Geographies of Knowledge: Cultural Diffusion and the Regulation of Heritage and Traditional Knowledge/Cultural Expressions in Southeast Asia

Abstract

Although always concerned with cultural products in the form of literature, visual arts, inventions and symbols for marketing purposes, intellectual property initially did not problematise the concept of culture. It was regarded as more or less universal and not as regionally or locally specific. The early international agreements were concluded largely by European nations that indeed had similar values and practices when it came to rewarding creative endeavours in the fields of arts, science and engineering. Tunisia, then a French protectorate, was the only non-European country among the initial signatory states of the Berne Convention. The only non-European country among the initial signatories of the Paris Convention was Brazil. Of course, there were differences between the United Kingdom and Continental European nations about the importance of moral rights vis-a-vis economic rights, but these were differences about the scope of copyright protection, not about the subject matter of protection as such. Few independent countries from outside Europe joined the international IP system prior to World War II. The really significant expansion of the system occurred with the decolonisation process after the end of the war and again in a most recent wave following the conclusion of the WTO TRIPS Agreement. However, as more and more newly independent countries began to join the international IP system after the end of World War II, it soon became clear that they brought with them different forms of knowledge and of artistic expressions that European derived intellectual property systems found difficult to accommodate.The clearest expression of this different environment has been with regard to the debate about the use of intellectual property principles to protect what has become known as traditional knowledge and traditional cultural expressions. This article will give a brief overview of this debate and show its inter-dependence with broader notions of cultural heritage protection, as developed in various UNESCO conventions. The mixture of cultural and intellectual property is often a powerful, yet dubious basis for claims. The article will then move on to examine a specific problem for legal regulation of this subject matter, namely the diffusion of cultural material through migration movements and the expansion of nation states. It will show how the national borders and geographical maps of current nation states that define the limits of national law and regulation are different from cultural realms. These differences will be explained using examples from Southeast Asia. Historians have used historical maps and sources to show that the emphasis on the precise delineation of borders arrived with Western style geography and cartography and with colonial powers eager to exploit natural resources and to know exactly on which side of the border such resources were situated. The resulting fixation of relatively fluid borders often cut through the realms of cultural minorities that had traditionally paid little attention to national boundaries. The fact that their cultures continued to be practised on both sides of a border was of little significance for tangible expressions of culture that were either here or there. However, with increasing emphasis on intangible cultural material in national laws inspired by UNESCO conventions for heritage protection and in WIPO discussions about traditional knowledge and traditional cultural expressions, conflicting claims are now becoming more frequent.