6 UNESCO is the oldest forum in this framework, with the most expansive objective. It has a sweeping mandate to foster “a culture of peace ... built upon the intellectual and moral solidarity of all mankind” (UNESCO 1945). UNESCO has responded to global transformations by integrating sustainable development as corollary to peace. The effect of this integration has been a shift away from “barricading” world heritage in order to protect it and toward identifying how cultural heritage can help meet global challenges. This shift is conspicuous within the short time span of two years, as the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions emphasizes the links between culture and development, in contrast to the 2003 Convention for the Safeguarding of Intangible Cultural Heritage.

7 The 2005 Convention focuses on cultural dialogue, its objectives are to:

8 These objectives emphasize the reciprocity in ICH and, by extension, in Indigenous ICH; a requisite part of cultural expression is its ability to bridge division. Such reciprocity facilitates cultural expressions as vehicles of cultural development and interaction. The 2005 Convention also warrants the following in Article 4(4):

Table 1

Display large image of Table 1

10 This clause characterizes Indigenous ICH as having intrinsically valuable properties, which are detached from commerce and the production process. ICH is intrinsically valuable because it is central to the individual’s “intellectual, emotional, moral and spiritual existence,” which is critical to good governance, political equality and Sustainable Development (UNESCO 2011). UNESCO’s moral positioning is prefaced on the intrinsic value of culture; the development of cultural wealth being a humanitarian end in itself.

11 The UNEP was created to pursue environmental conservation in the international arena. In 1981, the program pivoted to pursue a sustainable development mandate and a project endorsement framework, which focused on the “interrelationships between people, resources, environment and development” (UNEP 1981: 147). The Convention on Biological Diversity (CBD) came out of this shift (UNEP 1992). The CBD recognizes the value of biological diversity and treats it as a resource, which should be allocated between present and future generations. The Nagoya Protocol (adopted by the CBD in 2010) deals with one set of resource allocation problems, which falls within the parameters of the CBD: first, the fair, equitable and sustainable use of genetic resources; second, and most importantly for this study, the fair and equitable use of traditional knowledge (TK) associated with genetic resources; and third, the fair and equitable distribution of benefits that flow when either or both of the first two resource allocation problems have been solved.

12 These resource allocation problems are expressed in Article 8(j) of the CBD:

13 UNEP interprets TK through a utilitarian, resource-oriented filter, which reveals the forum’s general position on Indigenous ICH: UNEP values Indigenous ICH with reference to its “utilization,” a term undefined in relation to traditional knowledge associated with genetic resources (UNEP 1992). However, the Nagoya Protocol refers to the utilization of genetic resources as the application of the scientific method to generate value or “benefits” (UNEP 2010). Impliedly, reference to TK associated with genetic resources, refers to the TK that is associated with a physical input (genetic resource) and that becomes socially valuable through the application of modern technology (scientific techniques and analysis) in accordance with this utilitarian view of traditional knowledge that knowledge that cannot be utilized is irrelevant.

14 I’d like to make one further remark about modernization. There seems to be a divide between technology and TK, which emanates from traditional lifestyles. The implicit assumption here is that this TK needs to be partnered with the modern sciences (e.g., biotechnology) for it to have scientific, economic, or cultural significance. This understanding characterizes Indigenous ICH according to early conceptualizations; that it is pristine and stuck in time. The reliance on static rather than fluid conceptualizations of Indigenous ICH could be the result of a negotiation process that put Indigenous participants at the periphery: Indigenous representatives argued that procedures in the CBD process were “one-sided” as they participated as observers to the negotiations, whereas nation states were the subjects and signatories (UNEP 2010: 13).

15 In contrast, the United Nations’ Declaration on the Rights of Indigenous People embeds the traditional in the present day. The institutional makeup of the UNPFII reflects this paradigm shift: it is a fully participatory, Indigenous-controlled advisory body to the United Nations Economic and Social Council. The Declaration presents a notion of Indigenous ICH that is grounded in the rights of every human and citizen, per Articles 1 and 2. Article 31(1) presents two principal characterizations of Indigenous ICH. The first is that Indigenous ICH hinges on self-determination and control over their diverse assets:

16 These assets are diverse because of their form (whether physical or intangible) and their maturity (long-held, revitalized, or newly generated). The second characterization of Indigenous ICH emanates from a social context: “They also have the right to maintain, control, protect, and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions” (UNGA 2007).

