This article is written by Arijit Mishra who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
Table of Contents
Introduction
The poem Padmavat is written by a Sufi Poet Malik Muhammad Jayasi in the Awadhi language in the year 1540. There is various cultural significance related to this poem where it shows the relevant traditions of Jauhar on the Rajput women. This literary work reflects the self-respect and courage of the Rajput women of that time. This literary work in the Awadhi language becomes more popular among the masses of the Avadh region. Padmavat shows a glimpse of a love story in contemporary Sufi literature which was common in Jain and Persian at the time. Padmavat is also significant culturally so far as modern time is concerned. The different languages such as Awadhi, Braj, etc are also included in several literary traditions. Such literary works were investigated by a different nationalist scholarship for promoting the linguistic unity regarding the development of the Hindi language out of those vernacular languages. Historically the creation of Padmavat though not substantiated convincingly but depicts the valor and rich tradition like courage and self-respect among the Rajput women during medieval times. Further, it speaks about popular themes about the importance of local and vernacular languages in literary creations and as such establishes its cultural significance. The poetic work of Padmavat comes under the public domain and it is recognized as traditional knowledge(TK) and traditional cultural expressions (TCE). Generally, it is regarded that the traditional knowledge and traditional cultural expressions being in the public domain are free for anyone to use without any charge. Now it is time to identify how changes could be made and measures to be taken to strike a balance between the public domain and the scope of IP protection. 
Historical background
The late medieval Persian historian Firishta and Haji Udda Bir recognized the Padmavat theme as history but their version had many inconsistencies. Later on, some Rajput poets also adapted and expanded the legend without considering the historical facts. During the sixteenth and eighteenth centuries, various Rajput versions of the Padmavat legend were compiled under the patronage of Rajput kings. According to the historian Aditya Mukherjee “in the contemporary period, there is no mention of this event, no accounts of Padmavati by Amir Khusro, a prolific writer of the era and the courtier of Alauddin Khilji. He expressly points out that there exist no traces of historical proof surrounding the story of Padmavati and therefore it remains as an imaginary creation by the poet.
Whether Padmavat can be said as a “protective heritage”?
WIPO describes traditional cultural expression (hereinafter mentioned as TCE’s) that is known as an expression of folklore which may bring into its purview of music, dance, art, designs, names, signs, and symbols along with performances, ceremonies, architectural and many other cultural and artistic expressions. Primarily, these expressions of traditional knowledge are being expressed in any form. This is recognized as an integral part of the identity and heritage of a particular indigenous community and usually passed on from one generation to another.
Though many scholars have given different views with regard to the historicity of Padmavat, this poetic creation undoubtedly relates to medieval India and more specifically connected to the medieval culture of Rajasthan. The close view of Padmavat reflects the traditional and cultural values of Rajasthan during the rule of Rajputs, which expresses different principles of the life of Rajputs and their community traditions. It also expresses the courage and self-respect of Rajput women during that period. So in this poetic expression cultural and traditional heritage of that period can be gathered and it is an expression where the traditional knowledge has been expressed in poetic form. It also reflects the identity and heritage of a particular indigenous community that is Rajputs. Therefore it can be said that Padmavat is an artistic expression coming within the purview of the term TCE and as such, it is a protective heritage. Since Padmavat is a TCE for the people of Rajasthan and the Rajputs in particular, such cultural expression needs to be protected as much as the protection of cultural expressions underlines socio-economic, justice, and capability to preserve, protect and reinforce their indigenous cultural heritage.
Whether Padmavat can be protected under the provisions of intellectual property laws?
In India presently there is no concrete rule to protect the TCE. The TCE under the present IPR regime is protected individually on the basis of the subject matter it comes from. The branches of IPR under which the TCE are dealt with are limited to the copyright, trademark, geographical indication, protection of plant varieties and farmer’s rights, and biodiversity act.
