The question of subjecting intangible cultural heritage to Intellectual property (hereafter IP) law protection has largely been elusive for scholars, policy makers, representatives of the holders of that intangible heritage, users of those amongst other stakeholders. The testimony to this fact can be easily gauged from the fact the entire World Intellectual Property Organization (WIPO) negotiations for a draft treaty on folklore, traditional knowledge and genetic resources took more than a decade of talks to see real progress, from chairing of its first session in 2001.Whilst the negotiations were underway, a large number of nations were bereft of a national legislation to protect their traditional cultural expressions (hereinafter TCEs), including the likes of South-Asian countries with rich biodiversity hotspots such as India. The illustrations of the wide-spread misappropriation on-going in comparatively developed IP jurisdictions such as the United States (US) have received wide-spread attention, ranging from Hollywood films like Lone Ranger, Twilight being in news for cultural theft and appropriation of Native American heritage., to singers such as Pharell Williams facing wide-spread criticism for capping a Native American feather headdress in 2014 amongst a whole lot of other examples.
The aim of this blog piece is to contribute to this TCE debate going on at WIPO IGC negotiations from the Indian perspective in the following ways; First, it seeks to diagnose the problem, hitherto unappreciated in Indian context, and moving beyond just the conventional acknowledgement of the problem, by bringing out through examples, where there might have been misappropriation of TCEs, but went unreported or were innocuously deemed to be non-appropriation or worse as promotion of those TCEs on national/international forums. Second, after having diagnosed the problem, it seeks to bring out the opinions of the stake-holders from the grass-root levels, such as the indigenous peoples, the NGOs working with them, what it means to their cultural heritage sans legal protection and what it could potentially culminate to for them.
- CURRENT MEANING OF TRADITIONAL CULTURAL EXPRESSIONS/FOLKLORE , SUBJECT-MATTER AND SCOPE OF PROTECTION:
The draft TCE treaty, which was being discussed in the earlier pages of this piece and applies specifically to traditional cultural expressions and defines it as “any form of artistic and literary, creative and other spiritual expression” which is quite broad. Additionally, the draft treaties on Traditional Knowledge (TK) and TCEs (Traditional Cultural Expressions) employ the same standard of what is meant by “traditional”. Both of the treaties stipulate that the knowledge, cultural expressions should be as;
- “created and maintained in a collective context by indigenous peoples and local communities or nations”;
- “distinctively associated with cultural heritage or social identity” of the (source community)”
- “transmitted from generation to generation, whether consecutively or not”;
The understanding of the conceptual framework (as having grounded earlier in draft TCE treaties and negotiation texts) remains the key to appreciating the facts and the researcher found the following instances, which could well be said to be falling squarely within the meaning of a Traditional Cultural Expression and within the head of defined subject matter of a TCE, which were potentially used outside their defined scope of protection according to the draft treaties on TCE. The table with the details is enlisted below:
|NAME OF TCE (IF TCE WITHIN THE DEFINITION OF A TCE IN THE DRAFT TREATY)||TYPE OF TCE AND THE NAME OF THE INDIGENOUS COMMUNITIES||POTENTIAL INSTANCE OF APPROPRIATION BY THIRD PARTY||VIOLATION OF SCOPE OF PROTECTION||CURRENT LEGAL STATUS OF IP PROTECTION|
|Koli;||Folk-Dance (from Maharashtra); Koli community/fisher folkmen and women of Maharashtra.||Bollywood Dance in the film “Dil Hai ke Manta Nahin” (1991) in the song ‘Galyan Sakli Sonyachi’. Official Music Partner- T series Music||No Attribution, Use outside traditional context, no data on compensation||No IP protection|
|Kalbeliya||Folk-dance and song. (from Rajasthan); Kalbeliya, a nomadic tribe from Rajasthan||Bollywood film “Lamhe”(1991) in the song ‘Morni Baga me’ Official Music Partner- Saregama Recording Co.||No attribution, data absent for informed consent and compensation||No IP protection.|
