Intellectual property rights in indigenous cultural heritage: basic concepts and continuing controversies

The developments at international level in the debate on what intellectual property lawyers refer to as traditional cultural expressions (TCE) have to be seen in the context of the decolonisation movements after World War II. Post WWII developments saw the formation of the United Nations and the emphasis on human rights in the UN Charter. With this emphasis came development programmes for Indigenous peoples and the recognition of Indigenous rights in ILO Convention No. 107 of 1957 concerning the Protection and Integration of Indigenous, and other Tribal and Semi-tribal Populations in Independent Countries. The decolonisation movements also initiated or renewed a parallel debate about the repatriation of items of cultural heritage. There was a remarkable shift in this discussion from ‘cultural heritage of mankind’ to cultural particularism and an emphasis on ‘cultural property’, as Merryman has pointed out with reference to the preambles of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, on the one hand, and the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970, on the other hand.

This chapter aims at adding an intellectual property perspective to the debate on international trade in Indigenous cultural heritage. It will examine the international discussion about the options for legal protection of traditional cultural expressions and expressions of folklore (EoF) and pay particular attention to the position of developing countries in international negotiations. In accordance with the author’s current research, examples will be drawn in particular from Asian developing countries. Because of the crucial role of emerging economies such as China, India or Brazil in international trade talks and their interest in traditional knowledge protection, it is submitted that the role of developing countries provides an important consideration in addition to the position taken by the countries studied in this project.