Towards a right of preservation for traditional cultural expressions: carving out a sui generis regime that combines copyright and cultural heritage lawIntroduction Renewed focus upon the need to retain our cultural diversity in an age of globalisation creates complex challenges about how to implement a legal regime that adequately encourages the longevity of indigenous culture. The legal response at the international level has been fractured with the relevant organisations working separately to develop substantive measures that fall within their respective jurisdictions. The World Intellectual Property Organisation (WIPO) considers the intangible intellectual creations of indigenous culture capable of attracting rights similar to those enjoyed by copyright authors. As a result, the objective of intellectual property (IP) lawyers working under the ambit of WIPO is focussed upon devising a framework for proprietary and permissive rights over indigenous creations pursuant to existing IP regimes or through sui generis law. The United Nations Educational Scientific and Cultural Organisation (UNESCO) considers a more holistic approach in accordance with its mandate to safeguard cultural heritage in all its forms. Indigenous expressions fall within the broader category of intangible cultural heritage (ICH) and are the subject of international conventions designed to establish global frameworks for heritage protection and conservation, specifically the Convention for the Safeguarding of the Intangible Cultural Heritage (ICH Convention).1 Notably, the purpose of copyright protection differs significantly from the legal protection provided under cultural heritage laws.

Traditional cultural expressions (TCEs) are an essential part of indigenous cultural heritage and are particularly important for developing countries which generally have a comparative advantage in cultural diversity. The impetus behind the safeguarding of cultural heritage in developing countries is additionally associated with the drive for development and consequently, the need for some sort of legal protection regime is of dual importance as it is driven by economic as well as cultural rationales. Harnessing cultural expressions in a way that maximises the indigenous resources of developing countries is regarded as a vehicle for driving sustainable development. This purposive approach to framing the cultural expressions discussion is important when considering the multi-faceted role they play in indigenous societies, particularly those where the indigenous population has predominant control of the state. Many developing countries are taking deliberate steps to implement holistic policies that prioritise their indigenous culture by making culture a key part of their country’s strategic outlook. These policy initiatives need to be complemented by a legal framework that similarly functions to ensure that cultural expressions continue to play an integral role in indigenous societies and that the benefits of maintaining cultural diversity can be spread across the social spectrum.

Legal debates concerning TCEs have been mired in a rhetoric that focuses on the need for ‘protection’, focusing upon the rights of the beneficiaries or custodians of the TCE. However, the usage of this term differs according to the field of law being navigated and context of the situation. The concept of protection for the rights holder under copyright law has a far different connotation than the protection provided under the laws of cultural heritage. ‘Protection’ in the context of cultural heritage law implies protection bestowed by the state, usually to expressions or articles contained in heritage lists for the benefit of the public. Terms applied to ICH such as safeguarding,

1 Convention for the Safeguarding of the Intangible Cultural Heritage, MISC/2003/CLT/CH/14 (entered into force 17 October 2003).

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preservation, promotion and enhancement are similarly focussed upon imposing responsibilities on state-based entities to take measures to ensure the viability of cultural heritage. The public listing protection bestowed under heritage Acts contrasts with the protection of private rights the subject of IP law, which aims to prevent misappropriation of the protected subject matter by virtue of it ‘belonging’ to the owner. Copyright seeks to protect against unpermitted reproductions of creative works by designating such acts infringements of the author, in which case the author is entitled to exercise private rights of compensation against the perpetrator. In other words, copyright operates as a preventative right to allow legal recourse against misappropriation. Applying such a right to indigenous expressions would possibly conflict with the role of the state to preserve and promote indigenous expressions where they are part of a country’s ICH. As international support for legal protection of ICH gains traction, it is yet to be seen how copyright protection of indigenous expressions may interplay with state based mechanisms for protecting ICH.

This essay will argue that attempts to carve out a sui generis regime for cultural expressions akin to only IP law are inadequate. A holistic legal regime should apply to the regulation of cultural expressions that encompasses the private rights inherent in copyright law in addition to the public rights of cultural heritage law. The intrinsic cultural value of cultural expressions should be recognised to ensure that the need to preserve TCEs is held paramount. Although an international framework exists for ICH, the ICH Convention is drafted to designate responsibilities upon signatory states to implement appropriate measures to safeguard ICH as it sees fit. Nation states have considerable flexibility to determine the domestic regime applicable according to their priorities. This differs considerably from IP conventions which strictly set out the minimum standards of protection to be implemented, although there is currently no convention mandating IP protection of cultural expressions. Where countries do decide to include cultural expressions as copyright material, the more prescriptive measures pertaining to international IP obligations are likely to override the less cohesive stipulations of cultural heritage conventions. This essay argues that any IP rights over cultural expressions should be subject to countervailing measures that will ensure the preservation of cultural expressions is given priority. Doing so will recognise the changing paradigms of culture as part of the economic lifeblood and intellectual commons of many countries and ensure that diversity of cultural heritage is fostered as part of the public interest. Furthermore, the discourse defining the cultural expressions paradigm should shift from one of protection which insinuates an exclusionary situation, where rights are used to prevent the actions of another, to one that highlights preservation as being a right inherent in the nature of the work itself rather than those seeking to exercise control over it.

Traditional cultural expressionsFrom Folklore to TCEsThe obvious and initial hurdle in attempting to carve out a regime for governance of TCEs is the difficulty in encapsulating the material under a specific definition. Until fairly recently interchangeable usage of similar terms such as ‘folklore’, ‘expressions of indigenous culture’ and ‘intangible cultural property’ contributed further to the disparate nature in which arguments for legal protection evolved. Each of the terms arose out of a specific legal context and the multiplicity of terminology is indicative of the fractured discourse driving the discussion of how cultural expressions should be protected. Monika Dommann provides a background of the inception of the term from an IP perspective, tracing its emergence out of proposals for protection of ‘folklore’ in the 1960s.2 The drive for protection for folklore initially originated from Africa and stemmed from a

2 Monika Dommann, 'Lost in tradition? Reconsidering the history of folklore and its legal protection since 1800' in Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural

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consideration of how to protect its unique music and stories. The issue was first raised at a conference in August 1963 held by UNESCO and the International Office for the Protection of Intellectual Property (BIRPI). As developed countries encouraged developing countries to accede to international copyright conventions such as the Berne Convention, 3 developing countries lamented that protection was given to copyright material exported by developed countries whereas there was no protection for analogous material exported from developing countries.4 This push for reciprocity of legal protection for works of creative endeavour lead to discussions of how to integrate folklore into the copyright laws of African countries. In the end, Tunisia was the only country to include folklore in its Copyright Act of 1966. Other African nations omitted specific copyright protection for folklore, effectively driving for a more integrated approached that would align better with the status of TCEs in indigenous societies and take into account the cultural value of the works. The original basis for reciprocal treatment of TCEs was consequently seen as an inadequate premise for a legal regime as it would not be in effective in encapsulating the complex significance that TCEs have as a cultural asset to indigenous communities.

Nonetheless, the drive for developing countries to embrace copyright laws resulted in the drafting of the Tunis Model Law for Copyright in Developing Countries (Tunis Model Law),5 finalised in 1967. These draft provisions reflected international obligations and were designed to act as the framework upon which developing countries could implement the obligations of the Berne Convention as well as the 1971 revision of the Universal Copyright Convention. The Tunis Model Law specifically included ‘folklore’ in the copyright regime (although it does not grant commensurate rights to the copyright owner). Folklore is defined in section 18 as:

all literary, artistic and scientific works created on national territory by authors presumed to be nationals of such countries or by ethnic communities passed from generation to generation and constituting one of the basic elements of the traditional cultural heritage;

Neither ‘traditional’ nor ‘cultural heritage’ are defined. Section 6 [Works of national folklore] vests the rights conferred under sections 4 [Economic rights] and 5 [Moral rights] to be exercised by the ‘competent authority’. ‘Competent authority’ is defined in section 18 as the person(s) appointed by the Government for the purpose of exercising jurisdiction of copyright. Sub-section 6(3) also requires the authorisation of the competent authority for any importation or distribution of any copies, translations, adaptations, arrangements or any other transformations of works of national folklore. The provisions relating to folklore in the Tunis Model Law are indicative of the post-colonial context in which copyright law was imposed onto developing countries. Purporting to bestow copyright rights in a Government agency is indicative of the paternalistic attitude that was a hangover from the colonial past of many developing countries and a rejection of indigenous autonomy. As a result the adoption of the Tunis Model Law was limited due to its failure to recognise the sensitivities of developing a law that adequately endorses the rights of the community to use of their folklore.

