PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

Protecting Indigenous Art: Challenges in Protecting

Traditional Cultural Expressions in the Philippines1

Christopher E. Cruz
Commercial Law Department
De La Salle University
christopher.cruz@dlsu.edu.ph

Abstract: It cannot be denied that indigenous people have traditional knowledge

which is the source of rich cultural expressions in the form of writings, songs, designs
and other literary or artistic works. These are works handed down from generation
to generation through the passage of time. However, when the “outside world” visits
the indigenous people there is a risk that these indigenous works may be
appropriated by the and used for commercial purposes without permission. Worse,
once it is exposed to the outside world, it may be prone to abuse by unauthorized
sale, copying or distribution. How can indigenous art be protected and the cultural
heritage of the indigenous people be preserved? The aim of this paper is to show that
the indigenous people produce rich artistic cultural expression that should be
protected because they should be preserved for future generations to come . To
protect indigenous art, there is a need to (1) identify them, (2) survey the legal
environment to determine if there are sufficient laws that protect them, and if
current laws are lacking; (3) Propose ways on how to sufficiently protect them.

The paper will show that (1) the current legal protection afforded to
indigenous art is lacking as there is no specific process and substantial provision in
the law about protecting indigenous art as an intellectual property; (2) The
traditional means of protecting indigenous art through the intellectual property code
and relevant laws and regulations are insufficient; and (3) There is a need to increase
awareness of the existence of indigenous art and the need to protect them to expose
the benefits and risks in exposing indigenous art. In conclusion, the paper will
propose that a sui generis (custom-made) law in protecting indigenous art is
necessary to fill in the gaps of the current system of protection of indigenous art.

1The author has a similar article entitled “IP of IP: Challenges in Protecting Traditional Knowledge in the Philippines (2017).
The present work, however, is more focused on Traditional Cultural Expressions rather than Traditional Knowledge in
general.
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

1. INTRODUCTION Despite their growing number and

influence today, indigenous peoples are still
considered part of the marginalized and poor
The Philippines is home to many indigenous sectors of society. In a 2018 report of World
peoples and communities. Away from the mega- Mission, a Catholic-based missionary group, “they
cities of Manila, Cebu and Davao, there exists (indigenous communities) lag behind in terms of
indigenous communities living in far-flung areas social and economic development, being the most
and mountainous regions in the Philippines mostly impoverished groups in their countries. They are
untouched by the technological advancements of poor, illiterate and unemployed, making up 15 per
urban life where the internet and skyways are cent of the world’s poor.”5 In a report of the United
mostly unheard of. For better or for worse, these Nations Permanent Report on Indigenous Issues in
indigenous communities have remained mostly 2010, indigenous people “make up fully one-third of
insulated from the rigors of city-life and have the world’s poorest peoples, suffer
survived the trials of everyday life using traditional disproportionately in areas like health, education,
methods of hunting, fishing, cooking and and human rights, and regularly face systemic
expressing themselves through dance, music and discrimination and exclusion.”6 In some areas in
other rituals. Some have ventured into living in Mindanao, they are being displaced from their
urban towns and cities to experience the harsh homes and their traditional practices disrespected.
realities of modern living, only to go back to their This has resulted to conflicts which even led to
communities in the mountains which they truly violence and war. Indeed, these circumstances
belong. have threatened not only the use of traditional
knowledge, but the very existence of the indigenous
There are approximately 370 million communities itself. For these reasons, there is a
indigenous people in 70 countries across the globe.2 need to protect and uphold the cultural heritage
In the Philippines, there are around 14-17 million and traditional knowledge of the indigenous people
Indigenous People (IP) belonging to 110 ethno- not only in the Philippines but the entire world.
linguistic groups which are located mainly in the
Cordillera Administrative Region (33%), Mindanao One of the things that make indigenous
(61%) and some in the Visayas.3 There are two people unique is their cultural heritage and
main indigenous groups representing the northern traditional knowledge. This is what makes them
and southern indigenous peoples of the Philippines: united as a people and affirms their identity to the
(1) The Igorots in the north; and the (2) Lumands “outside world”. Traditional knowledge are in the
in the south. The Igorots are known to be the have form of traditional cultural expressions (TCE) and
built of the Banuae Rice Terraces which trace back traditional genetic resources (TGR). Traditional
more than 2,000 years ago. The Lumads, which cultural expressions (TCE) are artistic expressions
comprise several other specific ethnic groups, are of the community that is handed down from
known for their tribal music produced by generation to generation and become part of their
indigenous instruments. The other major everyday life. These include writings, songs,
indigenous groups include the Badjaos (sea tribes of dances, designs that make up the cultural fiber of
Sulu), Ati (Panay), Aetas or Negritos (animalistic the community. On the other hand, traditional
rituals), Palawan tribes, and the Mangyans genetic resources (TGR) are the unique ways of
(Mindoro).4 All of these indigenous groups share a living in the community like planting, hunting and
common vision of preserving their rich cultural fishing, or ways of curing illnesses. To illustrate,
heritage. TGR include the use of plao-noi plant to treat
ulcers and the hoodia plant of the San people to
2 Paper on the United Nations Indigenous People curb hunger during hunting.7
Permanent Forum on Indigenous Issues Fact Sheet,p.1.
3 UNDP Programme Fast Facts Lago (2010),
www.undp.org.ph
4 Valdeavilla, Ronica (2018), A guide to the Philippine 5 World Mission Magazine (August 2016). Struggles of the
Tribes of the Philippines. Indigenous, No. 303, Vol. XXVIII, p. 5.
https://theculturetrip.com/asia/philippines/articles/a- 6 Supra on No. 2, p. 1.

guide-to-the-indigenous-tribes-of-the-philippines/. 7 WIPO Publication No. 933 (E), Box 5, p. 14.

PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

The traditional knowledge composed of current modes of protection, both legal and extra-
TCE and TGR are supposedly owned by the legal, in the protection of indigenous art. This will
indigenous people and can be considered as part of be done by looking at the existing legislation and
their patrimony, history and cultural identity. the enforcement programs by the government in
Considering that traditional knowledge is a very ensuring protection of indigenous art. It will then
broad topic, this paper shall limit its discussion on make an analysis and evaluation of the state of
Traditional Cultural Expressions which are in the protection of indigenous art in the Philippines and
form of songs, dances, designs and other forms of the ways on how these works of art may be
cultural expressions. These expressions which exploited to the prejudice of the indigenous people.
have been handed down from generation to It will cite specific instances when indigenous art
generation can also be considered as intellectual can be exploited and abused by the outside world
property in using the conventional system of and how these can be minimized, if not eliminated.
protection. Considering, however, that traditional The paper will show that (1) the current legal
knowledge has a different nature and objective protection afforded to indigenous art is lacking as
from that of the conventional subjects of there is no specific process and substantial
intellectual property, can the traditional knowledge provision in the law about protecting indigenous
in the form of tradtional cultural expressions still art as an intellectual property; (2) The traditional
be protected under intellectual property regime of means of protecting indigenous art through the
the state in the form of copyright, trademark of intellectual property code and relevant laws and
industrial designs? If yes, how can this be regulations are insufficient; and (3) There is a need
implemented? What types of intellectual property to increase awareness of the existence of
(patents, trademark, copyright or trade secret etc.) indigenous art and the need to protect them to
can be used to protect traditional cultural expose the benefits and risks in exposing
expressions? Can there be another way of indigenous art. In the end, the paper will make
protecting traditional cultural expressions aside recommendations on how to protect indigenous art
from using the conventional intellectual property using the conventional intellectual property system
system? and the need to have a custom-made or sui-generis
kind of protection.
The objective of this paper is to determine
how traditional cultural expressions in the form of
indigenous art can be protected in the Philippines
and whether there are other alternative ways of 2. TRADITIONAL CULTURAL
protecting indigenous art. It will show that the
indigenous people produce rich artistic cultural EXPRESSIONS AS
expression that should be protected because they TRADITIONAL KNOWLEDGE
should be preserved for future generations to come
. Also, indigenous art should be protected because
it is prone to abuse from the outside world. To Traditional knowledge (TK) has been
protect indigenous art, there is a need to identify defined as “a living body of knowledge passed on
them, survey the legal environment to determine if from generation to generation within a community.
there are sufficient laws that protect them, and if It often forms part of a people’s cultural and
current laws are lacking; (3) Propose ways on how spiritual identity.”8 This embodies the soul of the
to sufficiently protect them. community and the essence of what they are.
Specifically, traditional knowledge consists of
In order to protect indigenous art, the “knowledge, know-how, skills, innovations and
paper will discuss the concept of traditional practices that are passed between generations in a
knowledge, specifically traditional cultural traditional context; and that form part of the
expressions, and how they can result to indigenous traditional lifestyle of indigenous and local
art. The resulting indigenous art will then be communities who act as their guardian or
classified to determine if they fall into the
traditional forms of intellectual property under the
law. The paper will proceed with a survey of the 8 WIPO Website: http://www.wipo.int/tk/en
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

custodian.”9 Despite these definitions, traditional • Musical expressions (songs, instrumental

knowledge is still considered abstract and vague. music)
While there are suggested definitions, “there is not, • Expressions by action (dance form, play, ritual,
as yet, any generally accepted, formal definition of etc.)
these terms. At best, working definitions are used • Tangible expressions (drawings, designs,
to refer to the components of traditional knowledge. paintings, body art, carvings, sculptures,
In summary, traditional knowledge includes the pottery, terracotta, warli painting, mosaic,
following: woodwork, rockwork, metal work, jewelry,
“Mental inventories of local biological basket, needlework, glassware, textiles,
resources, animal breeds, and local plant, carpets, etc.)
crop and tree species. It may include such • Intangible expressions reflecting traditional
information as which trees and plants grow thought forms
well together which are “indicator plants”
(plants that show soil salinity or are known
• Architectural forms12
to flower at the beginning of the rains, for
example). TK includes practices and In a WIPO study by P.V. Valsla G. Kutty
technologies, such as seed treatment and entitled “National Experiences with the Protection
storage methods and tools used for planting of Folklore/Traditional Cultural Expressions”
and harvesting. It also encompasses belief (2002)13, the following were considered part of the
systems that play a fundamental role in folklore or traditional cultural expressions of the
people’s livelihoods, maintain their health, Philippines: (1) Indigenous Music for rituals, feasts,
and protect and replenish the environment. harvest, religious and social ceremonies; (2)
TK is dynamic in nature and may include Musical instruments made out of bamboo and other
experimentation in the integration of new indigenous materials; (3) Bronze instruments like
plant or tree species into existing farming gongs; (4) Basketry in the Cordillera region; (4)
systems or a traditional healer’s tests of Textile designs in Mindanao; (5) Ethnic
new plant medicines.”10 architecture seen in design of houses; (5) Folklore
based on influence of Spanish and American
colonizers.
One kind of traditional knowledge (TK)
which is the subject matter of this paper are
Traditional Cultural Expressions (TCE). They are
the expressions of the people’s cultural heritage To understand and appreciate these rich
and history which are manifested through their creations in the form of indigenous art, people from
“dances, songs, handicraft, designs, ceremonies, the “outside world” visit the indigenous people to
tales or many other artistic or cultural expressions gain knowledge of their rich culture and history.
xxx and are seen as integral to the cultural and Through these visits, these works of art are
social identities and heritage of indigenous and revealed to the public. However, when the “outside
local communities, reflecting core values and world” visits the indigenous people there is a risk
beliefs. ”11 It is sometimes referred to as folklore or that these indigenous works may be appropriated
folksoul. These are works handed down from by the “visitors” and used for commercial purposes
generation to generation through the passage of without attribution and economic benefit to the
time by people living the same community. The indigenous people. Worse, once it is exposed to the
following are forms of TCE: outside world, it may be prone to abuse by
unauthorized sale, copying or distribution. The
• Verbal expressions or symbols (stories, epics,
legends, tales, riddles, etc.) 12 Singh & Associates (2012), Traditional Culutral
Expressions, found in
https://www.lexology.com/library/detail.aspx?g=a806fd78-
711e-4811-a881-ed269533b635
9 WIPO Publication No. 933 (E), p. 13. 13 Kutty, P.V. Valsala (2002). National Expriences with
10 Hansen SA and JW Van Fleet (2007), p. 1523. the Protection of Expressions of Folklore/Traditional
11 Supra on footnote 4, p.16. Cultural Expressions, WIPO, Geneva, Switzerland.
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

