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Patrimoine culturel immatériel en tensions
Patrimoines en circulation : acculturation et appropriation

Copyright, Use, and Valorisation of Intangible Heritage: Between Circulation and Cultural Appropriation

Interview with Wend Wendland
Droit d’auteur, utilisation et valorisation du patrimoine immatériel : entre circulation et appropriation culturelle. Entretien avec Wend Wendland
Wend Wendland, Julia Csergo et Jessica Roda
p. 263-271

Résumés

Cet article aborde la propriété intellectuelle et son interface avec les savoirs traditionnels et les peuples autochtones. Il commence par expliquer pourquoi l’Organisation mondiale de la propriété intellectuelle (OMPI) a commencé à se pencher sur ces questions à la fin des années 1990. Il identifie les écarts entre les systèmes de PI et les aspirations des peuples autochtones, ainsi que la manière dont ces derniers utilisent certains outils de PI, tels que les marques collectives. Le champ d’application du nouveau Traité de l’OMPI sur les ressources génétiques et les savoirs traditionnels associés est clarifié. L’utilisation de termes tels que « peuples autochtones » et « communautés locales » est abordée. L’article distingue les objectifs de la Convention de 2003 de l’Unesco des travaux de l’OMPI visant à la protection juridique du patrimoine culturel immatériel. Enfin, l’article met en garde contre les tentatives de « propriété » du patrimoine culturel immatériel et appelle à une approche mesurée et équilibrée de cette question sensible.

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1The World Intellectual Property Organization (WIPO), of which France has been a member since 1974, is one of the fifteen specialised agencies of the United Nations. Founded in its current form in 1967, its mission is to protect and promote intellectual property (IP) worldwide. Beyond its initial focus on the legal protection of technological inventions, trademarks, industrial designs and literary and artistic works, the agency has, since 1998, a division dedicated to IP issues related to genetic resources, traditional knowledge (TK), and traditional cultural expressions (TCEs), or ‘expressions of folklore’ which was the term used in the past. This initiative is different from but related to UNESCO’s work on safeguarding intangible heritage (2003 Convention) and protecting and promoting the diversity of cultural expressions (2005 Convention).

2The recognition—and in some cases, the designation as heritage—of knowledge, expertise, practices, and cultural expressions does not come with the same legal protections granted to built or tangible heritage. However, safeguarding plans for elements inscribed in national inventories of intangible cultural heritage (ICH) or on UNESCO’s lists raise numerous legal questions: Who owns the registered element? Can a universal IP system be developed for cultural elements that belong to a collective? On what legal grounds can we and should we move away from the Western conception of IP, which is rooted in ‘originality’ and individual rights? Could such a system, yet to be defined, protect cultural communities and the diversity of their expressions? In a world where artistic and cultural products circulate as freely as people, how can the rights of use and financial benefits be regulated? How is the notion of illicit appropriation of intangible cultural heritage constructed, similar to the existing legal measures for tangible cultural assets?

3We spoke with Wend Wendland, who was until this year a Director at WIPO and who led WIPO’s work on genetic resources, TK and TCEs for many years, to learn more about the organisation’s efforts in this area and to gain insight into his personal perspective on these issues.

Julia Csergo & Jessica Roda: First, could you tell us about your background and how you came to lead WIPO’s department dedicated to IP related to genetic resources, TK and TCEs?

  • 1 These became the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both adopte (...)

Wend Wendland: I am an IP lawyer by training, and practiced as a media and entertainment lawyer in South Africa, where I was born, in the late 80s to the mid 90s. My work led me to represent clients at WIPO meetings in Geneva. My clients were African broadcasters who were concerned about new copyright and related rights treaties that were being negotiated.1 WIPO then offered me a job which I accepted because I was attracted by the opportunity to work for developing countries and to use the IP system to foster their economic, social and cultural development. Soon after I arrived at WIPO, in early 1998 I was asked to be part of launching a new program focused on how IP relates to ‘global issues’ such as intangible cultural heritage, biodiversity, Indigenous Peoples, human rights and sustainable development generally. This aligned precisely with why I had left the private sector to join WIPO so I jumped at the opportunity. My colleagues and I soon began to look closely at the relationship between IP and genetic resources, TK and TCEs which soon became our main focus.

J. C & J. R.: In what context and for what reasons did WIPO expand its legal framework to include the protection of traditional knowledge and cultural expressions? What does this evolution reveal about global power dynamics, and who were the key actors in this process and initiative?

