Protecting Folklores Under The Indian Intellectual Property Regime

Abstract

This article focuses on protecting folklores under the Indian intellectual property (IP) regime. Intellectual Properties are intangible property rights that accrues by the virtue of any original idea, labour or creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.[1] Folklores, defined as per the World Intellectual Property Organization (WIPO) may be considered as the forms in which traditional culture is expressed;[2] which forms part of the identity and heritage of a traditional or indigenous community and are passed down from generation to generation.[3] This paper will analyze how can the current IP laws of India protect folklores. Finally the paper will reflect upon the necessity to protect folklores in India and how our IP laws and Traditional Knowledge regime[4] donot suffice and specific protection must be granted to folklores.

Introduction

Folklores are part of traditional cultural expression of communities. It reflects upon the shared history, culture, beliefs and struggles of a particular community. Together, these folklores add up to the composite and diverse cultural system of a country and thereby forms part of national heritage.[5] Therefore, it is imperative that effective means are taken to protect these national heritages from the roughshod of economic corrosion in the developed market. It is very common that there are no identifiable authors to many folklores and therefore no one can claim a copyright on those works. And such works are necessary to be free, for the benefit of the common good. But it is also required that they are granted enough protection from the exploitative market forces. Recent cases like the Turmeric Patent case[6] in USA serves good evidence as to the manipulations that can be caused by the developed world to vandalize and monetize[7] from basic bare necessities and traditional practices, and sometimes that to at the exclusion of the indigenous populace.[8] Therefore in this fast monopolizing world, it is very necessary to inspect protection for folklores and traditional artists which not only express the tradition of communities but also their history and heritage. And the best way to do that is by using the very tools of law which lurks as a threat to their existence as of now, which is the Intellectual Property laws regime. Therefore, it is imperative to study folklores within the curriculum of IP laws.

IP Regime and Folklore in India

While strong steps have been taken by India to promote and protect traditional knowledge,[9] it still however lacks in protecting folklores within it. The Biological Diversity Act, 2002 was passed by the Indian Parliament, pursuant to the United Nations Convention on Biological Diversity, 1992 signed at Rio de Janerio. This Sui Generis law aimed to protect biological diversity and traditional knowledge for equitable sharing. Much of the traditional knowledge is protected by the Biological Diversity Act, 2002; The Patents Act, 1970[10]; The GI Act, 1999[11] etc. What is left behind is the discussion on folklores. There is no specific protection granted to folklores in India under any of the IP Laws. There also has not been much conflict between folklores and IP Laws in India as compared to other countries.[12] The laws protecting folklores are not much developed in India and the availability of jurisprudence on it is also very scarce.[13] It is to be understood that Traditional Knowledge and Folklores may have similar origins and may suffer from similar ailments under the current IP regime, but they require specific and sui generis reliefs.

There have been few instances in India where a discussion on IP and folklores could have been afforded. In the Bollywood movie Hum Dil De Chuke Sanam, the song Nimbooda Nimbooda was registered by the film industry with the Indian Performing Rights Society (IPRS), which was a folklore of Rajasthan and on top of that, the original singer was restrained from performing his own work.[14] There was nothing that could be done, as IPRS was not required to look into any prior art of similar nature, nor was there any law protecting the rights of folklores. Jugni is again another example of Punjabi folklore which has been an integral part of Punjabi folk life. Due to the lack of protective legal regime, this was yet again embraced by Bollywood which pushed the original folklore to corner. There are various other cases where such folklores were subjected to widespread exploitation and the folk-artists were subjected to abuse.[15] And therefore, the inclusion of folklores within the protective IP Regime is justified, not only to stop the misappropriation, but also protect the cultural heritage of the country, which forms through such folklores and traditions of communities.[16]

There is however a penumbra to be addressed about the nature of protection to be granted to folklores. As per WIPO, Traditional Cultural Expressions (TCE) which are also means expressions of folklores includes any music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions in which traditional culture is expressed and which forms part of the identity and heritage of a traditional or indigenous community and are passed down from generation to generation.[17] It is to mark at the outset that TCE doesnot indicate something ancient or inert. The only requirement is that it must have traditional links with the community and must be a vital and dynamic part of their life.[18] Therefore it becomes all the way more obscure about the nature of protection to be granted to a particular TCE and how to identify it. At this point it will be apt to make a distinction between TCE and folklores which is the subject matter for concern in this paper. WIPO uses both these terms interchangeably with which it is hard to agree on. Based upon the common held meaning of folklore, it is traditional customs, tales, sayings, dances, or art forms preserved among a people.[19] Therefore it falls more under literary, artistic, musical and dramatic works. If the definition of WIPO is followed stricto sensu, it would include all sorts of other traditional knowledge which already have a protection under other IP Laws present.[20] Folklores are a part and kind of TCE and therefore it is required to be distilled from the latter.

