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Original Article
Received: July, 27, 2023; Approved: November, 23,2023
ivan.vargas@unimilitar.edu.co (Iván Vargas-Chaves)
La transmisión oral en las expresiones culturales tradicionales y el reto que supone su protección desde la
propiedad intelectual
Oral transmission in traditional cultural expressions, and the challenge of their
protection from intellectual property rights
Iván Vargas-Chaves1*
1*Doctor in Law; Dottore di Ricerca, ivan.vargas@unimilitar.edu.co, ORCID: 0000-0001-6597-2335, Universidad Militar Nueva Granada, Colombia.
How to Cite: Vargas-Chaves, I. (2024). La transmisión oral en las expresiones culturales tradicionales y el reto que supone su
protección desde la propiedad intelectual. Perspectivas, vol. 9, no. 1, pp. 101-112, DOI: 10.22463/25909215.4278.
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN 2590-9215
https://doi.org/ 10.22463/25909215.4278https://doi.org/ 10.22463/25909215.4278
RESUMEN
Palabras clave:
Expresiones culturales
tradicionales; Tradición
oral; Protección del
conocimiento tradicional;
Derecho de autor;
Propiedad intelectual.
En el presente artículo se analiza la situación jurídica de la transmisión oral en las expresiones culturales
tradicionales que, debiendo ser protegidas como obras, no cuentan con la cobertura que el derecho de autor
les otorga a las creaciones de la mente humana, por no cumplir con el principio de jación. Para abordar esta
cuestión, se recurre a una metodología de análisis documental con un enfoque socio-jurídico, tras recopilar
información relevante en este ámbito como doctrina jurídica-especializada, normas y jurisprudencia, a
partir de un mapa temático con las principales tendencias en la materia. Como resultado, el autor apela a la
relevancia de la tradición oral como vehículo de transmisión de ese conocimiento, y a la cobertura que se
crea desde el Convenio 169 de 1989 de la OIT, que reconoce derechos fundamentales a los pueblos indígenas,
entre estos, a su proteger su conocimiento tradicional, indistintamente de si está o no jado o plasmado en
un soporte.
Keywords:
Traditional cultural
expressions; Oral tradition;
Protection of traditional
knowledge; Copyright;
Intellectual property.
This research analyzes the legal situation of oral transmission in traditional cultural expressions. The objective
of the paper focuses on the problem of Indigenous peoples not being able to protect their expressions by
copyright. This legal regime requires that every creation be xed in a medium. To address this problem,
the authors use a documentary analysis methodology, supported by a socio-legal approach. This objective
was achieved after collecting relevant information, such as specialized legal theory, current regulations,
and jurisprudence. The authors relied on a thematic map with the main trends in the eld. As a result, the
article appeals to the relevance of oral tradition as a vehicle for the transmission of this knowledge, and to
the coverage of ILO Convention 169 of 1989. This standard recognizes the fundamental rights of Indigenous
peoples, such as the protection of their traditional knowledge, regardless of whether it is xed or not on a
medium.
ABSTRACT
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN: 2590-9215 102
Oral transmission in traditional cultural expressions, and the challenge of their protection from intellectual property rights
Introduction
The construction of social imaginaries
constitutes a communicative act and a relevant
component of traditional cultural expressions,
which come from indigenous peoples and ethnic
communities. Although these expressions can be
equated with works protected by copyright, in
practice they carry a dierential connotation because
oral transmission is the main vehicle of transmission,
which means that they are not embodied or xed in
a medium, as required by copyright.
And although the copyright regime acquires
relevance to encourage the creation and dissemination
of culture by protecting the eort made by authors
and owners in the creation of works, the protection
granted by copyright to that which is not embodied
in a medium is a complex issue that is the subject
of debate in several discussion scenarios (Antequera
Parilli, 2007; Caballero Leal, 2004). One of these
scenarios revolves around the protection of traditional
cultural expressions, which include stories, myths,
legends, recipes and, in general, creations of the
human mind that should nevertheless be protected
as intellectual property.
