Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

LUCKNOW

PROJECT ON

PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS

(UNDER THE SUPERVISION Of MR. SHAIL SHAKYA )

SUBMITTED TO: SUBMITTED BY

SHAIL SHAKYA SIR UTKARSH MISHRA

Assistant Professor, B.COM LL.B 6TH SEM.

DSMNRU DSMNRU

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 TABLE OF CONTENT

Topic Page.n
o
 DEFINITION OF TRADITIONAL CULTURAL EXPRESSIONS 3
 SCOPE OF PROTECTION 4

 EXCEPTIONS AND LIMITATIONS 5

 TERM OF PROTECTION 6

 SANCTIONS, REMEDIES AND EXERCISE OF 6

RIGHTS/INTERESTS

 POLICY CONTEXT AND POLICY OPTIONS 7

 TRADITION AS A SOURCE OF CREATIVITY 8

8 Bibliography 10

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 DEFINITION OF TRADITIONAL CULTURAL EXPRESSIONS

1. Traditional cultural expressions are any form of [artistic and literary] expression, tangible and/or
intangible, or a combination thereof,
Alternative 1: in which traditional culture [and knowledge] are embodied
Alternative 2: which are indicative of traditional culture [and knowledge]
[which pass from generation to generation and between generations], including, but not limited to:
(a) phonetic or verbal expressions, [such as stories, epics, legends, popular stories, poetry, riddles
and other narratives; words, signs, names, and symbols];
(b) musical or sound expressions, [such as songs, rhythms, and instrumental music, the sounds
which are the expression of rituals];
(c) expressions by action, [such as dances, works of mas, plays, ceremonies, rituals, rituals in
sacred places and peregrinations, games and traditional sports, puppet performances, and other
performances, whether fixed or unfixed]; and
(d) tangible expressions, [such as material expressions] of art, [handicrafts, handmade carpets,
architecture, and tangible spiritual forms, and sacred places];
(e) [adaptations of the expressions referred to in the above categories].
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Criteria for eligibility
2. Protection extends to traditional cultural expressions that are:
(a) [the result of the creative intellectual activity] of;
(b) [distinctive of or the unique product of]/[associated with] the cultural and social identity of;
[and/or]
(c) [held], maintained, used or developed as part of the cultural or social identity [or heritage] by
the beneficiaries as defined in Article 2.
3. The terminology used to describe the protected subject matter shall/should be determined in
accordance with national law and where applicable, regional law.
Traditional cultural expressions comprise the various dynamic forms which are created, expressed,
or manifested in traditional cultures and are integral to the collective cultural and social identities
of the indigenous local communities and other beneficiaries2

1
Chaudhuri, op. cit., page 36.
2
ITC/UNESCO. op.cit..

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Public domain refers, for the purposes of this instrument, to tangible and intangible materials that,
by their nature, are not or may not be protected by established intellectual property rights or related
forms of protection by the legislation in the country where the use of such material is carried out.
This could, for example, be the case where the subject matter in question does not fill the
prerequisite for intellectual property protection at the national level or, as the case may be, where
the term of any previous protection has expired.

 traditional cultural expression is included in a product:

(i) the manufacturing, importing, offering for sale, selling, stocking or using the product
beyond the traditional context; or
(ii) being in possession of the product for the purposes of offering it for sale, selling it or using it
beyond the traditional context.
 traditional cultural expression is included in a process:
(i) making use of the process beyond the traditional context; or
(ii) carrying out the acts referred to under sub-clause (a) with respect to a product that is a direct
result of the use of the process; or 3

SCOPE OF PROTECTION

The economic and moral interests of the beneficiaries concerning their traditional cultural
expressions, as defined in Articles 1 and 2, shall be safeguarded as appropriate and according to
national law, in a reasonable and balanced manner.
Adequate and effective legal, administrative or policy measures shall/should be provided to
safeguard the economic and moral interests of the beneficiaries, including but not limited to
(a) prevent the unauthorized disclosure, fixation or other exploitation of secret traditional cultural
expressions;
(b) acknowledge the beneficiaries to be the source of the traditional cultural expression, unless this
turns out to be impossible;

3
ITC/AG(XXXIV)/185, February 27, 2001.

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(c) prevent use or modification which distorts or mutilates a traditional cultural expression or that
is otherwise offensive, derogatory or diminishes its cultural significance to the beneficiary;
(d) protect against any false or misleading uses of traditional cultural expressions, in relation to
goods and services, that suggest endorsement by or linkage with the beneficiaries;