These deficiencies were acknowledged in a subsequent international framework for laws regarding folklore, the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1982 Model Provisions).6 Like the Tunis Model Law, the 1982 Model Provisions were again developed cooperatively between WIPO and UNESCO and

Expressions in a Digital Environment (Edward Elgar Publishing Limited, 2008) 3.3 Berne Convention for the Protection of Literary and Artistic Works, Paris Act of 24 July 1971, as amended on 28 September 1979 (entered into force 9 September 1886).4 Above, footnote 2, 9.5 World Intellectual Property Organisation and United Nations Educational Scientific and Cultural Organisation, 'Tunis model law on copyright for developing countries' (1976) WIPO Publication 812(E).

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hence designed to encompass issues relating to IP and cultural heritage protection within its terms. Commentary on the document explicitly recognises that previous attempts to frame folklore as part of the package of rights under copyright were unsuccessful, among other reasons, due to the nature of copyright works being a form of individual creativity, while folklore is the creative activity of a community. Consequently, copyright was described as an inadequate form of protection for folklore in favour of a sui generis regime.7 The scheme mapped out by the 1982 Model Provisions stipulates a more permissive based approach, where the ‘utilisation’ of folklore requires authorisation of the ‘community concerned’ or competent authority. ‘Utilisation’ is the publication, reproduction, distribution, public recitation, publication or other communication of the folklore with ‘gainful intent’ outside of the traditional or customary context.8 The exceptions to the authorisation requirement are far broader than those normally applicable to copyright and include the purposes of education, by way of illustration within the original work of an author, borrowing of expressions for creating an original work and incidental use.9 The definition of folklore is given a more expansive meaning under section 2 to also include tangible expressions such as folk art, musical instruments and architectural forms.

Following the development of the 1982 Model Provisions, the then Global Intellectual Property Issues Division of WIPO was established to identify new beneficiaries of IP protection.10 It engaged in a series of fact-finding missions in 1998 and 1999 to consider local and regional needs for knowledge, culture and innovation.11 Subsequently, the consideration of IP rights over TCEs entered WIPO’s agenda, resulting in the formation of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) in 2001. As WIPO began to actively consult more with indigenous communities about the scope of protection to be accorded to indigenous IP, the terminology shifted from folklore to TCEs. Rosemary Coombe argues that the term ‘folklore’ was inherently unsuitable as it connotes primitivism, superstition, backwardness and archaic knowledge rather than a living and evolving tradition.12 She argues that the description of folklore by UNESCO in its 1989 Recommendations on the Safeguarding of Traditional Culture and Folklore13 as tradition based, collectively held, orally transmitted knowledge is not shared by all indigenous communities, particularly for those that have embraced modernity. WIPO has since used the term TCEs synonymously with folklore. Nonetheless, debates about terminology demonstrate the difficulties in specifying an appropriate definition for the subject matter of protection and how the term is used may reflect notions of colonialism and patriarchy towards indigenous communities. It is no wonder then that the IGC named defining the subject matter of protection as one of the most fundamental challenges associated with the protection of TCEs.14

6 Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions 1982 (United Nations Educational, Scientific and Cultural OrganisationWorld Intellectual Property Organisation).7 Ibid, pp 4-5.8 Section 3.9 Section 4.10 Rosemary J. Coombe, 'First Nations Cultural Heritage Concerns: Prospects for Protection of Traditional Knowledge and Traditional Cultural Expressions in International Law' in Catherine Bell and Robert K. Paterson (eds), Protection of First Nations Cultural Heritage (UBC Press, 2009) 247, 255-256.11 These fact finding missions culminated in the WIPO report Intellectual Property Needs and Expectations of Traditional Knowledge Holders in April 2001.12 Above, footnote 10, pp 260-261.13 Folklore (or traditional and popular culture) is defined as “the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognised as reflecting…its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means.”

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What is a ‘Traditional Cultural Expression’?Although there is no settled international legal definition of TCEs, the latest Draft Provisions for the Protection of Traditional Cultural Expressions15 developed by WIPO tentatively defines the term as:

any form of [artistic and literary], [creative and other spiritual] expression, tangible or intangible, or a combination thereof, such as actions16, materials17, music and sound18, verbal19 and written [and their adaptations], regardless of the form in which it is embodied, expressed or illustrated [which may subsist in written/codified, oral or other forms.20

The difficulty in pinpointing a definition for cultural expressions lies in its potential to straddle various fields of law, particularly copyright and cultural heritage. Defining TCEs requires a deep understanding of the concept of culture and the particular aspect of culture deserving legal protection. The context in which cultural heritage is created and preserved is important to its meaning and the terminology will vary depending on the region and community from which the material is generated.21 In arguing against the justification for protection of TCEs as a form of art under IP law, Elizabeth Burns Coleman posits that any human rights based right to culture under Article 27 of the Universal Declaration of Human Rights (UDHR) for TCEs should recognise the fundamental role TCEs play in social organisation and that they are more than just an artworks.22 Positioning them as artworks arguably dilutes their cultural significance and renders TCEs vulnerable to commodification. Determining the relevance of culture to the debate on TCEs raises complex issues of how to value cultural heritage as a resource.

Michael Brown notes that a shift in the way we conceptualise culture is underway spurred on by the desire for ethnic nations to have enduring rights in their own cultural productions, including the right to control the representations of their ideas by outsiders.23 Brown notes the impact this may have upon the public domain and how the erosion of public domain material is itself detrimental to cultural productivity. Although Brown is critical of the misappropriation for commercial gain of indigenous culture, he cautions against the use of intellectual property regimes as a mechanism for resolving the perceived injustice due to the deleterious impact such rights would have on the greater benefit in retaining access to public domain material. Conversely, Rebecca Tsosie argues that First Nations control over cultural representations is required to prevent social and cultural harm, which

14 Draft Gap Analysis, The Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/13/4(B) REV (13-17 October 2008) (Consultation Draft) 3.15 WIPO Document, The Protection of Traditional Cultural Expressions: Draft Articles, WIPO/GRTKF/IC/28/6 (2 June 2014).16 [Such as dance, works of mas, plays, ceremonies, rituals, rituals in sacred places and peregrinations, games and traditional sports/sports and traditional games, puppet performances, and other performances, whether fixed or unfixed.] 17 [Such as material expressions of art, handicrafts, ceremonial masks or dress, handmade carpets, architecture, and tangible spiritual forms, and sacred places.] 18 [Such as songs, rhythms, and instrumental music, the songs which are the expression of rituals.] 19 [Such as stories, epics, legends, popular stories, poetry, riddles and other narratives; words, signs, names and symbols.] 20 Annex, p 5.21 World Intellectual Property Organisation Secretariat, Consolidated analysis of the legal protection of traditional cultural expressions, Document prepared by the Secretariat, 5th sess, UN Doc WIPO/GRTKF/IC/5/3 (2 May 2003) Annex 17.22 Elizabeth Burns Coleman, 'The Disneyland of cultural rights to intellectual property: anthropological and philosophical perspectives' in Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar Publishing Limited, 2008) 49.23 Michael F Brown, 'Can Culture be Copyrighted?' (1998) 39(2) Current Anthropology 193, 194.

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is of greater damage that economic harm.24 Tsosie argues that culture is tied to issues of power and accordingly any attempt to regulate expressions of cultural production may affect the maintenance of power relations by opposing groups and the ability to exercise control over specific cultural meanings. To substantiate this argument, Tsosie makes a polemical demonstration of the misconceptions of Indian culture perpetuated particularly by cowboys and Indian movies. It is through such vilifying representations that Anglo-American culture perpetuates those same systems of dominance and control used to colonise and destroy native culture.25 The legal approaches to regulate TCEs must be considered not only within the cultural context of the specific indigenous community, but also against the repercussions regulation will have upon culture itself and the predilection of lawyers to preside over a paradigm shift from culture as an analytic category to a legal concept.26

A corollary to the debate about legal regulation pertaining to culture is how the definition of TCEs may potentially impact upon the right of those seeking to claim a benefit under any legal regime. Christoph Antons argues that the difficulty in defining culture leads to ambiguity about the intended beneficiaries of any commercialisation of TCEs.27 Antons notes the difference that legal protection plays in so-called settler societies such as Australia and Canada where indigenous people are a minority population in contrast to the increasing relevant of ICH protection in Asia where many countries are grappling with development issues post colonisation. Seeking cultural rights in settler societies has been met with opposition in settler societies due to the relationship cultural rights have with sovereignty and the perception that recognition of broader cultural rights might lead to a push for greater self-determination. Seeking protection for TCEs based on cultural rights policy would appear to undermine the argument for IP rights as it would render TCEs subject to the reproductive focus upon which copyright is based. The emphasis upon which rights discourse should apply to TCEs is consequently important to determining the subject matter to be recognised and accordingly how the legal regime for protection should be framed.

