India’s Advocacy for Traditional Cultural Expressions Protection at WIPO’s IGC

India is home to an extraordinary wealth of cultural expressions – from the tribal Warli paintings of Maharashtra to the classical Bharatanatyam dance of Tamil Nadu, from Baul music of Bengal to the intricate Chikankari embroidery of Lucknow. These are not mere art forms; they are living, breathing expressions of community identity passed down through generations. Yet, for decades, these Traditional Cultural Expressions (TCEs) have remained vulnerable to commercial misappropriation with little international legal recourse. India has been one of the most vocal countries pushing for change at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) – the primary international forum working toward a binding legal instrument for TCE protection.

What is WIPO’s IGC and why does it matter? 🔗

The WIPO IGC was established in 2000 following growing concerns from developing nations about the misappropriation of their traditional knowledge, genetic resources, and cultural expressions by corporations from industrialised countries. Since 2001, the IGC has been undertaking text-based negotiations aimed at developing one or more international legal instruments that would ensure the effective protection of TK, TCEs, and genetic resources.

The core challenge the IGC faces is that conventional copyright law is poorly suited to protect TCEs. Copyright protects works that are fixed in tangible form, created by identifiable individual authors, at a specific point in time. TCEs are typically none of these things – they are collectively created, orally transmitted, evolve over centuries, and belong to communities rather than individuals. This structural mismatch is why a sui generis (standalone) international legal framework has been sought by developing countries, including India.

India’s core position at the IGC 🔗

India’s engagement at the IGC reflects its status as one of the most culturally diverse nations in the world, with tribal and non-tribal communities that are rich sources of folklore, craft, ritual, textile traditions, music, and more. This cultural richness makes India acutely aware of both the value and the vulnerability of TCEs in an era of globalisation and digital technology.

According to a scoping paper published by the Research and Information System for Developing Countries (RIS), India has consistently championed the rights of TCE owners and holders at the IGC, pushing for intellectual property protection that prevents the violation of their economic and moral rights. This dual focus – economic and moral rights – is central to understanding India’s negotiating position.

Demand for a legally binding international instrument 🔗

India’s most consistent and prominent demand at the IGC has been for a legally binding international instrument for TCE protection, as opposed to a soft-law or measures-based approach. At the IGC, member states are broadly divided into two camps: demandeurs (those seeking strong binding protection) and those preferring non-binding, flexible guidelines. As documented by infojustice.org, India firmly belongs to the demandeur bloc – aligned with the African Group, the Like-Minded Countries group, and Latin American states – all of which support a rights-based approach that recognises the inalienable rights of indigenous peoples and local communities over their cultural heritage.

India’s reasoning is straightforward: national legislation alone cannot adequately protect TCEs in a globalised world where digital technology allows misappropriation across borders in seconds. A binding international treaty would create enforceable obligations on all signatory states, giving TCE-holding communities real legal recourse when their expressions are commercially exploited without consent.

Early positioning: The 2001 position paper 🔗

India’s advocacy traces back to the very beginning of the IGC process. In 2001, India’s Permanent Mission to the United Nations – on behalf of the Asian group and China – submitted a position paper supporting the IGC’s work. The paper acknowledged the interrelationships among TK, TCE, and genetic resources, and made several concrete recommendations: conducting national-level consultations on legal systems for TCE protection; creating national focal points to protect TCEs; exploring existing IP rights such as copyrights, trademarks, and geographical indications; developing new laws for TCEs that fall outside existing frameworks; and studying the exploitation of intangible cultural expressions in the context of new technological environments.

This early submission set the tone for India’s comprehensive and forward-looking engagement at the IGC, one that has continued through dozens of subsequent sessions.

Key substantive positions India has advocated 🔗

Economic and moral rights 🔗

India’s TCE protection framework, as advocated at the IGC, encompasses both economic rights (the right to benefit financially from the use of one’s TCEs) and moral rights (the right to be attributed and to prevent distortion or derogatory use of cultural expressions). This dual-rights approach recognises that TCEs are not merely commercial assets – they are integral to community identity, dignity, and cultural integrity. For traditional communities in India, the unauthorised use of a sacred dance form or a tribal visual motif in commercial products is not just a financial loss; it is a cultural harm.

Prior informed consent and access 🔗

A key element of India’s IGC position is the insistence on prior informed consent (PIC) before any third party accesses or commercially uses a TCE. This means that corporations, researchers, or content creators who wish to use a community’s cultural expression must first obtain meaningful, documented consent from that community. This is particularly relevant in India’s context, where tribal art forms and folk music have routinely been adapted by mainstream commercial entities – from film industry composers borrowing Rajasthani folk melodies to fashion brands incorporating tribal textile patterns – without credit or compensation to the originating communities.

As highlighted in research on TCE misappropriation in India, folk artists across states like Rajasthan and Odisha have reported instances where their traditional musical compositions found their way into Bollywood films without recognition or remuneration. The PIC requirement, if enshrined in a binding international instrument, would directly address this problem.

Equitable benefit sharing 🔗

Beyond consent, India supports robust provisions for equitable benefit sharing – ensuring that when TCEs generate commercial value, the communities that have preserved them over generations receive a fair and proportionate share of those benefits. This is consistent with India’s broader approach to genetic resources under the Nagoya Protocol and aligns with the sustainable development goals that link cultural heritage protection to community livelihoods. For many indigenous communities in India, TCEs are not just cultural heritage – they are economic resources, providing livelihoods through crafts, performances, and cultural tourism.

Flexible but effective protection 🔗

India has advocated for an instrument that is legally binding yet flexible enough to accommodate the diverse national contexts of member states. This reflects an understanding that a one-size-fits-all approach may not work across the immense diversity of TCE types and community structures worldwide. The Indian position supports allowing member states to implement protection through sui generis legislation, existing copyright systems with modifications, or other national legal mechanisms – as long as the core standards of community rights, PIC, and equitable benefit sharing are met.

