The Role of WIPO’s Intergovernmental Committee in Safeguarding Traditional Cultural Expressions

When a yoga pose gets trademarked abroad, or a tribal textile pattern appears on a foreign fashion runway without any credit to its creators, something fundamental has gone wrong. Traditional cultural expressions – the songs, rituals, designs, and dances that communities have nurtured across generations – sit in a legal grey zone under mainstream intellectual property law. They predate copyright. They are collectively owned. They have no single “author.” And yet they are routinely taken, commercialized, and stripped of context. Addressing this gap is the core mission of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore – commonly known as the IGC.

What is the WIPO IGC and why was it created?
From study to negotiation: the IGC’s evolving mandate
What are TCEs and why do they need protection?
The IGC’s text-based negotiations: how they work
Key protection mechanisms under discussion
The role of indigenous and customary law
India’s participation and the IGC process
The 2024 GRATK treaty: a milestone – and its limits
Challenges the IGC continues to face
Why this matters for law students

What is the WIPO IGC and why was it created?

WIPO, the World Intellectual Property Organization, is a United Nations agency with 193 member states, and it serves as the primary global forum for shaping international IP law. By the late 1990s, it had become increasingly clear that the existing IP system – built around individual authorship, fixed terms of protection, and commercial registration – was structurally ill-equipped to protect communal, living, and intergenerational cultural heritage.

In 2000, WIPO member states established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to address exactly this problem. The committee brought together governments, indigenous communities, civil society organizations, and intergovernmental bodies to discuss how IP law could be adapted or supplemented to protect three overlapping areas: traditional knowledge (TK), traditional cultural expressions (TCEs), and genetic resources (GRs). The IGC held its first formal session in 2001 and has been meeting regularly since.

It is worth noting the terminology shift that occurred over the committee’s early years. Initially, the subject matter was referred to as “expressions of folklore” – a term inherited from older copyright discussions, including debates at the 1967 Stockholm revision of the Berne Convention. By the time the IGC moved into text-based negotiations around 2010, WIPO had largely replaced “expressions of folklore” with the broader and more neutral phrase “traditional cultural expressions,” reflecting a growing sensitivity to how indigenous and local communities prefer their heritage to be described.

From study to negotiation: the IGC’s evolving mandate

The IGC’s early years – roughly 2001 to 2009 – were largely devoted to fact-finding, gap analyses, and cataloguing existing legal approaches at the national and regional level. Member states examined how countries like Panama, Peru, and South Africa had enacted domestic laws to protect TCEs, and what those experiences could teach an international framework. In 2008, the IGC commissioned two formal gap analyses – one on TCEs and one on TK – to systematically identify where international IP law fell short in protecting these forms of heritage.

The real shift came in 2009-2010. In October 2009, the IGC obtained a new mandate to accelerate its work, and shortly thereafter began formal text-based negotiations on an international legal instrument – or instruments – for the protection of GRs, TK, and TCEs. This was significant: the committee moved from a deliberative and study-oriented forum to an active law-making body. The objective was no longer just to understand the problem but to draft binding or quasi-binding international rules to solve it.

The IGC operates under two-year mandates, renewed biennially by the WIPO General Assembly. There are three texts presently under negotiation at the IGC – one on traditional knowledge, one on traditional cultural expressions, and another on genetic resources and associated traditional knowledge. These are kept as distinct documents because TCEs and TK, while related, raise different legal and policy questions. Many communities see them as inseparable, however, and the draft provisions are designed to be complementary.

What are TCEs and why do they need protection?

Before exploring how the IGC works, it helps to be clear on what TCEs actually include. WIPO does not offer a fixed statutory definition – instead, it uses working descriptions. TCEs broadly cover forms of artistic and cultural expression that have been passed down through generations within a community and are characteristic of its cultural and social identity. This includes oral traditions, music, dance, games, art, designs, handicrafts, architectural forms, and ritual performances.

Indigenous peoples’ intangible cultural heritage – from textile designs to traditional songs, medicinal plant knowledge, and environmental conservation practices – is often treated as being in the “public domain,” and misappropriation by those in the pharmaceutical, fashion, and film industries, among others, is widespread and ongoing. The core problem is that existing IP tools like copyright require individual authorship and fixed creation dates – conditions that most TCEs cannot meet. A Warli painting, a Bharatanatyam mudra, or the geometric patterns of a Nagaland tribe belong to no single author. They were created over centuries. Standard copyright law simply was not built for them.

