Unprotected Heritage: The Inadequate Safeguarding of Traditional Knowledge and Cultural Expressions under Intellectual Property Law and the TRIPS Agreement

Authors

Kennedy Wilson, Southern Methodist University, Dedman School of Law

Abstract

This paper examines the challenges of protecting traditional knowledge and cultural expressions within existing intellectual property frameworks along with the Trade-Related Aspects of Intellectual Property Rights Agreement. While intellectual property law is crucial for protecting creations of the mind, its application to the unique characteristics of traditional knowledge and cultural expressions—often communal, intangible, and spiritually significant—reveals significant inadequacies.

An analysis of copyright, patent, and trademark systems reveals shortcomings in adequately safeguarding traditional knowledge and cultural expressions. Copyright’s emphasis on originality and fixation in tangible form excludes much intangible cultural heritage. Patent systems frequently grant protection without acknowledging traditional knowledge as prior art and inspiration, often leading to misappropriation. Trademark protection requires commercial use, threatening the cultural integrity of indigenous practices. The Trade-Related Aspects of Intellectual Property Rights Agreement, while comprehensive, reflects Western values and fails to fully address the diverse cultural contexts in which traditional and cultural expressions exist.

Finally, potential solutions are explored, including better utilization of existing intellectual property measures and the development of a sui generis regime specifically designed for traditional knowledge and cultural expressions. The need for a distributive justice approach within intellectual property policies is also emphasized, acknowledging the systemic imbalances affecting indigenous communities. This paper concludes by advocating for educational initiatives to empower traditional knowledge holders and for a more equitable and culturally sensitive intellectual property system that genuinely protects and preserves cultural heritage.

Recommended Citation

Kennedy Wilson, Case Note, Unprotected Heritage: The Inadequate Safeguarding of Traditional Knowledge and Cultural Expressions under Intellectual Property Law and the TRIPS Agreement, ILRA Student Forum (2024)