What is "traditional cultural expression"? International definitions and their application in developing Asia

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) began its deliberations in 2001. Eight years later in July 2009, it reached a temporary standstill. At its 14th session, held in Geneva from June 29 to July 3, 2009, representatives of Members States, intergovernmental and non-governmental organisations agreed to disagree on the agenda item related to ‘‘Future Work’’ that attempted to specify ways in which the work of the Committee should be carried forward during the 2010–11 biennium. Representatives of many developing countries and non-governmental organisations voiced their dissatisfaction with the slow progress in the IGC. A proposal from the African Group of countries sought to speed up the agenda during the 2010–11 biennium by requiring ‘‘text-based negotiations’’ for ‘‘an internationally binding instrument/instruments’’ with a ‘‘clearly defined work programme and timeframe, including the holding of intersessional work sessions’’. While this proposal was supported by a large number of developing country representatives, others such as the representatives of the United States, Japan or Germany, speaking on behalf of the B Group of developed countries, found still much ‘‘unfinished analytical work’’ and the necessity to further a ‘‘common understanding’’ of the issues. Thus, while members were clearly in favour of renewing the mandate of the IGC, there were differing views on the precise scope and aims of its work during the next biennium. The idea of intersessional work sessions and of a partial shift of forum to expert working groups as well as the composition of such groups was also disputed. At their Annual Assemblies from September 22 to October 1, 2009, WIPO member states finally renewed the mandate of the IGC with the objective of reaching agreement on a text of an international legal instrument (or instruments) and with a provision for three inter-sessional meetings of working groups. One of the ongoing discussions concerns definitions of ‘‘traditional cultural expressions’’, which will be the focus of the first part of this article. IGC members in fact also disagreed on whether more consensus on fundamental concepts and ‘‘broad, non-exhaustive and non-exclusive, definitions’’ was necessary or whether it was possible to start with more loosely worded terminology in order not to get ‘‘stuck in working on ideal definitions that could take years to adopt’’. The article will then examine the approach to TCE protection in Indonesia and a few disputes between Indonesia and Malaysia about TCEs.