Globalized Folklore: Legal Means to Protect Traditional Cultural Expressions

By Ramneet Kaur

An indigenous woman hand-painting

Introduction

From the Nazis' use of the Swastika in Germany to Nike's 2019 announcement of a special edition "Air Force 1 Puerto Rico" sneaker emblazoned with patterns originating from the Guna culture of Panama, cultural expressions have been widely abused around the world. It's a recurring problem in industries where large conglomerates often exploit cultural patterns, designs, music, dances, and even hairstyles for their own profit, while their originators receive little recognition or protection. India in particular has a rich and diverse heritage that boasts of various forms of traditional expressions that are cultural and economic assets of its custodians, creators, and practitioners. They also play an important role as a means of livelihood for many and with globalization and the advent of better and faster technologies, these symbols of revered culture face the threat of misuse and a legal framework is necessary to protect them.

What are ‘Traditional Cultural Expressions’?

Given the diverse nature of such expressions, the World Intellectual Property Organization defined the term "traditional cultural expression" as the work of indigenous peoples and traditional communities.

The term Traditional Cultural Expressions (TCE) in the international community is also referred to as "folklore", and some nations prefer to use the term "folklore" in their national copyright laws. The term "folklore" refers to the traditional beliefs, myths, stories, and practices of a group of people, passed down orally. It may include music, dance, artistic designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts, storytelling, or many other artistic or cultural expressions.

Traditional cultural expression reflects the cultural and social background of a community and consists of distinctive elements of the community's heritage. It is often indigenous, belonging to minorities or tribal people, so it has a wide scope for abuse.

Instances of such include aboriginal and indigenous art copied onto carpets, T-shirts, and greeting cards; traditional music fused with techno-house dance beats to the production of best-selling "world music" albums; hand-woven carpets and handicrafts copied and marketed as "authentic"; the production process of a traditional musical instrument being patented, to name a few.

Relationship of Intellectual Property and Traditional Cultural Expressions

Intellectual property (IP) refers to creations of the mind, such as inventions, designs, literary works of art, symbols, names, pictures, and performances. Intellectual property is usually protected by laws that impose private property rights on creations and innovations to ensure control over their use, especially commercial use, and to provide incentives for further creativity. IP shares a close relationship with traditional cultural expressions in their usage for their protection and preservation through statutory enforcement.

The Copyright Act of 1957 is one such provision. Although, it does not specifically mention the TCE it has an interpretation of the definitions of artistic work, dramatic work, engravings, Indian work, literary work, musical work, performance, and performers as defined in Act which includes works that fall within the ambit of TCE. Various sections of the Copyright Act, such as

• Section 31A, on Compulsory License, governing copyright in unpublished or published works of unknown authors;

• Section 38 sets out the rights of the performing artist;

• Section 57 deals with the special rights of the author, also called personality rights, whereby the author has the right to claim authorship, limitation, or damages only in case of distortion, mutation, modification, or any such act which is on honor or reputation and could be interpreted as extending assurance of the interests of the TCE owner, can be invoked for preservation and protection purposes.

In addition, a geographical indication, often referred to as a community right, helps create a brand image for traditional goods that demonstrate an ancient culture. As a result, traditional communities often depend on geographical indications to protect certain rights related to their goods, which have a certain quality or reputation or other characteristics related to the geographical area in which they are produced. A trademark is another way to distinguish one person's products and services from others by way of a mark. It allows the buyer to identify the source of the products or services since registered trademarks of traditional goods and services may be protected. Thus, collective marks can be used to create a brand image for traditional goods and services such as paintings, handlooms, and weavings. Certification marks can also be used to protect traditional goods that have cultural significance.

Other National and International Legal and Cultural Policy Frameworks

Despite the rich repertoire of folk traditions in India, the country does not have separate legislation to protect TCE from unauthorized commercial use by foreigners, but its preservation is provided for in various laws and legislation with one being its most important document- The Constitution of India. It provides a liberal interpretation of Article 21 which can protect TCE owners and designates the protection of cultural rights of minorities as a fundamental right under Article 29(1). Article 51A further enforces the act of preserving, respecting, and protecting the rich heritage of Indian culture for every citizen of India as their fundamental duty. TCE and folklores are anchored in the digital dimension along with digitization, online libraries, and depositories as well. Although online libraries have been opened, it has lacked the attention and emphasis given to other Traditional Knowledge databases such as the Traditional Knowledge Digital Library (TKDL) in government policies and initiatives. Civil societies and NGOs have contributed to digitization for TCE conservation in India namely;

1. Indian National Trust for Art and CulturalHeritage (INTACH)

2. National FolklorePromotion Center (NFSC)

3. Archives and Research for Ethnomusicology at the American Institute for Indian Studies in India (AIISI)

4. National Cultural Mapping Mission of India

5. National Manuscript Mission (NMM)

6. National Center for the Arts (IGNCA)

There have been several discussions on the matter of the protection of TCEs on the international horizon too, some of which include:

• The UNESCO/WIPO World Forum on Protection of Folklore, 1997

• The Beijing Treaty on Audiovisual Performances, 2012

• Berne Convention for the Protection of Literary and Artistic Works,1886

• Tunisia Model Copyright Law for Developing Countries, 1976

• The WIPO Performances and Phonograms Treaty (WPPT), 1996

• WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC),2000

• UNESCO-WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982

• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007

• African Organization for Intellectual Property (OAPI)

Potential barriers

Mechanisms for the protection of IP are established on protecting the rights of identified individual creators and innovators over their creations and innovations that exist in physical format; this cannot easily be adapted to protect collectively-owned TCEs of understanding to communities, dating back generations. Moreover, the knowledge is not attributable to a particular individual or entity as there is no identifiable creator, but possibly a collective of creators. Furthermore, indigenous people may additionally find that barriers like the requirement that an idea needs to take on a fixed form to be protected under existing copyright laws, may prevent the protection of intangible Indigenous knowledge and cultural expressions that are transmitted or shared orally, hinder their use of the formal IP system. The limited term of protection for a few IPs, the costs and sophisticated processes for registration, renewal, and enforcement, and its often portrayal as religious or sacred also pose major obstacles. It is hence, extremely important for countries to frame and adopt legal mechanisms to safeguard Traditional Cultural Expressions and folklore in a bid to further their culture and heritage along with protecting the sentiments as well as socio-economic spheres of the people associated.

Conclusion

An acceptable model for the protection of TCEs is yet to emerge at both international and national levels. Moreover, the definition itself is yet to incorporate all facets of Traditional Cultural Expression. India itself doesn't have a sui generis law to safeguard folklore and relies on Intellectual Property Laws for its protection. It is important for the country to address this issue because of the large-scale production of folk material and use of folk traditions existing in intangible forms which affect the cultural, economic, and social fabric of the traditional societies. It is imperative to make a better effort toward the protection of our own heritage from the onslaught of its exploitation.