Now talking particularly in terms of folklores, the major problem which arises with respect to granting them protection are two folds. Firstly, in most of the cases the authors are unknown. In such cases it is hard to accord copyright protection to such works, as author is central to such protections in India. Secondly, based upon the definitions of folklores, it has three major qualities which are that they may be oral/written, have group feature & is transmitted through generation.[21] If such work is oral, it would lack fixation, which is a basic requirement for copyright protection.[22] These two basic hurdles form the crux of the problem in granting protection to folklores as our current IP laws are not compatible and competent to answer as of now. It is to be looked whether or not these hurdles can be crossed by our existing jurisprudence on IP or a sui generis protection is required.

Protecting Folklores Under the Existing Laws

The IP laws in India is quite extensive and is evolving. The amendment to sec. 2(p) of the Copyright Act, 1957 in 1994 substituted the definition of musical works.[23] The new definition doesnot use the word “printed, reduced to writing or otherwise graphically produced or reproduced”. To put it in simpler terms, the older definition of musical works required fixation before performance, however with the amendment, the new definition has suspended with such requirement. It can be said that the amendment envisaged to protect the interests of Indian classical music and artists.[24] The un-amended provision was to suit the western composers where the music is composed by writing notes on a piece of paper, unlike in Indian classical industry, where there are various examples as to how the discipline of classical music runs on improvisation of traditional framework/theme which has been passed from generations, without fixing the composition on a paper.[25] There is another leap by the Indian legal system in the run to preserve folklores and classical music. The concept of “Version Recording” was discussed by the Delhi High Court in the case of Super Cassette Industries Ltd. v. Bathla Cassette Industries Pvt. Ltd.[26]. Version recordings are neither copy nor reproduction of the original recording but are such sound recordings where while being inspired by the original melody a distinct interpretation, different both in presentation, rhythm emerges. In this case the court held that where the composer/performer of a derivate version recording donot refer to the original melody, he/she cannot claim any exclusive rights to such recording. [27]

Apart from the copyright laws, the Geographical Indications of Goods (Registration & Protection) Act 1999 (GI Act) protects traditional cultural expressions in the form of art and artworks.[28] The Government of India has also created a database with registrations of GI of different agricultural, handicraft, art and foods to different states of India.[29] The recent geographical indications granted are Phulkari to Punjab, Kolhapuri Chappals to Maharashtra and Karnataka and the famous long standing battle of Rasagola between West Bengal and Odisha, which was finally granted to Odisha. However all these still are primarily focused upon protecting the traditional cultural expressions or the traditional knowledge at large. The protection of folklores would require to address the problems mentioned above, which are of unknown authorship and non-fixation of the work. Therefore, it is problematic to use TCE and folklores interchangeably, as the Indian IP regime from the above examples has been quite successful in protecting various traditional cultural expressions, but has failed to protect folklores as a part of such cultural expression. Therefore, folklores must be studied distinctly from TCE as the former is yet vulnerable to exploitative market forces and require protection.

Conclusion

After discussing the nature of folklore, its difference from TCE, the major problems faced by folklores, and the problems in granting protection to them under the existing IP regime, it is imperative to discuss the solution to it too. There are two solutions at the outset. Firstly, by modifying the existing IP Laws, or a sui generis protection with a new legislation. The discussion about the amendment to the definition of “musical works” and the concept of “version recording” has definitely opened the scope for protection of folklores. It also answers to the problem of non-fixation in granting protection to folklores. The amendment dispenses with the requirement of fixation for granting copyright protection to “musical works”, however, to protect folklores, “literary and dramatic works” must also be protected even if there is no tangible fixation. Another hurdle which is of unidentifiable author is also left to be crossed. If the authority granting protection to any work which is substantially copied from a traditional folklore, how would one enquire about existence of a folklore and it becomes more difficult if there are no identifiable authors, which is mostly the case with folklores.

Firstly, to protect folklores, the IP laws must extend its meaning of fixation. Fixation must also include any intangible fixation in the minds and habits of a community. Therefore, if the copyright laws are amended to include intangible fixation for folklores, and that the protection is accorded to the community (in case of unidentifiable author) for an unlimited duration of time, like the Tunis Model Law, 1976 the problem can be easily resolved.[30]

Secondly with regard to the problem of unidentifiable authors, India must borrow from the Ghanaian Copyright Law which protects “work belonging to Cultural heritage of Ghana”.[31] Same way in India, if the works belonging to cultural heritage of India is protected under the Copyright Act of India, the necessity of an identifiable author can be dispended away with, and even without an author, folklores could be protected under the IP laws just like other forms of traditional knowledge. But there remains an unanswered quest which is how do one ascertain what is a work belonging to cultural heritage of India? This however has already been solved when the Indian laws were dealing with protecting traditional knowledge. A Traditional Knowledge Digital Library (TKDL) was created for keeping a record of different traditional knowledge in India. Same way, a digital library for folklores can be created and authorities could verify with it before granting protection to monopolist forces of the market. If all these above parameters are achieved, we could very well protect folklores with a sui generis protection within the existing IP law regime without passing a completely new legislation for the same.