Copyright
So far copyright is concerned it aims to protect the original work of musical, literary or artistic, dramatic nature including cinematographic films and sound recordings. On several instances, it is seen that TCE is being reproduced in a different manner by the people other than that of indigenous communities and interestingly they have been protected under copyright law as “original work”. The main problem of protecting TCE under copyright law is that no permanent right is granted and it gets exhausted after the lapse of a particular period of time.
Trademark
A trademark distinguishes the goods and services of one person from another. Collective marks along with certificate marks can be placed into service for the protection of indigenous works such as paintings, handicrafts, etc having cultural significance.
Geographical indications
Under geographical indications, the products are protected which have a specific geographical origin and have some traditional artistic heritage for their place of origin. Such protection has no time restriction and rights which are collective in nature. It does not confine to a particular person or two. It relates to the whole community however it does not provide protection to the TCE under current provisions of law. Traditional knowledge regarding such works is readily available in the public domain and exposed to exploitation by third parties. It has failed so far to protect folk dance, martial arts, etc which are based on performance.
The poetic work of Padmavat is not protected by intellectual property laws in a strict sense as it comes under the public domain. It is also not a dispute that anyone can use a public domain work without seeking permission but no one has the right to own it. An important aspect to understand the public domain material is that collection of public domain works can be protected by copyright through each work of such collection belongs to the public for example if someone has compiled public domain images in a book the collection as a whole can be protected even though individual images cannot. One is free to copy and use individual images but copying the entire compilation or collection will infringe what is known as the “collective works” copyright. According to Black’s law dictionary, the public domain is the universe of inventions of creative works that are not protected by the IP laws and hence available for use by anyone without charge. The public domain is always used as a valuable resource by the third party but needs to be preserved in order to help in preserving a vast body of knowledge as well as sustain the livelihood of communities. However different measures may be needed to prohibit unauthorized disclosure, use, or operation of TK and TCE to protect recognition and indications of sources where TK and TCE are disclosed.
Protection
The connotation of the term “protection” according to WIPO is primarily with protection in the IP sense which includes protection against unauthorized copying, adaptation, and use of traditional knowledge and traditional cultural expression by third parties. The aim of IP protection is to check unauthorized or inappropriate use of traditional knowledge or traditional cultural expressions by third parties. Further protection also means preservation and safeguarding the identification, documentation, transmission, and promotion of cultural heritage in order to ensure its viability. The aim is to protect traditional knowledge and traditional cultural expressions from disappearance.
Traditional knowledge and traditional cultural expressions also come under the International Convention for the Safeguarding of the Intangible Cultural Heritage which includes the practices of representation, expressions, knowledge, skills as well as instruments, objects, architects, and cultural spaces associated therewith that is a community, groups and in some cases individuals are recognized as part of their cultural heritage. The main object of the convention is for the preservation, development, and promotion of traditional activities. Signatory states need to maintain registers of the intangible cultural heritage available in their territory (Article 12), they must also take a step to put in place appropriate action to ensure your access to the intangible cultural heritage while respecting customary practices, and to create documentation and institution for the intangible cultural heritage and allows facilities to access them (Article 13).
In India, at present, there is no effective mechanism for the presentation and protection of the works in the public domain. Likewise, the poetic work of Padmavat being a part of the public domain needs reservation and protection from being misused and exploited by any third party for its personal gain. Article 21 of the Constitution of India mandates the fundamental right to life and personal liberty, subsequently, it brings about the protection of traditional cultural expression owners. Article 51(A)(f) makes it a fundamental duty to every Indian citizen to preserve, protect and respect the rich heritage of Indian culture.
Conclusion
Now it is the duty of the parliament to develop a mechanism for the protection of the works available in the public domain which specifically relates to Indian culture, tradition, and heritage. It is also the need of the hour to determine the principles of protection, identification of traditional knowledge and traditional cultural expressions, identification of beneficiary, the scope of protection, exception, and limitations, the establishment of violation procedures and penalties, and determination of responsibility for implementation. That apart, the government should immediately take steps.
References
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