W. W.: In 1998, several factors propelled the establishment of WIPO’s program on these issues. I will mention four. First, the World Trade Organisation (WTO) had been created in 1995 and its members had adopted an agreement on IP (the ‘TRIPS Agreement’). As this development threatened WIPO’s supremacy in the global IP arena, WIPO was looking for new policy areas to buttress its relevance. Second, and partly as a result of the adoption of the TRIPS Agreement, the IP system was subject to growing criticism at that time, especially by developing countries and development-focused NGOs and academics. WIPO believed a new program on genetic resources, TK and TCEs would demonstrate the usefulness of the IP system and WIPO for developing countries. Third, the adoption of the Convention on Biological Diversity (the CBD) in 1992 had, for the first time, granted sovereign rights in genetic resources to States and provided some level of protection for the biodiversity-related TK of indigenous and local communities. The relationship between the goals of the CBD, especially the conservation of biodiversity and the equitable sharing of benefits arising from its use, and IP protection, especially patents, was unclear. More and more cases of ‘biopiracy’ were being identified by developing countries and environmental NGOs. WIPO’s new program was intended to enable WIPO to respond more proactively to these issues. Finally, Indigenous Peoples were beginning to look more closely at the gaps in the IP system that left their TK and TCEs unprotected. WIPO had not engaged with Indigenous Peoples in the past but my colleagues and I, working in the new program from early 1998 went out of our way to remedy this. Not all WIPO’s member countries agreed that this new program was needed. Certain industrialised countries especially were skeptical and urged caution. But, WIPO’s new Director General at that time (Kamil Idris from Sudan, who took office in late 1997 as the first Director General of the WIPO from a developing country) had the support of most countries for this new program.

J. C & J. R.: How can we legally reconcile the criteria defining tradition and innovation within traditional knowledge and cultural expressions, given that IP law primarily recognises individual creativity, while many Indigenous Peoples interpret ownership differently, often collectively? How can this legal challenge be addressed?

W. W.: The IP system as we know it originated in Western Europe and its current contours were formed more or less in the late 19th century. It was not designed with Indigenous Peoples or TK and TCEs in mind. The communal nature of TK and TCEs—which is one of the factors that make them ‘traditional’—means that they do not fit easily under the umbrella of protection provided by the IP system. That said, some IP rights—such as collective and certification trademarks—are precisely for associations, organisations and communities and several Indigenous Peoples have registered these kinds of marks. For example, the Cowichan tribe from Canada has registered the COWICHAN certification mark for their hand-knitted clothing. A community of basket weavers in Kenya is the proud owner of the collective mark ‘Taita Basket’ for its sisal baskets.2 The protection afforded to geographical indications (and similar schemes such as Protected Designations of Origin (PDO) or Traditional Specialty Guaranteed (TSG) can also be useful, although in all these cases it is the indication of origin that is protected not the underlying TK or TCE itself. Additionally, copyright and patents can be and often are held by groups of people rather than individuals. When I was at WIPO, my team and I ran a training, mentoring and match-making program for women entrepreneurs from Indigenous Peoples and local communities and many of the women had begun to apply for and get collective trademarks.3 This program is still ongoing. With valuable funding from Japan, WIPO has for instance supported an Indigenous women’s association in Colombia which creates beautiful handwoven products from moriche fiber, preserving cultural heritage while generating job opportunities women and, in Peru, another women’s association was helped to develop a plant to process and package sustainably sourced tea from the Amazon rainforest—which in turn enabled women from 15 communities achieve economic independence.4 But, in general, the communal nature of TK and TCEs is one of the reasons that a special IP-similar regime is needed (referred to as a sui generis regime) to cater for the specific features of TK and TCEs. Several countries and regional organisations have already enacted legislation that provides sui generis protection for TK and TCEs, and intergovernmental negotiations are underway at WIPO to see if countries can agree on an international instrument or instruments. Current drafts of these instruments envisage a mix of rights and measures, and a mix of economic and moral rights, that would protect TK and TCEs for the benefit of Indigenous Peoples, local communities, and perhaps other beneficiaries as may be determined under national law.5

J. C & J. R.: On May 24, 2024, WIPO concluded a treaty on IP and genetic resources and TK associated with genetic resources. In this context, what criteria determine whether cultural appropriation is illicit? Can the origin of knowledge or a practice be identified, considering that such knowledge is often widely shared by multiple tradition bearers in a world where creativity has always drawn inspiration from the circulation of cultures?

  • 6 Wend Wendland, “The New WIPO Treaty 25 Years in the Making: What Does It Mean and What Happens Next (...)