To address this issue and meet the proposed
objective, a documentary analysis methodology with
a socio-legal approach was used, after collecting
relevant information in databases such as Scopus,
EBSCO and Web of Science, among others, in
addition to books resulting from research, studies
and reports, standards and jurisprudence. This was
possible thanks to the ATLAS.ti tool, from which it
was possible to establish a map with the main trends
in these areas.
As a result, we appeal to the relevance of
oral tradition as a vehicle for the transmission of
this knowledge, and to the coverage created by
Convention 169 of 1989 of the International Labor
Organization (ILO) on the rights of indigenous and
tribal peoples, which recognizes the fundamental
rights of indigenous peoples, including the right to
protect their traditional knowledge.
The results presented in this article are divided
into several sections. In the rst, a preliminary
approach to oral traditions is made. Next, the
copyright regime and its relevance in the creative
process are contextualized. Thirdly, the principle of
xation of works is studied. Finally, some reections
on the situation of traditional cultural expressions
and the challenges posed by their oral transmission
are presented, before arriving at the discussion
section where some reections are put forward as a
nal contribution.
In this sense, it is concluded that by protecting
this intellectual property, regardless of whether
or not it is embodied in a medium, that is, without
following the logic of the principle of xation of
works established by the classic copyright regime,
all the cultural wealth that indigenous peoples and
ethnic communities have developed since ancestral
times, transmitted from generation to generation,
will be preserved, and is today a very important
legacy for the human species.
Methodology
In order to meet the proposed objective, an
exploration of relevant information in these areas
was carried out through a documentary analysis
methodology, including articles in scientic journals
indexed in databases such as Scopus, EBSCO and
Web of Science, among others, as well as books
resulting from research in online bibliographic
catalogs and library systems. Keywords such as
'traditional cultural expressions', 'protection of
traditional knowledge', 'oral traditions', 'copyright'
and 'rights of indigenous peoples', among others,
were used.
These keywords were characterized and
proled using the ATLAS.ti tool, establishing the
main trends that have been addressed over the last
three decades on the topics developed in this article.
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN: 2590-9215103
Iván Vargas-Chaves
This was done following the documentary analysis
approach proposed by Clausó (1993).
Since the results were not suciently extensive
for the construction of the documentary analysis
framework, the search in the aforementioned
databases was extended with key words in other
languages, and a greater volume of information
was compiled, mainly in publications available in
English. In addition to the above, the search was
extended to reports and studies by public and private
entities, norms and jurisprudence.
Based on the above, it was possible to gather
relevant information on the dierent approaches to
traditional knowledge, and particularly to traditional
cultural expressions, from the problems in their
identication and recognition, to the main debates
on intellectual property. Thanks to this, the basis
for the discussion was laid, where some reections
are presented as a socio-legal approach, before the
conclusions section.
Results
Oral traditions: a rst approach
As society advances, the oral tradition and
its technique have been losing social value, since
new communicative evolutionary processes, such
as writing, have been developed within them. But
what about those cultures that practice orality as the
only means of traditional communication? Are they
considered illiterate civilizations? This is a stigma
that may be erroneous, not in the words of Havelock
(1996) “the natural human being is neither a writer
nor a reader, but a speaker and a listener”.
Speech does not require formal learning; one
learns to speak as part of a social process of growth;
likewise, orality has never ceased to exist as a tool
for learning or for the transmission of knowledge. In
fact, human beings since childhood are exposed to
dierent communication situations; and knowledge
is closely linked to communication and the dierent
ways of imparting meaningful processes, whether
historical or ancestral conservation (Ramírez
Poloche, 2012).
When referring to ancestral conservation
processes, we refer to poems, songs or traditional
agricultural practices, traditional medicine, crafts
and languages, among other cultural expressions and
traditional knowledge. That is why, for the speaking
cultures, oral tradition seems to be the only way to
investigate more about themselves, that is, the social
reality of a being being being (Espino, 1999).
Likewise, oral tradition has been re-signied
as the memories of the past, the primitive, that
which is not allowed to evolve and lacks historical
preservation. This narrative has been nurtured over
the years and as social processes “grow” oral cultures
increase their social stigma (Rivelino García, 2023).