classic case of abuse on the use of TCE, as observed 3. COPYRIGHT, TRADEMARK

by the World Intellectual Property Organization,
involves artistic and literary works like songs: AND INDUSTRIAL DESIGN
“an indigenous folk song could be AS RELEVANT FORMS OF
adapted and copyrighted, without INTELLECTUAL PROPERTY
acknowledgment of the indigenous
community which created the song and
FOR TRADITIONAL
without sharing any of the benefits CULTURAL EXPRESSIONS
arising from the exploitation of the song
with the community”14 The World Intellectual Property
Organization (WIPO) has defined Intellectual
In response to the possible abuses on the property as “creations of the mind, such as
rights of indigenous peoples, the government inventions; literary and artistic works; designs; and
pursuant to the 1987 Constitution passed a symbols, names and images used in commerce .”15
comprehensive law to protect indigenous peoples: Except for inventions, the relevant intellectual
the Indigenous Peoples Rights Act (R.A. 8371). property for traditional cultural expressions in the
There is, however, insufficient provisions to detail said definition include literary and artistic works,
the protection of traditional knowledge as designs, names and symbols. In the conventional
intellectual property. Even the intellectual system of intellectual property protection under the
property code of the Philippines (R.A. 8293) do not law, these works are protected in the most part as
have a separate chapter or dedicated provisions for copyright, trademark and designs: (1) Literary and
the protection of traditional knowledge as artistic works are protected by copyright and
intellectual property. Hence, there is a need to look related rights; (2) Designs are protected by
into the possible gaps in legislation in order to industrial design; and (3) symbols, names and
make policy recommendations to better protect images are protected by trademark. While there
traditional cultural expressions. are other forms of intellectual property (like
geographical indications and trade secrets) that
To have a better understanding and may protect traditional cultural expressions, this
appreciation of the issues regarding traditional paper shall limit its discussion to these three kinds.
cultural expressions on one hand, and the
conventional intellectual property system on the
(1) Copyright: The World Intellectual
other, there is a need to discuss each separately.
Property Organization defines copyright as the
After knowing each component, a discussion of how
“legal term used to describe the rights that creators
one intersects with the other shall be made. A
have over their literary and artistic works.”16 This
survey of the laws on intellectual property relevant
is the legal form of protection to any expression of
to traditional cultural expressions shall be made
an artistic idea. In “The Arts and Copyright”17, the
followed by an analysis of its applicability to
World Intellectual Property Organization
traditional cultural expressions.
explained how copyright protects artistic works:
Can traditional cultural expressions in the
form of songs, dances, poems, writings, designs, “Copyright protects the way in which
paintings, sculptures, and other traditional artistic ideas are expressed. This expression is
and literary works be considered as intellectual the unique way in which words, musical
property using the standards of the conventional notes, colors shapes etc. are chosen and
intellectual property system? A discussion of the arranged. It is the expression that makes
intellectual property system, specifically copyright
and trademark and industrial designs, are in order.
15 What is Intellectual Property? (WIPO Publication No.
450n (E), p. 2.
16 WIPO website: https://www.wipo.int/copyright/en/
17 World Intellectual Property Organization (2007), The
14 Supra on Note 8, p. 14. Arts and Copyright: Learn from the Past, Create the
Future, Geneva, Switzerland, p. 17.
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

a work original. This means that there The following are the derivative works:
can be many different works about the
same idea and all of them will be (a) Dramatizations, translations,
protected by copyright, as long as they adaptations, abridgments, arrangements,
express this idea in an original way” and other alterations of literary or artistic
(p.17). works; and

Under the Intellectual Property Code of (b) Collections of literary, scholarly or