17 In other words, the maintenance, control, protection, and development of cultural heritage is a collective right and a community prerogative. The recitals strengthen this interpretation of Article 31(1) as they articulate the Declaration’s social and legal premise relating to the “collective rights [of Indigenous peoples] which are indispensable for their existence, well-being and integral to their development as peoples” (UNGA 2007).

18 The WIPO works to promote innovation and creativity through the harmonization and dispersion of global intellectual property norms. Dutfield (2009) argues that pressure to become more inclusive of the developing and newly independent states that emerged from post-Second World War decolonization triggered the establishment of the WIPO. The organization was extended to the Bureau International Réunis pour la Protection de la Propriété Intellectuelle, the international body responsible for administering the Paris and Berne conventions that entered into force in 1883 and 1886 respectively. The WIPO’s orientation today, particularly after institutionally integrating development goals in 2009, reflects this breadth of engagement. However, it is arguable that the WIPO has not overcome the Bureau’s exclusivity problems (Straus 2007).4 The WIPO Intergovernmental Committee (ICG) has been concerned with negotiating three instruments on ICH: the draft articles on The Protection of Traditional Knowledge and The Protection of Traditional Cultural Expressions, and the Consolidated Document Relating to Intellectual Property and Genetic Resources. The WIPO debates (2013a: 12-13) hinge on the eligibility criteria for protection. In determining these eligibility criteria, they necessarily characterize Indigenous ICH in a certain way. My analysis draws together the eligibility clauses within these three instruments and then discusses the implications of this synthesis for Indigenous ICH.

19 The WIPO draft for The Protection of Traditional Knowledge sets out to protect knowledge that is distinctively “associated/ linked” to socio-cultural identity “[and/] or cultural heritage” (2013a: 10). According to the draft criteria for eligibility, Articles 1.3 and 1.4: the knowledge must also be transmitted through a process, which is collective and inter-generational. The community must be able to either demonstrate exclusivity in their knowledge, or show that it has been in the public domain for less than a “reasonable period of time,” so it is not “normally and generally well-known” (10). The draft for The Protection of Traditional Cultural Expressions proposes that collective authorship and “creative intellectual activity,” in addition to provenance from distinct or unique socio-cultural identity or heritage, should serve as eligibility criteria (WIPO 2014: 6). Alongside these, the Consolidated Document recommends safeguards for TK associated with genetic resources within the international patent system (WIPO 2016: 8). Across the board, eligibility for protection under the WIPO implies the following characterizations of Indigenous ICH: cultural connection; intergenerational continuity; communal exclusivity; creative, intellectual inputs; and utilization by science or industry.

20 This discussion will focus on the creative and intellectual characterization of Indigenous ICH, which is unique to the WIPO forum. My earlier discussions have looked at its anthropological characterizations—characterizations related to culture, identity, time, and intergenerational elements, as well as the social institutions of knowledge transmission. The WIPO relies on the terminology, traditional cultural expression, to refer to the creative and intellectual characterization of Indigenous ICH. This characterization, which is the basis for the WIPO’s proposed framework is in line with WIPO’s founding conventions and the common law’s copyright criteria of authorship and originality. Creativity as a human right and as a peoples’ right is a central pillar of the intellectual property protection system, whether that is expressed as creativity or invention (WIPO 2013a: 3-4). However, the idea of intellectual effort is controversial for two reasons: first, it broaches new difficulties of proof; and, second, it is unclear whether the repetitive, practical evolution of cultural rites and rituals constitutes intellectually steered concept development (WIPO 2013b: 19, 20). When we draw on rigid intellectual property norms to protect ICH we reinterpret the cultural maintenance systems developed by Indigenous and local communities presuming that these systems are based on a rational creative process. In this interpretation, Indigenous ICH becomes a more narrow concept: in addition to being of place, culture, and community, authentic and valuable traditional cultural expressions must also be of mind.