Consequently, oral cultures are considered untruthful
by many writing-speaking civilizations.
“(...) thinking communication from
disinformation usually admits that communicating
is an action detached from the information it
communicates, basically because information is
understood as an external magnitude, alien to the
communicating subject, and communication as an
action that manipulates that information to achieve
certain eects on others: hence, also, the idea of
communication as interaction is perceived as the
eect or impact on the exchange of information
towards others” (Romeu, 2018).
This is explained by the fact that the oral
tradition can be transformed as it is told, losing
important aspects or adding events. The oral
technique is considered poor in lexicon, rejecting
it as subjective and trivial (Carranza Patiño et al,
2021). But 'simple orality' has only one purpose 'to
be understood' (Abdul Kargbo, 2008). So why do
these cultures base all their development processes
on oral tradition?
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Oral transmission in traditional cultural expressions, and the challenge of their protection from intellectual property rights
The answer is simple, the oral tradition allows
them to preserve cultural details that writing does
not succeed in framing, one of them is the non-
verbal in orality. This non-verbal language is the
process of communication in which there is a
sending and receiving of messages through gestures
and movements. Such gestures and movements
correspond to a dierent cultural space-time (Ortega
Cobo & Giraldo Paredes, 2019).
The construction of social imaginaries that
exist around the oral communicative act has not
allowed us to detail in depth that orality is loaded
with a myriad of edges such as language, accent and
historical context (Ngulube, 2002). It is these aspects
that allow us to dierentiate factors such as Where
are we speaking from or are we speaking from? and
Where are we speaking to?
Thus, the spoken word occurs as a means of
preservation of the dierent cultural collections
through the transmission of their ethnic processes.
In this sense Havelock (1996) insists that “writing,
at any stage of its development, is an adventitious
phenomenon, an articial exercise, a work of culture
and not of nature, imposed on the natural man” (p.
37).
Even as thinking beings, before writing
something we think it; and we think it because
we communicate; and in turn we communicate
because language exists. Montemayor (1996) states
that “orality comprises the art of language as the
transmission of understanding, oral communication
as a form of relationship and speech as the dialogic
capacity for socialization” (p. 120), since the orality
of peoples is the expression of their cultural heritage.
Copyright and its relevance in the creative
process
Intellectual property as a legal discipline
encompasses the protection of works, inventions,
utility models, distinctive signs and even plant
varieties, among other products and processes,
which are born of the creative spirit and ingenuity of
human beings. This is achieved from the exclusivity
granted through the recognition of both moral and
patrimonial rights, for a certain period of time and
after certain requirements for their protection.
Within the universe of intangible assets
articulated from intellectual property, there are
dierent categories of rights which are recognized
according to the type of creation, distinctive sign,
product or process. This is the case of works, which
are protected by copyright, and are understood as any
manifestation that, being original, is born from the
creative spirit of the human mind and is embodied in
a tangible or intangible medium.
This category includes literary, artistic,
audiovisual, phonographic, architectural and
software works, among many others. Examples
include short stories, textbooks such as novels,
manuals or treatises, as well as lms, series, songs,
lyrics, sculptures, architectural plans, paintings,
computer programs, photographs, compilations of
food recipes, etc. (Saiz García, 2000).
Regarding originality, it is a presupposition or
quality that the work acquires by maintaining its
own uniqueness, that is, that it is not a reproduction
or simulation of another work (Rodriguez, 2022).
So it happens with those works that derive from an
original work created for the rst time -also called
original work- there are works that arise as a result or
interpretation of this, and which are called derivative
works (Cavero Safra, 2015).
To the above, the existing connection between
the work and the author, and its creative vocation
must be considered, far from any industrial
application or purely productive vocation, in which
case other intellectual property rights such as patents
on inventions and utility models or industrial designs
could be considered (see Rodríguez López, 2012;
Andean Community, Decision 486 of 2000).
