Protection of Indigenous Cultural Heritage in Free Trade Agreements: Issues and Challenges from a North-South Perspective

The linkage between trade and intellectual property rights has long been at the center of controversy since the Agreement on Trade-Related Aspects of Intellectual Property Rights was negotiated and became one of agreements annexed to the Agreement Establishing the World Trade Organization. WTO members have fiercely debated over how to protect indigenous cultural heritage, including biodiversity, traditional knowledge, or traditional cultural expression since the TRIPS Council initiated the review of Article 27.3(b) of the TRIPS Agreement. Despite so, many countries attempt to address this issue through free trade agreements by incorporating relevant provisions in IPR chapter in which goes beyond the TRIPS Agreement requires. While these so-called “WTO-Extra” or “WTO-Plus” provisions seemingly aim to protect indigenous cultural heritage, they are facing plenty of challenges or obstacles to be fully implemented by constituent parties to the FTAs. This chapter will firstly examine these provisions in recent free trade agreements and explore if there are any different approaches taken by Northern or Southern countries in addressing the issue of protecting cultural heritage in their FTAs. This chapter will then discuss potential legal problems surrounding these provisions including the application or interpretation of most-favored-nation clause, the highest international standard provision, and/or disclosure requirement over the origin of traditional knowledge, etc. After a brief analysis of current challenges faced in most bilateral or regional FTAs, this chapter tries to argue that plurilateral trade arrangement like the Trans-Pacific Partnership (TPP) Agreement may be a better opportunity to secure more effective protection of indigenous cultural heritage in the Asia-Pacific region.