21 The WTO is the international forum for multilateral trade negotiations and dispute resolution. It complements the WIPO forum by implementing trade measures to standardize intellectual property norms and secure participants’ interests, albeit with a North-South imbalance (Hussain 2004).5 The Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement establishes a minimum standard of protection for trademarks, copyright and patents and establishes value in geographic provenance. Arguably, this minimum standard incorporates a development agenda, as Articles 7 and 8 promote general technological, social and economic welfare (Yu 2009).6

22 The WTO’s reluctance to engage with the changes across the global policy framework relating to heritage, traditional knowledge and traditional cultural expressions, indicates its reluctance to engage with Indigenous ICH, despite pressure on TRIPS to offer substantive protections. Debates since the 2001 Doha round of trade negotiations have centred on states’ proposals to extend geographic provenance requirements, which can be attained if member states agree to amend Articles 22 and 23, and 27(b). Article 22 requires that member states ban the misleading or anti-competitive use of geographic indications, which 22(1) defines as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin” (WTO 1994). This requirement is not limited to trade in a specific type of product, which means that Article 22 could be adjusted so that it provides protection for traded products based on Indigenous ICH, while also providing incidental protection to Indigenous ICH. Article 23 creates supplementary protection for wines and spirits, as it requires that member states provide legal redress against those who make inaccurate and illegitimate use of geographic indications. The wider reach, and lower threshold of such protection are grounds for broadening Article 23 to include cultural product, typically from developing countries.

23 Articles 22 and 23 create enforceable interests in provenance, which developing and newly industrialized countries (e.g., Brazil, India, Thailand) would like to see integrated into Article 27(b) through mandatory geographic disclosure. This would create obligations on member states to disclose the geographic origins of the TK associated with genetic resources and prove that fair and equitable access and benefit sharing terms7

24 have been reached with Indigenous and local communities. The WTO’s fixation on geographic provenance is systemic to integrative trade and sophisticated global value chains (Cattaneo et al. 2013).8 An agenda that consists of broadening or introducing geographic provenance requirements to protect TK and cultural expressions is a symptom of this fixation. This agenda characterizes Indigenous ICH according to its geographic origins, giving rise to difficulties for the WTO.

25 The difficulties for the WTO are two-fold. First, Indigenous geographic knowledge and clan configurations often transgress state borders. This means that national statements of geographic provenance either misrepresent or fail to accurately characterize Indigenous ICH. The second difficulty is that the most common obligations, for producers to indicate where a product originated , do not apply within nations where the traditional knowledge or cultural expression is considered generic (Maulik 2012).9 The paradox here is that Indigenous ICH does not have a recognized value at the point of provenance. Though the WTO recognizes that there is a link between Indigenous ICH and place, the current TRIPS instrument is too blunt a tool for characterizing ICH and representing the value of place. To this effect, TRIPS would gain relevance if member states were to encourage Indigenous and local communities to innovate and thereby distinguish their cultural products, which are based on TK and traditional cultural expressions.

26 To summarize, the various international policy frameworks for heritage, TK, and traditional cultural expressions support plural characterizations of Indigenous ICH. Protection for intangible cultural assets has been integrated with heritage, environmental, international Indigenous intellectual property, and trade protections. The result is compartmentalized and diverse (see Table 1).

28 Imprecise terminology and inconsistent positioning between the marketing and financial accounting industries affect the brand construct (Wood 2000).10 “Brand equity” and “brand value” are the most dominant terms used by these industries to understand the dimensions of brand: its function and asset base. Brand equity looks to the consumer to understand brand. It is a term bandied about in the marketing industry to refer to the strength of a brand in the market, incorporating the brand’s consumer loyalty and its socio-cultural associations. Leuthesser defines brand equity as “the set of associations and behaviour on the part of a brand’s consumers, channel members and parent corporation that permits the brand to earn greater volume or greater margins than it could without the brand name” (1988: 6). This definition implies that market share, premiums, or volumes commanded of a brand, and corporate profits attributable to brand are measures of brand equity. To continue such focus on the customer, “brand value” is used in marketing to refer to the value that the consumer receives through the convenience and the experience of branding, irrespective of whether the product has actually been purchased (Kinnear and Bernhardt 1986: 299).

29 However, the accounting and financial industries understand brand differently as their interpretations are from the perspective of the firm (Raggio and Leone 2009: 253). One interpretation focuses on how much extra value branding adds to a product, so brand is the final touch on the realization of goods and services produced. Another interpretation considers a brand’s replacement value, which is the measure of how much it would cost to create and consolidate new branding (249). Replacement value very much depends on the internal capacity and personality of the brand developer. In context, these terminologies rely on the socioeconomic dimensions of brand as a basis for its commercial value. The following shows that these dimensions are compatible with Indigenous ICH, as we move toward an understanding of its commercial value.