[1] WIPO <https://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf> (accessed 3 October 2019).

[2] IGC uses the term TCE and folklores interchangeably, with which the author is in not agreement and will further argue that how specific protection is required for folklores focusing on the context of India. See generally <https://www.wipo.int/edocs/pubdocs/en/tk/913/wipo_pub_913.pdf> (accessed 27 September 2019).

[3] <https://www.wipo.int/tk/en/folklore/> (accessed 27 September 2019).

[4] Biological Diversity Act, 2002 as a result of CBD, 1992 donot suffice in protecting folklores which would be discussed.

[5] Constitution of India 1949, Article 51A (f).

[6] S. Kumar, ‘India wins battle with USA over turmeric patent’ (1997) The Lancet, 350(9079), 724.

[7] Supra (n 6). In 1995 the US Patent Office granted the University of Mississippi the patent on healing qualities of Turmeric which was very traditional to India. The Indian Government objected to it and successfully revoked the patent.

[8] Nirmal Sengupta, Traditional Knowledge in Modern India (Springer 2019).

[9] Biological Diversity Act, 2002; Patents Act 1970, Sec. 3(p); Geographical Indications Act 1999.

[10] “an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components” is not an invention and hence not patentable. See Patents Act 1970, Sec. 3(p).

[11] Geographical Indications of Goods (Registration & Protection) Act 1999.

[12] US passed an Indian Arts and Crafts Act, 1990 to protect misrepresentation in the marketing of Indian arts and crafts products within the United States; The Copyright Act 2005 [619 Act of Parliament of Ghana], Sec. 4, it protects the folklores of Ghana.

[13] Supra (n 8).

[14] Ibid 136.

[15] A song for the movie Maa was copied from Rehana Mirza’s 1980 Rajasthani song Anjan ki Sitti. And when the same traditional folk was used in another Bollywood movie Khoobsurat, the crew was restrained from using it. However, they knew about the original traditional folk song and brought a right to reproduce. See Ibid. 140.

[16] Upankar Chutia, ‘Folklore and Community Benefit Sharing in India’ (June 2016) IJLP, Vol 4, Issue 2, pp. 111.

[17] Supra (n 2).

[18] Supra (n 8) 128.

[19] <https://www.merriam-webster.com/dictionary/folklore> (accessed 27 September 2019).

[20] Supra (n 9).

[21] Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the United States’ (1999) 48 Am U L Rev 777.

[22] Berne Convention for the Protection of Literary and Artistic Works, 1886 [as amended in 1979] Article 2. Common Law countries follow the requirement of fixation for copyright protection listed therein.

[24] ibid.

[25] ibid.

[26] 2003 (27) PTC 280 (Del).

[27] “… by taking recourse to the traditional reservoir of Indian Classical Raags and traditional folk music, compositions based thereon may result in a sound recording… may not refer to the original source in their sound recording. In such a situation, the current composer cannot claim exclusive rights to such a sound recording, which are assertable against any other performer/sound recording based on such traditional repertoire. Consequently, the traditional repertoire of Indian music which may not now enjoy copyright protection due to passage of time and being in the public domain, cannot be appropriated by any individual by virtue of a later and current sound recording by excluding other performers and/or composers.” See Super Cassette. v. Bathla Cassette 2003 (27) PTC 280 (Del).

[28] Apart from traditional agricultural items like Darjeeling Tea, Mysore Betel Vine etc. the GI Act has been successful to protect traditional handicrafts, artworks and paintings like Pochampalli Ikat, Kotpad Handloom, Mysore Silk, Kullu shawls, Channapatna Toys and Dolls, Kasuti Embroidery, Orissa Ikat, Mysore Traditional Paintings and Madhubani Paintings, which forms the part of a greater cultural heritage of India. See Wong & Fernandini, “Traditional Cultural Expressions: Preservation and Innovation” in Wong and Dutfield (eds), Intellectual Property and Human Development: Current Trends and Future Scenarios (Cambridge University Press 2010) 195.

[29] <http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/GI_Application_Register_10-09-2019.pdf> acc. 3 Oct 2019.

[31] Ghana Copyright Law 1985 (P.N.D.CL. 110) Sec. 53. See also Supra (n 21) 778.