WIPO’s Pioneering Role in Safeguarding Traditional Cultural Expressions

Imagine a folk musician from a tribal community in Jharkhand whose ancestral songs are sampled and commercially released abroad – without any credit, permission, or payment to the community. Or consider an artisan from Rajasthan whose traditional textile patterns are mass-produced overseas as “ethnic prints.” These are not hypothetical concerns; they are real, recurring violations of what intellectual property law calls Traditional Cultural Expressions (TCEs). For decades, the global IP system had no adequate answer to such misappropriation. That began to change when the World Intellectual Property Organization (WIPO) started building a dedicated international framework to recognise and protect TCEs. This post traces those efforts in detail.

What are traditional cultural expressions?
The problem WIPO set out to solve
The fact-finding missions: where WIPO began
Establishment of the IGC: WIPO’s core institutional response
Developing the draft legal instruments for TCEs
WIPO’s capacity-building and technical assistance
The 2024 GRATK Treaty: a milestone with more to follow
Challenges that remain
What WIPO’s framework means for India’s TCEs

What are traditional cultural expressions?

TCEs – also referred to as “expressions of folklore” – are the tangible and intangible ways in which traditional culture is expressed by indigenous and local communities. According to WIPO, TCEs include verbal forms (stories, poetry, riddles), musical forms (songs, rhythms, instrumental music), expressions by movement (dances, ceremonies), and tangible forms (weavings, sculptures, pottery, mosaic). What makes TCEs distinct from ordinary copyrighted works is that they are collectively owned, passed down across generations, rooted in community identity, and not attributed to any single individual creator. This communal and intergenerational character is precisely what makes conventional IP tools – copyright, patents, trademarks – poorly suited to protecting them. WIPO acknowledges that while some international IP instruments address TCEs partially, significant protection gaps remain, making dedicated legal instruments necessary.

The problem WIPO set out to solve

Under conventional intellectual property law, TCEs are generally treated as being in the public domain, meaning anyone can use them freely. This creates a serious imbalance: a global fashion brand can commercialise an indigenous weaving pattern without any obligation to the community that created it; a music label can copyright an adapted folk melody, excluding the original community from any royalties. For India – home to extraordinary cultural diversity, from Warli paintings to Baul music to Kantha embroidery – this gap has real consequences. WIPO’s work on TCEs is, at its core, an effort to correct this imbalance through international norms.

The fact-finding missions: where WIPO began

WIPO’s engagement with TCEs did not start with treaty-drafting. It began on the ground. In 1998 and 1999, WIPO conducted nine Fact-Finding Missions (FFMs) across 28 countries, consulting over 3,000 people from indigenous and local communities about their intellectual property needs and expectations. These were not bureaucratic exercises – WIPO’s teams sat with community elders, artisans, healers, and cultural practitioners to understand how their knowledge systems worked and what kinds of legal protection they wanted.

The findings were published in the landmark report Intellectual Property Needs and Expectations of Traditional Knowledge Holders (1998-1999). The report identified consistent themes: communities wanted their TCEs legally recognised, they sought mechanisms to prevent unauthorised commercial exploitation, and they called for benefit-sharing arrangements when their cultural expressions were used by outsiders. In the shorter term, communities wanted existing IP tools tested for applicability; in the longer term, they called for new, purpose-built frameworks. These findings directly shaped everything WIPO did next.

Before the FFMs, WIPO had also collaborated with UNESCO on regional consultations specifically about expressions of folklore. These consultations produced recommendations centred on three areas: the need to document and identify TCEs, the exploration of regional approaches for administering rights over cross-border TCEs, and the development of sui generis (purpose-built) protection systems at both national and international levels.

Establishment of the IGC: WIPO’s core institutional response

The most significant institutional step WIPO took was the creation of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The IGC was established in 2001 by the WIPO General Assembly and has been meeting regularly ever since. It is WIPO’s dedicated forum for negotiating an international legal instrument – or set of instruments – to protect TCEs, Traditional Knowledge (TK), and Genetic Resources (GRs).

What makes the IGC structurally significant is how it operates. Unlike most intergovernmental processes where only member states have a voice, the IGC features direct participation by representatives of indigenous and local communities as observers, who also participate collectively through an ad hoc Indigenous Caucus. Over 200 NGOs are accredited to the IGC, many of whom represent traditional communities directly affected by the negotiations. Each IGC session opens with presentations from indigenous and community representatives – their perspectives are formally built into the process, not added as an afterthought.

The IGC operates under two-year mandates, renewed by the WIPO General Assembly. Since 2010, the IGC has been conducting formal, text-based negotiations on separate draft instruments for TCEs, TK, and GRs. The negotiations were suspended in 2020 due to the COVID-19 pandemic and resumed in 2022.

Developing the draft legal instruments for TCEs

At the core of the IGC’s work are draft provisions for the protection of TCEs, developed iteratively over many sessions with input from member states, indigenous communities, civil society organisations, and other stakeholders. The draft TCE instrument covers key elements: the definition of TCEs eligible for protection, who qualifies as beneficiaries (primarily indigenous peoples and local communities), the scope of protection (including both economic and moral rights), permissible exceptions and limitations, sanctions and remedies, and the administration of rights.