Similarly the question of how to define ‘traditional’ in the context of TCEs is also a matter of contention. According to WIPO, the adjective ‘traditional’ qualifies a form of knowledge or an expression which has a traditional link with a community.28 In defining ‘traditional knowledge’ in the broad sense, WIPO defines ‘tradition-based’ as referring to:

knowledge systems, creations, innovations and cultural expressions which:

a) have generally been transmitted from generation to generation;b) are generally regarded as pertaining to a particular people or its territory; andc) are constantly evolving in response to a changing environment.29

24 Rebecca Tsosie, 'ReClaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights' (2002) 34 Arizona State Law Journal 299.25 Above, footnote 24, 31126 Luis A Vivanco, 'Review of "Who Owns Native Culture?" by Michael F Brown' (Pt Blackwell Publishing Ltd) (2006) 11(1) Journal of Latin American Anthropology 242.27 Christoph Antons, 'Traditional cultural expressions and their significance for development in a digital environment: examples from Australia and Southeast Asia' in Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar Publishing Limited, 2008) 287, 289.28 World Intellectual Property Organisation, 'Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions' (2012) <www.wipo.int/edocs/pubdocs/en/tk/933/wipo_pub_933.pdf>.29 WIPO, Traditional Knowledge – Operational Terms and Definitions, WIPO/GRTKF/IC/3/9, 20 May 2002 [22]

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WIPO describes TCEs as often being the product of inter-generational and fluid social and communal creative processes, which reflect and identify a community’s history, cultural and social identify and values.30 However the historic aspect of TCEs may not necessarily be a defining feature of the material. Wend B. Wendland expresses the difficulty with using the term ‘traditional’ as TCEs may “range from truly old and pre-existing materials that were once developed communally or by ‘authors unknown’, through to their most recent and contemporary expressions, with an infinite number of incremental and evolutionary adaptations, imitations, revitalisations, revivals and recreations in between”.31 Traditional may indeed be a redundant addition to the definition of TCEs as the emphasis should instead focus upon the association of the expression with indigenous culture. Martin A. Girsberger notes that while there is no agreed terminology of the term, the general characteristics common to TCEs that can be identified are:

a) transmission from one generation to the next, rarely in writing;b) consisting of the characteristic elements of a cultural community or group;c) constant evolution;d) creation by unknown or communal authors; ande) creation as vehicles for religious and cultural expression, rather than commercial purposes.32

Due to the difficulties involved in collating a definition that combines the separate elements of ‘traditional’, ‘cultural’ and ‘expression’, perhaps a holistic, functional approach to the terminology is required. Cultural expressions are regarded differently according to the national context and how they are treated under any applicable domestic law. The changing use of this term is indicative of the difficulties inherent in attempting to categorise a distinct part of indigenous culture for the purposes of IP. Rather than focussing upon how to constitute a definition from each of the distinct transient terms comprising TCEs, a purposive approach that looks at what the matter to be legislated seeks to achieve will more meaningfully frame that the legal regime for preservation. Such a methodology will also guide in determining the ambit any such legal regime, considering the difficulty in distinguishing TCEs from the broader field of traditional knowledge.

Many commentators have argued that the distinction between TCEs and other types of cultural property is artificial as it ignores the composite relevance of indigenous culture and its fundamental linkage to the land.33 Natalie Stoianoff and Patricia Adjei have argued that the division of indigenous IP into the narrow field of traditional knowledge which pertains to scientific and plant-based material upon which a patent may be claimed and TCEs because of their perceived alignment with copyright, designs and trade mark law is counter-productive as it does not reflect the totality of indigenous culture.34 Traditional knowledge and TCEs are interdependent and each respectively represents only a part of the manifestation of knowledge for an indigenous community. Aligning the regimes according to the arbitrary distinction of IP regimes may serve to be detrimental to the

30 WIPO, Intellectual Property and Traditional Cultural Expressions/Folklore, Booklet No 1, WIPO Publication No. 913, 531 Wend B. Wendland, '"It's a small world (after all)": some reflections on intellectual property and traditional cultural expressions' in Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar Publishing, Inc., 2008), 166.32 Martin A. Girsberger, 'Legal protection of traditional cultural expressions: a policy perspective' ibid.(Edward Elgar Publishing Inc.) 123, 127.33 See for example Johanna Gibson, 'The lay of the land: the geography of traditional cultural expression' ibid.(Edward Elgar Publishing, Inc.) 182.34 Patricia Adjei and Natalie Stoianoff, 'The World Intellectual Property Organisation (WIPO) and the intergovernmental committee: Developments on traditional knowledge and cultural expressions' (Pt March 2013) (2013) 92 Intellectual Property Forum: journal of the Intellectual and Industrial Property Society of Australia and New Zealand 37, 38.

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recognition of legal rights for cultural property as it divorces the subject matter from the geographical context which gives it meaning. Ironically, while the scope of this essay is confined to TCEs, the limited focus is admittedly a cause for consternation in any attempt to map out a legal regime pertaining to cultural property.

The terminology used in this essay will abide by the international norms discussed above and adopt the prevalent terms used in current debates while acknowledging that such definitions may be insufficient in framing the discourse on the issue. Despite the lack of certainty associated with the term TCEs, in the absence of further consensus, the usage of this definition as developed by WIPO will set the parameters for this essay as it seeks to navigate the potentially competing fields of copyright and cultural heritage law. By complying with what may inadvertently result in a normative framework for the division of TCEs under copyright law and traditional knowledge under patent protection, this essay counterintuitively conforms to the very categorisations it seeks to usurp. However, in lieu of alternative unanimity in the field as to the scope of material that spans copyright and cultural heritage law, the description of the characteristics of TCEs noted above in addition to the tentative definition in the IGC Draft Provisions will be used for illustrative purposes alongside the simultaneous concession that the vernacular may be inadequate for mapping out a comprehensive approach that takes into account the full spectrum of legal issues associated with indigenous cultural rights.

Intellectual property protectionThe literature on whether TCEs are appropriate for IP protection is vast. Ongoing debates about the appropriateness of subsuming cultural material under Anglo-Western IP regimes have raged since the emergence of folklore on the international agenda. Many commentators point at the fallacy of using Western proprietary based legal regimes to place controls over cultural material.35 The use of proprietary based mechanisms for preventing misappropriation of cultural material has been regarded as commoditising cultural heritage leading many academics to question whether such a result is advantageous, given that most indigenous peoples are at a crucial stage of their development.36 As Michael Jon Andersen has cautioned, developing countries seeking to expand IP protection to TCEs and folklore in the hope that such legal regimes may allow their peoples to capitalise upon their cultural heritage should be wary of placing too many controls upon folklore. Andersen likens the desire to use IP regimes to prevent misappropriation of cultural material to the Cinderella story of cutting off part of one’s foot to fit the coveted shoe. With regard to oral narratives, the temptation to confine TCEs within a particular legal framework may have unprecedented repercussions upon the organic way in which narratives are woven across different cultures. Additionally, much loved fairy tales that are now part of the public domain may also become subject to overly restrictive legal controls impacting upon the current stable of material comprising the cultural heritage of many different cultures. Such cultural consequences of IP law should also be considered when questioning the often touted assumption that IP rights are beneficial for development. Mira T. Sundara Rajan points to the impact, in particular, that the Agreement on Trade-Related Aspects of Intellectual Property37 (TRIPs) has had upon culture in developing countries. Rajan argues that TRIPs imposes Western industrialised concepts, principles and standards of IP protection on developing countries and since IP rules are subject to the general mechanisms for dispute settlement and the enforcement of rulings at the World Trade Organisation

35 See for example Christine Haight Farley, 'Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?' (1997) 30(1) Connecticut Law Review 1.36 See for example Rosemary J. Coombe in footnote 10 above.37 Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, Signed in Marrakesh, Morocco, Uruguay Round Agreement (signed and entered into force 15 April 1994) ('TRIPs').