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN: 2590-9215105
Iván Vargas-Chaves
Copyright is regulated in Colombia by norms
of domestic, international and supranational law,
including Law 23 of 1982, the Berne Convention
of 1886 and Decision 351 of 1993 of the Andean
Community, the latter being the most important
norm. These norms recognize moral and economic
rights, in favor of authors and owners. The former, as
creators of the works, and the latter as those entitled
to exploit them economically.
The time of protection recognized in Colombia
in favor of the owners of the works, that is, the
duration of the economic rights of authors, presents
two variations. In the rst place, 70 years counted
from the moment the work is embodied, xed,
created or disclosed -provided that these rights
have not been transferred to a third party-, and
secondly, 80 years, counted from the author's death,
if the economic rights were not transferred during
the author's lifetime. In the eld of moral rights,
the protection period is indenite in time, being
inalienable, unrenounceable, imprescriptible and
unseizable.
Furthermore, the copyright regime is important
to encourage the creation and dissemination of culture.
This, by safeguarding the investment in time, eort
and even economic investment made by authors in
the creation of their works, as well as by the owners
in their dissemination, which stimulates innovation.
Moreover, with the remuneration received for the
use of their works, all the actors in the process of
creation of works can make a living from their work
and continue to contribute to creation.
The principle of xation of works
Copyright protects the form in which ideas are
expressed, regardless of the medium on which they
are expressed, be it a canvas, a book, an audiovisual
recording or a data message. In this same sense, it
should be specied that neither ideas nor facts are
protected, since as indicated what is safeguarded is
their xation in a tangible or intangible support, that
is, the form in which the author expresses these ideas
or facts (Timal López & Sánchez Espinoza, 2017).
This is the case of the work Relato de un
náufrago by Gabriel García Márquez, which arose
from some facts related to the author by the sailor
Luis Alejandro Velasco, who was shipwrecked and
was adrift for several days until he was rescued.
His story, which was compiled in the newspaper
El Espectador with García Márquez's prose, was
republished years later in a book. Although Velasco
sued the writer for the ownership and royalties of the
literary work, the court ruled in favor of the writer,
emphasizing the principle according to which the
form used by the author to express his idea and make
it perceptible to the sensory senses of third parties is
protected.
The principle of xation indicates that the work
must be embodied in some tangible or intangible
support, in the latter scenario are, for example,
data or phonographic or audiovisual works xed in
electronic media (Antequera Parilli, 2007). In either
case, works are protected immediately, without the
need for registration, provided they comply with the
criterion or principle of xation.
The protection granted by copyright to that
which is not embodied in a medium is a complex issue
that has been the subject of debate for many years.
Authors such as Vargas-Chaves & Dermer-Wodnicky
(2024) argue that what is not xed -especially
traditional knowledge- should be protected by this
regime to prevent ideas or facts from being exploited
by third parties without the consent of the creator.
Other authors, including Caballero Leal (2004) and
Antequera Parilli (2007), argue that the protection
of ideas by copyright would be too restrictive and
would inhibit creativity.
In both cases, current copyright legislation only
admits as works subject to protection those creations
or ideas that are xed in a tangible or intangible
medium (Pabón Cadavid, 2009). Thus, for example,
the idea of writing a trilogy such as the script of the
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN: 2590-9215 106
Oral transmission in traditional cultural expressions, and the challenge of their protection from intellectual property rights
movie The Godfather, as well as the books, was not
protected per se, as Mario Puzo's work was covered
by this regime.
The reason for the distinction made in this
respect by the legal system is that ideas are, by
nature, abstract and cannot be protected; however,
as will be discussed below, this is not necessarily the
case of traditional cultural expressions, whose main
characteristic is oral transmission from generation to
generation.
In this sense, legends and myths, narratives
about facts, recipes, songs, instructions or guides in
ceremonies and rituals associated with the worldview
of an indigenous people or ethnic community, and,
in general any traditional knowledge that may
resemble a work protected by copyright from its
classical conception, can be enlisted as traditional
cultural expressions -and also as works- (Vargas-
Chaves et al, 2018).