W. W.: It is true that the same or similar TK and TCEs can be found in more than one community and this poses challenges for attempts to vest exclusive property rights in TK and TCEs to one community and not another. The Treaty does not, however, provide for the protection of TK or TCEs as such. The most significant change brought about by the new Treaty (the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, 2024) is that patent applicants, whose inventions are based on genetic resources and/or associated TK, must now disclose their origin or source. This new disclosure obligation is a transparency measure that reduces the likelihood of patents being granted wrongly for inventions that are in fact not novel or inventive taking into account the genetic resources and/or associated TK the inventions were based on. The Treaty, therefore, may reduce the likelihood of ‘biopiracy’ which I mentioned earlier. Second, the information disclosed will improve implementation of the ‘access and benefit-sharing’ systems put in place by the CBD, its Nagoya Protocol and other agreements. This is because countries and communities which are the providers of these resources will have a better chance of knowing when patents are being applied for based on their genetic resources and TK and they can then check whether their access and benefit-sharing rules were complied with by the patent applicants. In so far as associated TK is concerned, the patent applicant would have to disclose the Indigenous People or local community who provided the knowledge. Disclosing a certain People as the provider of the knowledge does not, however, imply legal recognition of that People as the owner of the knowledge. For the purposes of this new disclosure obligation, it is not relevant if another community happens to hold the same or similar associated TK if it was not the community who actually provided the knowledge to the patent applicant. While the Treaty does not create any new rights in genetic resources as such or in associated TK, the protection of TK more broadly and of TCEs is the subject of a separate and ongoing negotiation at WIPO that has not yet concluded. That said, the Treaty’s adoption, by consensus, is enormously significant for historical, symbolic and practical reasons.6 The Treaty will come into force three months after its 15th ratification or accession. Many expect that its adoption paves the way for a subsequent international legal instrument for the direct IP-like protection of TK and TCEs.

J. C & J. R.: WIPO’s work and materials refer both to Indigenous Peoples, who have a clear legal definition, and to local communities, whose territorial and cultural boundaries are more complex to define, particularly within nation-states. In France, for instance, could Bretons, Périgourdins, or Basques be considered local communities with IP rights over knowledge, craftsmanship, festivals, music, etc.? Could we imagine a scenario where only Corsicans are allowed to perform Corsican polyphony, and if so, how would Corsican identity be defined? Do you have any examples to illustrate this approach?

W. W.: There are many terms used but I will highlight two main and separate concepts: ‘Indigenous Peoples’ and ‘local communities’. The former is better understood because Indigenous Peoples have a distinct status and are accorded certain rights in international law, such as those expressed in the UN Declaration on the Rights of Indigenous Peoples, 2007. The concept of ‘local communities’ is, however, less clear. In WIPO as in other forums, countries have different views on which terms to use and what they mean. In the negotiations underway at WIPO on the protection of TK more broadly and TCEs, and in the new Treaty from May 2024, countries have been using the term ‘Indigenous Peoples and local communities’. For understandable reasons, however, the Indigenous mechanisms in the UN (the Permanent Forum on Indigenous Issues, the Special Rapporteur on the Rights of Indigenous Peoples and the Expert Mechanism on the Rights of Indigenous Peoples) do not like use of the expression ‘Indigenous Peoples and local communities’ because it does not reflect the distinct status and rights of Indigenous Peoples as compared with local communities. In the ongoing negotiations at WIPO on TK and TCEs, ‘local community’ could in principle cover the communities mentioned in your question. However, any future legal instrument is likely to establish criteria for those specific TK elements and TCEs that would qualify for protection. These should narrow the scope of protectable subject matter in such a way that it would not necessarily be every TK or TCE that may be associated in some way with a ‘local community’ would be protected. The legal protection of TK and TCEs as forms of IP gives rise to a complex debate. What does ‘traditional’ really mean and who should benefit from its IP-similar protection? In my view, any new protection regime that comprises exclusive property rights should be narrowly designed and precisely targeted at the problem that needs to be addressed. If the definition of ‘traditional’ is too broad, and the range of beneficiaries too wide, new rights may create more problems than they would solve.

J. C & J. R.: Would the tools you are working on automatically make elements on UNESCO’s Intangible Cultural Heritage (ICH) lists eligible for IP protection?

  • 7 Michele Stefano and Wend Wendland, “Article 13: Researching, Documenting and Accessing Intangible C (...)

