Protection of sacred traditional cultural expressions: a perspective from Taiwan

In international debates regarding the protection of traditional cultural expressions (TCEs), some propose legal instruments with stronger sui generis protection for secret and/or sacred TCEs. But what would constitute stronger protection responsive to the needs of the holders of sacred TCEs? This article takes the Lalu case in Taiwan as a starting point for considering the sui generis protection of sacred TCEs, including what should be regarded as a protectable TCE and what is the proper scope of protection of sacred TCEs. The Lalu case reveals the difficulties of protecting Indigenous peoples’ essential sacred knowledge if a strict definition of TCEs is adopted. Therefore, this article reconsiders the idea–expression dichotomy and traditional knowledge (TK)–TCEs distinction by observing the characteristics of Indigenous peoples’ sacred culture and analyzing different international instruments related to TK/TCEs protection. Criticism of these dichotomies highlights the importance of the moral right, on the basis of which TCEs can be protected as a whole and the integrity of sacred culture can be maintained. Finally, this article discusses the possibility of supporting the protection of tangible sacred places or sacred objects by enhancing the sui generis right to sacred TCEs.