the community’s own customary laws and practices as the test for determining whether a TCE is secret, sacred, or openly accessible.

The role of communities in international negotiations at WIPO 🔗

The primary forum for negotiating an international legal instrument on TCEs is the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which has been conducting text-based negotiations since 2010. Indigenous communities participate through an ad hoc Indigenous Caucus, which typically includes 25 to 30 representatives per session who collectively develop text proposals and engage in all working methodologies of the committee.

A landmark moment came in May 2024, when WIPO member states adopted the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge – the first WIPO Treaty to include provisions specifically addressing the rights of Indigenous Peoples and local communities. While this treaty focuses on genetic resources and associated traditional knowledge rather than TCEs directly, it established a critical precedent: indigenous participation is not a courtesy but a necessity for the legitimacy of the instrument.

Negotiations on TCE-specific instruments continue. At IGC 49 in December 2024, the committee worked on draft articles for TCE protection, with the Indigenous Consultative Forum holding preparatory meetings before the session to develop collective positions. However, progress has been uneven. The WIPO Voluntary Fund that supports indigenous participation in these negotiations is currently depleted, raising serious concerns about whether communities will be adequately represented in upcoming sessions. Without funded participation, the very communities whose TCEs are at stake cannot effectively influence the text that will govern their protection.

The Indian constitutional and legal context 🔗

India presents a particularly instructive case for understanding the gap between legal aspiration and legal reality in TCE protection. The country is home to an extraordinarily diverse range of tribal communities – the Gond, Warli, Toda, Santali, and hundreds of others – each with their own distinct TCEs. The Constitution of India, under Article 29, recognizes the right of any distinct cultural group to conserve its language, script, or culture. Article 51A(f) further casts a duty on citizens to value and preserve the rich heritage of India’s composite culture. Yet no dedicated legislation prevents the commercial exploitation of indigenous folklore or TCEs.

Under Article 371 read with the Sixth Schedule, tribal communities in designated areas may have autonomous councils that function according to their own customary laws, with those laws applying unless rejected by the community in favour of Union or State legislation. This creates a formal constitutional space for customary law governance. But in practice, this protection does not extend to preventing external parties from misappropriating TCEs – a Warli design appearing on a corporate clothing brand, or a tribal healing practice being commercialized without consent, remains largely outside enforceable legal remedy.

India’s existing framework also has a critical omission: while the Biological Diversity Act provides for Prior Informed Consent (PIC) in relation to genetic resources, no equivalent mechanism exists for TCEs. This means a community’s sacred textile pattern or ritual music can be commercialized by outsiders without their knowledge or consent, with no legal obligation to seek permission or share benefits.

Customary law as a protective mechanism 🔗

Given the inadequacy of mainstream IP law in capturing the collective and intergenerational nature of TCEs, scholars and policymakers have increasingly turned attention to indigenous customary law as a protective framework in its own right. Customary law offers a community-specific, flexible solution – each community can apply its own rules to determine who controls access to their TCEs and under what conditions. A sacred symbol may be restricted to initiated members of a clan; a particular song may only be performed during a specific seasonal ceremony; access to a design motif may require the permission of a hereditary custodian. These are not informal customs – they are functioning normative systems with real social force within communities.

WIPO’s own analysis of customary law recognizes that what makes cultural expressions “traditional” is precisely that they are developed, maintained, and transmitted through customary intergenerational processes – making customary law not incidental to TCEs but definitional of them. The challenge lies in extending the enforceability of customary norms beyond community boundaries, particularly against commercial actors operating in distant markets.

The principle of Free, Prior and Informed Consent (FPIC) 🔗

Central to indigenous communities’ aspirations in TCE protection is the principle of Free, Prior and Informed Consent. FPIC – which is recognized under Article 31 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as the right of communities to maintain, control, protect and develop their cultural heritage and TCEs – requires that any use of a community’s TCEs must be preceded by genuine consultation, adequate disclosure of intended use, and freely given consent from the community concerned. It is not sufficient for a corporation or an individual to claim that a design or performance style is in the public domain. Communities must have an active voice in determining whether and how their expressions are accessed.

The WIPO Draft Articles on TCE protection directly incorporate this idea by distinguishing between restricted TCEs – where communities have exclusive rights to control access and use – and non-restricted TCEs – where the minimum entitlement is a fair and equitable share of benefits from any commercial use, along with a right of attribution. For cases where it is unclear which community a TCE belongs to, the Draft Articles require that an attempt be made to identify the relevant beneficiaries before use proceeds. These provisions represent a meaningful step toward embedding FPIC into the legal architecture of TCE protection.

