Exploring Sui Generis Systems for Safeguarding Traditional Cultural Expressions

Every time a Western fashion brand appropriates an Indian tribal motif without credit, or a pharmaceutical company patents a formula rooted in Ayurvedic tradition, an alarm goes off in legal circles: existing intellectual property law simply cannot do the job. Copyright expires. Patents require individual inventors. Trademarks protect brands, not communities. Traditional Cultural Expressions (TCEs) – the songs, dances, rituals, designs, and stories that indigenous and local communities have nurtured for generations – slip through these conventional frameworks repeatedly. This gap has pushed lawmakers and scholars toward a fundamentally different solution: sui generis systems, legal regimes built from scratch to fit the specific nature of TCEs rather than forcing TCEs to fit pre-existing IP molds.

What does “sui generis” actually mean in this context? 🔗

The Latin phrase sui generis translates to “of its own kind” – something unique, special, and different from everything else. In intellectual property law, the term describes a system that provides rights tailored to specific subject matter that does not comfortably fit into any existing IP category. Adopting a sui generis system for TCEs would treat them as an independent category of property right, capable of being enforced as IP while still respecting their collective, community-based character.

The need for such a system arises from a fundamental mismatch. Whereas traditional IP laws are built around individual authorship, fixed originality, and time-limited rights, TCEs are communal, orally transmitted, and designed to endure across generations. That is not a legal technicality – it reflects a deeper philosophical divide between Western IP frameworks and the way indigenous communities understand cultural ownership.

Why existing IP law falls short 🔗

Approaches within the regular IPR system, such as copyright, do not meet the requirements postulated by traditional owners. Here is why, concretely:

Copyright protects individual, original works for a fixed term – typically the author’s lifetime plus 60 years in India. TCEs are collectively owned, often anonymous, and intended to last forever. Once copyright expires, the work enters the public domain and anyone can use it freely. For a tribal ritual or a folk melody, that outcome is unacceptable to the community.

Patents require novelty and individual inventorship. Traditional knowledge and its expressions have existed for centuries, which means they fail the novelty test. Moreover, there is no single “inventor” in a community that has collectively developed and transmitted a practice over generations.

Trademarks can protect certain names and symbols, but they do not prevent others from practising the underlying cultural expression. A geographical indication (GI) tag – like Darjeeling tea or Kancheepuram silk – helps in specific commercial contexts but, as research confirms, GIs primarily focus on product attributes tied to geographic origin and cannot fully encompass traditional knowledge and broader cultural practices.

The result is that TCEs either fall into the public domain prematurely or remain unprotected, leaving them open to cultural appropriation, commercial exploitation, and decontextualisation.

Core features of a sui generis TCE system 🔗

A well-designed sui generis system is not simply a modified copyright law. It is a purpose-built legal architecture. Many states and regional organisations have already established sui generis laws for TCEs, and their accumulated experience points to several core features that any effective system must include.

Collective rights and community ownership 🔗

Unlike conventional IP, which vests rights in individuals, a sui generis TCE regime recognises the community as the rights-holder. Indigenous collective rights belong to the entire indigenous people, given that TCEs do not have a known owner or author, nor a fixed date of origin. Where a TCE belongs to more than one community, benefit sharing between them is required. This directly addresses the collective nature of TCEs that conventional IP completely ignores.

No expiry of protection 🔗

One of the most important departures from copyright law is that special sui generis protection for TCEs is not limited in time, while both moral rights (such as the right to claim authorship and prevent harmful distortion) and economic rights (such as the right to authorise reproduction and performance) are held by a designated competent authority. This perpetual protection reflects the reality that a living cultural tradition does not simply “expire.”

Prior informed consent and benefit sharing 🔗

Any third-party use of a TCE – whether commercial, research-based, or educational – should require the prior informed consent (PIC) of the community concerned. Equitable benefit sharing means that communities receive fair returns when their expressions are commercialised. These two principles are central to any sui generis framework aimed at genuine protection rather than mere documentation.

Defensive and positive protection 🔗

A robust sui generis system operates on two levels. Defensive protection prevents outsiders from obtaining IP rights over TCEs – for example, blocking a patent application that claims credit for a traditional formula. Positive protection, on the other hand, gives communities the legal authority to control the uses and benefits of their TCEs, empowering them rather than merely shielding them.

Recognition of customary law 🔗

Many holders of TK and TCEs want legal protection to be based on customary law. A number of existing sui generis systems already refer to customary law and protocols, either as an alternative or in addition to contractual rights. Customary law can define who “owns” a TCE within a community, who may use it and under what conditions, and how benefits are to be distributed – questions that statutory law alone cannot answer with cultural sensitivity.

International model laws: a global template 🔗

At least five model laws have been advanced within the last 40 years in response to calls for better TCE protection. These are:

The Tunis Model Law on Copyright for Developing Countries (1976) was among the earliest attempts to extend copyright-style protection to folklore. The UNESCO/WIPO Model Provisions (1982) created a framework for national laws against illicit exploitation of folklore – a foundational reference still cited today. The South Pacific Model Law (2002) and the WIPO Draft Provisions (2004) refined the approach further, introducing community rights and registration mechanisms. Most recently, the ARIPO Swakopmund Protocol (2010) – adopted by African Regional Intellectual Property Organization member states – set out clear objectives to protect expressions of folklore against misappropriation and unlawful exploitation beyond their traditional context.

