We Shall Not Cease from Exploration: Why IP Protection May Harm Traditional Cultural Expressions

The conventional legal wisdom in the context of Traditional Cultural Expressions (TCEs) is that TCEs need formal IP protection (through sui generis rights) to ensure that the indigenous communities have authority and rights over their works. We show in this paper that this claim is built on an incomplete understanding of TCEs (which is perhaps one of the reasons why countries have hardly adopted WIPO’s framework). We advance three arguments, namely (1) IP protection discourages TCEs’ usage, deepening the vulnerabilities of these communities, in fact TCEs evolve through a culture of openness and free flow of ideas, which is antithetical to IP regimes; (2) the demand for IP protection is hardly universal because it stems from distinct colonial experiences the Americas and Australia had with their indigenous communities, a history not shared by most of the world; and (3) there is a need to differentiate 'know-how' and 'knowledge', and since TCEs belong to the former, they will elude any IP framework, by definition.