Copyright Law and the Ruse of Culture: ‘Traditional Cultural Expressions and Expressions of Folklore’ as a Conception of Racial Difference

Abstract

‘Traditional Cultural Expressions’ and ‘Expressions of folklore’ (TCEs/folklore) have received very little critical attention within intellectual property (IP) jurisprudence. Where TCEs/folklore have been treated, it has only been to the extent that international IP does not offer sufficient protection over them as an analogous class of IP or to the extent that TCEs/folklore themselves are philosophically incompatible with IP, and accordingly fail to adequately capture the cultural expressions of indigenous peoples. This article offers a different argument regarding TCEs/folklore which neither seeks their further protection nor their legislative and policy development. Instead, this article traces the genealogy of TCEs/folklore within the imperialist foundations of international law, arguing that TCEs/folklore are the function of an already existing discursive arrangement of power that is consistent with colonial valuations of knowledge and culture.