By Sarah Wilson*

Introduction

Traditional Indian art is often rooted in the rural communities, in the villages that manufacture and create these art forms. One such instance is the Art of Bandhani. Bandhani is an art form that is created by the dyers’ community. The Bandhani fabric is prepared from the Thaan, after which the designs are printed using the paste of geru and water in the printing process. The fabric is then tied using cotton threads and dyed using natural dyes, with organic components. This Jamnagari Bandhani has received a GI tag, offering protection to the community’s artistic creation. These traditional cultural expressions: also called “expressions of folklore”, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions, as defined by the World Intellectual Property Organization. This article discusses the scope of protection of these expressions of folklore and recommends the establishment of a sui generis law to protect Traditional Cultural expressions.

Cultural Misappropriation of Traditional Cultural Expressions

Today, many contemporary brands have been alleged to have culturally misappropriated such indigenous artworks, be it Gucci’s “organic linen kaftan” or Zara selling lungi as a “check mini skirt”. It clashes with many neo-traditional pathways that many indigenous communities choose to embrace in their everyday lives. 

Indigenous communities often see traditional cultural expressions as part of a larger struggle for autonomy, sovereignty, and self-governance. When that element is taken away, it leads to exploitation and misappropriation of such communities. Cultural appropriation takes form when such traditional expressions are adopted by majority groups in an exploitative manner, and used without the consent of the indigenous community.

For many indigenous communities, seeking to offer property like protection over traditional cultural expressions seems to be a logical approach to protecting traditional cultural expressions from further harm. The indigenous communities have the chance to preserve their art and music, and have control over such access. Intellectual property law allows them to gain proprietary rights over such creation, further advancing the community’s autonomy and sovereignty.

It is important to protect traditional expressions, especially in instances when the originators of the cultural expressions do not get credit or remuneration for their creations. This could potentially lead to the dilution of a community’s identity. These traditional expressions constitute the community’s antiquity and centrality of their cultural heritage, more importantly, their demographic strength. Such protection granted to traditional cultural expressions is the protection of universal heritage; however, the need of the hour is to ensure this protection doesn’t restrain creativity and innovation.

Protection of Traditional Cultural Expressions under Geographical Indications (GI)

Article 22(1) of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, defines a Geographical Indication as an indication which identifies a good as originating from a geographical territory, where the quality, characteristic and reputation of the good is attributable to the particular geographical origin. Tangible expressions or handicrafts may qualify as goods which could be protected under Geographical Indications if they constitute necessary qualities, such as indicating a particular area of origin, possessing a given quality, and having a distinctive reputation and characteristic.

Further, to qualify for Geographical Indication protection, one must establish a symbolic association of the artisanal product and particular culture, acknowledging the tradition in the creation of the artisanal product. This is established by the following criteria:

1. Direct manual contribution by the craftsman.
2. Production using raw material from sustainable resources
3. Distinctive features being utilitarian, aesthetic, artistic, creative and culturally attached.
4. Creative activity being incurred within a community-based environment.

At the National level, The Geographical Indications of Goods (Registration and Protection) Act, 1999, gives the producer the right to use the name and prevents infringement by others. The registration under the act is valid for a period of ten years, and the protection under the act for a registered proprietor is greater than in TRIPS.

However, GIs also contain few limitations in protecting traditional cultural expressions. A GI regime can only protect tangible traditional cultural expressions. Various folk dance forms, folk songs, narratives and ceremonies are elements that cannot be expressed in a tangible medium. It is often noticed that indigenous communities often choose to lead a life that is different to that of industrialized society, without any legal rights. This makes them easy targets of exploitation and abuse. Moreover, the knowledge associated with GIs is not protected, and therefore, remains in the public domain, prone to misappropriation by third parties.

Protection of Traditional Cultural Expressions under the Indian Trademark Act, 1999

If traditional cultural expressions are to be protected under Trademark law, it requires the same to be capable of being graphically represented, and of being distinguishable from the goods and services of others, and may include the shape of goods, their packaging and combination of colours.

Traditional communities have traditional signs that are used in the course of trade and registered as trademarks by non-indigenous entities without consent. Therefore, it becomes significantly relevant to examine the protection granted under the trademark law system, to protect these traditional cultural expressions. One such example is seen in a leading United States case, Navajo Nation v. Urban Outfitters, Inc., where the court dealt with protecting an indigenous tribe, the Navajo tribe ( a native American tribe) protecting their registered name “Navajo” as their trademark, advancing their contentions against urban outfitters, infringing the mark with their collection of “Navajo print flasks”. Such protections of a traditional expression are yet to be seen within the Indian jurisdiction.

However, there are a few drawbacks to registering such trademarks of indigenous communities under the Indian trademark act:

1. Trademarks will not prevent the offensive use of traditional cultural expressions, as absolute grounds of refusal of trademark registration under section 9 of the Trademarks Act, doesn’t refuse registration solely on being offensive or discriminatory in nature.
2. For communities who value their traditional cultural expressions as sacred, a trademark is not of much use, as it is purely commercial in nature, and not all members of the community would be willing to trademark such marks.
3. Trademark leaves aside the principle of prior authorization, which is an important concern of traditional cultural expression holders in terms of prior approval, and consent from such indigenous communities.