the Philippines, the following are protected by artistic works, and compilations of data
copyright either as original or derivative works: and other materials which are original by
reason of the selection or coordination or
(a) Books, pamphlets, articles and other arrangement of their contents. (Sec. 2, [P]
writings; and [Q], P.D. No. 49)
(b) Periodicals and newspapers;
(c) Lectures, sermons, addresses, As applied to traditional cultural
dissertations prepared for oral delivery, expressions, the songs, dances, writings, paintings,
whether or not reduced in writing or other photographs, drawings, poems, sculptures, and
material form; other literary artistic and literary works of
(d) Letters; indigenous people can be protected using the
(e) Dramatic or dramatico-musical conventional intellectual property system as
compositions; choreographic works or copyright and related rights of copyright. For
entertainment in dumb shows; example, the rituals of Igorots praying for a good
(f) Musical compositions, with or without harvest can be protected as copyright subject to the
words; limitations of copyright provided by law.
(g) Works of drawing, painting,
architecture, sculpture, engraving,
lithography or other works of art; models (2) Trademark: WIPO defines trademark
or designs for works of art; as “a sign capable of distinguishing the goods or
(h) Original ornamental designs or models services of one enterprise from those of other
for articles of manufacture, whether or not enterprises.”18 In commercial business, it is the
registrable as an industrial design, and visible sign that differentiates the products of
other works of applied art; services of one from that of another. It creates
(i) Illustrations, maps, plans, sketches, name recall and goodwill that serves several
charts and three-dimensional works functions to the product or service that it
relative to geography, topography, represents. It may include a name, symbol, logo,
architecture or science; emblem, figure, letter or word. The most popular
(j) Drawings or plastic works of a scientific trademarks in the world include Google, Facebook
or technical character; and IBM. In the Philippines, San Miguel
(k) Photographic works including works Corporation and Jollibee are famous examples of
produced by a process analogous to trademarks. In the Philippines, the following
photography; lantern slides; marks cannot be registered:
(l) Audiovisual works and cinematographic
works and works produced by a process 123.1. A mark cannot be registered if it:
analogous to cinematography or any
process for making audio-visual (a) Consists of immoral, deceptive or
recordings; scandalous matter, or matter which may
(m) Pictorial illustrations and disparage or falsely suggest a connection
advertisements; with persons, living or dead,
(n) Computer programs; and institutions, beliefs, or national symbols,
(o) Other literary, scholarly, scientific and
artistic works.
18 WIPO website: https://www.wipo.int/trademarks/en/
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

or bring them into contempt or paragraph, which is registered in the

disrepute; Philippines with respect to goods or
services which are not similar to those
(b) Consists of the flag or coat of arms or with respect to which registration is
other insignia of the Philippines or any applied for: Provided, That use of the
of its political subdivisions, or of any mark in relation to those goods or
foreign nation, or any simulation services would indicate a connection
thereof; between those goods or services, and the
owner of the registered mark: Provided
(c) Consists of a name, portrait or further, That the interests of the owner
signature identifying a particular living of the registered mark are likely to be
individual except by his written consent, damaged by such use;
or the name, signature, or portrait of a
deceased President of the Philippines, (g) Is likely to mislead the public,
during the life of his widow, if any, particularly as to the nature, quality,
except by written consent of the widow; characteristics or geographical origin of
the goods or services;
(d) Is identical with a registered mark
belonging to a different proprietor or a (h) Consists exclusively of signs that are
mark with an earlier filing or priority generic for the goods or services that
date, in respect of: they seek to identify;

(i) The same goods or services, or (i) Consists exclusively of signs or of

indications that have become customary
(ii) Closely related goods or or usual to designate the goods or
services, or services in everyday language or in bona
fide and established trade practice;
(iii) If it nearly resembles such a
mark as to be likely to deceive or (j) Consists exclusively of signs or of
cause confusion; indications that may serve in trade to
designate the kind, quality, quantity,
(e) Is identical with, or confusingly intended purpose, value, geographical
similar to, or constitutes a translation of origin, time or production of the goods or
a mark which is considered by the rendering of the services, or other
competent authority of the Philippines characteristics of the goods or services;
to be well-known internationally and in
the Philippines, whether or not it is (k) Consists of shapes that may be
registered here, as being already the necessitated by technical factors or by
mark of a person other than the the nature of the goods themselves or
applicant for registration, and used for factors that affect their intrinsic value;
identical or similar goods or services:
Provided, That in determining whether (l) Consists of color alone, unless defined
a mark is well-known, account shall be by a given form; or
taken of the knowledge of the relevant
sector of the public, rather than of the (m) Is contrary to public order or
public at large, including knowledge in morality.19
the Philippines which has been obtained
as a result of the promotion of the mark;

(f) Is identical with, or confusingly

similar to, or constitutes a translation of
a mark considered well-known in
accordance with the preceding 19 Sec. 123, Intellectual Property Code of the Philippines.
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

As applied to traditional cultural EXPRESSIONS AND

expressions, the name of the tribe or a symbol used
by the tribe in expressing its unique cultural INTELLECTUAL PROPERTY
experience can be registered as a trademark (COPYRIGHT, TRADEMARK
subject to the negative list provided by law. For
example, the picture of an American Indian used by AND INDUSTRIAL DESIGN)
a tribe in America can be registered as a trademark
by the tribe to prevent its use by others without its In my previous article entitled “IP of IP: Challenges
permission. in Protecting Traditional Knowledge in the
Philippines”22, I pointed out the intersection of
(3) Industrial Designs: WIPO has defined traditional knowledge in general and intellectual
an industrial design as “constitutes the ornamental property and mentioned that the relationship is a
or aesthetic aspect of an article. An industrial complex one for the following reasons:
design may consist of three dimensional features,
such as the shape of an article, or two dimensional First, the intellectual property system
features, such as patterns, lines or colors.” 20 In the rewards novelty and innovation while
Philippines, an industrial design consists of “any traditional knowledge aims to preserve
composition of lines or colors or any three- antiquity and old traditions and
dimensional form, whether or not associated with expressions. Second, the intellectual
lines or colors; provided that such composition or property system rewards individuals or
form gives a special appearance to and can serve as entities exclusive rights while there is
pattern for an industrial product or handicraft.”21 normally no single “inventor”, “author” or
They are importantia in the design of handicrafts, “creator” and oftentimes the author or
jewelry, and other personal accessories. inventor is of traditional knowledge is
unknown. Third, the purpose of the
As applied to traditional cultural intellectual property system is for the
expressions, the handicrafts, jewelry and other inventor to disclose the information to the
personal effects made by the indigenous people can public so that after the protection expires,
be protected as industrial designs under the law. the information becomes part of public
For example, unique handbags or earrings made by domain. On the contrary, indigenous
the indigenous people can be protected as people do not generally want their
industrial designs to prevent others from traditional knowledge to be part of public
misappropriating them without permission. domain as they want to retain exclusive
possession of them as this is what makes
After knowing that traditional cultural
them unique as a people. Fourth,
expressions can be protected, for the most part, as
conventional intellectual property is
either copyright, trademark or industrial design,
generally tangible and complete so as to
should this be the strategy of indigenous people in
know the extent or coverage of protection
protecting their traditional cultural expressions?
over the work. On the other hand,
What are the issues that pervade protecting
traditional knowledge is generally
traditional cultural expressions using the
abstract, unlimited and ever-evolving.
convention forms of intellectual property
And fifth, conventional intellectual
protection? This is where we go to next.
property is protected mainly for
commercial purposes while traditional
knowledge is protected primarily for
preservation and not for commercial
4. INTERSECTION OF application. 23
TRADITIONAL CULTURAL
22 Published in the Conference Proceedings of the DLSU
20 WIPO website: https://www.wipo.int/designs/en/ Arts Congress in 2017.
21 Sec. 112, Intellectual Property Code of the Philippines. 23 Supra on footnote 16, pp. 26-27.
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