India’s domestic initiatives supporting its IGC position 🔗

India’s advocacy at WIPO is backed by concrete domestic policy action, which lends credibility to its international positions.

National Intellectual Property Rights Policy, 2016 🔗

The National IPR Policy 2016 explicitly recognises TCEs as part of India’s intellectual heritage requiring protection. The Policy envisions reaching out to lesser-visible IP creators in rural and remote India, documenting oral traditional knowledge, and promoting India’s cultural heritage in partnership with its custodians. It calls for continued active engagement at international fora for the creation of legally binding international instruments on TCEs – directly mirroring India’s IGC stance.

Traditional Knowledge Digital Library (TKDL) 🔗

The TKDL is India’s pioneering initiative to document traditional knowledge – including knowledge associated with many TCEs – in a format accessible to patent examiners worldwide. While primarily focused on preventing erroneous patent grants for TK-based inventions, the TKDL model demonstrates India’s commitment to proactive documentation as a first line of defence against misappropriation. This model has been cited as a potential template for other developing nations.

National Mission on Cultural Mapping 🔗

India launched the National Mission on Cultural Mapping of India to create a comprehensive database of the country’s cultural expressions and heritage, converting India’s cultural canvas into an accessible information resource. This initiative complements India’s IGC position by building the evidentiary foundation needed for effective TCE protection mechanisms.

India’s leadership in the Asia-Pacific context 🔗

India has not limited its TCE advocacy to the IGC alone. It has hosted and actively participated in regional forums, including the Asia-Pacific Policy Forum, to build consensus among regional nations on effective TCE protection mechanisms. The Asia-Pacific region is home to an enormous diversity of indigenous communities and TCEs, and India’s leadership in regional deliberations has been aimed at developing a coordinated position that carries greater collective weight in WIPO negotiations.

India also represented the Asia-Pacific Group at the WIPO General Assembly in 2016, delivering a group statement on the IGC’s work – a role that underlines its standing as a key voice for the region on these issues. This regional leadership is important because it allows India to amplify its positions beyond its individual national interest, framing TCE protection as a development priority for the broader Global South.

The broader divide: why progress at the IGC has been slow 🔗

Despite India’s sustained advocacy, progress at the IGC toward a binding TCE instrument has been difficult. The fundamental divide is between developing nations (including India, the African Group, and Latin American states) that want a rights-based, legally binding framework and developed nations that prefer a non-binding, measures-based approach that leaves implementation to national discretion.

As recently as the 49th and 50th IGC sessions (2024), negotiations on TCEs remained deadlocked. The 49th session failed to produce improved negotiating texts, and delegates fell back on the text from the 47th session. The division between rights-based and measures-based approaches continues to be the central fault line. For India and fellow demandeur states, a measures-based approach is inadequate – it would leave TCE protection to the goodwill of individual states rather than creating enforceable international obligations that TCE-holding communities can rely on.

There is also a definitional challenge. As noted by research published in the Journal of Intellectual Property Law & Practice, the very definition of TCEs remains a point of ongoing debate within the IGC. Without an agreed definition, it is difficult to determine what exactly the instrument will protect, who the beneficiaries are, and what rights will attach. India’s position has been to support broad, inclusive definitions that capture the full range of cultural expressions – verbal, musical, tangible, intangible – that communities hold.

Why this matters for Indian law students 🔗

For law students studying intellectual property, the IGC negotiations present a fascinating and practically important case study in the limits of conventional IP frameworks and the politics of international norm-setting. India’s position – insisting on binding obligations, community rights, prior informed consent, and equitable benefit sharing – is not merely a diplomatic stance. It reflects real legal gaps that affect millions of Indian citizens: craftspeople, performers, musicians, and tribal communities whose cultural expressions generate value for others while leaving them economically marginalised.

Understanding India’s IGC positions also equips future lawyers and policymakers with the conceptual tools to engage with TCE-related issues domestically – whether advising communities on documenting and registering cultural expressions, advising businesses on avoiding misappropriation, or contributing to the design of a future national TCE law. As the South Centre, an intergovernmental think tank of developing countries, has consistently noted, effective TCE protection is inseparable from the broader agenda of sustainable development and equitable global governance.

What do you think? Given that conventional IP systems like copyright are structurally ill-suited to protect collectively owned, orally transmitted TCEs, should India push for an entirely new sui generis international treaty dedicated to TCEs – or would it be more practical to work toward amending existing IP treaties to accommodate them? And at the domestic level, what kind of legal institution or mechanism should India create to administer prior informed consent on behalf of diverse and geographically dispersed traditional communities?

References

1. https://www.wipo.int/en/web/igc
2. https://www.wipo.int/pressroom/en/articles/2009/article_0058.html
3. https://www.librarycopyrightalliance.org/wp-content/uploads/2009/07/issuebrieftce.pdf
4. https://fitm.ris.org.in/sites/fitm.ris.org.in/files/Publication/Scooping%20Paper%20No%203%20(1).pdf
5. https://infojustice.org/archives/46096
6. https://www.theippress.com/2020/05/07/missing-legal-protection-for-traditional-cultural-expressions-in-india-a-brief-write-up-on-issues-concerning-them-at-contemporary-times/
7. https://www.keionline.org/wipo/igc
8. https://cjil.uchicago.edu/print-archive/wipos-proposed-treatment-sacred-traditional-cultural-expressions-distinct-form
9. https://academic.oup.com/jiplp/article-abstract/19/11/821/7796587
10. https://www.southcentre.int/tag/traditional-cultural-expressions-tce/