Many indigenous peoples, local communities, and governments therefore seek IP protection for TCEs as intangible assets – not because they want to commercialize them necessarily, but because they want control: the right to say who can use their heritage, how, and under what conditions.

The IGC’s text-based negotiations: how they work

Text-based negotiations at the IGC involve member states, indigenous and local community representatives, intergovernmental organizations, and civil society groups – all working from draft articles toward a negotiated text. The work of the IGC has led to the development of sets of draft provisions for the protection of TCEs and TK against misappropriation and misuse, drawing upon community, national, and regional experiences across multiple years of consultation.

One of the most debated questions in the IGC negotiations has been the tiered rights approach – the idea that not all TCEs should receive the same level of protection. WIPO’s draft articles have proposed a tiered rights system in which the owners of sacred traditional cultural expressions receive more protective rights than the owners of secular TCEs. Sacred or secret TCEs – such as ceremonial songs, ritual objects, or spiritual designs – would receive stronger protections, including the right to refuse commercial use entirely. More widely shared or publicly circulated TCEs might receive weaker protections, such as disclosure and attribution requirements rather than outright exclusivity.

This distinction, while logical, has generated significant debate. Some indigenous communities argue that the sacred/secular divide does not map onto how they understand their own heritage – everything from a lullaby to a ceremonial chant may carry cultural significance that outsiders cannot easily assess. Others argue that granting exclusive control over traditional cultures could stifle innovation and shrink the public domain. The IGC continues to navigate these tensions.

Key protection mechanisms under discussion

The IGC’s draft provisions explore a range of protection mechanisms, not all of which are mutually exclusive. The main approaches being considered include:

Sui generis protection refers to purpose-built legal systems that do not rely on existing copyright, trademark, or patent law but create a new category of rights specifically for TCEs. Several countries – including India, Peru, and South Africa – have already enacted such laws domestically, and the IGC’s work draws on these experiences.

Prior informed consent (PIC) is the requirement that anyone wishing to use a TCE – especially a sacred or secret one – must first obtain the consent of the community that holds it. The idea of prior informed consent is especially prominent for sacred and secret materials, though there are concerns among some member states that granting exclusive control over traditional cultures could stifle innovation and diminish the public domain.

Benefit-sharing ensures that when a TCE is used commercially – say, a traditional musical scale is sampled in a film score, or a tribal pattern is used in fashion design – the originating community receives an equitable share of the economic returns. This may be a monetary payment or non-monetary benefits such as technology transfer or capacity-building.

Defensive protection prevents others from acquiring IP rights over TCEs. For example, registering a traditional design as a trademark, or patenting a plant variety known to indigenous communities for centuries, would be blocked by ensuring that such traditional knowledge is documented and accessible to IP offices as prior art.

The role of indigenous and customary law

One of the most distinctive features of the IGC’s approach is its emphasis on recognizing indigenous and customary laws in the protection process. The committee does not assume that Western IP categories can simply be transplanted onto indigenous cultural systems. Instead, the draft provisions acknowledge that communities themselves may define who holds rights over a TCE, how those rights are passed on, and what uses are permissible – according to their own customary norms.

The administration of rights is treated as primarily a matter for indigenous peoples and local communities themselves, meaning there is no need to be prescriptive about how rights management should work – where government assistance is sought, the specific functions would be a matter for the particular community and government to determine. This flexibility is significant: it means that a tribal council in Nagaland, for instance, could apply its own customary protocols to decide who may reproduce a traditional weaving pattern, rather than having to conform to an externally imposed licensing scheme.

Sessions of the IGC also begin with presentations by representatives from indigenous and local communities – a structural feature designed to ensure that the voices of communities are heard before formal negotiations begin, not as an afterthought.

India’s participation and the IGC process

India has been an active participant in IGC negotiations, reflecting its enormous diversity of living cultural traditions and its long-standing concern over biopiracy and the misappropriation of traditional knowledge. India submitted a proposal with a series of amendments to the Chair’s text ahead of the 2024 Diplomatic Conference, aiming to add back elements from the earlier consolidated negotiating document that it felt offered stronger protection for traditional knowledge and TCEs. This reflects India’s consistent position in international IP forums: that developing countries and indigenous communities need robust, binding protections – not merely aspirational soft law.