In addition, I pointed out in the same cultural expressions have been passed on from
article the opinion of Eliana Torelly de Carvalho generation to generation and the research team
(2003) in her article Protection of Traditional
wants to document them all for publication for the
Biodiversity-Related Knowledge: Analysis of
Proposals for the Adoption of a Sui Generis System, appreciation of the general public. The researchers
regarding the challenges in applying conventional think that this will also give due recognition to the
intellectual property to traditional knowledge: artistic and creative people of the indigenous
community so that it will be preserved for posterity
“At first glance, it is already possible to
detect the contradiction between the for the benefit of future generations. However, the
protection of traditional knowledge leader of the indigenous community has some
associated with biodiversity and the reservations on the research project. While the
modern legal framework of intellectual leader believes that the researchers have only good
property rights. Traditional knowledge of
intentions in doing the research, he is worried that
indigenous and local communities has
their works may be commercialized and trivialized.
characteristics that make it unsuitable for
protection by ordinary intellectual He is also worried that their work may pass
property rights laws. In most cases, through the hands of profit-oriented individuals
traditional knowledge is neither and their work may be used without their
attributable to one individual, nor can it be permission. He is also not sure if their works can
dated, since it is the result of a work that be protected using the conventional intellectual
is passed through generations inside a property system considering his lack of knowledge
community. Also, it is usually not
about the intellectual property system. You are a
documented in a written form. These
characteristics exclude the patentability of student of anthropology, history and intellectual
traditional knowledge under the legal property and the leader askes for your opinion on
regime of the United States24 what to do to protect the traditional cultural
expressions of the indigenous community. What
The following hypothetical case can
would you advise the tribal leader?
illustrate several of the many issues in protecting
traditional cultural expressions: Consider a A complex situation needs to be simplified
research team from a university who visits an and processed one by one. Indeed, this is not a
indigenous community in the mountains of the simple situation as this involves the very being and
Cordillera. The objective of the research is to existence of the indigenous community. A wrong
document the songs and dances used by the decision might jeopardize the artistic works of the
indigenous community in planting and harvesting community and be subject to exploitation and
rice. These songs and dances have been used by abuse. The following is my proposed answer to the
the indigenous farmers as a way to please the gods tribal leader to enable him to have a well-informed
so that they will have a bountiful harvest. These decision:

24Eliana Torelly de Carvalho, Protection of Traditional 1) Make an inventory of the traditional cultural
Biodiversity-Related Knowledge: Analysis of Proposals for expressions of the indigenous community
the Adoption of a Sui Generis System , 11 Mo. Envtl. L. &
and classify them according to type of artistic
Pol'y Rev. 38 (2003), p. 39.

creation. This is similar to an audit of the
existing intellectual assets of the community.
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

For example, put all songs on one list and Consider a faculty-researcher of a university who is
then put all dances on another. able to write a textbook for use in his class on one
2) Make a survey of the legal and regulatory hand, and a tribal leader who is able to make a
framework in protecting traditional compilation of lyrics of songs from his indigenous
knowledge in general and traditional community on the other. The following are their
cultural expressions in particular. This will similarities and differences:
provide a good baseline in the existing legal
protection of the traditional cultural Similarities Differences
expressions of the community; As to content: Both are As to purpose: The
3) Classify the traditional cultural expressions expressions of creative textbook was created for

into the type of intellectual property which it ideas public use; The
Compilation of Songs was
can seek protection from using the
created either for public
conventional intellectual property system;
use or for use only by the
4) Decide if the TCEs shall be applied for legal
indigenous Community.
protection or not. If yes, choose the
As to eligibility for legal As to Originality: The
appropriate type of protection. If not, is
protection: Both can be textbook is an original
there another type of protection available? protected by Copyright expression of the author;
Is it better to leave the work unprotected for The Compilation of Songs
other justifiable reasons? already exists and is not an
5) If the decision is to protect the work but the original expression of the
current legal system of protection is not author as this has been
appropriate or is inadequate, can a custom- handed down from one
made or sui-generis type of protection better? generation to another.
As to the author: The
By using this protection (thought) process, identity of the author of
it is argued that the tribal leader faced with a team the textbook is known; The

of researchers will have a better understanding of author of the lyrics of the

songs are not known as it
the situation and will be able to make the right
is part of the history of the
decision in protecting (or not protecting) the
community.
traditional cultural expressions of the indigenous
As to objective: The
community.
textbook is either for profit
or not; The compilation of
songs was created to
preserve the work for the
5.
THE PROTECTION PROCESS generations to come.
IN ACTION As to type of legal
protection: The textbook is
Protecting traditional cultural expressions is not protected by copyright; The
like protecting present-day artistic and literary compilation of songs is
works due to philosophical and social differences, protected not only by
but they also have some things in common. copyright but by
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