To conclude this section, it is valid to insist
that the principle of xation is a cardinal axis of
copyright, and a sine qua non condition for the
protection of creations, as long as they manage to be
xed or embodied in a tangible or intangible support.
This, even without the need to register them, since
protection is given automatically from the moment
they are created.
Understanding traditional cultural expressions
and their scope
Traditional cultural expressions are a type
of traditional knowledge comparable to works
protected by copyright, and which is the product
of the creative activity of indigenous peoples and
ethnic communities, who assume a role as guardians
of a millenary culture that has been transmitted from
generation to generation (Vargas-Chaves et al, 2020).
Their culture and worldview, which includes their
traditions, customs and artistic expressions, which
make up these traditional cultural expressions, are
an invaluable wealth for humanity.
Traditional cultural expressions are works,
whose form of expression represents their identity,
and is independent of the medium where they
are embodied or xed, and can be transmitted
orally, such as stories and harmonic and musical
compositions (Mauro & Hardison, 2000). Through
these expressions, ethnic groups transmit their
values, their legacy and history, and can even do so
visually - in this second case with a support where
they are xed - for example through paintings,
ceramics and handicrafts.
The importance that international law has given
to traditional cultural expressions and, in general, to
the traditional knowledge of indigenous peoples is
unquestionable. ILO Convention 169 of 1989 on the
rights of indigenous and tribal peoples recognizes
the fundamental right that these have over the whole
set of uses, customs, practices, techniques, etc. This
right translates into a perpetual ownership and the
enforceability of prior consultation for access to any
traditional knowledge.
In the Colombian scenario, when the
aforementioned Convention was integrated into the
constitutional block, the rights recognized therein
were categorized as fundamental rights of indigenous
peoples. It is even possible to cite some cases of
national transcendence, where the violation of one
or more rights has unleashed important strategic
litigation.
For example, the Constitutional Court in
Decision C-1051 of 2012 declared unconstitutional
the law approving the 1991 Act of the Convention
of the International Union for the Protection of New
Varieties of Plants, after concluding that the right to
prior consultation was violated, since the provisions
of this Convention would aect the territory, way of
life and traditional knowledge of indigenous peoples
in Colombia (Vargas Chaves et al, 2023).
We must not lose sight of the fact that all the
traditional knowledge of indigenous peoples is
essential to maintain their identity and culture
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN: 2590-9215107
Iván Vargas-Chaves
(Chaudhuri, 2015). Traditional cultural expressions
and what they represent are an inexhaustible source
of knowledge and ancestral wisdom (Seminario et al,
2020); or at least they have been since human beings
learned to communicate with each other, being able
to transmit not only their ideas, emotions or needs,
but also their knowledge about the surrounding
environment, agriculture and traditional medical
practices.
In turn, the oral tradition as a vehicle for the
transmission of this knowledge -especially non-visual
traditional knowledge- informs through rituals and
proxemics, which allow ethnic groups to maintain
their roots. Orality and its phonetic component as
part of traditional cultural expressions, although not
necessarily embodied in a medium as required by
copyright to protect them as works, continues to be a
legal interest protected by the State, under the terms
of the aforementioned ILO Convention 169 of 1989.
“Indigenous peoples have the right to
maintain, control, protect and develop their cultural
heritage, traditional knowledge, traditional cultural
expressions and manifestations of their sciences,
technologies and cultures, including human and
genetic resources, seeds, medicines, knowledge of
the properties of fauna and ora, oral traditions,
literatures, designs, sports and traditional games,
and visual and performing arts”. (ILO, Convention
169 of 1989)
Thus, orality, as the main channel of
transmission of traditional non-visual cultural
expressions, acquires a cardinal role in the eld of
intellectual property over traditional knowledge
(Wongburanavart, 2023). By protecting this
intellectual property, regardless of whether or not it
is embodied in a medium, that is, without following
the logic of the principle of xation of works, all the
cultural wealth that indigenous peoples and ethnic
communities have developed over generations, and
which are a legacy for humanity, will be preserved.