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(WTO), the vision of culture embodied in TRIPs is potentially coercive.38 In arguing against the need for strict economic copyright rights using India as a case study, Rajan contends that the permissive approach of moral rights is more aligned to the way in which TCEs are treated in Indian culture and could more effectively be used to bridge the IP chasm that needs to be crossed by developing countries. The ramifications that an introduced legal regime may have upon culture and development should be at the forefront of policy makers minds when devising any platform related to TCEs. This section will examine the early attempts to apply copyright to TCEs, highlighting the main rationales behind its unsuitability. Subsequently, the content of sui generis regimes will be examined to critically assess how such regimes fail to take an integrated approach in considering cultural heritage implications of protection, despite the commoditisation of culture being one of the primary concerns of creating legal regimes for TCEs that are analogous with IP.

CopyrightThe early attempts to include TCEs under copyright law regimes faltered due to a lack of global momentum for harmonisation. Although the Tunis Model Law was developed in 1976 with provisions that sought to include folklore as part of the copyright regime, it did not necessarily afford folklore the same economic and moral rights as those granted to literary, artistic and scientific works. Furthermore, there was no mention of folklore in the Berne Convention or TRIPs (although protection was granted to works of an unknown authorship) hampering any coordinated effort for a universal approach. This disconnect and failure to understand the intricacies of TCEs may have contributed towards the decision by many countries to omit ‘folklore’ or TCEs from their copyright implementation obligations under international agreements. Folklore is included in the copyright law regimes of only a handful of countries, such as Tunisia and Vanuatu. In contrast, a questionnaire published by WIPO of national experiences with the 1982 Model Provisions found that many countries have used them to some degree in establishing their legislation, including Namibia, Mozambique, Mexico, Sri Lanka and Vietnam.39 However, the WIPO findings also noted that there seemed to be little practical experience with implementation of the provisions and the TCE regimes in many countries were not functioning effectively in practice. The practical realities of imposing a complex legal regime on matters of cultural heritage highlight the difficulties in bringing such material under a legislative umbrella. This is particularly the case where the underlying legal principles of the law being replicated have been espoused in response to an entirely different policy situation.

Attempts to fit TCEs under copyright regimes have been likened to trying to fit a square peg into a round hole.40 The defining feature of economic copyright rights, to afford proprietary rights for exploitation of copyright material, is regarded as alienating to indigenous culture. Joseph Githaiga describes how the defining features of copyright law and its requirements for originality, material form, a limited term and individual authorship is deficient for protecting TCEs.41 At the core of the debate is the fact that TCEs are communally based derivative products that evolve along with the relationships indigenous people have to their land, people and kinship with other living creatures that share the land. Eurocentric individualism and economic order is evidently diametrically opposed

38 Mira T. Sundara Rajan, Developing countries and the international copyright regime: The neglected issue of cultural survival (Master of Laws Thesis, University of British Columbia, 1999) <https://circle.ubc.ca/handle/2429/9730>.39 Above, footnote 21, Annex 6040 Above, footnote 30, 15041 Joseph Githaiga, 'Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge' (1998) 5(2) Murdoch University Electronic Journal of Law http://www5.austlii.edu.au/au/journals/MurUEJL/1998/13.html.

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to indigenous holistic attitudes of life and nature. Githaiga argues that an alternative discourse is needed for the protection of folklore derived from the Maatatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (Maatatua Declaration) drafted at the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples held in 1993 in Aotearoa, New Zealand. Such platforms are regarded as progressive advancements towards a deeper understanding of cultural rights that conceptually embrace the universal significance of TCEs. As Githaiga also notes, the developments in these areas are often tied with other rights being advocated by indigenous people, such as the right for self-determination consistent with their status as exclusive owners of their cultural and intellectual property. In other words, the limitations of using copyright or indeed any other singular Anglo or Eurocentric legal regime for regulating TCEs divorces the material from its greater significance as an operational mechanism for culture.

However, other commentators argue that although less than perfect, a few tweaks to the copyright system could assist in protecting TCEs against the greater harm of misappropriation.42 Megan M. Carpenter believes that as IP rights are the primary vehicle for protecting artistic, literary and scientific works worldwide, segregating cultural material from the overriding schema denies indigenous peoples a powerful shield and sword for enforcing their rights.43 In other words, despite being developed in an alternate Western context, copyright law, together with trade secrets law, can and should be assumed universally as the most effective mechanisms for protecting all cultural content. Similarly, Cathryn A. Berryman argues that copyright can act as the protector of cultural creations by immunising the creation from distortion, inaccuracy and misattribution.44 By requiring the author’s consent, Berryman argues that the author can act as a self-controlling policeman of the nation’s culture. Berryman appears to discard the notion that existing legal regimes fail to embody cultural elements by pointing out that production of copyright material is often supported by state cultural bodies with the intent that such material may eventually enter the public domain.45 Similarly, moral rights allegedly function as the state’s cultural protector by preserving authenticity.46 By positing similar arguments in support of unfair competition and public domain laws, Berryman contends that a scheme of domaine public payant, that imposes a fee for use of public domain material could be used to provide the financial means for protection of cultural heritage. In that respect, the state should consider expanding existing legal regimes in order to encompass folklore which will in effect place greater protections upon cultural creations. Berryman’s argument for copyright expansion advocates a state-centric approach to cultural protection with the benefits eventually flowing to the creators of cultural material. However, states may not be as amenable to endorsing an agenda that would require such a demanding interventionist approach.

A particular issue with including TCEs under copyright is the preconception that IP is a private rights based system. Allowing private rights over TCEs may potentially diminish state based responsibilities, particularly towards ensuring that there remains a wealth of material within the public domain. Robert K. Paterson and Dennis S. Karjala argue that in characterising certain social phenomena as private, the state may justify its lack of involvement, thereby perpetuating inequities and

42 See for example Megan M. Carpenter, 'Intellectual property law and indigenous peoples: adapting copyright law to the needs of a global community' (2004) 7 Yale Human Rights and Development Law Journal 51.43 Ibid, 55.44 Cathryn A. Berryman, 'Toward More Universal Protection of Intangible Cultural Property' (1994) 1 Journal of Intellectual Property Law 293, 298.45 Ibid, 298.46 Ibid, 300.

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inequalities.47 Like Berryman, they argue that new regimes of IP pertaining to TCEs are unnecessary. Although copyright and patent rights are unsatisfactory for protection of TCES, Paterson and Karjala insist that other Western laws such as contract, privacy, trade secrets and trade marks may suffice in providing the desired level of protection. In maintaining that the creation of a standalone regime for indigenous cultural heritage is redundant, Paterson and Karjala point to the existing balancing mechanisms embodied in democratic institutions that guard fundamental human rights and social values for both indigenous and non-indigenous peoples. Adhering to the existing jurisprudence on established legal principles avoids the need for claimants to define their legal rights in terms of a pre-existing category of property rights, avoiding charges of debasement and commercialisation.48 As has been often noted, IP rights themselves are often insufficient in protecting TCEs against harm. While attention turned to the development of sui generis regimes of protection, the early models sought merely to replicate analogous IP rights to TCEs, thus ignoring cultural aspects of preservation and safeguarding.