international treaties and Constitution. Section 17 of Article XIV provides

local laws for the that:
protection of traditional
“The State shall recognize, respect and
knowledge (the need for
protect the rights of the indigenous
informed consent and cultural communities to preserve and
benefit sharing agreement) develop their cultures, traditions and
institutions. It shall consider these rights
in the formulation of national plans and
policies.”
The table above clearly shows that there are more
differences than similarities. This means that To provide teeth to this constitutional
while the conventional intellectual system of provison, a special law for the protection of
indigenous people enacted, which is the Indigenous
protection can be used in some aspects of Peoples Rights Act (Republic Act No. 8371) or
protection, it is not in four squares with traditional IPRA which took effect on 29 October 1997. The
cultural expressions. For this reason, the thought salient provisions of the IPRA are:
process proposed in the previous chapter can used
“SECTION 2. Declaration of State
as a guide in the protection of traditional cultural
Policies. — The State shall recognize and
expressions. The following is the thought promote all the rights of Indigenous
protection process in action: Cultural Communities/Indigenous Peoples
(ICCs/IPs) hereunder enumerated within
1. Inventory and Classification: The first
the framework of the Constitution:
step, and usually the most challenging
a) The State shall recognize and promote
part, is making an inventory of the TCE. the rights of ICCs/IPs within the
This involves scouring through the framework of national unity and
different literary and artistic works of the development;
indigenous community and unearthing all
b) The State shall protect the rights of
available cultural expressions which can
ICCs/IPs to their ancestral domains to
be in the form of writings, drawings, ensure their economic, social and cultural
paintings, sculptures, and other literary well being and shall recognize the
and artistic works. After making an applicability of customary laws governing
property rights or relations in determining
inventory, the list should be classified the ownership and extent of ancestral
according to the conventional types of domain;
work: Books, songs, dances, poems etc.
This can be housed in an electronic c) The State shall recognize, respect and
protect the rights of ICCs/IPs to preserve
database for easy access and retrieval.
and develop their cultures, traditions and
2. Survey of the Existing Laws Protecting institutions. It shall consider these rights
TCE in the Philippines: in the formulation of national laws and
policies;
The 1987 Constitution is replete with
provisions protecting national and cultural heritage d) The State shall guarantee that members
and the recognition of the diverse cultures in the of the ICCs/IPs regardless of sex, shall
Philippines. The fundamental protection of equally enjoy the full measure of human
traditional knowledge is found in the 1987 rights and freedoms without distinction or
discrimination;
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

e) The State shall take measures, with the ICCs/IPs are entitled to the recognition of
participation of the ICCs/IPs concerned, to the full ownership and control and
protect their rights and guarantee respect protection of their cultural and intellectual
for their cultural integrity, and to ensure rights. They shall have the right to special
that members of the ICCs/IPs benefit on measures to control, develop and protect
an equal footing from the rights and their sciences, technologies and cultural
opportunities which national laws and manifestations, including human and other
regulations grant to other members of the genetic resources, seeds, including
population; and derivatives of these resources, traditional
medicines and health practices, vital
f) The State recognizes its obligations to medicinal plants, animals and minerals,
respond to the strong expression of the indigenous knowledge systems and
ICCs/IPs for cultural integrity by assuring practices, knowledge of the properties of
maximum ICC/IP participation in the fauna and flora, oral traditions, literature,
direction of education, health, as well as designs, and visual and performing arts.”
other services of ICCs/IPs, in order to
render such services more responsive to The two most important provisions in the
the needs and desires of these IPRA relating to the rights of the indigenous peoples
communities. include: (1) The right of prior informed consent found
in Section 32 of the IPRA; and (2) Right to own and
benefit to the indigenous communities under Section
Towards these ends, the State shall 34 of the IPRA. These two features addresses the
institute and establish the necessary two pain points of indigenous communities: (1) The
mechanisms to enforce and guarantee the extraction of traditional knowledge and
realization of these rights, taking into appropriating them as commercial goods without
consideration their customs, traditions, consent from the indigenous community; and (2)
values, beliefs, interests and institutions, Getting economic benefit or profit without sharing
and to adopt and implement measures to them with the indigenous community. The other
protect their rights to their ancestral important features of the law include the shift from
domains.” individual to community ownership of traditional
knowledge and the importance given to customary
With regard to the protection of the laws and traditions.
intellectual property rights of indigenous people
and communities in particular, Section 32 and 34 of The other relevant laws are as follows: (1)
R.A. 8371 or the IPRA provides that: The Wildlife Resources and Conservation Act (R.A.
9147); (2) The Traditional and Alternative Medicine
“SECTION 32. Community Intellectual Act (R.A. 8423); (3) The Magna Carta for Women
Rights. — ICCs/IPs have the right to (R.A. 9710) on the rights of indigenous women of
practice and revitalize their own cultural their traditional knowledge and practices; and (4)
traditions and customs. The State shall The Technology Transfer Act (R.A. 10055).
preserve, protect and develop the past,
present and future manifestations of their With the knowledge of the relevant laws in
cultures as well as the right to the the protection of TCEs, the indigenous peoples are
restitution of cultural, intellectual, now more equipped to face the challenges facing
religious, and spiritual property taken them. This will also give them an informed
without their free and prior informed decision on which strategy to take in the protection
consent or in violation of their laws, of their TCEs.
traditions and customs.”
3) Classification of Traditional Cultural
“SECTION 34. Right to Indigenous Expressions and its Form of Protection:
Knowledge Systems and Practices and to
Once the inventory is made, it is now
Develop own Sciences and Technologies. —
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