EXCEPTIONS AND LIMITATIONS

1. Measures for the protection of traditional cultural expressions shall not restrict the creation,
customary use, transmission, exchange and development of traditional cultural expressions by the
beneficiaries, within and among communities, in the traditional and customary context consistent
with national laws of the contracting parties/member States/members where applicable
2. Limitations on protection shall extend only to the utilization of traditional cultural expressions
taking place outside the membership of the beneficiary community or outside traditional or cultural
context.
3. Contracting parties/Member States/Members may adopt appropriate limitations or exceptions
under national law, provided that the use of traditional cultural expressions:4
Alternative 1:
(a) Acknowledges the beneficiaries, where possible;
(b) Is not offensive or derogatory to the beneficiaries; and
(c) Is compatible with fair practice.
Alternative 2:
(a) Is limited to certain special cases;
(b) Does not conflict with the normal utilization of the traditional cultural expressions by the
beneficiaries; and
(c) Does not unreasonably prejudice the legitimate interests of the beneficiaries
4. Regardless of whether such acts are already permitted under Article 5(3) or not, the following
shall be permitted [only with the free prior and informed consent of the beneficiaries]:
(a) the use of traditional cultural expressions in archives, libraries, museums or cultural institutions
for non-commercial cultural heritage purposes, including for preservation, display, research,
presentation and education;
(b) the creation of an original work of authorship inspired by or borrowed from traditional cultural
expressions

4
Document WIPO/GRTKF/IC/3/17, para. 227.

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5.Except for the protection of secret traditional cultural expressions against disclosure], to the
extent that any act would be permitted under the national law for works protected by copyright or
signs and symbols protected by trademark law, such act shall/should not be prohibited by the
protection of traditional cultural expressions.5

TERM OF PROTECTION

Option 1
1. Protection of traditional cultural expressions shall/should endure for as long as the traditional
cultural expressions continue to meet the criteria for protection under Article 1 of these provisions;
and,
2. The protection granted to traditional cultural expressions against any distortion, mutilation or
other modification or infringement thereof, done with the aim of causing harm thereto or to the
reputation or image of the beneficiaries or region to which they belong, shall/should last
indefinitely.
Option 2
At least as regards the economic aspects of traditional cultural expressions, their protection
shall/should be limited in time.

SANCTIONS, REMEDIES AND EXERCISE OF RIGHTS/INTERESTS

1. (Option 1): Appropriate measures shall/should be provided, in accordance with national law,
to ensure the application of this instrument, including legal, policy or administrative measures to
prevent willful or negligent harm to the economic and/or moral interests of the beneficiaries
sufficient to constitute a deterrent.
1. (Option 2): Accessible, appropriate and adequate enforcement and dispute resolution
mechanisms, [border measures], sanctions and remedies including criminal and civil remedies,
shall/should be available in cases of breach of the protection for traditional cultural expressions.

5
Article 2.1, TRIPS Agreement.

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2. The means of redress for safeguarding the protection granted by this instrument shall/should be
governed by the national law of the country where the protection is claimed.
3. Where a dispute arises between beneficiaries or between beneficiaries and users of a traditional
cultural expression, each party shall/should be entitled to refer the issue to an independent
alternative dispute resolution mechanism, recognized by international and/or national law.

POLICY CONTEXT AND POLICY OPTIONS

It is suggested that an appropriate context within which to view the legal protection of TCEs is
provided by issues such as: (i) the preservation and safeguarding of cultural heritage; (ii) the
promotion of cultural diversity; (iii) the respect for cultural rights; and (iv) the promotion of
creativity and innovation as ingredients of sustainable economic development.
Cultural heritage and culture lie at the heart of contemporary concerns for individual, community
and national identity, international and intra-national cultural exchange, and global creative
diversity. The distinct and diverse qualities of the world’s multiple cultural communities are
threatened in the face of uniformity brought on by new technologies and the globalization of
culture and commerce. New technologies generate unprecedented ways for cultural products to be
created, replicated, exchanged and used. Challenges of multiculturalism and cultural diversity,
particularly in societies with both indigenous and immigrant communities, require cultural policies
that maintain a balance between the protection and preservation of cultural expressions –
traditional or otherwise – and the free exchange of cultural experiences. Mediating between the
preservation of cultural heritage and cultural distinctiveness on the one hand, and the nurturing
and nourishing of ‘living’ culture as a source of creativity and development on the other, is another
challenge. 6
As a result, the preservation and safeguarding of cultural heritage and the promotion of cultural
diversity are key objectives of several international conventions and programs as well as regional
and national policies, practices and processes.9 The respect for and protection of cultural rights
and indigenous peoples’ heritage are addressed in, for example, Draft Principles and Guidelines
for the Protection of the Heritage of Indigenous Peoples, prepared under the auspices of the United
Nations Working Group on Indigenous Populations, as well as in several human rights
instruments.7
How does IP, and in particular the IP protection of TCEs, interact with these issues? The
relationship between IP and cultural policies relating to heritage, diversity and creativity is
complex and requires balance and coordination. Enhanced appreciation of this relationship
requires a clear articulation of the nature and objectives of IP protection, as well as of the range of
needs and expectations of holders and practitioners of TCEs as they relate to preservation and/or

