First Nations’ Intangible Cultural Heritage Concerns: Prospects for Protection of Traditional Knowledge and Traditional Cultural Expressions in International Law

Abstract

Traditional knowledge (TK) and traditional cultural expressions created socially and passed down from generation to generation have largely remained outside of the purview of Western intellectual property regimes, resulting in their widespread appropriation. Despite long-standing concerns that many of these practices were unfair, constituting forms of unjust enrichment and, in some cases, misrepresentation, the political will to develop means of governing these activities has taken decades to arrive. The idea of extending "protection" to traditional cultural content has engendered considerable controversy and is still opposed by many who consider such endeavours pernicious limits on freedom of speech, scholarship, artistic expression, and historical inquiry. Most, if not all, of these liberal rejections have been overstated, and few of them seem informed by any understanding of the normative framework of international human rights law. This chapter addresses the international institutions and processes that have brought these issues to global attention in the last two decades, the emergence of agreed upon principles and objectives, and the prospects these pose for protecting First Nations heritage. Examples of the latter are drawn from the case studies discussed in the introduction and companion to this volume.

Keywords: Traditional knowledge, Culture, Intellectual property, International human rights law, Indigenous rights