ready for classification according to the type of (3) The TCE is sacred: There are some
intellectual property protection: Whether they components of the TCE that the indigenous people
should be protected as copyright, trademark or may find sacred to be applied for protection. For
industrial design. Another option is just to leave it example, sacred prayers or designs may not be
as a “secret” only for the community to know. For proper for intellectual property protection, which is
example, an indigenous dictionary can be classified similar to the non-patentable subject matter under
under copyright while a drawing/logo which Section 21 of the intellectual property code of the
identifies the tribe can be protected as a Philippines. This is unique to each community and
trademark. The beauty with traditional knowledge should be respected; and
is that the bias for publication and disclosure does (4) TCE should be preserved as a secret for
not apply because the decision to protect or not is the community: Some indigenous communities
left solely on the discretion of the indigenous want to preserve TCEs so as not to dilute its
community. It only the indigenous community that content. This will also give them a sense of
best knows how to do with its traditional uniqueness as they are the only ones who know
knowledge taking into account their beliefs and their TCEs.
culture.
4) Decision to Apply for IP Protection: The decision to apply for protection
After classifying the TCE, the next step is depends solely on the community. There is no right
to make a decision on whether or not to apply for or wrong decision as this wholly depends on the
intellectual property protection using the unique circumstances of the community and
conventional intellectual property system . While whether they want to open up their culture to the
most of the TCE complies with the requirements of outside world or not. For some, it may not be the
intellectual property protection under the right time yet.
intellectual property code, there may be some
indigenous communities who may opt not to apply 5) The Decision is to apply for protection.
for protection. The following may be some of these But is the existing legal protection under
reasons: Philippine laws adequate?
(1) Trust issues: The indigenous
communities may not be confident with the system Traditional Cultural Expressions (TCE)
can be protected using the conventional intellectual
and instead of sharing their works of art, they fear
property system under the Intellectual Property
that disclosure would open them to abuse. They Code of the Philippines. Protection using the
are also not sure if the intellectual property system current legal system will enable the indigenous
is the right way of protecting their TCEs; communities to acquire certain legal rights. It is
“the granting and exercise of rights that empower
(2) Lack of knowledge about the IP system: communities and promote their traditional
The IP system contains technical subject matter knowledge, control its uses and benefit from its
which may be difficult to understand even to a law commercial exploitation.”25 For TCE, legal
protection can be applied for using copyright,
student. This lack of knowledge and awareness of
trademark or industrial design protection. TCE
the IP system contributes to the decision not to will then have to conform to the requirements of
apply for application as people normally fear what the conventional system. For example, a tribal
they do not know;
25 Supra on footnote 18, p.2.
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

leader can seek industrial design protection over custom-made or sui generis law that would fill in
the design of baskets made by the community. The the gaps of the current system of protection.
design can then be licensed to third parties who
may want to use the basket design. The indigenous
community will acquire industrial design protection
that it can use to prevent exploitation and abuse of 6.
CONCLUSION AND
others. Licensing the design can also result to
economic benefits to the community. RECOMMENDATION

Legal protection under the Intellectual

Property Code of the Philippines (R.A. 8293) may Traditional Cultural Expressions or folkore
be the first resort to protect the rights of the represent the identity, cultural heritage and
indigenous communities If this is not sufficient, common bond of a community. It is something
other alternative modes of protection are available. sacred to the community because it represents who
For example, the mandate of the Indigenous they truly are. For this reason, there is a need to
Peoples Rights Act (R.A. 8371) and relevant laws to respect and protect these tradtional cultural
protect their TCEs give them elbow room to enter expressions. As discussed above, there are already
into contracts or agreements to protect their existing laws and structures that recognize, uphold
interest. These include provisions for informed and protect traditional cultural expressions.
prior consent and benefit sharing agreements. However, legislation is only one aspect of the
However, it is admitted that the present solution. A more comprehensive approach is
conventional system does fully protect TCEs under necessary to fully protect the TCEs of the
all possible situations. As stated in my previous indigenous community. While the laws can be
article26 involving a similar topic mentioned above, amended to keep abreast with the changing needs
while there is an existing legal framework for the of TCEs, other non-legal support are necessary.
protection of TCEs, there is still room for Indeed, legal protection under the Constitution, the
improvment for the following reasons: “(1) The Intellectual Property Code and the IPRA, among
Intellectual Property Code of the Philippines (R.A. others, already provide the legal infrastructure for
8293) does not include traditional knowledge as one protection, there is still room for improvement. The
of the intellectual property rights protected under model format by UNESCO for the protection of
the code; (2) The Indigenous Peoples Right Act does tradtional knowledge can be a good template for a
not provide the legal mechanism for the protection more rigorous protection of TCEs. .“Still, for
to traditional knowledge in the same way as many reasons, traditional Knowledge remains
conventional intellectual property like patents, elusive to current IP laws.”27
trademark and copyright; (3) The Indigenous
People’s Right Act (R.A. 8371) pertaining to Moving forward, the following are my
traditional knowledge does not address the lack of recommendations to better protect traditional
legal protection afforded to traditional knowledge cultural expressions:
as they address only specific issues and are,
1. Build Trust in the Intellectual Property
therefore, not comprehensive; and (4) The
System. In my conversations with some
requirements of legal protection under the
indigenous peoples, the one thing that
conventional intellectual property system (R.A.
keeps them from fully applying for
8293) are for the most part not consistent with the
intellectual property protection is the lack
nature of traditional knowledge.”
of confidence and trust in the system. At
While the legal protection is not complete, the back of their minds, they always think
the Philippines should be commended for it has of the possibility of “outsiders” taking their
already made great strides in the protection of intellectual creations without giving them
traditional knowledge, which includes traditional credit. Worse, these TCEs may even be
cultural experience. The next step is to make a used for commercial purposes and do not