Sui generis regimesThe development of a sui generis regime for traditional knowledge and TCEs has often been touted as the most appropriate vehicle for legal protection.49 Such regimes have often focussed upon extending copyright and moral rights to include TCEs. However, as WIPO has noted, it is difficult to draw a firm distinction between sui generis and other forms of conventional protections. A number of elements for sui generis protection could be conceived within the conventional IP system, particularly with the addition of performers’ rights on the international agenda following the drafting of the WIPO Performances and Phonograms Treaty (WPPT) of 1996.50 Consequently a number of policy questions need to be determined before committing to a dedicated sui generis regime. The 1982 Model Provisions were initially heralded as a first step towards a draft treaty for TCEs and traditional knowledge by WIPO. In 1984 the Group of Experts on the International Protection of Expressions of Folklore by Intellectual Property met to discuss a draft treaty and, after concluding that such a measure was premature, the matter faded from the international agenda.51 International discussion has progressed since with the IGC developing successive drafts on sui generis treaties for TCEs and traditional knowledge respectively. The 28th Session of the Committee recommended that the second revision of the draft articles be transmitted to the WIPO General Assembly meeting in September 2014.52 Proponents of the treaties are hopeful that the treaties will be finalised within the next few years.53

The Comparative Summary of Sui Generis Legislation for TCEs prepared by WIPO in 2003 considered several different frameworks including:54

the Tunis Model Law; the 1982 Model Provisions;

47 Robert K. Paterson and Dennis S. Karjala, 'Looking beyond intellectual property in resolving protection of the intangible cultural heritage of indigenous peoples' (2003-2004) 11 Cardozo Journal Of International & Comparative Law 633, 656.48 Ibid, 635.49 For example see above, footnote 40, [99]-[101].50 Above, footnote 21, Annex 7.51 Silke Von Lewinski, 'The protection of folklore' (2003) 11 Cardozo Journal Of International & Comparative Law 747, 754.52 Above, footnote 15.53 Above, footnote 33, 4754 WIPO Secretariat, Comparative summary of sui generis legislation for the protection of traditional cultural expressions, WIPO/GRTKF/IC/5/INF/3, 28 April 2003, IGC Comm, 5th sess.

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the Bangui Agreement on the Creation of an African Intellectual Property Organization (OAPI), as revised in 1999;

the Special Intellectual Property Regime Governing the Collective Rights of Indigenous Peoples for the Protection and Defence of their Cultural Identity and their Traditional Knowledge of Panama, 2000 and the related Executive Decree of 2001 (Panama Law); and,

the Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002 (Pacific Regional Framework).

In seeking to include TCEs within the scope of IP law, these regimes expand upon the standard features of copyright to include intangible works created by communities for an unlimited term (except for the Bangui Agreement which limits the term to 70 years after the death of the author). The tabular summary of the provisions in each of the various regimes demonstrate disparities in regional and global approaches to TCE and folklore protection. For instance, the Pacific Regional Framework allows customary law to determine the resolution of a dispute and the Panama Law states that the legislation does not affect rights in relation to TCEs already in place. However the other documents are silent on any reference to customary law. Although most sui generis frameworks allow for some level of reciprocity, the inconsistent content of the various frameworks introduce confusion into the way in which reciprocal treatment will be recognised.

Commentators advocating for sui generis TCE and traditional knowledge regimes similarly express caution over the implications of implementing a sui generis regime. In considering an instrumentalist, development-oriented approach to a sui generis regime, J. Janewa OseiTutu queries whether replicating quasi-IP rights is a suitable mechanism for rectifying the power imbalance suffered by indigenous populations in post-colonial societies.55 OseiTutu postulates that the potential distributive justice effects of a new IP right may distort the goal of access to affordable knowledge as a public good with access to such knowledge being in the public interest. Adoption of a protectionist economic model to counter the detrimental impact of TRIPs may allow IP rights to intrude into cultural spheres, to the benefit of industrialised countries.56 The benefits of a sui generis regime are questionable although OseiTutu acknowledges that there may be some advantages in deploying IP for TCEs and traditional knowledge as defensive mechanisms. For instance, in regions where there has been a constant history of appropriation of traditional knowledge such as Africa there are vehement proponents for stronger protection mechanisms based in and informed by local law and circumstances.57 Other academics question the efficacy of sui generis regimes in light an absence of international collaboration to guard against trans-border infringements.58 Hence, developing consensus on the parameters for protection of TCEs and identifying who the holders of the rights created should be is an elusive task for which divergent treatment has been afforded in frameworks drafted to date.

Copyright as commodificationBy far the most prescient opposition to conceptualising TCEs as IP lies in the argument that commercialisation will eventuate in an erosion of culture. Rosemary Coomb has criticised IP protection of cultural expressions and indigenous culture as an attempt to impose Western economic concepts upon cultural traditions resulting in the commodification of indigenous cultural

55 J. Janewa OseiTutu, 'A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law' (2011) 15(1) Marquette Intellectual Property Law Review 147.56 Ibid, 160.57 Charles A Masango, 'Traditional knowledge and traditional cultural expressions protections: prospects in Cameroon' (2014) 30(2) Information Development 121.58 Kilian Bizer et al, 'Sui Generis Rights for the Protection of Traditional Cultural Expressions' (2011) 2(2) Journal of Intellectual Property, Information Technology and Electronic Commerce Law 113.

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heritage.59 Coombe, who has written widely on the topic, cautions against attempting to reduce cultural material to IP rights as such simplification fails to recognise basic indigenous rights as human rights.60 The reification of TCEs diminishes their cultural value and denigrates the special significance of the expression. Christine Haight Farley refers to examples of how indigenous culture has been decontextualized with respect to the reproduction of indigenous Australian artwork for souvenirs.61 Farley regards the poaching of indigenous symbols as an extension of the colonialist plunder mentality. Stripping TCEs of spiritual meaning completes the invasion of indigenous heritage that started with the theft of tangible land. In considering the political context of cultural rights, Coombe argues that perceiving TCEs purely as cultural property disempowers indigenous rights. TCE content straddles areas of cultural heritage law and IP, and cannot be considered discretely.62 Suspicious about the rationale of extending IP rights to TCEs, Coombe queries the fragmented meaning of ‘protection’ which embodies conflicting meanings of commercialisation. She notes that states have a long history of absorbing minority cultural traditions into nationalised cultural patrimony.63 As such the rhetoric of rights protection may diffuse the debate into proprietary and possessive claims based on Western models of individual or corporate ownership. These controversies about how IP protection for TCEs will affect the power dynamic of indigenous and non-indigenous peoples complicates the issue of how to regard cultural material, bringing to the fore calls to avoid proprietising TCEs.

The reimagining of TCEs beyond mere cultural property has been welcomed by cultural heritage scholars.64 The change in rhetoric from property to heritage is regarded as consistent with the need to preserve and protect matters of cultural inheritance to ensure they are passed on to future generations. The shift also parallels global impetus for UNESCO to encompass intangible cultural heritage within its mandate. As Craig Forrest states, “all that we are is an expression of the culture that we inherited, and which we may, or may not manipulate and pass on to future generations. It is this notion of inheritance of receiving something from one generation and possibly passing it on to the next, which intuitively underpins the notion of cultural heritage”.65 As Forrest philosophises, the way in which we conceive of and give value to cultural heritage determines the way in which we protect that heritage. TCEs are pivotal in regulating social structures in many indigenous communities. TCEs carry with them shared and symbolic meanings and underlying social or kinship relations with the community.66 Cultural heritage proponents have called for a multi-pronged approach to recognising the intrinsic value of TCEs that is commensurate with their moral value. The regimes associated with protection of TCEs in the IP sense are concerned mainly with permissive rights over reproductions. WIPO distinguishes between positive rights which allow exploitation and prevent appropriation and defensive strategies that are more related to safeguarding TCEs by controlling the ability of others to exercise control over derivative works.67 IP rights have been criticised as inadequate for the purposes of exercising the latter category of protection. In other

59 Above, footnote 10.60 Ibid, 253.61 Above, footnote 34, 10-11.62 Rosemary J. Coombe, 'The Expanding Purview of Cultural Properties and Their Politics' (2009) 5 Annual Review of Law and Social Science 393.63 Ibid, 405.64 Lyndel V Protta and Patrick J O'Keefe, ''Cultural Heritage' or 'Cultural Property'?' (1992) 1(2) International Journal of Cultural Property 307 65 Craig Forrest, International law and the protection of cultural heritage (Routledge, 2010), 3.66 Tzen Wong and Claudia Fernandini, 'Traditional cultural expressions: Preservation and innovation' in Tzen Wong and Graham Dutfield (eds), Intellectual Property and Human Development (Cambridge University Press, 2011) 175, 179.67 Above, footnote 21, Annex 11

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words, copyright and counterpart rights do not guard against prospective depletion of TCEs through voiding them of meaning. WIPO is mainly concerned with protecting the creativity and distinctiveness inherent in TCEs against unauthorised or illegitimate use by third parties, including misappropriation, misuse, misrepresentation and use that is derogatory or offensive.68 Protection in this perspective ignores the inherent social value of TCEs and their utility in continuing traditional customs and sustaining social hierarchies. Creating a mechanism for commoditising TCEs is also opposed on an ideological basis as the Western, neoliberal premise of IP rights is seen as an imposition of the colonialist structures that have enforced marginalisation of indigenous cultures in the first place. Consequently a broader approach has been advocated that envisions the grounding of TCEs within a cultural rights paradigm.