30 Early marketing constructs linked brand to a real or fictional producer. The most likely reason for this is that the origins of brand derive from the first trademark regimes, which emerged during the late 18th century and continued throughout the 19th century, to protect artisans and manufacturers in cross-border and domestic trade (Duguid 2009). Today, the notion that brand is a signal underpins its capacity to fulfill social and economic functions for consumers and producers. Interpreting branding as a signal focuses on its capacity to identify qualities, such as origins or production methods that enable consumers to distinguish between products. This is a one-directional communication channel that flows from the producer to the consumer. Brand allows the producer to capture the commercial value of the “truth, beauty, and utility,” which they bring together with their products (Arvidsson 2005: 236). Brand’s ability to act as a signal means that it is a potential vehicle for communicating characterizations of Indigenous ICH to the consumer. In this way, brand fulfills the functions of a certification mark because it is used to separate product from its competitors by emphasizing its production-side values. The characterizations of Indigenous ICH (Table 1) that could be expounded with a certification mark or signal branding are: cultural connection, the centrality of geography and the fusion of self-determination with production principles. These are explored in the following case study.

32 The Respect Our Culture (ROC) trademark is governed by Eco-Tourism Australia. Its primary tenet is that “Indigenous cultural experiences offer a competitive advantage to the Australian tourism industry” (Ecotourism Australia 2013: 1). Ecotourism Australia awards the ROC mark to businesses that have demonstrated, via self-assessment, that they “[Value] cultural and natural integrity and authenticity.... Protect and preserve the natural/cultural heritage and Indigenous relationship to land ... [and] will eliminate any practice that is unacceptably damaging the environment or Indigenous culture/ beliefs” (Ecotourism Australia 2013: 3).

33 The ROC mark creates an awareness of cultural connection, self-determination, and geographic provenance by encouraging individual businesses to internalize broader socio-cultural and environmental concerns. For instance, complying with the award scheme means that tourism operators must engage local Indigenous people to present the cultural components of the tours offered by the operator. However, the mark’s availability to tourism operators means that it is an educational exercise for producers as much as it is for consumers. This means that its ability to change the modus operandi of the tourism industry relies, perhaps too heavily, on the ability of self-certified businesses to interpret the trademark’s values and communicate these in a clear message to the consumer.

34 Though the National Indigenous Arts Advocacy Association’s label of authenticity has been abandoned, it is worth considering as a different approach to communicating certain characterizations of Indigenous ICH. The purpose of the Label was to certify artistic product “created, authored or produced wholly by an Indigenous person,” relying on the definition of an Indigenous person in Australian law (Janke 2003: 8-9). Certified producers were then subject to the rules of use relating to the Label. These rules required that the Indigenous artists paint in their traditional style, which varies extensively between clans. It also required that their artwork connect to traditional knowledge or cultural expressions (e.g., dreamtime stories, rituals) and be accompanied by information about the land and people to which the artwork relates. While the Label solely represented Indigenous artists and was based on an understanding of authentic Indigenous ICH garnered from consultations with Indigenous stakeholders, it failed to develop common currency in Australia’s Aboriginal Art market. One reason is that the Label was too generic, failing to communicate geographic provenance in detail, a particularly important failing, as regional art and craft collectives produce most Aboriginal art. Another reason is that certification seemed unnecessary, as producers believed authenticity was self-evident in their works (14).

35 The theory and case study show that brand can be used to communicate production qualities to the consumer. This is the same function that certification trademarks fulfil, though success depends on their rules of access, minimum standards and the ability to encapsulate producer sentiment and motivate producers to mark their work. However, the case study also reveals the critical difference between a branding signal and certification, which is that the commercial value of a brand is not the same as the value of certification. The brand value is the extra value that brand adds to the product, whereas the value of certification is the value that the mark adds to the product, subtracting the producers’ (artists’) compliance costs. Two sets of consumers are engaged by the certification mark: those who purchase certified Indigenous products, and the Indigenous artists themselves who must take up the trademark as a necessary precondition. Although with respect to Indigenous artists, the cost of compliance also has the effect of cutting into the certification mark’s commercial value. Assigning costs to individual producers rather than collectives may drag down the value of certification even further, as this disaggregates the cost-benefit decision-making to an individual level, forgoing the benefits of coordination and possible returns to scale. Arguably, the certification mark is inappropriate for an Indigenous audience and ICH subject matter.