26 See Footnote 1. 27 Supra on footnote 16, p.1537.

PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

get any economic benefit from them. One purpose, the National Center for Indigenous
way for them to patronize the IP system is People (NCIP) should take the initiative for
to build trust among all the stakeholders. crafting a sui-generis kind of protection.
This will indeed take time but it is the only They should invite all stakeholders for
way to go if we want a long and enduring consultation so that they can draft a sui-
relationship that would benefit not only the generis policy statement and law enhancing
indigenous community but the society as a the IPRA. I think that a “one-size-fits-all”
whole. solution is not the answer but a custom-
made form of protection. This will also give
2. Increase Awareness on Traditional Cultural a lot of flexibility to the indigenous people
Expressions as Subject Matter of to make their our destiny.
intellectual property protection: One of the
main reasons for lack of trust in the Hansen and Van Fleet (2007)28, aptly
intellectual property system is the lack of stated that “access, development and distribution
knowledge in the intellectual property must be balanced against equitable benefit sharing,
system itself. Having laws protecting TCEs sustainable development and conservation” of
is not enough. There is aneed to have a traditional knowledge. Protection of traditional
comprehensive information dissemination cultural expressions needs the support of all
campaign about TCEs as proper subject stakeholders keeping in mind the rights of the
matter of intellectual property protection. indigenous people. Balancing the interests of all
Dialogues, vistis, talks and seminars, to these stakeholders is the key to make the system a
name a few, are just some of the ways to sustainable one.
put intellectual property in the radar of
indigenous peoples.

3. Realize that intellectual property protection

is not for everyone. In the protection REFERENCES
thought process that I proposed in the
previous chapter, there is a decision to be
made on whether intellectual property Background Brief No. 1, Traditional Knowledge
protection is the right strategy to make. and Intellectual Property (2015), WIPO,
While most TCEs are eligible for protection, Geneva, Switzerland.
this may not be the right decision for
everyone. Each indigenous community Daoas, David et. al., 1999. “Efforts at Protecting
must evaluate themselves and determine if Traditional Knowledge: The Experience of the
intellectual property protection is the right Philippines.” WIPO Roundtable on
way to go. Intellectual Property and Traditional
Knowledge, Geneva, Switzerland.
4. Establish Sui Generis protection for
Traditional Cultural Expressions: It is Eliana Torelly de Carvalho, Protection of
admitted that the current legal protection Traditional Biodiversity-Related Knowledge:
for indigenous art, while providing basic Analysis of Proposals for the Adoption of a Sui
protection, is not sufficient to give better Generis System , 11 Mo. Envtl. L. & Pol'y
protection for TCEs. Consideting that each Rev. 38 (2003).

community is unique and has its own set of
folklore, it is imperative that a custom- Hansen, Stephen and Van Fleet, Justin. 2007.
made or sui-generis protection be made by “Issues and Options for Traditional
each community. While there are general Knowledge Holders in Protecting their
minimum standards of protection as Intellectual Property.” In Intellectual
provided in the model template of Property Management in Health and
UNESCO, a custom-made kind of
protection, I think, is necessary. For this 28 Supra on footnote 16, p. 1537.
PADAYON SINING: A CELEBRATION OF THE ENDURING VALUE OF THE HUMANITIES

Presented at the 12th DLSU Arts Congress

De La Salle University, Manila, Philippines
February 20, 21 and 22, 2019

Agricultural Innovation: A Handbook of Best UNDP Programme Fast Facts Lago (2010), Found
Practices (eds. A Krattiger, RT Mahoney, L. in www.undp.org.ph
Nelsen et. al) MIHR: Oxford, U.K. and
PIPRA: Davis, USA Valdeavilla, Ronica (2018), A guide to the
Philippine Tribes of the Philippines.
Intellectual Property and Genetic Resources, https://theculturetrip.com/asia/philippines/art
Traditional Knowledge and Traditional icles/a-guide-to-the-indigenous-tribes-of-the-
Cultural Expressions (2015), WIPO philippines/.
Publication No. 933 (E), Geneva, Switzerland.
What is Intellectual Property? (WIPO Publication
Intellectual Property Code of the Philippines (R.A. No. 450n (E), p. 2.
8293)
WIPO Publication No. 933 (E), Box 5, p. 14.
Indigenous Peoples Rights Act (R.A. 8371)
WIPO website: https://www.wipo.int/copyright/en/
Karjala DS. 2007. “Biotechnology Patents and
Indigenous Peoples.” In in Intellectual World Intellectual Property Organization (2007),
Property Management in Health and The Arts and Copyright: Learn from the Past,
Agricultural Innovation: A Handbook of Best Create the Future, Geneva, Switzerland, p.
Practices (eds. A Krattiger, RT Mahoney, L. 17.
Nelsen et. al) MIHR: Oxford, U.K. and
PIPRA: Davis, USA. WIPO Website: http://www.wipo.int/tk/en
Kutty, P.V. Valsala (2002). National Expriences World Mission Magazine (August 2016). Struggles
with the Protection of Expressions of of the Indigenous, No. 303, Vol. XXVIII, p. 5.
Folklore/Traditional Cultural Expressions,
WIPO, Geneva, Switzerland.

Paper on the United Nations Indigenous People

Permanent Forum on Indigenous Issues Fact
Sheet,p.1.

Pantalony, Rina Elster, WIPO Guide in Managing

Intellectual Property for Museums, WIPO
Publication No. 1001 (E), Geneva,
Switzerland

Peria, Elpidio V. 16 March 2015. “5 Reminders

concerning Traditional Knowledge protection
in the Philippines”
(https://bitsinbits.wordpress.com/2015/03/16/5
-reminders-concerning-traditional-knowledge-
protection-in-the-philippines/).

Singh & Associates (2012), Traditional Culutral

Expressions, found in
https://www.lexology.com/library/detail.aspx?g
=a806fd78-711e-4811-a881-ed269533b635

The 1987 Philippine Constitution.