Cultural heritage protectionWith the private, proprietary rights system being seen as increasingly insufficient for providing holistic protection of TCEs, attention has turned to the rights enshrined in cultural heritage documents to discern an appropriate method of protection. However, as a regime having its legal basis in public rights, the discourse of ‘protection’ in the cultural heritage context shifts to that of ‘preservation’ and ‘safeguarding’ in contrast to the preventative rights of IP law.69 Safeguarding includes protection as one of a number of measures that will create an environment conducive to the flourishing and production of cultural heritage.70 The recognition of cultural heritage rights have their international genesis in the Convention Concerning the Protection of the World Cultural and Natural Heritage71 (World Heritage Convention) which established an international register of world heritage sites to which contracting states undertook to protect and conserve for future generations. As part of the international regime, the convention also established a committee and fund for resourcing the conservation projects to be contributed to by signatory nations. The governing body of UNESCO was given ultimate responsibility for administering the World Heritage Convention which primarily concerned sites of tangible heritage. More recently, indigenous nations in particular have pushed for greater recognition of intangible cultural heritage in light of the fact that intangible heritage is often intertwined with the tangible.72 These calls led to the development of the ICH Convention and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CPPDCE). As the creation of these documents progressed independently of the work being undertaken by WIPO, IP did not feature prominently in the discussion of ICH leading to accusations that the international community has shown no coherence in its approaches to TCEs and lacks sufficient coordination.73 Indeed the use of disparate terminology for TCEs in the IP context and ICH in the cultural heritage context may further add to the inconsistent approach taken in the separate forums. The obvious overlap of subject matter prompted major international bodies to clarify that IP regimes for TCES and cultural heritage regimes for ICH can co-exist without conflict.74

68 Molly Torsen and Jane Anderson, 'Intellectual Property and the Safeguarding of Traditional Cultures' (2010) Legal Issues and Practical Options for Museums, Libraries and Archives, 18 <http://www.wipo.int/edocs/pubdocs/en/tk/1023/wipo_pub_1023.pdf>.69 Above, footnote 21, Annex 3.70 Above, footnote 65, 18.71 Convention concerning the protection of the world cultural and natural heritage, UNESCO (entered into force 16 November 1972) ('World Heritage Convention').72 Peter K. Yu, 'Cultural relics, intellectual property, and intangible heritage' (2008) 81 Temple Law Review 433, 6.73 Christoph Beat Graber, 'Using human rights to tackle fragmentation in the field of traditional cultural expressions: an institutional approach' in Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar Publishing, Inc., 2008) 96, 97.74 See for example Article 3(b) of the ICH Convention.

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However, there are others that claim that the underlying rights giving rise to the respective bodies of law are diametrically opposed, meaning that inevitably the regimes will encroach upon each other.75

Right to cultureArguments for a right to culture under human rights are primarily based upon Article 27 of the UDHR which prescribes for the right of participation in cultural life:

(1) Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

These rights are reiterated in the Covenant on Economic Social and Cultural Rights (CESCR) under Article 15:

(1) The State Parties to the present Covenant recognise the right of everyone:(a) To take part in cultural life;(b) To enjoy the benefits of scientific progress and its applications;(c) To benefit from the protection of the moral and material interests resulting from

any scientific, literary or artistic production of which he is the author.

Fiona Macmillan notes that these provisions have generated particular debate as it is frequently argued that they support the conceptualisation of IP rights as human rights.76 However, Macmillan professes that any such claims must be tempered by the right to freedom of expression outlined in Article 19 of the Covenant on Civil and Political Rights (CCPR) as well as the composite rights laid out in the covenants and other international documents. The suggestion of public domain rights within Articles 27(2) of the UDHR and 15(1)(c) of the CESCR also serve to balance against the suggestion that a fundamental IP right is grounded in human rights instruments. Macmillan argues that IP claims should be viewed in the context of the international framework of conventions developed by UNESCO, in particular the ICH Convention, and finds that the international system of IP rights are often in conflict with cultural rights.77 Although the UNESCO conventions envisage no conflict with IP laws and contain minimal mention of IP rights, Macmillan posits that the process of commodification inherent in the international copyright system is antithetical to cultural diversity and self-determination.78 This is reflected in the framing of copyright within the international trade system of the WTO and TRIPs which are designed to remove national barriers and discriminatory treatment. Such measures potentially have a homogenising effect upon culture.79 Pertinently Macmillan points to the right to culture subsisting in the public domain and the need to develop the same architecture for preservation of culture in the intangible space as that developed for preservation of tangible cultural property.80 How such rights are to be deployed is, of course, a matter of contention.

75 Fiona Macmillan, 'Arts festivals: Property, heritage or more?' in Kathy Bowrey and Michael Handler (eds), Law and Creativity in the Age of the Entertainment Franchise (Cambridge University Press, 2014) 197, 207.76 Fiona Macmillan, 'Human rights, cultural property and intellectual property: three concepts in search of a relationship' in Chistoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar Publishing, Inc., 2008) 73, 77.77 Ibid, 91.78 Ibid, 80.79 Ibid, 86.80 Ibid, 95.

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Although there is general consensus that the international human rights documents espouse a right to culture, the precise content of such a right is unclear.81 The disparate nature of the international community’s approach to TCE protection further confuses the application of human rights principles to TCE regulation.82 Part of the difficulty with sculpting out a right to culture under human rights is the evolution of the term ‘culture’ from a narrow concept to a broader process that includes components such as language, religion and education.83 As a result, culture, in and of itself, has not been articulated as a freestanding human right; instead it is commonly understood as an underlying principal of human rights law with which other rights overlap.84 However, in accepting an expansive anthropological view of cultural rights and by examining the plethora of international documents available, Georgina Lloyd maintains that the right to culture comprises seven aspects:

1. Right to take part or participate in cultural life. 2. Right to cultural identity.3. Right to religious belief and practice.4. Right to cultural development.5. Right to respect/tolerance.6. Right to education.7. Right to information.85

Lloyd argues that the existence of such rights scattered amongst international documents are vital requirements for the safeguarding of ICH and support the encapsulation of ICH protection within the cultural rights framework. In applying cultural rights equally to all peoples, the right to safeguard cultural identity should be a right available for all cultural groups even when such cultures are different to the majority within a state. In analysing the purview of rights comprising the right to culture as a human right, the essay suggests that the right to preservation of ICH is an intrinsic part of the human rights framework and the submergence of TCEs within the realm of private IP rights threaten the ability of indigenous societies to take part in their own unique cultural life.

Intangible cultural heritageAlthough TCEs cross the realm into ICH, the ambit of ICH is often considered to be broader and encompasses matters of traditional knowledge. The definition of ICH under Article 2(1) of the ICH Convention means:

means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.

Article 2(2) lists the manifestations of ICH as:

(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;

(b) performing arts;

81 Janusz Symonides, 'Cultural rights: A neglected category of human rights' (1998) 158 International Social Science Journal 559.82 Above, footnote 73, 97.83 Georgina Lloyd, The Safeguarding Of Intangible Cultural Heritage: Law And Policy (Doctor of Philosophy Thesis, University of Sydney, 2009) 50 <http://ses.library.usyd.edu.au//bitstream/2123/7027/1/GL_LLOYD_2009_PhD_THESIS.pdf>.84 Marina Hadjioannou, 'The International Human Right to Culture: Reclamation of the Cultural Identities of Indigenous Peoples Under International Law' (2005) 8 Chapman Law Review 201, 204.85 Above, footnote 74, 51-56.

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(c) social practices, rituals and festive events;(d) knowledge and practices concerning nature and the universe;(e) traditional craftsmanship.

