International Trade in Indigenous Cultural Heritage
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International Trade in Indigenous Cultural Heritage

Legal and Policy Issues

Edited by Christoph Beat Graber, Karolina Kuprecht and Jessica Christine Lai

The book is unique in taking a multi-faceted approach to cultural heritage, incorporating discussion on tangible and intangible, moveable and immoveable elements of indigenous peoples’ culture. From the perspectives of several international legal fields, including trade law, intellectual property, cultural property, cultural heritage law and human rights, the book explores how indigenous peoples could be empowered to participate more actively in the trade of their cultural heritage without being compelled to renounce important traditional values. The national and local legal realities in four jurisdictions (New Zealand, Australia, United States and Canada) lay the scene for a wide-ranging analysis of various possibilities and proposals on how this might be achieved.
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Chapter 5: Attempts to protect indigenous culture through free trade agreements

Susy Frankel


The fundamental purpose of most modern free trade agreements (FTAs) is to extend the commitments, which may mean to further liberalise trade, that Members of the World Trade Organization (WTO) have made in that multilateral forum. FTAs also frequently include commitments in areas that are outside the WTO obligations. Protection of traditional knowledge and traditional cultural expressions (TCEs) are not specifically part of the WTO framework, in particular the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).1 Some FTAs expressly provide that the parties, or at least one of the parties, retain the ability to protect certain aspects of cultural heritage, including the protection of traditional knowledge. Other FTAs limit the possibilities for protecting traditional knowledge. This chapter analyses how FTAs might affect the aspirations of indigenous peoples, in particular, to protect their traditional knowledge. First, the chapter discusses the problems that have led to a call for the protection of traditional knowledge. The chapter then assesses the international agreements that provide varying protection for traditional knowledge and issues arising from the implementation of those international agreements in domestic law.

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