Recently in the backdrop of the India- China skirmishes and the dwindling relation between the two nations, the call for atamnirbhar Bharat or Self-Reliant India has gained prominence. There are too many creations from our remote areas that have not gained prominence, and this is the time that, along with other industrial developments, we should also bring out some of these traditional arts at the forefront. One such recent example is the bamboo bottle from Tripura, which has been a great hit in a short span of time.[i] However, there are thousands such traditional expressions which need attention as well as proper support. India, as a country, is widely known for its diversity, culture, and traditions. The cultural legacy and traditions of indigenous people hold a very important place. It forms the basis of the cultural heritage of our nation, and we, as a community, are largely possessive about it. However, there are a lot of things related to these people, which does not fall under the legal ambit and because of this in the number of cases, the indigenous people are the ones who ultimately suffer. The protection of Traditional cultural expressions is one such thing. In the past few years, international bodies such as WIPO and UNESCO have laid down some rules in this regard. These rules are followed by various countries as well.[ii] However, in the Indian context, the law of protecting Traditional Cultural Expressions doesn’t seem to be a well-established and uniform one. The latest national IP policy, mentions “Traditional cultural expressions,” thrice in its objective but does not throw much light on it.[iii] In this article, we will be analysing how Traditional cultural expressions can be protected under IP laws in India.
Introduction
World Intellectual Property organisation describes Traditional Cultural Expressions[hereinafter mentioned as TCEs], that is also known as expressions of folklore, which may include music, dance, art, designs, names, signs, and symbols along with performances, ceremonies, architectural and many other cultural and artistic expressions.[iv] Basically, they are any expression where traditional knowledge is being expressed in any form. This is seen as an inevitable part of the identity and heritage of a particular indigenous community and is generally passed on from one generation to another. The TCE at many times are geography specific. Yoga, for instance, is a legacy of our country, and historical evidence of existence can be traced back to pre-Vedic civilisation.[v]
Why is it important to protect TCEs?
Instant global communication has gained essentiality in today’s world. However, technological development acts as a two-edged sword with respect to TCEs. Either it assimilates themselves in the society or takes them away from their rightful titleholders.[vi] For indigenous communities, protection of cultural expressions underlines socio-economic justice and capabilities to preserve, protect, and reinforce their own cultural heritage.[vii] More to the point, it has a huge potential to provide a fair economic return for their collective intelligence. It can give economic stability to a large part of indigenous people residing in the backward areas of the nation. Currently, TCEs, which ought to be a collective property of the indigenous communities, are being misappropriated by the large commercial entities, be it through the traditional art techniques, the fusion of traditional music with digital beats, giving their indigenous names to handicrafts majorly produced by non-traditional means.[viii] Amidst these exploitation, due credit is being snatched away from their real owner. A concrete and strong law to regulate and protect TCEs will not only improve the living standard of the indigenous people but will also add on to the overall economic resources of the nation.
How IPR can play a role in protecting TCEs
The main reason IPR emerged as a field of law around the world was because there arose a need to exploit the economic benefit over your creation or over your production. If you have invested your time and intellect over something, then you should definitely reap some substantial benefit out of it. This logic appears to falter in cases of TCEs. A large portion of such cultural expressions are unregulated, and the potential of their economic benefits are being undermined.
IPR laws and TCE
India currently does not have a concrete rule to protect the TCEs. The TCEs under the current IPR regime being protected individually, depending upon the subject matter it falls upon. The branches of IPR under which the TCEs are dealt with are Copyright, Trademark, Geographical Indications, Protection of Plant Variety and Farmers Right Act, and Biodiversity act. We will be briefly looking at the specific areas of TCEs which these laws look after.
Copyright:
It is a different branch of IPR which aims to protect the original work of musical, literary, artistic, dramatic nature, including cinematographic films and sound recordings.[ix] On several occasions, it has been witnessed that TCEs are being reproduced and documented in a different manner by people other than that of indigenous communities and what is even more important that they have been protected under copyright law as “original work”.[x] The major problem of protecting TCEs under copyright laws is that the right granted under the concerned act is not permanent, and it exhausted after the lapse of a certain period of time.[xi]
Trademark:
Usually, it marks the potential of distinguishing the goods and services of one person from another. Collective marks along with certificate marks can be used to protect the indigenous goods such as paintings, handicrafts, etc. which are having cultural worth.[xii]
Geographical Indications:
Under geographical indication (hereinafter mentioned as “GIs”), only those products are provided protection that have a specific geographical origin and possess some traditional artistic heritage that is due to that place of origin.[xiii] For example, Darjeeling tea is high quality tea grown in the hilly region of the Darjeeling district of West Bengal.[xiv] The protection has no time restriction, and rights are collective in nature, which means it does not concentrate on an individual or two. It resides with the whole community itself.[xv] However, it fails to protect the TCEs under current provisions of law. Traditional knowledge of the same is already available in the public domain and subject to exploitation by the third party. GIs are only effective in protecting the product, which is a result of traditional know-how. However, it lacks vision when it comes to folk dance, martial arts, etc. which are pure performance.[xvi]
The Protection of Plant variety and Farmers Right Act:
Article 27.3(b) of the TRIPS agreement talks about the protection of plant variety. Article 27(3) (b) calls for the member states to establish a sui generis regime for protecting plant varieties.[xvii] In India, the Protection of Plant variety and Farmers Right Act, which was enacted in the year 2001, is used to protect new plant varieties. Further, in the Doha declaration in the year 2001, Article 27 was extended to include traditional knowledge as well[xviii]. However, there is still a lot of confusion with this, and we need a smoother way in order to bring in the aspect of traditional knowledge in the Plant variety jurisprudence.
Biodiversity Act:
The biodiversity Act 2002 talks about “benefit claimers,” which means the conservers of biological resources and their by-products along with being the creators and holders of knowledge and information relating to the use of such biological resources, innovations, and practices associated with such use and application.[xix] In the case of Divya Pharmacy vs. Union of India[xx], The Uttarakhand High court said that all Indian companies which are using biological resources are liable to share a part of their revenue under the principle of fair and equitable benefit sharing[xxi] with the local communities who possess the traditional knowledge
Concluding Remarks
Article 21 of the Constitution of India advocates for the fundamental right to life and personal liberty; subsequently, it brings about protection for TCEs owners.[xxii] Article 51A (f) makes it a fundamental duty of every citizen to preserve, respect, and protect the rich heritage of Indian culture.[xxiii] Therefore, the urgent need to protect TCEs has been acknowledged by our constitution itself. An important component of sui generis law suggests a distinct type of IPR protection, which provides for benefit-sharing scheme to the indigenous communities, which have either collectively created or perpetually innovated traditional cultural expressions, contrary to the fact that existing IP legislation confers exclusive rights to either individuals or corporation.[xxiv] Therefore the government should immediately formulate a committee and take a step forward towards providing legal protection to TCEs. A strong law in accordance with the international treaties will help the indigenous people to have a right in a true sense over their creations and expressions.
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Journal of Legal Methodology, Policy and Governance 