Guiding Principles for Protecting Traditional Cultural Expressions: Insights from WIPO’s IGC

Traditional Cultural Expressions – the songs, dances, designs, rituals, and oral narratives that communities pass down across generations – sit awkwardly within the mainstream intellectual property framework. Copyright requires authorship and fixation. Patent law demands novelty. Neither fits well with living, evolving, communally owned heritage. This is precisely why WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has been working since 2001 to develop a dedicated international legal instrument for TCE protection. At the heart of those negotiations lies a set of general guiding principles – not legally binding rules, but foundational ideas that shape how the entire framework should be built.

What is the WIPO-IGC and why does it matter for TCEs? 🔗

The IGC was established in 2000 with a mandate to address IP issues related to genetic resources, traditional knowledge (TK), and TCEs. Since its first session in April 2001, it has worked at several levels simultaneously: debating broad policy questions, surveying national and regional experiences, and developing practical tools for communities. By 2009, the IGC transitioned from a discussion forum into a body conducting formal text-based negotiations aimed at producing one or more binding or non-binding international instruments.

The draft provisions that have emerged draw on community, national, and regional experiences across the globe, and have been developed in consultation with member states, indigenous peoples, local communities, and civil society organizations. Before any specific rights or remedies could be defined, the IGC recognized the need to lay down a principled foundation – a set of general guiding principles that would give coherence, direction, and legitimacy to whatever instrument finally emerged.

The core guiding principles of the WIPO-IGC 🔗

The general guiding principles are not a checklist of legal rules. They function more like a constitutional preamble – articulating the values and objectives that all substantive provisions must be consistent with. Each principle addresses a different dimension of the TCE protection challenge.

Flexibility and comprehensiveness 🔗

Perhaps the most debated principle within the IGC negotiations is the principle of flexibility. International IP law is largely silent on traditional knowledge and TCEs, which means states currently have significant room to establish their own sui generis protection systems – and many have done so. The guiding principles explicitly preserve this space. Rather than mandating a single, uniform protection model, they call for an approach that acknowledges diversity in national legal systems and allows countries to determine the most appropriate means of protection for their own contexts.

This matters enormously for a country like India, which has existing legislative and policy frameworks touching on cultural heritage, geographical indications, and tribal rights. A rigid international instrument could conflict with or undermine these domestic mechanisms. The flexibility principle ensures that any new international framework works with, not against, such national frameworks.

Respect for cultural diversity 🔗

No two communities define, use, or govern their cultural expressions in the same way. A Warli painting from Maharashtra carries different social meanings and governance norms than a Chhau dance from West Bengal or a Kalbelia performance from Rajasthan. The guiding principle of respect for cultural diversity acknowledges this reality directly. The IGC’s draft provisions frame protection as applying to expressions that are characteristic of a community’s cultural and social identity and cultural heritage – a deliberately broad definition that can encompass this diversity without flattening it.

This principle also has a practical implication: protection measures must be responsive to the aspirations and expectations of the communities concerned. As member state submissions to the IGC have emphasized, any approach should recognize and apply indigenous and customary laws and protocols as far as possible, and enable full and effective participation by communities in decisions affecting their cultural expressions.

Recognition of the communal and intergenerational character of TCEs 🔗

Standard IP law is built around the individual creator. TCEs fundamentally challenge this assumption. They are not the product of a single author working at a specific moment in time – they emerge from, and are sustained by, entire communities over multiple generations. TCEs are often handed down from generation to generation and reflect a community’s cultural and social identity. Many are purposely not written down but transmitted through memory, performance, and practice.

The guiding principle that addresses this dimension calls for protection frameworks to align with this communal and intergenerational nature. The principal beneficiaries of protection are envisioned as the communities in whom custody of TCEs has been entrusted under customary law – those who still maintain, use, or develop them. This shifts the frame from individual authorship to collective custodianship, which is a fundamental conceptual departure from conventional copyright thinking.

Adherence to and consistency with existing international instruments 🔗

The IGC does not operate in isolation. There is already a substantial body of international law touching on IP and cultural heritage – from the Berne Convention to the 1996 WIPO Performances and Phonograms Treaty, which explicitly extended protection to performers of expressions of folklore, to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted in 2007. One guiding principle requires that any new TCE instrument be consistent with and complementary to these existing frameworks rather than creating conflicts or redundancies.

This principle of consistency with existing international instruments is especially important because it prevents protection from becoming a tool for narrowing rather than expanding rights. It also ensures that the instrument respects commitments states have already made under trade and IP treaties, making actual adoption and implementation by member states more realistic.

Respect for indigenous customs and laws 🔗

For many indigenous communities, questions about who can use a cultural expression, when, and under what conditions are already governed by internal customary systems – systems that predate and operate entirely independently of state law. The WIPO-IGC guiding principles give explicit recognition to these indigenous customs and laws as legitimate governance mechanisms. The Karuk Tribe’s framework, for example, includes free, prior, and informed consent, confidentiality, and self-determination as governing principles – recognizing the tribe’s prior proprietary rights and its status as the primary legal and cultural custodian.

