Traditional cultural expressions (TCEs), which include folklore, traditional designs, music, dance, rituals, and other similar expressions, have characteristics that challenge the main principles of conventional intellectual property systems.
These works are usually the result of communal creativity, developed, changed, and passed down through generations within a community rather than being the creation of one individual. Their origins are old, and are often ancient and anonymous, making it impossible to identify a specific author or date of creation. Moreover, TCEs are part of living cultures and are not meant to fall into the public domain; they remain continuously significant to a community’s identity.
Because standard copyright law often fails or is not appropriate to protect these expressions from unauthorized commercial use, a global conversation has emerged around the need for (“of their own kind”) legal frameworks or instruments designed specifically for TCEs. Such frameworks, discussed at the World Intellectual Property Organization (WIPO) and elsewhere, move beyond the individual-centered model. They may grant rights to entire communities, provide ongoing protection without time limits, and base use permissions on a community’s own customary laws rather than commercial considerations.
For more information, read WIPO’s Traditional Cultural Expressions.
The art of Aboriginal peoples in Australia offers a powerful example. Many traditional Aboriginal paintings incorporate sacred symbols and “Dreaming” stories that belong collectively to a specific clan. An individual artist acts as a custodian, responsible for depicting these stories according to customary laws. While the individual artist owns the copyright in the specific painting, Australian courts have recognized that this right may be exercised in a way that respects the customary rights and interests of the clan whose traditional stories and symbols are depicted.
Copyright therefore plays an important role in protecting these works, although it does not fully address all aspects of collective cultural stewardship. As a result, there have been calls in Australia and in other regions, including Latin America and Africa, for protection that recognizes collective ownership and cultural custodianship alongside copyright.
Image credit: RuslanKaln