Stepping outside the box: Traditional knowledge, folklore, indigenous textiles and cultural appropriation---Is there room for folklore protection under intellectual property law?

摘要

The protection of folklore is contentious. This stems from differing perceptions of the meaning and value of folklore to different countries and ethnic groups. Folklore is unique because it is viewed not only as part of a community's culture but also as a commodity. By focusing on traditional textiles as a branch of folklore, this dissertation examines the importance of traditional textiles, the practice of culture appropriation and the right legal mechanism for the protection of traditional textiles.;In conclusion, this thesis recommends a consideration of sui generis options for traditional textiles protection. It also proposes that there should be international cooperation to strengthen folklore protection. Last, it recommends that it is time for the perception of traditional designs as part of the public domain to be corrected.;Specifically, this dissertation argues that not all works of folklore are a part of the public domain and that adopting a contrary view may contribute to the appropriation of traditional designs. Further, it might erode the value of the respective culture and may even result in the complete loss of culture. It argues further that the West should not be too ready to dismiss the importance of folklore to indigenous communities. Rather, cultural diversity should be acknowledged and respected. This thesis also argues that the philosophies justifying intellectual property protection do not necessarily exclude the protection of traditional textile designs. Rather, the tension in 'fitting' traditional textiles protection under the intellectual property umbrella arises from the manner in which intellectual property has been traditionally drafted under international law and national legislation. It challenges the view that protecting folklore will obstruct progress in the arts and stifle creativity.