Every civilization has its own unique characteristic. Such a distinct persona manifests the very identity of that coterie. It may be any civilization for that matter, the Omaha tribal Dance in America, the Norwegian Bygdedans, the totem and shamanic folklore of European natives, the Indian cultural and traditional expressions such as the festivities of Deepawali, Holi, Navaratri or its other diverse traditional forms of science, art, music, dance, and folklore. These deeply rooted practices and cultural expressions form the very core value of that civilization. But the puzzle is, what qualifies it as ‘traditional’ and how does it fall under the umbrella of Intellectual Property?
The term ‘traditional’ refers to a form of knowledge or an expression that is developed, sustained, and passed on within a community, sometimes through specific customary systems of transmission. It is this inextricable link of such practices with a particular community that qualifies as traditional. Intellectual Property (IP) means any such proprietary fact that arises from the application of human intellect, or simply the product of intellect or mind. The concept of tradition and IP are intersecting for the simple reason that all and any such traditional forms of knowledge or expressions are either contained in or is a product of human intellect. This extension of human expression has complex psychological, sociological, spiritual and political roots, thereby falling under the scope of the law.
The caveat that arises here is that of cultural misappropriation. The concept of cultural appropriation is defined as the ‘taking of intellectual property, cultural expressions or artifacts, history, and ways of knowledge. Therefore, cultural misappropriation can be termed as the antithesis of cultural appropriation which is, the illicit use of such cultural elements or expressions.
The question which arises is whether the distinct cultural and traditional attribute is imbued with intellectual property right (IP).
The Perplexity of Right
- The angle of Public Domain –
Professor James Boyle defines ‘public domain’ as “the domain of information artifacts unencumbered by intellectual property rights”. A perusal of the existing IP legal framework in India contains the provisions relating to ‘public domain’ or ‘prior art’ as a bar on novelty of innovation and creativity. The generic presumption considers the traditional forms of knowledge or expressions as part of the public knowledge. Hence, the rights of such content are protected under the presumption of public domain, incidentally placing a bar on alienability of such information. The World Intellectual Property Organization (WIPO) article on the reciprocity of public domain and traditional knowledge and folklore articulates in depth about the need for a legal framework in this regard .
- The Rights of Indigenous People –
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) introduces a new approach by recognizing the rights of indigenous people with the objective of protecting and preserving their interests. Article 31 of the declaration recognizes the rights of indigenous peoples to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions. It further urges the State parties to take effective measures to recognize and protect the exercise of these rights.
Moreover, mere recognition of a right or the casting of a silver umbrella of public domain is not adequate as the recognition itself exists only in the black and white. Any right must be in line with the concept of ubi jus ibi remedium, which is close to none under the express sanction of the current legal setup.
Even the approach of U.S.A or the EU models subscribe to the norm of ‘property’ as the core jurisprudential benchmark for recognition of rights which is highly impracticable owing to the collective and abstract nature of the cultural rights. The questions of origin of such intellectual property, ownership, title, succession and the related beneficiaries are often lost to the sands of time which makes it close to impossible to employ the conventional jurisprudence of intellectual property to traditional knowledge.
The other paradox here is that of the lack of proactiveness on the part of the communities asserting such cultural rights in either exhibiting such forms of culture or traditions to the public or dissemination of such knowledge to others beyond the community. It might be influenced by the fear of loss of exclusivity and also owing to the deterrent of speculation of unwarranted consequences of such disclosure.
This can be addressed by the active role of the lawmakers and executors in setting up effective protection and enforcement frameworks for these rights.
Forms of Traditional & Cultural Information
The spectrum of traditional and cultural information has been divided into 3 categories,
- Traditional Knowledge (TK) – an organic body of knowledge passed on from generation to generation within a community; often forming part of its cultural and/or spiritual identity.
- Traditional and Cultural Expressions (TCEs) – Often referred to as ‘expressions of folklore’, these include various forms of expressions of traditional culture including dance, songs, arts, designs, performances etc.
