Washington International Law Journal


Meghana RaoRane


Globalization has led to the propagation of traditional cultural expressions of indigenous peoples outside their communities. Consequently, the question of how these expressions should be protected has acquired heightened significance. Commentators have proposed using existing intellectual property regimes and sui generis solutions. This Comment advocates a third solution, the use of indigenous customary laws of indigenous peoples to protect their particular traditional cultural expressions. Indigenous customary laws ensure effective protection of the traditional cultural expressions of indigenous peoples. The assumption that existing intellectual property regimes provide the only available protection is erroneous and constrains the development of effective solutions. Western intellectual property based regimes are incompatible with the goals underlying the protection of traditional cultural expressions and give rise to ineffectual solutions. However, indigenous customary law is law, and it is satisfactorily being used by communities to protect their expressions. It is a flexible solution in that communities can apply their particular customary laws to protect their cultural expressions. This Comment concedes that the application of indigenous customary laws will encounter challenges related to implementation. However, a true desire to protect the traditional cultural expressions of indigenous peoples can fuel the discovery of viable solutions.

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