IALL 2018 Recap: Traditional Cultural Expressions and International Intellectual Property Law

By Joan Policastri

Dr. Lily Martinet of the Max Planck Institute in Luxembourg began by giving a brief description of what is included in Traditional Cultural Expression (TCE) and how it intersects with Intellectual Property (IP) Law.  While historically TCE has been associated with copyright law, developments within the United Nations have evolved the concept to meet with ideas from human rights, intellectual property law, and cultural law. Another aspect of this evolution is the sourcing of ideas originating in anthropology that are now being incorporated into law. The documents which have brought these together are The Convention on the Protection and Promotion of the Diversity of Cultural Expression (2005), The United Nations Declaration on the Rights of Indigenous Peoples (2007), and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

While there is no accepted definition of TCE in international law, Dr. Martinet uses this: “tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested. Examples include traditional music, performances, narratives, names and symbols, designs and architectural forms.”

The Key characteristics of TCE are: 1) cultural content, 2) a collective essence, which can include groups, tribes, nations, or other communities, but not an individual, and 3) intergenerational transmission. Cultural expressions result from the creativity of individuals, groups and societies, and that have cultural content. Cultural content refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities (Art. 4 of the Convention on Diversity of Cultural Expression).

In order to complete the picture, the diagram below shows the intersection of TCE and Traditional Knowledge. The overlap is Intangible Cultural Heritage.

Some examples of TCE include the Māori Tā moko patterns, patterns used in Alençon Lace (an example of intergenerational transmission), and Champagne. Other topics raised were the registration of dance moves as cultural expressions, or the series of postures in Bikram Yoga.

Slides provided visual experiences of these expressions, including this example of “Misuse of Traditional Cultural Expressions” of the Tā moko patterns. Ironically, colonial governments once banned tattoo use by the traditional peoples who created them, but now indigenous designs are being exploited by commercial interests.

The current situation was described as a quagmire and existing legal instruments have rarely been applied in practice. Dr. Martinet gave three reasons why laws need to be elaborated:

1) The misuse/appropriation of the expressions. While there might be an element of public domain, the central issue is that traditional peoples are not consulted prior to the use of their expressions, the benefits of the use are not shared with the originators, and the commercial users do not acknowledge the source(s). These practices lead to unfair and unethical uses.

2) Distortion. The commercial users appropriate the symbol without its meaning, without understanding the values it expresses, and denigrate the expression. Tā moko are not simply designs and true Tā moko are not superficial. Tā moko are about identity and they are carved into the skin.

3) The non-traditional users may claim a right in the expression. For example, a tattoo artist claimed royalties in a design and used the claim against the indigenous people who originated it.

An interesting question was raised concerning what could be considered historical appropriations such as Claude Monet’s use of Japanese style in his painting, “The Japanese Footbridge and the Water Lily Pond” (1899).

The core issue is the Community’s right to protect its cultural expressions; to preserve the dynamic development of cultures. But will the laws stifle freedom of expression? Dr. Martinet believes that finding a good balance is the key.

For more information on Intangible Cultural Heritage, see https://dpc.hypotheses.org/category/the-osmose-program-english-version. It references the Indian Arts and Crafts Act in the United States.