Discussion
Cultures with strong roots in oral tradition rely
on this form of knowledge transmission as a means
of preserving memory and history. In this context,
folk phonetics acquires an important role as a cultural
expression by encompassing creations in the elds
of poetry, lyrics, tales, etc. Within this phonetics we
nd rhythm, harmony and everything that surrounds
a cultural expression.
It is not in vain that the expressions that are
embodied in a medium turn out to be only meaning,
but often without meaning. In the words of Olañeta
(1998) “in the course of the story, the storyteller not
only unites several lexical themes in a single word,
but sometimes uses them as interactive elements to
attract the attention of the audience and make them
participate in the process” (p. 4). Giving scope to
this idea, the play or constructive work around words
would then consist in transforming the phonetic unit
into the grammatical fact (Bakánova, 2014).
For Ferdinand De Saussure, support and
expression -understood as signier- are part of the
same structure of the sign. In his own terms “The
signier is the material form that a sign takes, being
able to be from a word (spelling) or a visual image,
to a sound; acquiring meaning at the level of the
symbolic, that is, when it becomes meaningful in
a specic linguistic context, being able even to be
cultural” (De Saussure, 1998, p. 56).
By way of illustration, if we could travel back
in time to Ancient Rome and refer to “telephone”,
surely no inhabitant would know what that term
refers to, since it is not possible to associate the
image of a telephone with its acoustic image or
representation. Meaning is the mental content that is
given to a linguistic sign and that is associated with
the sound -or with the acoustic image, following the
term used by Saussure himself-, which refers to the
mental image that each person has when he/she hears
the sound emission of a word (Starobinsky, 1996).
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN: 2590-9215 108
Oral transmission in traditional cultural expressions, and the challenge of their protection from intellectual property rights
It is this sound emission, which allows to place
a traditional cultural expression in an appropriate
space-time and even to ll with value a story, myth
or legend, within the framework of the linguistic
sign. In the end, the meaning could vary according
to the social or cultural context. For example, one
could say 'Tree' and give it a meaning as vegetable
matter and compact structure that constitutes the
plant kingdom, but what if that tree is also found in
a sacred environment? Then it could acquire other
cultural meanings for a people or community.
To give scope to the above, with some examples
that are compiled by James Frazer, in the Siau Island
in Indonesia the inhabitants conceive the trees as
'containers' or 'abodes' of spirits that come out of
there to accompany them in times of harvest or in
some rituals. On the African continent, some peoples
believe that each tree is a spirit, and in the case of the
'Cocos Nucifera' palm, it is conceived as a mother,
so that the mere fact of cutting down a specimen can
be considered matricide (Frazer, 1951).
The same happens with traditional cultural
expressions that are composed only of words, and in
a context of oral tradition are accompanied by their
own cultural and social meanings. In this case, both
the support where the expressions are xed and the
xation become secondary, since orality becomes
the vehicle of those meanings, in addition to rhythm,
harmony and everything that a cultural expression
has.
In this sense, despite the fact that traditional
cultural expressions as traditional knowledge are
comparable to works protected by copyright, they
cannot and should not be subject to its dynamics and
protection regime. Assuming that patrimonial rights
have a dened protection time, which may be 70 or
80 years as in the case of copyright, would imply
leaving a millenary culture that has been protected
by ethnic groups to the public domain, at the mercy
of cultural piracy.
But beyond the considerations of economic
exploitation of traditional cultural expressions, by
conceiving the principle of copyright xation as a
principle extensible to this traditional knowledge,
it would disregard orality as the main vehicle of
expression and representation of their identity;
which is independent of the support where a cultural
expression is embodied or xed.
Stories, tales, myths, legends, recipes,
knowledge, practices, harmonic and musical
compositions, among other expressions, are the
product of the creative activity of indigenous peoples
and ethnic communities, and are also the legacy of
cultures that have been transmitted from generation
to generation. They are, in other words, an invaluable
wealth for humanity.