|Lavani||Folk-dance (from Rajasthan);Dhangars/Shepherd community from Sholapur District of Maharashtra, dance form however not restricted to them, popular forms are widespread in Maharashtra||Two Bollywood films;1)“Ferrari ki Sawari”(2012) song- ‘Mala Jau de’ Official Music Partner- T series Music 2)“Baji Rao Mastani”(2015) Song- ‘Pinga’ Official Music Partner- Eros Now Music Co.||No attribution, use out of traditional context, and no data on compensation||No IP protection|
|Ghoomar||Folk-dance of Rajasthan; Indigenous community- Bhils Tribe from Marwar in Rajasthan||Bollywood film “Padmavat”(2018) Song ‘Ghoomar’ Official Music Partner- T series Music||No attribution, no data available on compensation||No IP protection|
|Chau||Folk-dance from West Bengal, Jharkhand and Orissa.||Bollywood film “Barfi”(2011), song- ‘Itni si Khushi’ Official Music Partner- Sony Music Entertainment||No attribution, Use is outside traditional context. No data on compensation||No IP protection.|
|Dumhal||Folk-dance from Jammu and Kashmir, Indigenous Community- Wattal Tribe||Bollywood Film- “Haider”(2014) Song-‘Bismil’, Official Music Partner- Times Music||No attribution, No data on compensation||No IP protection|
|Nimbooda||Folk-song from Rajasthan; Indigenous Community- Manganiyar Community||Bollywood Film “Hum Dil De Chuke Sanam”(1999) Song-Nimbooda Official Music Partner- Eros Now||No attribution, no data on compensation.||No IP protection. However copyright owned by Eros Now for Bollywood version.|
ANALYSIS OF THE TABLE ON INDIA’s PROBLEMS WITH TCEs:
A cursory look at the table above would be enough to divulge that;
a) India does have a large number of folk-lore/cultural expressions which are currently without any legal protection within the fold of Intellectual Property Laws. The numbers of such TCEs along with their source communities are yet to be ascertained by any governmental/independent authority.
b) In the absence of legal protection to these TCEs, mass misappropriation has been on-going by Bollywood production houses and large music recording companies.
c) Due recognition in the form of moral attribution to their folk-songs/dances as well compensation has not been afforded to the source communities/indigenous communities in the absence of a legal framework on Intellectual property in India.
REPORTS IN MEDIA:
These inferences are not just mere deductions of the researcher during the course of research but in fact are corroborated by independent media reports as well as case-studies (which will be discussed a bit later from here) that there is a silent ongoing large scale piracy of Indian traditional cultural expressions
The media reports state that- “Rajasthani folk-musicians are not getting due recognition from Bollywood. It goes on to state further that “while folk-music from Rajasthan and other places has been often finding its way in Bollywood films for a long time and they cash on their credit, however the folk-artists do not get any due recognition or money out of it.”
To make things worse, the report states that “Copyright is claimed over the traditional music sung and produced by large music recording companies and these traditional folk-artists are expected to get licenses to perform their very own traditional music, which has now been copyrighted by music companies”
Lastly, the folk-artists rue the absence of some legal rules/mechanism to prevent this, along with drawing an analogy of getting copyright over TCEs to very much getting patent over traditional knowledge like neem, haldi etc. They also state a number of Rajasthani folk-music which have found their way into Bollywood songs without due recognition to folk-artists like (Anjun) Engineen ki Seeti (in Bollywood film Khubsoorat(2014) ), Pallo Latke (Bollywood Film Nauker (1979)),Banna re Bagho me (in Bollywood film Ganga ki Kasam (1999)) are to name just a few.
Folk-artists from states such as Odisha have also protested against appropriation and usage of out of traditional context of Sambalpuri folklore “O Rangabati” by mainstream singers like Sona Mahapatra, recorded by large studio houses such as Coke-Studio
** Amlan Chakraborty, LL.M(NLSIU),Research Fellow, GNLU Gujarat(UGC NET-JRF).The author can be reached at email@example.com
See Intellectual Property Watch, WIPO sees first real progress in text for protection of folklore in 10 years, https://www.ip-watch.org/2010/07/26/wipo-sees-first-real-progress-on-text-for-protection-of-folklore-in-10-years-2/ ( Dec 4, 2019, 5:30 PM)
 See Indie Wire, Why the lone ranger’s anachronisms make its history lessons hard to swallow, https://www.indiewire.com/2013/07/why-the-lone-rangers-anachronisms-make-its-history-lessons-hard-to-swallow-127703/ (Dec. 5, 2019,10:00 AM) Also see Burke Museum, Cultural Theft in Twilight ,https://www.burkemuseum.org/static/truth_vs_twilight/facts-03.html (Dec. 5, 2019,10:00 AM)
 See Art. 1, TCE treaty.
