Until recently, traditional knowledge (TK) and traditional cultural expressions (TCEs) were considered as belonging to the common heritage of humanity. As such, TK and TCEs were considered as part of the “public domain”. Today, there is a growing awareness of various realities such as: the risk of erosion of local knowledge systems; the economic potential – for communities and industries; their value as cultural “assets” – part of social and cultural identity; and vulnerability to misuse and misappropriation.
TK and TCEs are innovations and creative expressions of indigenous and local communities. They are products of creative intellectual activity; so they are “intellectual property (IP)” but since they are “traditional”, they cannot be fully protected by existing IP systems due to inherent inadequacies of the system eg. Originality, Use in commerce, Novelty etc. Of course, TK and TCEs should be preserved, conserved and safeguarded. But should they get IP protection, and if so, how? Protection with conventional/existing IP systems? Adaptation of existing IP systems? Sui generis protection? Non-IP measures and laws?