All these model laws share key structural features: rules that exclude the general public from unauthorized use, mechanisms for benefit sharing, and recognition of communal rather than individual ownership.

The WIPO IGC and the push for a global instrument 🔗

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) undertakes text-based negotiations to finalise an international legal instrument for the protection of TCEs. Established in 2000, the IGC has spent over two decades trying to bridge the enormous gap between countries that want a strong, binding treaty and those that prefer a softer, non-binding approach.

A significant milestone was reached in May 2024, when WIPO member states adopted a binding Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge – the first WIPO treaty to explicitly acknowledge indigenous peoples and local communities and to establish mandatory patent disclosure requirements. However, this treaty addresses genetic resources and associated traditional knowledge rather than TCEs directly. Separate negotiations on a TCE instrument are ongoing, and as of early 2025, delegates at the 50th IGC session failed to achieve consensus on a working text, underscoring just how politically contested the question of TCE protection remains at the global level.

India’s position: partial steps and a missing link 🔗

India is among the countries most urgently in need of a comprehensive TCE protection regime. It is home to an extraordinary range of living TCEs – Bhoota Kola, Theyyam, Madhubani painting, Warli art, Chhau dance, and hundreds of other traditions that belong to specific tribal and indigenous communities. Yet India’s current legal landscape addresses TCEs only in fragments.

India has partially adopted the sui generis model through the Protection of Plant Varieties and Farmers’ Rights Act, 2001. The Traditional Knowledge Digital Library (TKDL), launched in 2001 as a collaborative effort of CSIR, the Ministry of Health and Family Welfare, the Department of AYUSH, and the Ministry of Science and Technology, is a crucial defensive tool – it functions as a repository of codified traditional knowledge that patent examiners worldwide can access to reject biopiracy claims. The TKDL was instrumental in successfully challenging controversial US and European patents on turmeric’s wound-healing properties, the neem biopesticide, and basmati rice.

However, the TKDL and other existing measures do not constitute a rights-based system – they are primarily defensive documentation tools, not frameworks that give communities affirmative legal authority over their cultural expressions. The Biological Diversity Act, 2002, addresses access and benefit sharing for biological resources but does not specifically cover TCEs in their cultural dimension. India does not yet have a dedicated, comprehensive sui generis TCE legislation.

A sui generis system tailored to India’s needs would need to: recognise TCEs as community rights; establish fast-track enforcement mechanisms; create a registration and documentation framework through state governments; and control unauthorised digital use of TCEs. The proposed Protection of Traditional Knowledge Bill, 2022, has been discussed but critics point to an absence of synchronisation between its provisions and existing IPR safeguards, indicating that significant legislative work remains.

Why a sui generis approach is the right framework 🔗

The strongest argument for a sui generis system is not just legal – it is philosophical. TCEs are not inert artifacts. They are dynamic, evolving expressions that communities continue to create, adapt, and transmit. Forcing them into fixed copyright terms or individual ownership structures would distort the very nature of what is being protected. A sui generis system, by contrast, can be culturally calibrated: it can accommodate oral transmission, collective stewardship, sacred secrecy (where communities may choose not to register or disclose certain expressions), and the evolving customary rules that govern how a TCE is shared or restricted.

Creating a TCE Digital Library alongside a sui generis rights framework would further safeguard communities against cultural appropriation, propertisation of traditional culture, and unwarranted commercial adaptation. Such a combined approach – documentation for defensive purposes, rights-based legislation for positive protection – represents the most comprehensive path forward both for India and for the international community.

What do you think? Given that WIPO negotiations on a binding TCE instrument have stalled repeatedly, should countries like India move ahead with robust domestic sui generis legislation without waiting for international consensus? And if a TCE is shared across two or more indigenous communities in different countries, how should ownership and benefit-sharing be determined under such a system?

References

1. https://www.intepat.com/blog/a-sui-generis-system-of-ip-protection-for-traditional-knowledge
2. https://journals.law.harvard.edu/ilj/2025/03/preservation-or-protection-the-intellectual-property-debate-surrounding-traditional-cultural-expressions/
3. https://www.mondaq.com/india/trademark/1654104/traditional-knowledge-and-cultural-expressions-the-missing-link-in-indias-ip-regime
4. https://books.openedition.org/gup/475?lang=en
5. https://www.researchgate.net/publication/366441648_Protection_of_Traditional_Knowledge_in_India_by_sui_generis_laws_of_Geographic_Indications_and_The_Protection_of_Traditional_Knowledge_Bill_2022
6. https://www.wipo.int/ip-development/en/agenda/flexibilities/resources/tk_gr_tce_f.html
7. https://www.redalyc.org/pdf/824/82400609.pdf
8. https://www.wipo.int/edocs/pubdocs/en/wipo_pub_transition_9.pdf
9. https://www.alliance.edu.in/committees/acipr/blog/2024-09-01-an-overview-of-the-sui-generis-system-for-protecting-indigeneuos-knowledge.php
10. https://www.wipo.int/en/web/igc
11. https://www.wipo.int/en/web/traditional-knowledge/wipo-treaty-on-ip-gr-and-associated-tk
12. https://infojustice.org/archives/46096
13. https://pmc.ncbi.nlm.nih.gov/articles/PMC8172557/