The thesis examines the problems with the Intellectual property (IP)-based framework, currently adopted by the World Intellectual Property Organisation, in addressing cultural misappropriation of traditional cultural expressions (TCEs). The cosmopolitanism framework, which celebrates cultural circulation and prioritises the freedom of individuals to choose a mode of life over preserving traditional cultures, and ethnography-inspired methods illuminate these problems. Focusing on Nora – a shared performing art between Thailand and Malaysia, the thesis aims to find alternative legal frameworks that can sensitively address cultural misappropriation.
Ironically, the culture-centred approach underlying the IP-based framework fails to accommodate the ever-evolving, hybrid, and transboundary nature of cultures. Its need to define the boundaries of protected cultural creations leads to decontextualisation, which reinforces a view of cultures as static and obscures the important role that cultural communities play in sustaining them. The concept of property further invokes the idea of cultural ownership of otherwise shared cultures, leading to interstate conflicts and the state’s misappropriation of local and Indigenous cultures. Legal measures can become a means of oppressing minority groups.
Drawing on fieldwork data, the thesis argues that the rationale for legal protection should be anchored in protecting people from cultural misappropriation, which stems from a significant power imbalance, allowing it to constitute, perpetuate, or exacerbate oppression. It proposes human rights as an alternative framework to reorient the focus of protection from cultures to people and to steer away from treating culture as property. The language of inborn rights and equality can level asymmetrical power dynamics, thereby alleviating the conditions that could lead to misappropriation. Despite its potency, the vernacularisation of human rights through the Thai Theravada Buddhism worldview results in the suppression of its emancipatory power. Hence, the thesis advocates for reinterpreting Theravada Buddhist teachings that foster inequality, alongside implementing legal measures to sustainably address cultural misappropriation.