6
Article 2.1, TRIPS Agreement.
7
Panama Law No. 27 of July 24, 1997.

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legal protection of TCEs. The nature of cultural heritage as ‘living’ and as a source of creativity is
also pertinent. Of relevance too are the role of the commerce and the market place, and the notion
of the ‘public domain’. A central challenge is to address the protection of TCEs in ways that
balance the concerns of users, existing third-party rights and the public interest.
Some of the key questions at the core of this discussion include: if expressions and representations
of cultural heritage receive any form of IP protection, does this imply a shift in the objectives of
IP protection? How does IP, particularly copyright and related rights, interact with cultural policies
that mediate between the preservation of cultural heritage, the promotion of multiculturalism and
facilitation of the free flow of cultural experiences?

TRADITION AS A SOURCE OF CREATIVITY

While it is often thought that tradition is only about imitation and reproduction, it is also about
innovation and creation within the traditional framework. Tradition is not immutable. Cultural
heritage is in a permanent process of production; it is cumulative and innovative. Culture is organic
in nature and in order for it to survive, growth and development are necessary – tradition thus
builds the future.12 As the Japanese industrial designer Sori Yanagi has stated, incorporating the
element of traditional folk craft into modern design can be more valuable than imitating folk craft
itself: “Tradition creates value only when it progresses. It should go forward together with
society”.13 So, as traditional artists and practitioners continually bring fresh perspectives and
experiences to their work, tradition can be an important source of creativity and innovation.
In traditional music, too, there is continual reworking of available material. It has even been stated
that “the folk-song is, by definition, and as far as we can tell, by reality, entirely a product of
plagiarism”.This may be an exaggeration, but variation in traditional cultures comprises
“deliberate, intentional … changes and choices introduced by the individual folk artist whose
creative genius is not content with mere imitative repetition in the process of appropriating a
variant of a tale (or song) as his or her own personal version. Far from being at odds with each
other, creativity and tradition, individual and community, together produce vital variability thus
keeping alive the very item that their integrated forces help to shape”.
Manifestations of traditional culture and cultural heritage are therefore often a source of creativity
for indigenous, local and other cultural communities. The unalloyed re-creation and replication of
past traditions is not necessarily the best way of preserving identity and improving the economic
situation of indigenous, local and cultural communities. In recognizing this, the link between
cultural heritage, culture and economic development is now being more appreciated. International
and regional financial institutions, such as the World Bank, have begun to support cultural

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development projects that treat culture as an economic resource that is able to contribute to poverty
alleviation, local job creation and foreign exchange earning. 8
Handicrafts, a form of tangible cultural expression, exemplify the benefits of combining tradition
with creativity. Handicrafts are viewed as both traditional and contemporary, in keeping with the
view that traditional cultural expressions reflect a living culture and evolve despite being based on
traditional forms and know-how. This reflects the ability of many tradition-bearing communities
to combine tradition with the influences and cultural exchanges characteristic of modernity for the
purpose of maintaining their identity and improving their social and economic circumstances.
Forms or manifestations of cultural heritage are also a source of inspiration and creativity for the
cultural industries, acting as powerful engines of economic growth, generating considerable
income and employment fuelled by growing demand for cultural goods and services in an
expanding marketplace. Many businesses today, small, medium and large, create wealth using the
forms and materials of traditional cultures – local cooperatives that produce and market handmade
crafts, industrial textile manufacturers that employ traditional designs, producers of audio
recordings of traditional music, pharmaceutical manufacturers that use indigenous knowledge of
healing plants, promoters of tourism, and entertainment conglomerates that employ various forms
of traditional representations for motion pictures, amusement theme parks and children’s toys.

8
Article 26.3 of TRIPS Agreement of 1994.

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 BIBLIOGRAPHY

 primary sources
trips agreement
 Secondary sources
Internet
Articles
Class notes

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