TCEs as are most likely to fall under the category of material listed in paragraph 2(2)(a) being folklore, (b) being performances of copyright material and (e) being artistic works. Safeguarding for the purposes of the ICH Convention “means measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage”. The operative clause of Article 11 require each state party to the convention to take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory. In doing so, the state should collaborate and involve communities, groups and relevant non-governmental organisations and involve them actively in the management of ICH.86 In listing the other obligations upon state parties, the ICH Convention deploys the less onerous terminology of ‘shall endeavour’ in Article 13 [Other measures for safeguarding] and 14 [Education, awareness-raising and capacity-building]. These measures include adopting a general policy, establishing a competent body and generating education programmes for safeguarding ICH, among other initiatives. The remainder of the ICH Convention is dedicated to establishing international administrative structures for listing of matters of ICH at the international level. Although cultural heritage law is often regarded as giving rise to public rights to enjoy in protected material, the ICH Convention does not purport to grant particular rights for the purposes of ICH or strong claims to ‘cultural property’.87 Rather, it obliges state signatories to establish domestic mechanisms to safeguard ICH, without prescribing what these duties entail.

This structure appears to be oblivious to the often fraught relationship between the state and indigenous societies. Richard Kurin fears that placing the responsibility upon states to establish a cultural body in order to oversee the safeguarding of cultural heritage may result in a conflict between the state and indigenous minorities. Having the government in charge of ICH activities could create uneven relationships of power between cultural regulators and cultural practitioners, where the latter might feel there was undue intrusion into the life of their community. 88 There has been demonstrable reluctance by so-called settler states to adopt the ICH Convention. For instance, Australia, Canada and the United States (US) are not signatories, although the US is purportedly reconsidering its position.89 Many perceive the lack of interest by settler countries as a fear that increased resilience of cultural rights may lead to claims of sovereignty. Marina Hadjioannou upholds that regardless of the legal framework for protection, it is at the behest of indigenous societies themselves to mobilise their own protection mechanisms for their own cultural survival.90 States will, more often than not, exercise a selective promotion of indigenous culture to benefit itself leading to dispossession of indigenous communities. Hadjioannou maintains that indigenous peoples need to be in control of their own movement and create their own forums for cultural expression to avoid subjugation by that state.91 As a result, there has been a divergence in the way ICH is dealt with by

86 Paragraph 11(b) and Article 15.87 Christoph Antons, 'Asian borderlands and the legal protection of traditional knowledge and traditional cultural expressions' (2013) 47(4) Modern Asian studies 1403, 1425.88 Richard Kurin, 'Safeguarding Intangible Cultural Heritage: Key Factors in Implementing the 2003 Convention' (2007) 2 International Journal of Intangible Heritage 10, 5.89 Above, footnote 88, 10.90 Above, footnote 84, 218.91 Above, footnote 84, 228.

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settler and non-settler societies. Particularly in settler societies, there is a general feeling of distrust of the government by indigenous populations who have often suffered long histories of oppression at the hands of the authorities.92 To further trust the government with responsibility for maintaining their heritage may result in further disenfranchisement of the indigenous population and be counterproductive to the cultural rights movement.

Despite professing to uphold the safeguarding of ICH, the convention does not explicitly allocate private rights in the area to indigenous peoples. In continuing the tradition of cultural heritage regimes, the ICH Convention designates the state with responsibility and establishes the architecture for heritage listings. With respect to TCEs, this does not resolve the cavities in protection for which IP rights were criticised. Despite what measures a state may implement to encourage safeguarding in the broad sense, these may be inadequate to guard against saturation of the TCEs due to dislocation from their cultural context. To avoid displacement of the right to culture subsisting in cultural expression, the human rights associated with TCEs should also be recognised as private rights so as to be capable of competing on the same field as IP rights. Dichotomising the relationship by relegating IP rights to the private plane while cultural heritage rights are ostracised to the public sphere encourages an incongruous approach where the more defined doctrine, in this case IP law, has the capacity to subjugate amorphous principles of ICH law. As Joseph Slaughter argues, the ‘power and prestige’ of the formal system of property relations which governs intellectual property overwhelms the informal and ‘traditional’ system of cultural heritage protection.93 Consequently, this essay argues that the human rights basis upon which a right to culture is founded should encapsulate a right to preservation of TCEs that respects the continuation of the deployment of TCEs within their traditional social context. Given the impotent expanse of the ICH Convention for bestowing such a right directly in regards to TCEs, the foundation for the right to preservation is more aptly contained in the composite UNESCO and United Nations documents that firmly prioritise greater self-determination of indigenous peoples. A combined interpretation of such documents foreshadows the possibility of gleaning a corresponding private right to culture which is underpinned by the individualistic ideology of international human rights.

Cultural rights protection of TCEsCalls for greater representation at WIPO for indigenous involvement in drafting TCE and traditional knowledge protocols have been mirrored by increased empowerment of indigenous participation in other United Nations forums. The promulgation of the ICH Convention was closely followed by the 2005 UNESCO CPPDCE and the 2007 UN Declaration on the Rights of Indigenous Peoples (DRIP) heralding an emergent establishment of a new international framework for the protection of ICH.94 The CPPDCE sets out a number of guiding principles based on human rights and sovereignty to encourage the manifold ways in which cultures of groups and societies find expression. Importantly this convention encourages greater involvement by the cultural industries in producing activities, goods and services. ‘Protection’ in the context of the CPPDCE means the adoption of measures aimed at the preservation, safeguarding and enhancement of the diversity of cultural expressions, with ‘protect’ having a corresponding meaning to adopt such measures.95 Article 6 allows states to

92 Rosemary Coombe et al, 'Intellectual Property Issues in Heritage Management' (Pt 2: Legal Dimensions, Ethical Considerations, and Collaborative Research Practices) (2010) 3(1) Heritage Management 117, 120.93 J. R. Slaughter, ‘Form and Informality: An Unliterary Look at World Literature’, in R. Warhol (ed.), The Work of Genre: Selected Essays from the English Institute (Cambridge, MA: English Institute in Collaboration with the American Council of Learned Societies, 2011), 198-199.94 Peter K. Yu, 'The competing objectives underlying the protection of intangible cultural heritage' (2014) Parana, 2 <www.peteryu.com/parana.pdf>.95 Article 4.

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adopt measures to protect and promote diversity of cultural expressions within its territory, such as measures to provide financial assistance, nurturing and supporting artists and enhancing diversity in the media. Article 7 also obliges states to take endeavours to encourage groups and individuals to create, produce, distribute, disseminate and have access to their own cultural expressions. Access to diverse cultural expressions from within their own territory as well as from other countries in the world is also encouraged. Article 8 allows state parties to take appropriate measures to protect and preserve cultural expressions that are under risk of extinction or under serious threat.

The terminology used in the CPPDCE in framing the operational provisions uses flexible terms such as ‘may’ and ‘shall endeavour’. Like the ICH Convention, the CPPDCE is framed to apply to state parties and encourages international cooperation as well as establishing an international cultural diversity fund. Although many of the elements in the CPPDCE are embodied in the ICH Convention, it was felt that a separate convention was necessary to recognise cultural identity as the product of cultural values, beliefs and traditions forming the common heritage of mankind. These ideas arose out of the Mexico City Declaration on Cultural Policies resulting from the 1982 World Conference on Cultural Policies.96 Together with the ICH and World Heritage Conventions, the CPPDCE forms one of the three pillars on promotion and preservation of cultural diversity.97 In recognising preservation of cultural diversity as separate from the need for safeguarding of ICH, UNESCO has highlighted that, although related, measures to maintain diversity may differ from those involved in safeguarding ICH. The CPPDCE is concerned with ensuring that the breadth of cultural heritage material is sustained and not diluted in the face of the homogenising effects of globalisation. Diversity is important to ensure sufficient representation by a number of cultural groups so resources can be distributed across the spectrum. Coupled with the ICH Convention, the principles underpinning the CPPDCE continue to link issues regarding the cultural heritage of indigenous peoples with that of self-determination. As greater contextualisation is given to indigenous culture it becomes evident that the crux of the debate is tied to sovereignty and a desire to reverse the displacement caused by colonisation. Consequently, a rights-based framework is needed to ensure that cultural heritage protection is accorded as a public and private right. Such a regime is envisaged under the DRIP.

