Reassessing the IP System: Protecting Traditional Knowledge and Cultural Expressions under International Law Protecting Traditional Knowledge in IP Law

Abstract

This study examines the persistent gaps in international intellectual property (IP) law in safeguarding Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs). TK and TCEs, deeply embedded in Indigenous identity, spirituality, and governance, are systematically excluded from protection under prevailing regimes such as the TRIPS Agreement and the Berne Convention, both of which prioritize individual authorship, fixation, and market-oriented rights. These frameworks fail to accommodate the communal, oral, and intergenerational nature of Indigenous knowledge systems, leaving them vulnerable to misappropriation and biopiracy. While national mechanisms, including India’s Traditional Knowledge Digital Library, Peru’s Law No. 27811, and the Philippines’ Indigenous Peoples’ Rights Act, provide partial remedies, their effectiveness remains limited by weak enforceability and poor integration with statutory IP regimes. The adoption of the 2025 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge represents a significant milestone, introducing binding provisions on Free, Prior and Informed Consent (FPIC), equitable benefit-sharing, and recognition of customary law. Nevertheless, doctrinal challenges and implementation barriers persist. This study employs doctrinal legal analysis, framed through postcolonial theory and legal pluralism, to critically assess existing frameworks and explore alternative models. It argues for hybrid legal reforms that integrate Indigenous legal orders into formal IP systems, enabling epistemic justice, cultural sovereignty, and the protection of collective authorship. The findings underscore the need for international and national regimes to move beyond Eurocentric doctrines and embrace pluralistic approaches that meaningfully safeguard Indigenous heritage and knowledge systems.