- Genetic Resources – biological materials that contain genetic information of value, capable of being reproduced. Often, certain unique genetic resources or methods of culturing are part of the traditional knowledge of certain communities.
Indian Legal Regime on Traditional Knowledge
India being the most traditionally and culturally rich and diverse country in all forms of life, from language to food and medicine to lifestyle, necessitates the existence of a comprehensive IP regime to protect and preserve diversity. The existing legal framework in India indirectly touches the subject through various legislations which are discussed in brief in the following segment.
- The Patents Act, 1970  –
- Section 25(1)(k) – Provides scope for filing opposition to any patent on the ground that the said invention was anticipated to have regards to the knowledge available within any local or indigenous community in India or elsewhere;
- Section 64(1)(q) – Provides for revocation of patent on the ground Pari Materia to the ground mentioned under Sec.25(1)(k).
Though the Act provides for non-infringement of indigenous knowledge, it fails to confer express rights to indigenous people over their novel traditional resources and technologies. Even if it were to confer, the problem would be to whom to grant? Due to an absence of collective juristic persona.
- The Trademarks Act, 1999  –
- Section 61 – Provides scope for holding Collective Marks which may be utilised by the indigenous communities by registering their symbols, motifs, marks etc.
- Section 67 – Confers the proprietor of collective mark, the right to initiate infringement proceedings wherein the court shall take into account any loss suffered or likely to be suffered by authorised users of such marks.
The drawback of the Trademarks act is that firstly, Sec.29 of the Act provides for infringement proceedings against registered trademarks only which is seldom practiced by the indigenous communities.
- The Copyright Act, 1957  –
- Section 13(1)(a) – the rule of ‘subsisting copyrights’ provides scope for protection of original unpublished work, but poses the challenge of determining the originality of such folklore or expressions.
- Section 2(h) & (p) – mandates the existence of dramatic or musical works in tangible format which excludes a wide array of TCEs, transmitted orally, from its ambit.
- Section 38A & 38B – bestows exclusive and moral rights to performers (on their performance) which can be extended to the performers of traditional and cultural expressions.
The lacuna in the Copyright Act is similar to that of the Patents and Trademarks Act but, in addition, it fails to address the problems of date of publication, authorship, and ownership of such unpublished works which is essential in the determination of the term of protection.
- The Geographical Indications of Goods (Registration and Protection) Act, 1999 –
- Section 8 – provides for the registration of a class of goods in respect of any specific area or region which may extend to protect the tangible & handicraft works of indigenous communities.
The GI applies in part the principle of ‘collective ownership’ thereby furthering the object of preserving the rights of culture and heritage exclusive to geography. Though promising, it fails to give scope for intangible IPs.
- Traditional Knowledge Digital Library  – An effective initiative by the Union Council of Scientific & Industrial Research (CSIR) towards collecting, translating and unifying the traditional knowledge in India under one digital library giving access to both users and Registrars of IPs.These are commendable efforts which may better function with the guarantee of rights and remedies by the State, thereby incentivizing the integration of traditional knowledge into the mainstream.
Sui Generis Remedy
The concept of Sui Generis advocates one of a kind legal framework to comprehensively deal with the rights and adjudication of rights associated with TKs, TCEs and TK associated Genetic Resources.
- Existing Sui Generis Frameworks
- WIPO Traditional & Cultural Expressions/Expressions of Folklore Legal & Policy Options, 2003 – It provides a comprehensive framework by laying the foundation for possible measures under Copyright law, nature & subject matter of rights, the probable sanctions and procedures in enforcing the TK and TCE rights. The policy is commendable for its provision of a unique infinite or indefinite term of protection for such rights.
- UNESCO-WIPO Model Provisions of 1985 – This construct comes closest to being the universal model due its unique and inclusive definition of expressions of folklore under Sec.2. Further, Sec.6 provides for an extensive layout of offences covered under the law including the action of passing off and Sec.14 dictates for legal comity of States under the principle of reciprocity. It also provides for the application of both civil and criminal remedies for the offences laid down which sprouts a novel branch of jurisprudence.