 See Art. 1., TK treaty and Art. 1, TCETreaty.
 Supra note 11
 See Art 2 of TCE treaty. Although the treaty doe not define on what constitutes a source community or traditional community.
 The essential parameters used in evaluation of theTCE in question was the protectable scope of protection under Article 3.1 of TCE treaty. Data pertaining to attribution and use in appropriate traditional context or not was verified from official Youtube channels of these recording companies such as T-series, Eros Now, Times Music, SareGama music co. etc.
 See Galyan Sankli Sonyachi- Film Dil Hai Ke Manta Nahi, YOUTUBE, (Apr. 20,2011), https://www.youtube.com/watch?v=KGdtqG1vlvE
 The song and dance is a part of 13 items from India in UNESCO’s representative list of intangible cultural heritage of humanity published in 2010. See United Nations Education, Cultural and Scientific Organization, Kalbeliya Folk songs and dances of Rajasthan, https://ich.unesco.org/en/RL/kalbelia-folk-songs-and-dances-of-rajasthan-00340(last visited 3 Dec.2019, 10:00PM)
 See Morni Baga ma Bole- Saregama Pa Music, Lamhe, YOUTUBE,(Jan.2,2017) https://www.youtube.com/watch?v=7PBpaR9Skhk
See Mala Jau De Song- ferrari ki savari, YOUTUBE,(Jul.10,2012)https://www.youtube.com/watch?v=FIYgIGWe0TY
 See Pinga video song- Baji rao Mastani, YOUTUBE,(May 3,2019) https://www.youtube.com/watch?v=tzRFLMn4kpM
 See Ghoomar- Padvamavat, YOUTUBE,(Mar.19,2018), https://www.youtube.com/watch?v=CU1tFtk_NFY
 This dance is also a part of 13 items from India in UNESCO’s representative list of intangible cultural heritage of humanity published in 2010.SeeUnited Nations Education, Cultural and Scientific Organization, Chauu Dance, https://ich.unesco.org/en/RL/chhau-dance-00337 (last visited 7 Dec.,2019, 5:00 PM)
 See Ashiyan Itni si Khushi, YOUTUBE,(OCT.5,2012),https://www.youtube.com/watch?v=jLS4CAIK__8
 See Bismil- Haider, YOUTUBE,(Aug.20,2014),https://www.youtube.com/watch?v=p6ZxI5_A69M
See Nimbooda nimbooda- film Hum dil de chuke sanam, YOUTUBE,(NOV.13,2009)https://www.youtube.com/watch?v=YJzT1KMjQ0k
 The problem with this TCE escalated to a whole new level when Manganiyar community,which has been traditionally singing this folk-music had to seek the license permission of a recreated version of the popular folk-music Nimbooda in the movie “Hum dil de Chuke Sanam”.SeeRicha Shukla, Not getting due credit from B-wood : Rajasthani folk artists,ECONOMIC TIMES,(Aug.25,2014)https://timesofindia.indiatimes.com/entertainment/hindi/music/news/Not-getting-due-credit-from-B-wood-Rajasthani-folk-artistes/articleshow/40870564.cms
Misappropriation of folk music is rampant in BollyWood. Recently genda phool by badhsah faced severe criticism from the viewers. However, this issue need more than just criticism. Absence of law for protecting tk tc paves the way for espace from legal action. Though, copyright law does talk about moral rights but, the law has not been able to protect the folk music and culture. We definitely need a robust law in place because tc needs sui generis law.
Thank you Charu for the insightful comments.Infact copyright law protection has been thought to be one of the modes of protection of TCEs , but they suffer from from some technical issues of their own in terms of applicability of concepts of copyright law ipso facto to TCEs like attribution of moral rights , fixation requirement, attribution of authorship/ownership which clearly don’t fit per se into the scheme of TCE protection. Hence, the requirement for a sui generic form of protection for these IPRs.