Legal reform is key to protecting intellectual property rights of Indigenous culture

Our country is at a complicated juncture in integrating its thriving Indigenous heritage with its subsisting legal instruments for intellectual property. In spite of a cultural terrain of over 45 Indigenous communities, the legal apparatus stays deeply noncompliant with the intergenerational, collective and spiritual nature of the Indigenous knowledge systems.

Conventional intellectual property (IP) statutes are highly influenced by the Western ideas of temporal protection, commercial utility and individual authorship. It somehow fails to acknowledge or respect the sacred values, oral transmission and the communal custodianship that demarcates Indigenous intangible cultural heritage. The complications are not merely an abstract instance; they manoeuvre real-world struggles. Ethno-botanical knowledge is obtained to pursue pharmaceutical interests without sharing the benefits, traditional designs are mishandled without consent, and sacred traditions and rituals are commercialised. The situation is worsened by fragmented policies and weak enforcement, and continuous disregard for Indigenous customary law in national legal framework. Without proper systematic reforms, Bangladesh is about to lose Indigenous knowledge systems developed through centuries.

The essence of this issue rests in the epistemic disparity between Euro-American legal understanding and Indigenous knowledge systems. While IP law prefers creativity, innovation, permeance and profit-oriented schemes, Indigenous cultures are ever-changing, communally shared and deeply connected to ecological and spiritual interdependence. Copyright protection ends at a certain time, while the traditional cultural knowledge survives an evolving journey. This ontological discord makes regular IP regimes foundationally insufficient.

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Moreover, Bangladesh has introduced reforms in IP laws in 2023 that include the copyright and patent act, but unfortunately failed to close the gap between traditional knowledge systems and the conventional IP regime. The Copyright Act, 2023, recognises folklore, but it falls short in acknowledging Indigenous communities as the right holders or custodians. The Patent Act, 2023, decrees revelation of the sources regarding traditional knowledge but does not introduce a process for acquiring consent or sharing benefits. The promising geographical indications are dominated by commercial benefits without Indigenous participation. At its core, these legal frameworks treat Indigenous heritage as economic artefacts instead of living systems that deserve cultural sovereignty.

To acknowledge these pitfalls, activists and scholars are continuously advocating for the introduction of a sui generis(unique) legal system that surpasses the barriers of current IP regimes. Such a framework should be established by assessing Indigenous world views, ensuring community governance, institutionalising collective rights and perpetual ownership. Comparative study from Peru, India, Bolivia, and Panama showcases the implementability of such mechanisms in the current IP regime. The Law No. 27811 of Peru underpins sharing benefits, oral transmission of culture and community consent as the pillars of legal recognition. Whereas, the

deliver a defensive system against biopiracy. This might be a good example for Bangladesh, except for the facts of community exclusion and state control. The development of a sui generis system in Bangladesh must begin with the legal recognition of Indigenous peoples as separate legal entities rather than as ethnic minorities under the Constitution of Bangladesh. Bangladesh should also incorporate Free, Prior and Informed Consent (FPIC) while engaging with Indigenous heritage. It must also ensure that communities have the authority and right to monitor the use, access and dissemination of their knowledge. Indigenous councils such as Bangladesh Resource Center for Indigenous Knowledge (BARCIK) will maintain a national registry concerning traditional knowledge, which can propose defending documentation by adhering to and honouring ethical protocols and cultural secrecy, respectively.

The key foundation for any transmitting legal system is to recognise the Indigenous customary law. The communities of Chittagong Hill Tracts and other regions follow ornate systems of knowledge governance by defining who may perform, access and transmit specific traditions. These unwritten laws are comprehensive legal orders in their own way. Avoiding them or not accepting Indigenous traditions into law not only violates Indigenous integrity but also accelerates cultural misappropriation. The concept of cultural sovereignty is asserted in international law documents such as the UN Declaration on the Rights of the Indigenous Peoples (UNDRIP) and is fundamental to the recognition of Indigenous cultural heritage. Bangladesh should endeavour to adopt it in its legal and constitutional culture. Though Bangladesh abstained from voting in favour of the adoption of UNDRIP, a non-binding treaty, that does not legally prevent us from following or implementing the principles of the declaration. Also, cultural sovereignty as a core idea of racial freedom underpins the rights of Indigenous peoples to monitor their rituals, languages, symbols and epistemologies. Without its formalisation, legal safeguarding becomes extractive instead of emancipatory and participatory governance remains ornamental.

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Some comprehensive legal changes should be introduced along with institutional systems to ensure Indigenous participation. The foundation of a national body on cultural heritage and Indigenous knowledge, consisting of legal experts, cultural practitioners and Indigenous representatives, would give monitoring oversight, ensure ethical compliance in sharing the benefits, and regulate heritage registries. This authority shall keep liaison with several ministries to ensure the Indigenous concerns are included in the environmental, cultural, technological and educational policies along with decentralised governance. Customary bodies and local authorities shall be acknowledged as valid authorities in decisions, including traditional expressions and knowledge. Cultural protocols and community consent must guide documentation efforts, whether it is commercial, governmental or academic. Sacred knowledge of the Indigenous communities must not be exposed or recorded without overt community approval.

Reformation of the current legal system alone will be insufficient without empowering the grassroots communities. Indigenous communities should be made aware of their rights via culture-sensitive legal literacy programmes in their own languages. Women, who are the guardians of ritual knowledge, culture and tradition, can be the focus of these initiatives. National curricula must be revised to incorporate Indigenous languages, histories and cosmologies. This will help foster intergenerational cultural pride and transmission. Technological drivers, such as digital databases, offer new scopes of heritage protection. However, all of these mechanisms should be established through participation and consultation with the communities represented. Also, these measures should conform to the "cultural firewalls" constraining access based on Indigenous governance rules. Technology should ramp up Indigenous agency, not substitute it. Bangladesh's engagement with UNESCO, World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity should be revitalised. Regional cooperation through the South Asian Association for Regional Cooperation (SAARC) could lead to generate shared strategies for protecting cross-border heritage and countering cultural homogenisation.

The safeguarding of Indigenous intangible cultural heritage in Bangladesh is not a matter of conserving folkloric traditions for posterity; rather, it is a question to be resolved through cultural justice. It asks for a legal revolution that goes above integrationist approaches of legal frameworks and asserts Indigenous communities as the rightful custodians and stewards of their cultural legacies. Through these, the state can craft a trail toward an equitable, inclusive and resilient cultural future.

Sakhawat Sajjat Sejan is assistant professor of law at Bangladesh University.

Rakiba Nabi is professor and chairman at Department of Law at University of Chittagong.

Views expressed in this article are the author's own. 

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