- UNESCO Convention on Protection of Promotion of Diversity of Cultural Expressions – The applaudable character of this convention is that it envisages for the inclusive protection of oral traditions & expressions, performing arts, traditional craftsmanship, social practices, rituals, festive events, knowledge and practices concerning nature and the universe. The major lacuna of safeguarding of the rights over TK & TCEs are by this convention as it recommends the establishment of an intergovernmental committee for the safeguarding of the intangible cultural rights and heritage.
- Suggestions for a new framework – As a cumulative solution in line with the above conventions, the sui generis legislation must address the following headers,
- International Application – It must ensure the effective protection of cultural and traditional rights of communities across the world while adhering to the principle of national treatment and reciprocity (pari materia to PCT);
- Juristic Persona – The indivisibility of the legal personality in granting of exclusive rights must be addressed by either making the Government of the state an agency to such communities or by creation of exclusive personas or by adopting a new jurisprudence altogether;
- Cumulative approach – the law must grant of an array legal options including that of patent, copyright, GI and trademark to respective applicable aspects of such traditional and cultural information and expressions;
- Term of Protection – the term of protection envisaged under the UNESCO-WIPO Model Provisions is practicable as fixing a term of protection for the identity of a community is a new concept for the existing jurisprudence;
- Scope for unregistered communities – the law must ensure the rights of the non-proactive indigenous communities are protected by establishing definite tests to overcome the omission of such communities.
Overall, the observation of the existing frameworks is that each convention covers a single aspect of the TK & TCEs whether oral or documented or material forms but there is a ringing absence of an all-inclusive definition of cultural & traditional knowledge and expressions in all its forms. The absence of such a definition is due to the fact of differences in the jurisprudence of various legal systems across the globe, thereby making it impossible to conceive consensus. The consensus can only be possible by adopting not only a sui generis legal framework but also a uniform sui generis international jurisprudence. In case such a sui generis system does come into existence, its longevity is left at the mercy of the scales of geopolitics.
Conclusively, I quote Wendell Pierce, “the role of culture is that it’s the form through which we as a society reflect on who we are, where we’ve been, where we hope to be” and I believe that law has a duty to protect this very identity of human life.
- WIPO, IP and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, Pub. No. 933E – www.wipo.int/edocs/pubdocs/en/wipo_pub_933_2020.pdf
- Mathias Siems, The Law and Ethics of ‘Cultural Appropriation’, 15 Int’l J. L. Context 408-423 (2019).
- James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 Law & Contemp. Probs. 33 (2003).
- WIPO/GRTKF/IC/17/INF/8 – www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_inf_8.pdf
- UNDRIP – UNGA/A/RES/61/295 – www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.18_declaration%20rights%20indigenous%20peoples.pdf
- Supra, Note 1 (at pg. 13)
- Supra, Note 1 (at pg. 15)
- UN Convention on Biological Diversity – www.cbd.int/doc/legal/cbd-en.pdf
- The Patents Act, 1970 – https://ipindia.gov.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf
- The Trademarks Act, 1999 – https://legislative.gov.in/sites/default/files/A1999-47_0.pdf
- The Copyright Act, 1957 – https://copyright.gov.in/documents/copyrightrules1957.pdf
- The Geographical Indications of Good (Registration and Protection) Act, 1999 – https://legislative.gov.in/sites/default/files/A1999-48.pdf
- CSIRs Traditional Knowledge Digital Library (TKDL) – http://www.tkdl.res.in/tkdl/langdefault/Common/Abouttkdl.asp?GL=Eng
- WIPO/GRTKF/IC/6/3 – WIPO/GRTKF/IC/6/3: Traditional Cultural Expressions/Expressions of Folklore: Legal and Policy Options
- UNESCO/WIPO/FOLK/AFR/2 – Model provisions for national laws on the protection of expressions of folklore against illicit exploitation and other prejudicial actions, with a commentary – UNESCO Digital Library
- UNESCO Basic Texts of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, 2020 ed. – https://ich.unesco.org/doc/src/2003_Convention_Basic_Texts-_2020_version-EN.pdf
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