This informal CPD article ‘AI and Cultural Heritage: Protecting Traditional Knowledge in the Digital Age’ was provided by Shreya Gautam of Lexellai, an organisation who provide courses for students focused on AI governance, regulation, and ethics.
Cultural heritage in contemporary legal discourse extends beyond tangible artefacts to encompass intangible forms such as Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs), often referred to as folklore. These community-held, inter-generational knowledge systems remain inadequately protected under conventional intellectual property regimes designed around individual authorship and novelty. In the digital age, Artificial Intelligence (AI) has emerged as a transformative tool for documenting, archiving, and preserving cultural heritage, while simultaneously intensifying risks of misappropriation and misuse.
This article examines the dual role of AI in the protection of cultural heritage within the existing international and national intellectual property framework. It analyses how AI enabled initiatives strengthen defensive protection by establishing prior art, yet also expose TK and TCEs to greater vulnerability through increased digital accessibility and data extraction. The article highlights a need for the adoption of community-centred, ethically grounded, and legally robust governance mechanisms, including sui generis protection and international consensus, to ensure that AI serves as a tool of preservation rather than exploitation.
1. Introduction: Cultural Heritage as Traditional Knowledge and Folklore
Cultural heritage is no longer understood as limited to monuments, artefacts, or tangible property alone. In contemporary legal and policy discourse, cultural heritage increasingly encompasses intangible forms, primarily Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs), also referred to as folklore. These elements represent the lived experiences, innovations, and creative expressions of communities, transmitted inter- generationally and rooted in specific cultural contexts.
The World Intellectual Property Organization (WIPO) defines Traditional Knowledge as:
- Knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.‖i
Similarly, Article 8(j) of the Convention on Biological Diversity (CBD) conceptualises TK as:
- The knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity‖ii.
Traditional Cultural Expressions or folklore constitutes a specific subset of TK. Under the WIPO–UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions (1982), expressions of folklore are defined as:
- Productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community.‖iii
These include verbal expressions, music, dance, rituals, crafts, designs, and architectural forms. Importantly, both TK and TCEs are collectively held, continuously evolving, and context-specific, placing them in uneasy alignment with conventional intellectual property regimes that are premised on individual authorship, fixation, and novelty.
In the digital age, Artificial Intelligence (AI) has emerged both as a powerful tool for preserving this heritage and as a disruptive force that exposes it to unprecedented risks of misappropriation. The tension between preservation, access, and protection lies at the heart of contemporary debates on AI and cultural heritage. This article analyses the role of AI as both a boon and a bane when it comes to protection of cultural heritage.
World Intellectual Property Organization
II. Legal and Policy Framework for the Protection of Cultural Heritage under the Current IPR Regime
The existing legal framework for protecting TK and TCEs is fragmented, operating across international conventions, intellectual property systems, and domestic policy instruments. No binding international treaty currently provides comprehensive protection for TK and TCEs, resulting in reliance on a patchwork of defensive and indirect measures.
At the international level, WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has, since 2000, been negotiating draft international instruments aimed at preventing misappropriation of TK and TCEs. However, these negotiations have yet to culminate in a binding treaty, reflecting persistent disagreement over issues such as ownership, scope of rights, and community consent.iv
The TRIPS Agreement under the World Trade Organization does not explicitly recognise TK or TCEs. While Article 27.3(b) allows member states to exclude certain subject matter from patentability and adopt sui generis regimes, TK remains largely outside the substantive protection of global IP law.v As a result, traditional knowledge is often treated as belonging to the public domain, exposing it to bio piracy and exploitation.
UNESCO instruments, particularly the Convention for the Safeguarding of the Intangible Cultural Heritage (2003)vi, adopt a non-proprietary approach focused on identification, documentation, and transmission rather than exclusive rights. While valuable for preservation, these instruments do not prevent commercial misappropriation.
At the national level, countries such as India have relied on defensive protection mechanisms, including databases and registries, rather than exclusive IP rights. India does not possess a singular sui generis legislation for TK but instead employs a combination of patent law exclusions, biodiversity law, geographical indications, and documentation initiatives like Traditional Knowledge Digital Library (TKDL).vii
AI as a Tool for Preserving Cultural Heritage
The Role of Technology
Documentation has long been recognised as essential to safeguarding TK and TCEs. However, traditional documentation processes were slow, fragmented, and vulnerable to loss. AI has transformed this landscape by enabling large-scale digitisation, classification, translation, and retrieval of cultural heritage data.
AI technologies—such as natural language processing, optical character recognition, machine learning, and multilingual translation—facilitate the recording of oral traditions, manuscripts, art forms, rituals, and medicinal knowledge that might otherwise disappear. These tools operate within existing international policy frameworks that emphasise preservation, such as UNESCO’s intangible cultural heritage inventories, but dramatically enhance their scale and efficiency.