Challenges communities continue to face 🔗

Despite significant normative progress, several structural challenges continue to undermine indigenous communities’ ability to protect their TCEs. First, the question of defining TCE beneficiaries – particularly across transboundary contexts where the same expression may be shared by communities in multiple countries – remains unresolved. The same TCE may appear concurrently in more than one country due to geographical proximity and historical cultural exchange, creating complex jurisdictional questions.

Second, the relationship between TCE protection and the public domain remains deeply contested. Many indigenous communities reject the idea that expressions which have entered the public domain under conventional IP law are therefore freely available. From their perspective, the very concept of the public domain does not reflect how their customary law treats cultural material – sacred or restricted expressions do not cease to be protected merely because they have been widely disseminated or recorded by outsiders.

Third, the practical capacity of communities to assert their rights – through litigation, registration, or engagement with international processes – is constrained by resource limitations. Legal scholars studying the Indian context have noted that the majority of folklore being misused in India belongs to small communities who lack the institutional capacity to register marks, initiate infringement proceedings, or participate in policy advocacy. Any effective TCE protection framework must, therefore, account for communities that are not organisationally proactive or legally sophisticated.

What an effective framework must deliver 🔗

Aligning TCE protection with indigenous communities’ aspirations requires more than adding a new category to existing IP law. Scholars advocating for a sui generis system argue that TCEs must be recognized as an independent category of community property, enforceable on the basis of access and benefit-sharing principles rather than individual authorship – protecting communities from unwarranted commercial exploitation while giving them the choice to commercialize on their own terms.

At the national level, this means legislation that: explicitly recognizes customary law as a valid source of TCE governance; establishes a consent requirement for commercial use comparable to PIC in biodiversity law; creates accessible registration or documentation mechanisms for communities regardless of their organisational capacity; and provides for benefit-sharing when TCEs are used commercially. A cumulative approach – drawing on trademarks, copyright, geographical indications, and sui generis protections in combination – has been recommended for the Indian context, given the diverse nature of TCEs across the country’s tribal communities.

At the international level, the conclusion of a dedicated WIPO instrument on TCEs – one that is informed by the ongoing contributions of the Indigenous Caucus and aligned with UNDRIP – remains the most important institutional goal. The IGC’s mandate expressly recognizes that indigenous peoples’ representatives must be invited to participate in any expert groups working on the text, reflecting a growing consensus that a TCE instrument without genuine indigenous authorship lacks both legitimacy and practical utility.

What do you think? If a tribal community’s sacred design enters the public domain because it was documented and published decades ago without the community’s consent, should modern commercial actors be free to use it – or should the community’s customary law still govern its use? And should the adequacy of a TCE protection framework be judged by the standards of IP law, or by the standards of the communities whose expressions are at stake?

References

1. https://www.federalregister.gov/documents/2023/10/24/2023-23386/formal-tribal-consultation-on-wipo-igc-negotiations
2. https://www.wipo.int/edocs/pubdocs/en/wipo_pub_rn2023-5-7-en-customary-law-and-traditional-knowledge.pdf
3. https://journals.law.harvard.edu/ilj/2025/03/preservation-or-protection-the-intellectual-property-debate-surrounding-traditional-cultural-expressions/
4. https://cjil.uchicago.edu/print-archive/wipos-proposed-treatment-sacred-traditional-cultural-expressions-distinct-form
5. https://www.wipo.int/en/web/traditional-knowledge/engagement
6. https://www.wipo.int/en/web/traditional-knowledge/wipo-treaty-on-ip-gr-and-associated-tk
7. https://iwgia.org/en/world-intellectual-property-organization-wipo/5722-iw-2025-wipo.html
8. https://www.wipo.int/en/web/igc/w/news/2024/igc-48-and-49-summary
9. https://www.lexology.com/library/detail.aspx?g=a806fd78-711e-4811-a881-ed269533b635
10. https://or.niscpr.res.in/index.php/IJTK/article/download/5061/4308/79934
11. https://fitm.ris.org.in/sites/fitm.ris.org.in/files/Publication/Scooping%20Paper%20No%203%20(1).pdf
12. https://digitalcommons.law.uw.edu/wilj/vol15/iss3/8/
13. https://www.culturalsurvival.org/undrip
14. https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_45/wipo_grtkf_ic_45_facilitator_rev_tce.pdf
15. https://theippress.com/2022/11/16/culture-tradition-at-the-horizon-of-intellectual-property-with-special-emphasis-on-india/
16. https://www.theippress.com/2022/11/16/culture-tradition-at-the-horizon-of-intellectual-property-with-special-emphasis-on-india/
17. https://iwgia.org/en/world-intellectual-property-organization-wipo/5417-iw-2024-wipo.html