Collaborative Milestones of WIPO and UNESCO in Protecting Traditional Cultural Expressions

Imagine a community of tribal artisans in Jharkhand whose intricate dance forms and folk songs have been passed down across generations – only to find their expressions commercialized abroad without credit, compensation, or consent. This is not a hypothetical. It is the reality that Traditional Cultural Expressions (TCEs) – encompassing folklore, music, art, rituals, and oral traditions – face in a globalised world. Addressing this challenge has required international cooperation at the highest level. Two United Nations bodies, the World Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), have been working together for decades to build a legal framework that can meaningfully protect these expressions. Their collaboration has produced landmark instruments that now form the bedrock of international discourse on TCE protection.

Why TCEs don’t fit conventional intellectual property law
The early roots: from Berne to Brazzaville
The 1982 Model Provisions: the first major milestone
Limitations and the failed treaty attempt
The WIPO Performances and Phonograms Treaty (WPPT), 1996
From the 1997 World Forum to the WIPO IGC
UNESCO’s complementary conventions
Why this matters for India
The road ahead

Why TCEs don’t fit conventional intellectual property law

Before understanding what WIPO and UNESCO have done jointly, it is important to understand the problem they were trying to solve. Standard intellectual property frameworks – copyright, patents, trademarks – are built around individual authorship, fixed works, and limited terms of protection. TCEs, by contrast, are communal, living, and often of unknown or ancient origin. They evolve across generations without a single identifiable author, and they carry social, spiritual, and cultural significance beyond mere economic value.

As the International Journal of Legal Information notes, copyright’s requirements of authorship, originality, and fixed form create a fundamental mismatch with the nature of expressions of folklore. The question of ownership is equally thorny – collective cultural rights do not map neatly onto the copyright system’s assumption of identifiable individual rights holders. This mismatch meant that TCEs frequently fell into what was considered the “public domain,” leaving them open to unrestricted commercial exploitation by outsiders.

Both WIPO and UNESCO recognised this gap early on. WIPO’s mandate centres on developing balanced international intellectual property systems, while UNESCO’s mission involves promoting cultural diversity and heritage preservation. This natural alignment set the stage for their collaborative work on TCEs.

The early roots: from Berne to Brazzaville

The story of WIPO-UNESCO collaboration on TCE protection actually begins in the early 1960s. Wend Wendland, Director of WIPO’s Traditional Knowledge Division, has noted that newly-independent African countries raised the issue of legal protection of “folklore” as early as the 1967 revision of the Berne Convention in Stockholm. These nations, no longer bound by colonial-era copyright laws, wanted their rich oral and artistic traditions acknowledged within the international legal system.

The predecessor body to WIPO, the United International Bureaux for the Protection of Intellectual Property (BIRPI), and UNESCO jointly convened a study meeting in Brazzaville in 1963 to assist African states in defining copyright principles. It was during such sessions that the question of folklore protection first appeared prominently on the international agenda. These early discussions culminated in the Tunis Model Law on Copyright for Developing Countries (1976) – a joint WIPO-UNESCO instrument that provided special protection for works of national folklore, requiring no fixation and offering unlimited protection. It was an early and significant indicator that the two organisations were willing to craft solutions specifically adapted to the realities of traditional communities.

The 1982 Model Provisions: the first major milestone

The most consequential early achievement of the WIPO-UNESCO collaboration was the adoption of the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions in 1982. This document was prepared following a Committee of Governmental Experts convened in Paris in February 1982 under UNESCO’s auspices, and subsequently published jointly by UNESCO (Paris) and WIPO (Geneva).

The Model Provisions were groundbreaking in several ways. First, the drafters deliberately used the term “expressions” rather than “works” – a choice meant to signal that this was a sui generis framework, not an extension of standard copyright law. According to the Cambridge analysis of TCEs and international IP law, this distinction was introduced specifically to underscore the non-copyright nature of the provisions, even though the framework drew significant inspiration from copyright principles such as prior authorisation requirements for publication, reproduction, and communication to the public.

Second, the Model Provisions formally defined “expressions of folklore” as productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community. This definition was designed to cover a wide range of forms – verbal, musical, by movement, and tangible – without requiring that they be attributed to a specific author or fixed in a particular medium.

Third, the provisions extended protection beyond economic rights to include cultural and social interests of the communities that create and sustain TCEs. For the first time, an international instrument acknowledged that communities had legitimate interests in how their cultural expressions were used, adapted, and commercialised by outsiders.

Limitations and the failed treaty attempt

Despite their significance, the Model Provisions had limited practical impact. Legal scholar Janet Blake has observed that few countries adopted national legislation on the basis of the 1982 Model Provisions, and doubts were expressed about their application in practice. The provisions were viewed as a stepping stone toward a binding international treaty.

Between 1982 and 1985, WIPO and UNESCO held discussions on a possible international treaty for the protection of folklore. A Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions was prepared in 1984. However, the effort was ultimately abandoned. Industrialised nations objected on philosophical grounds – challenging the idea of protecting what they considered communal heritage – and on practical grounds, pointing to the difficulty of protecting internationally what might be heritage common to several states. The draft treaty was deemed premature, and the two organisations’ paths began to diverge after 1985, with WIPO focusing on the intellectual property angle and UNESCO pursuing broader, interdisciplinary approaches to what it would later call “intangible cultural heritage.”