AI allows traditional knowledge to be:
- Documented rapidly through automated transcription and pattern recognition
- Archived systematically using searchable and interoperable databases; and
- Accessed by researchers, patent offices, and policymakers across jurisdictions.
This technological shift is particularly significant for communities whose knowledge was historically transmitted orally and excluded from formal legal recognition.
Traditional Knowledge Digital Library (TKDL)
India’s Traditional Knowledge Digital Library (TKDL) represents a pioneering example of AI-enabled defensive protection. Developed by the Council of Scientific and Industrial Research, the TKDL uses structured databases, AI-assisted classification, and multilingual translation to convert traditional medicinal knowledge into formats intelligible to patent examiners.viii
The TKDL has been instrumental in preventing the grant of patents over turmeric,ix neem, and basmati rice by establishing prior art in patent proceedings. By making traditional knowledge visible within formal IP systems, AI here acts as a tool of empowerment rather than extraction.
AI amplifies the risk of misappropriation
Risks of Digitising Traditional Knowledge through AI
Lack of Documentation as a Barrier to Protection
Historically, one of the primary obstacles to protecting TK and TCEs has been the absence of formal documentation. Undocumented knowledge cannot easily qualify as prior art under patent law, allowing third parties to obtain patents over subject matter that is already known and used by communities. Economic Advisory Council to the PM has observed oral transmission and collective ownership have often excluded TK from recognition within IP regimes.x
AI as a Double-Edged Sword
While AI resolves the problem of invisibility by accelerating documentation, it simultaneously creates new vulnerabilities. The digitisation and online availability of TK and TCEs increase exposure to unauthorised access, data scraping, and commercial exploitation, particularly by entities that are detached from the cultural context of the knowledge.
AI systems trained on digitised cultural data may reproduce, remix, or monetise cultural expressions in ways that communities neither anticipate nor consent to. Thus, by solving the problem of evidentiary absence, AI amplifies the risk of misappropriation.
Once digitised and publicly accessible, TK is often treated as freely usable data, reinforcing the flawed assumption that availability equates to consent. This risk is heightened in AI- driven environments, where training datasets ingest cultural material at scale without attribution or benefit sharing.
Ethical and Cultural Governance Challenges
The deployment of AI in cultural heritage raises serious ethical and governance questions. Central among these are issues of community consent, ownership, and cultural sovereignty.
Existing IP regimes inadequately reflect the communal and spiritual dimensions of TK and TCEs.
International principles such as Free, Prior and Informed Consent (FPIC)—embedded in the CBDxi and the UN Declaration on the Rights of Indigenous Peoplesxii remain poorly operationalized in AI governance. Moreover, decisions about what to document, who may access it, and how it may be used are frequently made by states or institutions rather than communities themselves.
Ethical governance of AI-enabled heritage preservation therefore is likely to require more community-centred decision-making. There is also a need to differentiate between sacred and non-sacred knowledge and the access mechanisms should be controlled rather than open dissemination by default.
Conclusion and Recommendations
AI presents both an unprecedented opportunity and a profound challenge for the protection of cultural heritage. While it offers powerful tools for documenting, archiving, and defending traditional knowledge, it simultaneously heightens the risk of misappropriation by increasing accessibility and extractability. There is also a risk of unauthorised distortion.
To address this paradox, the following measures could be recommended:
- Adoption of sui generis legal frameworks tailored to the collective and evolving nature of TK and TCEs.
- Integration of ethical safeguards including FPIC and community protocols into AI design and deployment.
- Controlled digital access models, moving beyond open-access assumptions for sensitive cultural data.
- International consensus through WIPO IGC negotiations to establish binding norms on AI and traditional knowledge.
Ultimately, protecting cultural heritage in the digital age requires reconceptualising AI not merely as a technological tool, but as a regulated socio-legal instrument capable of either empowering or eroding the cultural identities it seeks to preserve.
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References
i World Intellectual Property Organization, Intellectual Property and Traditional Knowledge
(WIPO Publ. No. 920).
ii Convention on Biological Diversity art. 8(j), June 5, 1992, 1760 U.N.T.S. 79.
iii WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), Draft Texts.
iv Agreement on Trade-Related Aspects of Intellectual Property Rights art. 27.3(b), Apr. 15, 1994.
vDocumenting Traditional Knowledge, Economic Advisory Council to the Prime Minister (2022).
vi Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368
U.N.T.S. 1.
vii Council of Scientific & Industrial Research, Traditional Knowledge Digital Library (TKDL), Govt. of India.
viii Documenting Traditional Knowledge, supra note 5.
ix World Intellectual Property Organization, Intellectual Property and Genetic Resources in the Life Sciences: Case Study E – The Use of Turmeric in Wound Healing (DLC-427), at (WIPO, 2023) (on file with author), https://www.wipo.int/export/sites/www/tk/en/docs/use- of-turmeric-in-wound-healing-e.pdf
x Documenting Traditional Knowledge, supra note 5.
xi Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79.
xii United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007).