India’s participation also reflects domestic policy concerns. The country’s Traditional Knowledge Digital Library (TKDL), developed jointly by the Ministry of AYUSH and the Council of Scientific and Industrial Research, is a direct response to biopiracy – a database of traditional medicinal knowledge that is made available to patent offices worldwide so they can reject spurious patent claims. This kind of defensive documentation aligns closely with the IGC’s work on prior art databases for TCEs and TK.

The 2024 GRATK treaty: a milestone – and its limits

The most significant output of the IGC’s decades-long work came in May 2024. The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge – often called the GRATK Treaty – was adopted by consensus on 24 May 2024 at WIPO’s Geneva headquarters, after more than two decades of IGC negotiations. The treaty requires patent applicants to disclose the origin of genetic resources and associated traditional knowledge used in their inventions – a long-standing demand of developing countries and indigenous communities.

In landmark developments in 2024, WIPO member states also adopted the Riyadh Design Law Treaty, which included provisions on disclosure of traditional knowledge and TCEs in design applications. However, it is important to note that the GRATK Treaty primarily addresses genetic resources and associated TK linked to patent applications. Comprehensive protection for TCEs as such – covering music, dance, art, ritual – remains under negotiation. The IGC agreed to renew its mandate for 2024-2025, and the TK and TCE texts as modified at the most recent sessions continue to serve as the basis for further negotiations.

This means the work is far from over. The GRATK Treaty is a first step – a real and historic one – but the broader goal of a binding international framework specifically protecting TCEs in all their forms remains an open negotiation.

Challenges the IGC continues to face

Several fault lines persist within the IGC. There is a pattern in the IGC where a country’s position on protecting TCEs, TK, and genetic resources tends to correlate with whether it is a country of origin of traditional knowledge or primarily a user of it – with developing countries generally pushing for stronger, binding protections, and many developed countries preferring softer, voluntary approaches or narrower scope.

Indigenous communities themselves have expressed frustration at the pace of negotiations and the subordination of their interests to those of nation-states and corporations. Despite structural provisions for their participation – including funding through the WIPO Voluntary Fund – their role remains that of observers rather than negotiating parties. The legitimacy of any final instrument will depend significantly on whether it reflects what communities actually need, rather than what states find politically convenient.

There is also the definitional challenge: the broader the definition of TCEs, the harder it is to agree on a single protection standard. At the international level, existing IP law is largely silent on traditional knowledge, and international IP law addresses TCEs only to a limited extent in some existing treaties – which is precisely why a new, dedicated instrument is needed, but also why negotiating one is so complex.

Why this matters for law students

For students of IP law in India, the IGC’s work sits at the intersection of multiple disciplines: international law, constitutional law (particularly the rights of indigenous and tribal communities), copyright, trademark, and sui generis protection systems. It raises fundamental questions about what the purpose of intellectual property actually is – whether it is primarily an economic instrument or whether it can also serve cultural justice and community self-determination.

As India continues to assert its position on the global IP stage – whether through TKDL, through its IGC proposals, or through domestic legislation – understanding how international negotiations like those of the IGC work, and what is at stake in them, is essential preparation for practice in any area touching on IP, cultural policy, or international law.

What do you think? If the IGC successfully adopts a binding international treaty on TCEs, how should national laws in India be amended to implement it – and who should have the authority to decide how a tribal community’s cultural expressions are managed: the community itself, the state government, or the central government? And given that much of India’s intangible cultural heritage exists in oral or undocumented form, how feasible is documentation as a protection strategy without risking the commercialization of knowledge communities consider sacred?

References

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Table of Contents

What is the WIPO IGC and why was it created? 🔗

From study to negotiation: the IGC’s evolving mandate 🔗

What are TCEs and why do they need protection? 🔗

The IGC’s text-based negotiations: how they work 🔗

Key protection mechanisms under discussion 🔗

The role of indigenous and customary law 🔗

India’s participation and the IGC process 🔗

The 2024 GRATK treaty: a milestone – and its limits 🔗

Challenges the IGC continues to face 🔗

Why this matters for law students 🔗