W. W.: Elements in the ICH lists would not ipso facto be eligible for IP protection. These elements are inscribed on the lists because they have been considered by UNESCO’s Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage to form part of the ‘intangible cultural heritage’ and in need of ‘safeguarding’, as both concepts are defined in the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. Inscription on the list is a measure for the safeguarding of ICH, a concept distinct from its legal protection—which is the protection against misappropriation that the IP system provides.7 Article 3(b) of the Convention (which I helped to draft as WIPO’s representative in the negotiations at UNESCO at the time) is also relevant: it provides that nothing in the 2003 Convention may be interpreted as ‘affecting the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights…’

J. C & J. R.: How do you address the legal challenges related to these practices in the digital era, where social media and the omnipresence of online platforms blur geographical boundaries and traditional legal frameworks? More specifically, are there tools or mechanisms developed by WIPO to monitor, regulate, and ensure fair and legal use of such content? How do these tools track who is using what, in what way, and for what purpose? Finally, what are the limitations and challenges these mechanisms face in adapting to the rapid changes of the digital ecosystem?

W. W.: The advent of new digital technologies such as artificial intelligence (‘AI’), virtual reality and augmented reality are the latest in a series of technological advances that present both threats and opportunities for Indigenous Peoples and other communities who are custodians of ICH and live traditional life-styles. There are numerous issues to address including the lack of Indigenous Peoples’ participation in the technology industry; the risks of misappropriation of Indigenous data; the protection of TK and TCEs; and, the opportunities in health, education, agriculture, language revitalisation and ICH safeguarding that the new technologies can present for Indigenous Peoples. UNESCO, WIPO and many others are doing work in this area. Indigenous experts and organisations in all regions are already active on these issues.

J. C & J. R.: Finally, in a globalised world where cultural homogenisation is a real risk, but where the recognition of cultural diversity is celebrated as a means of fostering mutual acceptance and peace among peoples—aligned with the idea of a "heritage of humanity"—would placing legal restrictions on cultural exchanges not lead to violent tensions between communities? Does legal protection not, in fact, endorse and promote the commodification of cultural identities, potentially triggering economic conflicts that may be difficult to resolve given the financial interests at stake?

  • 8 Ramon Romano, "Copyright Law and Cultural Heritage in Italy: Work in Progress”, Journal of Intellec (...)
  • 9 When I was at WIPO, we launched work to facilitate dialogue between fashion companies and Indigenou (...)

W. W.: The resort to IP rights in the realm of ICH does indeed raise legitimate concerns about the ‘propertisation’ and ‘commodification’ of culture, the chilling of cross-cultural borrowing and restrictions on artistic freedom. The wonderful thing about culture is that it is the one resource that, when shared, instead of diminishing, becomes more abundant.8 These concerns are felt especially acutely should elements of ICH potentially become subject to exclusive property rights (such as the economic rights vested by the copyright and patent systems). Rights such as these would also be likely to be difficult to administer and enforce. However, I would say first that allegations of misappropriation of ICH do arise on a regular basis, such as in the fashion and design sectors,9 and should be addressed. Second, ‘IP protection’ encompasses more than exclusive rights. There are other kinds of IP rights too, such as moral rights (the rights of attribution and to prevent derogatory use), rights to equitable compensation, and rights to prevent unfair competition. These kinds of IP rights might well be better suited for TK and TCEs than exclusive rights, especially for TK and TCEs that are already publicly available. Exclusive rights could be applied to secret and sacred TK and TCEs only. This would be in line with what is called a ‘tiered approach’ to TK and TCEs protection. Third, IP rights can be used assertively to exclude competitors and exploit protected subject matter, but they need not be—they can also be used purely defensively to prevent unwanted uses by third parties, including their acquiring IP rights over the underlying TK and TCEs. The use of IP does not therefore necessarily lead to commercialisation—it can also prevent it. The broader point is that ‘no one size fits all’. The IP system offers a menu of options that Indigenous Peoples, as well as local communities, can pick and choose from if they wish.

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Notes

1 These became the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both adopted in 1996. To this day, negotiations on a new broadcasting treaty are still ongoing.

2 For these and other examples see WIPO, “Promote and Protect your Culture”, 2017, https://www.wipo.int/publications/en/details.jsp?id=4195.

3 Meet some of the women here: https://www.wipo.int/en/web/traditional-knowledge/women-entrepreneurs/indigenous-peoples-gallery, accessed March 15, 2025.

4 See a short video here: https://www.facebook.com/wipoTK/videos/1887607572037072/, accessed March 15, 2025.

5 See https://www.wipo.int/en/web/igc, accessed March 15, 2025.

6 Wend Wendland, “The New WIPO Treaty 25 Years in the Making: What Does It Mean and What Happens Next?”, WIPO Magazine, October 2024, https://www.wipo.int/en/web/wipo-magazine/articles/the-new-wipo-treaty-25-years-in-the-making-what-does-it-mean-and-what-happens-next-68223, accessed February 27, 2025.