Protection of Traditional Cultural Expressions under the Indian Copyright Act, 1957

The Copyright Act does not specifically mention protecting traditional cultural, literary or artistic work or folklore but Section 31A provides for the protection of unpublished Indian work, which gives license to any person who applies to the copyright board to publish any work or translate any such work in any language, for an unpublished Indian work whose author is dead, unknown or cannot be traced, or the owner of the copyright in such a work cannot be found.

A few limitations in the Copyright law, when applied to traditional cultural expressions, are the limited term of protection, which is applicable for 60 years, however, when applying to traditional cultural expressions, this term of protection is rather restricting in nature.

Another limitation is the need to have an identifiable author. When applying this to traditional cultural expressions, the author of any such expression is hard to identify, due to the nature of collective authorship and the lack of identifiable or known authors.

Furthermore, the requirement is to be fixed in a medium, which is not applicable to traditional cultural expressions, considering folk dances and songs cannot be expressed in a tangible medium.

An author’s moral rights include the right to paternity and the right to integrity. The right of paternity includes the right to be attributed to the work where the credit is due. Therefore, the indigenous community can claim the right to authorship and be correctly identified as the author of the traditional cultural expression as long as it is in a fixed medium. Additionally, the right to integrity can be claimed, which includes the right to raise objections to any sort of distortion, mutilation or other modification, or derogatory action, that results in being prejudicial to the honour or reputation of the author. The author’s moral rights have been provided under Section 57 of the copyright act, under the author’s special rights, which protects both paternity rights and integrity rights. In the case of Mannu Bhandari v. Kala Vikas Pictures,  the court held that the moral rights are independent of the author’s copyright.  Section 57 confers additional rights on the author of any work; the special protection of IP is emphasised by the fact that the remedies of restraint order or damages can be claimed: “even after the assignment of the said copyright”. Applying the same to the traditional expressions, moral rights remain despite the copyright over such work.

Protection of Traditional Cultural Expressions under Indian Patent Act, 1970

The Patent law, upon the essential requirements of uniform novelty, scientifically relevant, involving an inventive step, ensures the safety of technological solutions being patented.

Under Section 25(1)(k), before the patent is granted, opposition to granting of a patent is applicable when the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere. Similarly, under Section 64(1)(q) of the Patent Act, 1970, the same ground is applicable for the revocation of a granted patent. Although these are some provisions that do safeguard to an extent the traditional cultural knowledge of an indigenous community from being patented by unauthorized persons,  they are still narrow in scope and purview, and the same hasn’t been elucidated by the legislature.

Juxtaposing With The Panamanian Sui Generis Law

While the protection granted to traditional cultural expressions is still being constructed in India, other jurisdictions such as the country Panama grant protection to traditional cultural expressions in a much wider in scope.

Panama has its own sui generis law, to protect traditional dress (molas), music, dance and major indigenous handicrafts. The “Special Intellectual Property Regime on Collective Rights of Indigenous Peoples for the Protection and Defense of their Cultural Identity as their Traditional Knowledge” was born as an Indigenous Peoples initiative supported by the Government. The Sui Generis System of Panama is the first comprehensive system of protection of Traditional Knowledge ever adopted in the world; particularly since the regulatory decree of the law clarified that the system also covers Biodiversity-associated Traditional Knowledge.  Under this law, the Indigenous Cultural Heritage is formed by the customs, traditions, beliefs, spirituality, religiosity, cosmo vision, folklore, artistic expressions, traditional knowledge and other expressions of Indigenous People.

With reference to the ownership of such rights, the ownership of the Indigenous Collective Rights belongs to the entire Indigenous Peoples, considering there is no particular author.

The law provides a registration criterion for the same:

1. Cultural Identification:
2. Being susceptible to being commercially exploited.

The System also introduces the “Collective Registry of Intellectual Property”, which is the exclusive right granted by the State in order to exclude third parties from the exploitation of any Traditional cultural expressions. The Minister of Commerce and Industry can also authorize licensing of such traditional cultural expressions and knowledge, once the community’s prior and express consent has been obtained. Having such sui generis law ensures the adequate protection of Traditional cultural expressions and better protection of traditional knowledge holders, which is further passed on from generation to generation, in the form of cultural ceremonies and practices.

The Need for a Sui Generis Law In India

A sui generis system would protect traditional knowledge expressly in a way that the current IP regime has not been able to establish. Traditional cultural expressions are different from conventional IP rights since the former is communal in nature, where the authorship can’t be attributed to a single author. Additionally, such traditional expressions are managed by customary rules and ceremonies, which is not in solidarity with the existing IP rights. Traditional expressions are also mostly intangible cultural products that are passed on from generation to generation, through ceremonies and practices. Such a sui generis law for traditional cultural expressions is a logical solution to the existing loopholes mentioned in the article, to protect the indigenous communities and their cultural expressions from being further misappropriated.

*Sarah Wilson is a 5th year law student at Christ (Deemed to be) University, Bangalore. The author may be contacted via mail at sarah.wilson@law.christuniversity.in.