49 The brand promotes ethical engagement in a similar way to the Fair Trade brand. This means that the brand provides access to a utopic set of values and visibly follows through with them. Like the Fair Trade brand, which “caught the attention of millions of socially and ecologically conscious consumers through ... awareness-raising efforts,” the Cape York Dreaming Track brand targets the tourist who is conscious of their impact and looking to make an impact (Young and Utting 2005: 140). Where the Fair Trade model follows through by adding an ethical price markup and providing technological sustainability support, this brand-led model follows through by delivering capacity-strengthening products to the supply-side learning market. By this I mean that the Cape York Dreaming Track project involves Cape York Indigenous people who have the desire to participate in the tourism industry as suppliers of goods or services though they do not have the capabilities or skills to do so. The project responds to this supply-side learning market with products that engage with Indigenous ICH assets to equip Indigenous people with capacity to create their own tourism products. The project develops cross-market equity. Even if the learning products are not priced, they create social, emotional equity, which can be leveraged to engage the ethical traveller. Leveraging the tourism brand in the learning market creates commercial equity as publicized values and benefit sharing geared toward employment combat the program-fatigue afflicting welfare-dependent communities. The purpose of this first strategy is to carve out a tourism market niche in order to create commercial viability for Indigenous ICH products.

50 The Cape York Dreaming Track project’s second brand strategy uses the umbrella brand concept to steer entrepreneurship and Indigenous investment in their ICH. This strategy recognizes that Indigenous ICH, as a form of capital, is not endowed, though it is ethno-generated and deepened through reinvigoration and robust cultural transmission. The project’s brand focuses on the sustainable development problem because it restricts its implementation mechanisms to the tourism industry, and works on strengthening Indigenous capacity in those areas. Merrilees calls this “bringing discipline to innovation” (2007: 406), which has the advantages of efficient resource-use, facilitating opportunity recognition and increasing access to capital. For Indigenous entrepreneurial ventures in tourism, these three advantages support the sustainable management of Indigenous ICH. The brand name, Cape York Dreaming Track, taps into Indigenous aspirations to access livelihoods on their ancestral lands, but also limits their entrepreneurial ventures to those that cluster, physically or theoretically, around the concept of track. This improves resource efficiency because proponents (the firm and the Indigenous clan communities) develop expertise, such that their limited resources are used with deeper understanding and to greater effect. The project brand also facilitates the recognition of business opportunities because it provides a way of seeing: it is easier to identify gaps in the market with a brand-bundled pro forma to process the information. Merrilees identifies improved access to capital as a consequence of “a better branded/more reputable entrepreneur” (408). Though this prospect applies to Cape York Dreaming Track, the project brand, in an Indigenous sustainable development context, trades on reputation and its cross-market equity to increase the project’s access to Indigenous ICH assets. The brand creates access to the real economy, and thereby generates new commercial incentives for Indigenous People to reinvigorate Indigenous ICH. The commercial incentives work with other socio-cultural incentives and customary laws. This incentive mix maintains the quality of Indigenous ICH product, so long as brand works with Indigenous governance and does not undermine it.

51 The third strategy uses brand as a platform for access and benefit sharing. This strategy key for managing Indigenous ICH sustainably because it strengthens the Indigenous position in commercial negotiations and provides a contractual vehicle for protecting Indigenous ICH. On its face, the Cape York Dreaming Track umbrella brand strengthens the Indigenous position because Cape-wide clans and communities can leverage it. This creates a form of collective bargaining, operating on the appearance of unity, to strengthen the Indigenous position against external partners or stakeholders. The project brand can also set substantive standards of access and benefit sharing by implementing indigenous cultural and intellectual property protocols. These protocols specify acceptable uses of Indigenous ICH, traditional knowledge and cultural expressions and are flexible in the way that they integrate customary law, intellectual property rights and ethical standards of consultation and benefit-sharing (Janke 2012). These protocols are typically non-enforceable, though they can effectively establish industry standards. One option is to make the protocols contractually enforceable by integrating them into the brand’s licensing and transactional agreements. Another option is to draw on the agility of brand, on par with the agility of Indigenous ICH, to leverage it across product, region, and resource. By extending brand across communities and throughout the tourism industry, Cape York Dreaming Track can set the rules of trade and shape social norms (e.g., prior informed consent procedures, royalty payments, and technology and skills transfers). In the event that the project produces its own intellectual property, such as cultural maps, tourism literature and other forms of memorabilia, according to appropriate consent requirements, the benefits from sale can be distributed between self-determined, Indigenous governance bodies to acknowledge collective ICH input.