7 Michele Stefano and Wend Wendland, “Article 13: Researching, Documenting and Accessing Intangible Cultural Heritage” in (eds J. Blake and L. Lixinski) Commentary to the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (OUP, 2020).

8 Ramon Romano, "Copyright Law and Cultural Heritage in Italy: Work in Progress”, Journal of Intellectual Property Law and Practice, vol. 13, no 9, 2018, p. 699.

9 When I was at WIPO, we launched work to facilitate dialogue between fashion companies and Indigenous Peoples, aimed at the eventual adoption of non-binding ‘steps’ for companies to consider when using TCEs. This work is still ongoing. See https://www.wipo.int/en/web/traditional-knowledge/fashion, accessed March 15, 2025.

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Wend Wendland, Julia Csergo et Jessica Roda, « Copyright, Use, and Valorisation of Intangible Heritage: Between Circulation and Cultural Appropriation »Sociétés & représentations, 60 | -0001, 263-271.

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Wend Wendland, Julia Csergo et Jessica Roda, « Copyright, Use, and Valorisation of Intangible Heritage: Between Circulation and Cultural Appropriation »Sociétés & représentations [En ligne], 60 | 2025, mis en ligne le 17 décembre 2025, consulté le 13 février 2026. URL : http://journals.openedition.org/socrep/1822 ; DOI : https://doi.org/10.4000/15dhi

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Auteurs

Wend Wendland

Wend Wendland est écrivain, formateur, médiateur et chef de projet. Son travail porte sur la propriété intellectuelle et les enjeux mondiaux tels que le patrimoine culturel, la diversité culturelle, la biodiversité, l’agriculture, la santé et les peuples autochtones. Il a exercé en droit privé et a été pendant de nombreuses années directeur de l’Organisation mondiale de la propriété intellectuelle (OMPI). Il est professeur adjoint à la faculté de droit de l’Université du Cap, en Afrique du Sud. Il vit à Genève et vient de publier The Journey to the WIPO Treaty on Genetic Resources and Associated Traditional Knowledge (London, Edward Elgar Publishing, 2025).

Julia Csergo

Julia Csergo, spécialiste d’histoire culturelle du monde contemporain, est professeure au département d’études urbaines et touristiques de l’université du Québec à Montréal. Elle travaille depuis de nombreuses années sur les patrimoines immatériels, les cultures alimentaires et leurs valorisations culturelles et touristiques. Elle a donné de nombreuses conférences et a été professeure invitée dans plusieurs universités à l’international, dont Sciences Po Lille. Elle est l’auteure de près d’une centaine d’articles. Parmi ses dernières publications on compte : La gastronomie est-elle une marchandise culturelle comme une autre ? La gastronomie française à l’Unesco. Histoire et enjeux (Chartres, Menu Fretin, 2016) ; en codirection avec Frédérique Desbuissons, Le cuisinier et l’art. Art du cuisinier et cuisine d’artiste, - siècle (Chartres, Menu Fretin, 2018) ; en codirection avec Christian Hottin et Pierre Schmidt, Le patrimoine culturel immatériel au seuil des sciences sociales (Paris, éditions de la Maison des sciences de l’homme, 2020) ; en codirection avec Olivier Etcheverria, Imaginaires de la gastronomie (Chartres, Menu Fretin, 2020).

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Jessica Roda

Jessica Roda est anthropologue et ethnomusicologue, spécialiste de la vie juive en France et en Amérique du Nord. Professeure au Center for Jewish Civilization de Georgetown University (USA), elle est l’autrice de plus d’une trentaine de publications, portant sur le patrimoine, la musique, le religieux, les médias et le genre. Parmi elles, notons For Women and Girls Only: Reshaping Jewish Orthodoxy through the Arts in the Digital Age (New York, NYU Press, 2024), Se réinventer au présent. Les Judéo-espagnols de France, famille, communauté, et patrimoine musical (Rennes, Presses universitaires de Rennes, 2018) ; en codirection avec Daniela Moisa La diversité des patrimoines (Québec, Presses de l’université du Québec, 2015). Elle travaille actuellement sur les états seconds de conscience provoqués par l’usage de plantes psychédéliques, la respiration et la musique en milieu juif. Elle a été chercheuse invitée dans de nombreuses institutions dont Columbia University, le Katz Center for Advanced Judaic Studies (University of Pennsylvania) et l’université d’État de Campinas (Brésil).

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