The WIPO Performances and Phonograms Treaty (WPPT), 1996

While the attempt at a standalone TCE treaty stalled, a parallel development in 1996 provided partial but concrete protection. The WIPO Performances and Phonograms Treaty (WPPT), adopted at a Diplomatic Conference in Geneva on December 20, 1996, and which came into force on May 20, 2002, addressed the rights of performers and producers of phonograms – particularly in the digital environment.

Crucially for TCE protection, the WPPT’s definition of “performers” was explicitly extended to include actors, singers, musicians, dancers, and other persons who perform literary or artistic works or expressions of folklore. This was a deliberate and significant move. As WIPO’s own background paper on TCEs explains, folk tales, poetry, songs, instrumental music, dances, and plays actually live through regular performances – so extending performers’ rights to those performing expressions of folklore was a practical method of providing some legal protection for how TCEs manifest in practice.

The WPPT grants performers a range of rights relevant to TCE protection. These include moral rights – the right to be identified as the performer and to object to distortions or modifications that harm their reputation – as well as economic rights such as control over the broadcasting, recording, reproduction, and distribution of performances. An agreed statement accompanying Article 15 of the treaty further clarified that member states are not prevented from granting broadcasting and public communication rights to performers of folklore even where the recordings have not been published commercially – an important protection for non-commercial, community-held cultural performances.

It bears noting, though, that the WPPT protects the performance of a TCE, not the underlying traditional expression itself. A traditional tribal song performed at a concert is covered; the song as a living communal tradition is not. The WPPT is therefore a partial – but valuable – bridge within the existing international IP system.

From the 1997 World Forum to the WIPO IGC

Following the adoption of the WPPT, WIPO and UNESCO jointly organised the WIPO-UNESCO World Forum on the Protection of Folklore in 1997. Participants at the forum agreed on the need for a new international standard for the legal protection of folklore, signalling that the international community still regarded the existing frameworks as insufficient.

This momentum directly contributed to a major institutional development. In 2000, WIPO Member States established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which has been meeting regularly since 2001. The IGC brought the issue of TCE protection back to the centre of international IP law-making, now under the broader umbrella of WIPO’s mandate rather than through joint UNESCO collaboration. Notably, India has been an active participant in IGC negotiations, advocating for robust protections for the country’s extraordinarily diverse traditional cultural heritage.

Since 2010, the IGC has conducted formal, text-based negotiations aimed at developing one or more binding legal instruments covering traditional knowledge, TCEs, and genetic resources. As of 2024, WIPO adopted the GRATK Treaty – dealing with genetic resources and associated traditional knowledge – marking the first WIPO treaty to include provisions specifically for indigenous peoples and local communities. Negotiations on a separate instrument for TCEs are ongoing.

UNESCO’s complementary conventions

While WIPO pressed forward through the IGC, UNESCO continued to develop its own framework that reinforced TCE protection from a cultural heritage angle rather than a purely intellectual property one. Two UNESCO instruments deserve mention here. The Convention for the Safeguarding of the Intangible Cultural Heritage (2003) established an international framework for preserving living cultural traditions, including TCEs. The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) affirmed the right of states and communities to create, produce, disseminate, and access diverse cultural expressions, reinforcing the idea that TCEs carry value beyond economics.

As academic analysis of UNESCO and WIPO’s contributions confirms, the two organisations approach TCE protection from distinct but complementary angles: WIPO focuses on preventing illicit use of TCEs through IP mechanisms, while UNESCO promotes an integrated approach centred on conservation and cultural diversity. Together, these frameworks build a more complete architecture of protection than either could offer alone.

Why this matters for India

India’s cultural wealth – from the Warli paintings of Maharashtra and Madhubani art of Bihar, to Bharatanatyam, Baul music of Bengal, and countless forms of tribal oral literature – makes the country one of the most significant stakeholders in the global discourse on TCE protection. India has consistently participated in WIPO IGC sessions, and the Indian delegation has contributed draft text proposals in negotiations. Domestically, instruments like the Geographical Indications of Goods (Registration and Protection) Act, 1999 provide some protection for TCE-linked products, but a dedicated TCE protection statute remains absent. The evolution of the WIPO-UNESCO framework, therefore, has direct implications for how India might shape or adopt future national legislation on TCE protection.

The road ahead

The WIPO-UNESCO collaboration has been instrumental in transforming TCE protection from a peripheral concern into a central issue of international IP and cultural heritage law. Starting from the Tunis Model Law of 1976, progressing through the landmark 1982 Model Provisions, continuing through the WPPT’s partial protection of folklore performances, and now advancing through the IGC’s text-based negotiations, the international community has moved – slowly but measurably – toward a binding treaty framework. The draft provisions for TCE protection under the IGC remain under negotiation, reflecting both the complexity of the legal issues and the competing interests of source communities, developing nations, and industrialised countries. The question of what a final treaty will look like – and how effectively it will protect communities like India’s indigenous and tribal groups – remains open.

What do you think? Given that the 1982 Model Provisions had limited adoption despite being a landmark step, what institutional or political factors do you think are most responsible for the slow progress toward a binding international treaty on TCE protection? And should India enact a dedicated domestic TCE protection law now, rather than waiting for an international instrument to take shape?

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Table of Contents

Why TCEs don’t fit conventional intellectual property law 🔗

The early roots: from Berne to Brazzaville 🔗

The 1982 Model Provisions: the first major milestone 🔗

Limitations and the failed treaty attempt 🔗

The WIPO Performances and Phonograms Treaty (WPPT), 1996 🔗

From the 1997 World Forum to the WIPO IGC 🔗

UNESCO’s complementary conventions 🔗

Why this matters for India 🔗

The road ahead 🔗