Preservation has two major elements: first, the preservation of the living cultural and social context of traditional knowledge and cultural expressions, so that the usual framework for the development, transmission and regulation of access to traditional knowledge or cultural expressions is maintained; and second, the preservation of TK and cultural expressions in a fixed form, for example when documented. The UNESCO Convention for the Protection of the Intangible Cultural Heritage (2003) describes protection measures as follows: „Measures to ensure the viability of intangible cultural heritage, including identification, documentation, research, conservation, protection, promotion, enhancement, transfer, in particular through formal and non-formal education, as well as the revival of the different aspects of this heritage“. Security refers to the adoption of precautions to protect certain cultural practices and ideas that are considered valuable. (Draft Glossary, National Commission for UNESCO) The United Nations Declaration on the Rights of Indigenous Peoples (2007) recognizes the same human rights of indigenous peoples against cultural discrimination and aims to promote mutual respect and harmonious relations between indigenous peoples and States. However, it does not contain a definition of „indigenous peoples“. „Usual practices“ can be described as the actions and uses that determine and guide aspects of a community`s life. Current practices are rooted in the community and rooted in the way it lives and works. They cannot be seen as separate „laws“ and codified as such („WIPO, Customary Law, Traditional Knowledge and Intellectual Property: Overview of Problems“). Some jurisdictions have adapted the definition of derivative works in the area of TCEs. According to the Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture (2002), the term refers to any creation or intellectual innovation based on or derived from traditional knowledge or cultural expressions. (Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002, Part I.
4.) Black`s Law Dictionary defines „common law“ as a law that „consists of customs accepted as legal requirements or binding rules of conduct; Practices and beliefs that are such an important and essential part of a social and economic system that they are treated as if they were laws. Customary law has also been defined as „locally recognized principles and more specific norms or rules that are maintained and transmitted orally and applied by community institutions to regulate or direct all aspects of life within“. (Protection Rights over Traditional Knowledge: Implications of Customary Laws and Practices, Research Planning Workshop, Cusco, Peru, 20.-25. May 2005.) Some national and regional laws protecting TK and TCEs directly grant rights to the peoples and communities concerned. Many are more likely to transfer rights to a government agency, often on the condition that revenues from the granting of rights to use traditional knowledge or cultural expressions are applied to education, sustainable development, national heritage, social assistance or culture-related programs. For the purposes of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage (1972), the following is considered cultural heritage as described in Article 1: Traditions are a set of cultural practices and ideas that are considered to belong to the past and to which a certain status is attributed. (Draft Glossary, National Commission for UNESCO.) Tradition-based creations or innovations refer to innovations and creations that are based on traditional knowledge as such and that have been developed and innovated beyond a traditional context. (See Articles 10 to 13 of the ITPGRFA) Traditional knowledge as such refers to „knowledge systems, creations, innovations and cultural expressions that: have generally been transmitted from generation to generation; are generally considered to belong to a particular people or territory; have generally not been systematically developed; and are constantly evolving in response to a changing environment. (See WIPO document WIPO/GRTKF/IC/3/9.) Article 4(3) of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) defines cultural expressions as „expressions which result from the creativity of individuals, groups and societies and which have cultural content“.
The term „continuous habitual use“ refers to the persistence and living nature in the use of TK and/or TCEs by indigenous communities in accordance with their own customary laws and practices. There is no generally accepted definition of the term. However, many stakeholders argued that TK and TCEs are generally considered to be created and held collectively, so all rights and interests in such material should be transferred to communities rather than individuals. In some cases, however, individuals, such as traditional healers, may be considered holders of traditional knowledge or traditional cultural expressions and beneficiaries of protection. Discussions on this topic noted that the term indigenous peoples, indigenous communities, local communities, traditional communities, cultural communities, nations, individuals, groups, families and minorities could include. Adaptation is the act of modifying an already existing work (protected or in the public domain) or a traditional cultural expression for a purpose other than that for which it was originally used, in a way in which a new work is created, in which the elements of the already existing work and the new elements – added as a result of the change – merge with each other. (WIPO Guide on Copyright and Related Rights Treaties Administered by WIPO and Glossary of Conditions relating to Copyright and Related Rights, WIPO, S. 264.) In the PCT International Search Guidelines, minimum international search documentation is defined as „a collection of documents systematically arranged (or otherwise systematically accessible) for search purposes based on the content of the documents, which are primarily patent documents supplemented by a number of journal articles and other elements of non-patent literature“. (Clause IX-2.1, PCT International Search Guidelines (as amended on September 18, 1998)) In the work of the Intergovernmental Conference, the term „protection“ tends to refer to the protection of TK and TCEs against any form of unauthorized use by third parties.
Two forms of protection have been developed and implemented. They also have the right to preserve, control, protect and develop their intellectual property in this cultural heritage, traditional knowledge and traditional cultural expressions. Article 31.2 also provides that „States, in liaison with indigenous peoples, shall take effective measures to recognize and protect the exercise of these rights“. With regard to traditional medicine, article 24 provides that „indigenous peoples have the right to their traditional medicines and to the maintenance of their health practices, including the preservation of their vital medicinal plants, animals and minerals“. This online glossary is an abridged version of the document „Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions“. The proposed definitions contained therein are not exhaustive or necessarily authoritative; Other terms may also be relevant to intellectual property and genetic resources, traditional knowledge and traditional cultural expressions, and the selected terms may also be defined in other ways. The proposed selection and definitions are not necessarily endorsed by the participants of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.