For all of the above, it is hardly understandable
that cultural expressions and traditional knowledge
in general are protected on the basis of the autonomy
that indigenous peoples have to oppose any act that
entails unauthorized exploitation of this intellectual
property. It is also clear that prior consultation as a
fundamental right becomes the only mechanism of
access to traditional cultural expressions, where they
can express their prior, informed and free consent,
according to their customs, forms of government
and decision-making.
As a preliminary conclusion, thanks to the
binding nature in the Colombian legal system of ILO
Convention 169 of 1989, which, as already indicated,
is part of the constitutional block, indigenous
peoples and ethnic communities may fully decide on
the access, use and economic exploitation of their
techniques, practices, customs, expressions and
ancestral knowledge. This translates into a perpetual
ownership and the unseizable and inalienable right
of dominion over this type of intellectual property,
which acquires a dierential connotation with
respect to the creations and inventions developed in
other areas.
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN: 2590-9215109
Iván Vargas-Chaves
Conclusions
The oral tradition makes it possible to preserve
cultural details that writing or the visual component
does not manage to frame. This is accompanied by
the non-verbal component in orality as part of the
communication process, in which there is a sending
and receiving of a message that corresponds to a
cultural space-time of its own, which can only be
understood from the worldview of an indigenous
people or ethnic community.
Therefore, the construction of social imaginaries
that exist around the oral communicative act
constitutes a very important component of traditional
cultural expressions, which can be equated with
works protected by copyright such as books, songs,
stories, sculptures or paintings, among others, but
which, due to their particular characterization from
the oral tradition, transcend this eld. Thus, the
spoken word occurs as a means of preservation of
the dierent cultural assets through the transmission
of their ethnic processes.
In addition, as was pointed out above, the
copyright regime acquires relevance to encourage the
creation and dissemination of culture by protecting
the eorts made by authors and owners in the creation
of works, but with a requirement that is not met by
all traditional cultural expressions, namely xation.
For a work to be protected by copyright, it must be
xed or embodied in a medium, otherwise it would
be considered as an idea excluded from this regime.
Copyright protects the form in which ideas
are expressed, regardless of the medium in which
they are expressed, whether it is a canvas, a book,
an audiovisual recording, or a data message. In the
same sense, the protection granted by copyright to
that which is not embodied in a medium is a complex
issue that has been the subject of debate for many
years.
The problem, then, that must be solved is: What
happens with the oral transmission of traditional
cultural expressions that, although they should be
protected as works, prevent copyright from covering
them because they do not comply with the principle
of xation? To answer this question, we appeal to
the relevance of oral tradition as a vehicle for the
transmission of this knowledge, for example through
rituals and proxemics, which allow ethnic groups
to maintain their roots. And it is in this rootedness
that the law must dissociate traditional cultural
expressions from the classical copyright regime.
Orality and its phonetic component as part
of traditional cultural expressions, although not
necessarily embodied in a medium as would be
required by copyright to protect them as works,
continues to be a legal interest protected by the
State. This is possible thanks to the binding nature
of ILO Convention 169 of 1989 on the rights of
indigenous and tribal peoples, which is part of the
constitutional block, and recognizes fundamental
rights of indigenous peoples, among these, to protect
their traditional knowledge and to demand prior
consultation in its access by third parties.
With a sui generis intellectual property
regime on traditional knowledge recognized from
this norm, cultural expressions are recognized
in favor of the communities that generate them,
claiming a perpetual ownership and an inalienable,
imprescriptible and unseizable right of dominion. It
is also recognized that, following their own customs
and rules within the framework of their autonomy
and self-determination, they may fully decide on
the access, use and economic exploitation of these
expressions.
By protecting this intellectual property,
regardless of whether or not it is embodied in a
medium, that is, without following the logic of the
principle of xation of works established by the
classic copyright regime, all the cultural wealth that
indigenous peoples and ethnic communities have
developed since ancestral times, have transmitted
from generation to generation, and are today a very
Perspectivas, 9 (1), pp. 101-112, 2024, E ISSN: 2590-9215 110
Oral transmission in traditional cultural expressions, and the challenge of their protection from intellectual property rights
important legacy for the human species, will be
preserved.
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