A notable feature of the draft instrument is its tiered approach to protection. WIPO’s Draft Articles propose stronger protective rights for sacred or secret TCEs compared to those that are publicly known and widely shared. This distinction reflects the practical reality that some TCEs – such as ceremonial songs or ritual designs – carry deep spiritual significance and would be irreparably harmed by commercial exploitation, while others may be shared more openly. For Indian communities, this has direct relevance: the sacred paintings of Bhil communities or the ceremonial music of tribal groups in the Northeast would warrant stricter protection than, say, a widely disseminated folk style.

The two sets of draft provisions – one for TCEs and one for TK – are deliberately kept distinct but complementary. For many communities, TK and TCEs are inseparable aspects of cultural identity. The WIPO framework recognises this by ensuring the two instruments are coordinated, even where they address different legal and policy questions. Critically, the draft provisions have been built through extensive consultation rather than imposed from above – they draw on community, national, and regional experiences from around the world.

In 2008, the IGC also commissioned gap analyses on the protection of TCEs and TK to systematically identify where existing international IP frameworks fell short. These gap analyses provided the evidentiary foundation for why a new dedicated instrument was necessary, rather than relying on adapting existing copyright or trademark law.

WIPO’s capacity-building and technical assistance

WIPO’s contribution to TCE protection extends well beyond treaty negotiations. WIPO’s Traditional Knowledge Division runs an extensive capacity-building programme that serves government officials, indigenous communities, NGOs, museums, libraries, and research institutions worldwide. This programme, which traces its priorities back to the 1998-1999 FFMs, provides a wide range of practical support.

WIPO’s technical assistance includes facilitating national and regional consultations, providing legislative and policy guidance, organising study visits, supporting documentation and digitisation projects, and offering training materials. WIPO has helped regional bodies such as the Pacific Islands Forum Secretariat develop a Traditional Knowledge Action Plan, and has worked with the African Regional Intellectual Property Organization (ARIPO) on developing regional instruments for TCE protection. India has been a beneficiary of such technical engagement as well – the country’s Traditional Knowledge Digital Library (TKDL) is frequently cited as a best-practice model for defensive protection of traditional knowledge within the patent system, preventing erroneous patents on traditional formulations.

WIPO also maintains a Database of Legislative Texts on the protection of TCEs, TK, and Genetic Resources, giving policymakers and communities access to national and regional laws from across the world. This database supports countries in designing their own legislative frameworks with reference to international best practices.

The 2024 GRATK Treaty: a milestone with more to follow

In May 2024, WIPO member states adopted the GRATK Treaty – the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. This is the first WIPO treaty to directly address the intersection of IP and traditional knowledge, and the first WIPO treaty to include specific provisions for indigenous peoples and local communities. For India, the treaty is a significant win – it establishes mandatory disclosure requirements for patent applicants whose inventions are based on genetic resources or associated traditional knowledge, obliging them to disclose the country of origin of those resources. This directly protects India’s vast reserves of traditional knowledge from being misappropriated through foreign patent systems.

Importantly, negotiations continue at WIPO for a separate treaty specifically focused on TCEs and broader TK – covering areas such as dances, rituals, ceremonies, and craft skills that are not captured by the GRATK Treaty’s focus on patent disclosure. The IGC continues to meet with the explicit goal of finalising these instruments.

Challenges that remain

Despite the progress, achieving global consensus on TCE protection remains difficult. Member states hold divergent views on key questions: who should qualify as beneficiaries beyond indigenous peoples, what the scope of protection should be, whether protections should have a defined term or be perpetual (mirroring customary law), and how exceptions for research and education should be framed. Indigenous groups themselves have had to fight for meaningful participation in the process – not as observers to be consulted, but as communities whose self-determination is at stake in these negotiations. The Voluntary Fund helps finance indigenous participation in IGC sessions, but structural asymmetries between state delegations and community representatives remain a challenge.

For countries like India with rich and diverse cultural traditions – from the Dokra metalwork of Chhattisgarh to the Theyyam ritual performances of Kerala – the stakes of getting this framework right are enormous. A weak TCE instrument could leave communities without effective remedies even after years of negotiations.

What WIPO’s framework means for India’s TCEs

India’s position in these negotiations has been clear and active. As a country with an extraordinary range of living cultural traditions and as a leading advocate for the rights of the Global South in international IP forums, India has consistently pushed for stronger protections for both TK and TCEs. The GRATK Treaty’s mandatory disclosure provisions are a direct result of advocacy by countries like India. The ongoing IGC negotiations on TCEs similarly reflect Indian interests – both in protecting indigenous communities’ expressive heritage and in ensuring that benefit-sharing flows back to source communities when TCEs are commercially used.

WIPO’s initiatives also complement India’s domestic frameworks, including Geographical Indications (GIs), which protect region-specific traditional products, and the TKDL, which defends against bio-piracy. Together, these form a multi-layered strategy for safeguarding India’s intangible cultural heritage at both national and international levels.

What do you think? Given that TCEs are often collectively owned and passed down over centuries without a single identifiable “author,” should the protection of TCEs be treated as a human rights issue rather than purely an intellectual property question? And in a country as culturally diverse as India, who should have the legal standing to represent a community’s TCE in international negotiations – the community itself, the state government, or the central government?

References

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Table of Contents

What are traditional cultural expressions? 🔗

The problem WIPO set out to solve 🔗

The fact-finding missions: where WIPO began 🔗

Establishment of the IGC: WIPO’s core institutional response 🔗

Developing the draft legal instruments for TCEs 🔗

WIPO’s capacity-building and technical assistance 🔗

The 2024 GRATK Treaty: a milestone with more to follow 🔗

Challenges that remain 🔗

What WIPO’s framework means for India’s TCEs 🔗