PhD thesisThis thesis draws upon postcolonial theory to examine to what extent the state’s registration system is an appropriate approach to protecting indigenous people’s traditional cultural expressions (TCEs). It specifically includes a case study on the performance of the state’s registration system in Taiwan in accordance with Taiwan’s Protection Act for the Traditional Intellectual Creations of Indigenous Peoples. A number of countries have established sui generis systems that provide for registration as a condition of acquiring exclusive rights over registered TCEs. Yet, the state will inevitably involve the legal acknowledgement of TCEs by registration. This mechanism has been criticised because it may manipulate the indigenous people’s tradition and identity. This thesis will explore this unresolved issue and expand upon the following research questions: How do we understand the legal protection of TCEs? Is the state’s involvement in the protection of TCEs really a negative measure which perpetuates the control over indigenous peoples’ cultures? Can registration of TCEs, which is influenced by the colonial history of intellectual property (IP) law and the modern state’s colonial control, become a platform for indigenous peoples’ negotiation with the state and for protecting TCEs as hybridity? The research methods are qualitative, beginning with an analysis of the characteristics of TCEs and international negotiations regarding the legal protections of TCEs. Observing Taiwanese indigenous peoples’ actions in the process of registration of TCEs, this 4 research finds that the emphasis of TCEs as hybridity can challenge the Orientalist imagination related to tradition and culture in conventional IP law. Moreover, a well-designed registration system of TCEs can be the platform for indigenous peoples to actively negotiate their cultural and historical perspectives with the modern state.Ministry of Education, TaiwanChiang Ching-kuo Foundation for International Scholarly Exchange
