Towards a Tiered or Differentiated Approach to Protection of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) in Relation to the Intellectual Property System

The World Intellectual Property Organisation (WIPO) has, for nearly two decades, engaged in formulating the nature and content of a text-based legal instrument or instruments for the effective protection of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs, also known as folklore) within or relating to the international intellectual property (IP) system. This task has been the job of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), established in 2000. In this article, I explore the context and rationales for, and evolution of, one of the IGC’s evolving contributions: development of a tiered or differentiated approach to the protection of TK and TCEs. The article discusses and analyses the empirical ramifications and challenges of the tiered approach — alternatively referred to as differentiated approach — with reference to examples of forms of TK and TCE in Africa, North America and Australia. I conclude that the approach is a work in progress, still evolving, which provides a useful broad policy framework at the international level while, at the same time, its details are contingent on many considerations better addressed at national and local levels.