The prominence of indigenous rights was further enhanced in 2007 with the DRIP paving the way for greater prevalence of indigenous protocols. Although the wording of the DRIP has been described as vague and aspirational rather than obligatory and its drafters seemed more interested in providing a platform for long-term dialogue rather than short-term objectives,98 the emphasis of the document is clearly predicated upon recognising the right to self-determination of indigenous peoples.99 In arguing for the need to establish a National Indigenous Cultural Authority in Australia, Terri Janke argues that Article 31 of the DRIP unequivocally bestows rights for protection of cultural property to indigenous peoples.100 However, due to inconsistencies in the wording of the Article, the DRIP does not necessarily provide for IP rights in cultural material. Article 31 of the DRIP states that:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also

96 Above, footnote 83, 97.97 Ibid, 81.98 Naomi Mezey, 'The Paradoxes of Cultural Property' (2007) 107 Columbia Law Review 2004, 2013.99 Article 3.100 Terri Janke, 'Beyond Guarding Ground: A vision for a National Indigenous Cultural Authority' (2009) <http://terrijanke.com.au/index.php/beyond-guarding/>.

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have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

In taking effective measures to recognise and protect the exercise of these rights, states should work in conjunction with indigenous peoples.101 By segmenting the right for indigenous peoples to maintain, control, protect and develop their cultural heritage and TCEs from the right to maintain, control, protect and develop their IP over such material, the DRIP stops short of bestowing a right for indigenous peoples to have rights in IP. In other words, it appears that the DRIP only bestows upon indigenous peoples the right to IP in cultural heritage and TCEs to the extent that such rights exist. Presumably, the granting of such rights will be at the compunction of the individual signatory state and subject to domestic law. The substantive right, framed as to ‘maintain, control, protect and develop’ cultural heritage and TCEs, is not explicit as to how such a right may take effect. Nonetheless, the DRIP provides an overarching framework for empowering indigenous peoples to have greater control over their cultural heritage.

The rights in Article 31 are complemented by the other rights in the DRIP such as the right to practise and revitalize cultural traditions and customs (Article 11), right to manifest, practise, develop and teach spiritual and religious traditions (Article 12) and right to revitalize, use, develop and transmit histories, languages, oral traditions, philosophies, writing systems and literatures, customs and ceremonies to future generations (Article 13). States are obligated to take effective measures to give effect to these rights.102 Together with the rights under Article 31, the DRIP articulates the need for sustaining the link between indigenous peoples and their cultural heritage. Unlike the UNESCO conventions, the DRIP employs a rights-based terminology to decree inalienable rights to indigenous peoples whilst simultaneously obligating states to implement such rights. This divergence in discourse from the state-centric approach taken in the ICH Convention is a welcome manoeuvre. However, as a declaration, the document does not necessarily have the same force as the UNESCO conventions and as a UN document, sits outside of the administration of UNESCO and its charter to promote cultural heritage. Consequently, there is the possibility that signatories may take a lacklustre approach to observing the rights prescribed under the DRIP, with limited recourse available to aggrieved communities or individuals in the event of non-compliance. Regardless of the standing of the DRIP as a declaration rather than a convention, the emergence onto the global agenda of indigenous rights clearly paves the way towards a greater commitment to fostering cultural heritage as a resource to be passed on for generations. As part of the UN’s mandate, the DRIP expands upon indigenous issues as purely cultural issues, looking beyond the ambit of UNESCO. As the DRIP brings to the fore the linkages between cultural heritage, land, education, and self-determination, it consolidates issues that have been progressing independently in several different forums. TCEs, like other indigenous issues, span several topics and confining the discussion to a narrow legal field does not adequately take into account the interwoven effect of indigeneity.

A new methodology for legal protection of TCEsAs the debates concerning how differing conceptions of protection should apply to TCEs, this essay argues that it is time for a shift away from the previous methodologies of protection which treated TCEs as a static resource by focussing on protections for the rights-holder instead of the value to be derived from the cultural product. As Michael F. Brown has suggested, perhaps a change in discourse is needed to shift from the question of ‘Who owns native culture?’ to ‘How can we promote respectful treatment of native cultures and indigenous forms of self-expression within mass

101 Paragraph 31(2).102 See for instance paragraphs 11(2), 12(2) and 13(2).

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societies?’.103 Similarly, this essay postulates that rather than posing the question of ‘How can TCEs be protected?’ policy makers should instead be focusing efforts to resolve ‘How can TCEs be preserved within their cultural context?’ Indigenous rights advocates have argued for pseudo IP rights to regain control over cultural material. However, the resultant accusations of reification of cultural resources have revealed how commoditising TCEs undermines their cultural value. The desire to extrapolate quasi IP rights to TCEs also ignores fundamental shifts occurring worldwide due to the digital revolution.104 Copyright content is frequently being regarded as a service. The value of copyright material is increasingly being marketed as part of a packaged product that is transient to the demands of consumers. Content platforms such as Spotify and Netflix are changing the way we view modern culture. If advocates insist upon TCEs entering this domain with its changing patterns of consumption, this essay contends that the way to do so should be premised upon how TCEs can be supported by holistic policy initiatives to encourage participation in the services economy. Adhering to utilitarian justifications for copyright based on incentive and economic reward are redundant in an era of consumer driven culture.

However the overarching human rights framework is arguably more supportive of the right to culture than the right to compensation. The conceptualisation of the right to culture may be found in the obligation signatory states have to implement appropriate measures pursuant to the CESCR. Article 2 of the CESCR requires signatory states to “take steps to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the Covenant by all appropriate means”. Article 15(2) of the CESCR formulates the concrete obligation for signatory states to take necessary steps for the conservation, development and the diffusion of science and culture. Janusz Symonides believes that among the measures which are crucial for the implementation of cultural rights, in addition to legislation, the existence of judicial remedies should be mentioned.105 This reading contemplates the potential for rights in the CESCR to be litigated. Such an interpretation may allow a person aggrieved by an apparent inability to participate in cultural activities to take action under the civil or common law systems in assertion of cultural rights. With respect to TCEs the right to participate in cultural life may entail that such persons should have the right to continue to practise such traditions, provided that such activities do not cause harm to others or are themselves an infringement of human rights. This essay suggests that the right to culture under the human rights framework, as inclusive as the right to preservation of culture, should further obligate the state to provide the mechanisms for such continuation. Based on this interpretation, in bestowing the right to preservation of TCEs as a right intrinsic to the material itself, the framework for legal protection may oscillate between rights and responsibilities to be wielded by the community or the state. While the community should have rights to continue to practise TCEs as part of their culture, the application of a right to preservation of TCEs would potentially allow a cultural institution to intervene, for instance, for the purposes of a cultural mapping program, archiving or for education purposes. While these purposes are generally carved out as exceptions from IP rights, the limited exceptions to IP regimes could inadvertently limit the scope within which operators can function. Consequently this essay argues that the preservation of cultural heritage as a human right requires a rights-based mechanism to provide for flexibility and breadth in the strategies used to ensure TCEs are able to continue and survive in their appropriate cultural context.

103 Michael F. Brown, Who owns Native Culture? (Harvard University Press, 2003), 10.104 Miriam Sahlfeld, 'Commercialising cultural heritage? Criteria for a balanced instrumentalisation of traditional cultural expressions for development in a globalised digital environment' in Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar Publishing, Ltd., 2008) 256.105 Above, footnote 81, 566

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ConclusionThe concentration on IP and sui generis regimes predicated upon copyright for tackling regulation of TCEs developed in response to concerns that TCEs have been misappropriated. However, creating additional rights for custodians of TCEs only allows the misappropriation to occur in different hands. In recognition of TCEs as a cultural resource, the focus of legal protection for TCEs should be upon the preservation of the resource for the benefit of maintaining and continuing traditions in cultural heritage. Policy makers should seek to understand TCEs prior to crafting together legal regimes that focus on one aspect of the problem. While the UNESCO conventions on cultural heritage protection and the ICH Convention in particular advocates safeguarding of ICH, the responsibility for doing so is vested in the state. The conventions do not create a right in the material itself to be safeguarded from annihilation. The more effusive wording of the DRIP may assist in compounding a rights-based mechanism to be wielded by indigenous communities and organisations. However, the DRIP is still far from being a universally binding document and is subject to substantially varying domestic interpretations. Hence greater consistency is needed by nation states to develop holistic policies that provide integrated ways forward for supporting indigenous rights in ways that protect and preserve cultural heritage and its diversity. The benefit of TCEs derives from their continuance as part of a living and continuing cultural heritage. It is by recognising the service that TCEs perform and creating a legal regime that preserves the ability for TCEs to continue this services function that the cultural value of TCEs can be maximised.

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