This principle has significant implications for how protection is administered. The IGC’s draft articles reflect a view that administration of rights is primarily a matter for indigenous peoples and local communities, leaving specific arrangements between communities and governments to be determined on a case-by-case basis. The state’s role is facilitative rather than directive.

Equitable balance of rights and interests 🔗

Protecting TCEs cannot mean locking culture away from all use. Music is listened to, designs inspire artists, oral narratives are studied by scholars, and traditional knowledge informs scientific research. The guiding principle of equitable balance acknowledges that TCE holders have legitimate rights and interests, but so do users – including researchers, educators, and the broader public. The draft principles recognize the need for a balance of rights and obligations, and separately affirm the importance of protecting a vibrant public domain accessible to all.

This balancing act is one of the most contested aspects of IGC negotiations. Proposals for a tiered rights system – where sacred or secret TCEs receive stronger protection than secular ones – represent one approach to striking this balance. The idea is that not all TCEs require identical protection, and that the degree of restriction on use should correspond to the cultural significance and sensitivity of the expression in question.

Effective and enforceable protection 🔗

Principles that cannot be translated into enforceable legal obligations ultimately offer little protection. The IGC’s guiding principles therefore explicitly emphasize that protection must be effective in practice – not merely aspirational. The draft provisions aim to frame the policy and legal space for protection against misappropriation and misuse, and to help define concrete legal measures for this protection. Whether the eventual instrument takes the form of a binding treaty, model provisions, or a set of recommendations, it must be capable of being implemented and enforced at the national level.

Why these principles matter for India 🔗

India is a country of extraordinary cultural diversity, with hundreds of indigenous communities holding distinct artistic and knowledge traditions – from Madhubani painting to Kondapalli toys, from Dokra metalcraft to classical dance forms rooted in temple traditions. Many of these are commercially valuable and vulnerable to appropriation. India has consistently been an active participant in IGC negotiations, advocating for strong protection frameworks that recognize the rights of communities over their heritage.

The guiding principles directly serve India’s interests. The flexibility principle allows India to maintain and strengthen domestic mechanisms like the Geographical Indications of Goods Act, 1999, which already protects some traditional products. The communal character principle supports India’s position that protection must extend beyond individual creators to entire communities. And the requirement for consistency with UNDRIP and other international instruments aligns with India’s broader human rights commitments. Understanding these principles is therefore not merely an academic exercise – it directly informs how India engages with ongoing international IP negotiations that will shape the legal landscape for cultural heritage protection for decades.

The road ahead: from principles to instrument 🔗

The general guiding principles of the WIPO-IGC are a foundation, not a finished structure. The IGC’s mandate was renewed by the WIPO General Assembly for the 2024/2025 biennium, and negotiations on TK and TCEs continue. The fundamental tension in these negotiations – between developing countries and indigenous communities who favor a binding, rights-based sui generis approach, and developed countries who prefer non-mandatory measures using existing IP tools – has not been fully resolved. But the guiding principles provide the shared vocabulary through which both sides continue to negotiate.

What the principles collectively achieve is significant: they establish that TCE protection must be flexible but real, culturally sensitive but legally actionable, community-centered but balanced against broader societal interests, and consistent with international law while going beyond its current limitations. Any international instrument that eventually emerges from the IGC will need to honor all of these commitments simultaneously – a challenging but necessary ambition.

What do you think? Should an international TCE protection instrument be legally binding on all member states, or would a flexible, non-binding framework better accommodate the diversity of cultural and legal systems across the world? And given India’s rich tradition of TCEs – many of which are already commercialized – how should the equitable balance principle be applied when a community’s cultural expression enters the global marketplace?

References

1. https://www.wipo.int/en/web/igc
2. https://www.wipo.int/pressroom/en/prdocs/2003/wipo_pr_2003_362.html
3. https://www.wipo.int/en/web/igc/draft_provisions
4. https://www.wipo.int/ip-development/en/agenda/flexibilities/resources/tk_gr_tce_f.html
5. https://www.wipo.int/wipo_magazine/en/2005/04/article_0008.html
6. https://www.wipo.int/documents/d/igc/docs-en-comments_tces_11_04.pdf
7. https://www.librarycopyrightalliance.org/wp-content/uploads/2009/07/issuebrieftce.pdf
8. https://blogs.loc.gov/folklife/2017/07/folklife-at-the-international-level-traditional-cultural-expressions-as-intellectual-property/
9. https://narf.org/cases/wipo/
10. https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_22/wipo_grtkf_ic_22_ref_facilitators_text.pdf
11. https://blogs.loc.gov/folklife/2018/04/folklife-at-the-international-level-recent-developments-in-protecting-traditional-cultural-expressions/
12. https://cjil.uchicago.edu/print-archive/wipos-proposed-treatment-sacred-traditional-cultural-expressions-distinct-form
13. https://www.federalregister.gov/documents/2023/10/24/2023-23387/wipo-igc-negotiations-on-genetic-resources-and-associated-traditional-knowledge