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This article has been written by Anjali Singh, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

What are TCEs?

 Traditional cultural expressions (TCEs), also known as “expressions of folklore”, Folklore was thought to be an adequate replacement for the word ‘popular antiquities’ was coined for the first time by William Thomas in 1846, It can be understood as the creative products of human minds,  It may include myriads of things such as  dance, art, music, designs, names, signs, and symbols, performances, ceremonies, architectural forms, handicrafts, and narratives, or any other artistic or cultural expressions  Expression of folklore is in itself diverse in nature, it includes expressions made verbally, such as folk stories, anecdotes, poetry or Musical expressions, such as songs, instrumental music, Expressions made through actions by dancing, acts or plays, rituals or Tangible expressions carvings, sculptures, pottery, terracotta drawings, paintings, carvings, sculptures woodwork, metalwork, jewelry, basket weaving, needlework, textiles, carpets, costumes; musical instruments; architectural forms, intangible expressions which may include the thought processes.

Why preserve TCEs?

  • Indigenous people have been demanding the Rights to protect their culture from blatant misuse by any party, on account of technological advancement.
  • Ceasing inappropriate exploitation of the cultural heritage, in the name of driving inspiration for mercenary benefits, Combining Traditional knowledge with the ongoing trends is not always exploitation, but most of the time it is.
  • Commercialization without an iota of respect towards the interests of the communities, be it economic or cultural interests.
  • To terminate the marginalization of indigenous people in the post-colonial era.
  • Tourism has on one end contributed towards the accumulation of the economic capital of developing countries,on the other end, it has deteriorated the protection of folklore by putting it in a very vulnerable state, which is one of the reasons behind indigenous communities seeking protections of the creativity put out there by their ancestors.
  • The intention is to ensure that the intellectual vision and creativity embodied in TK or TCEs are not illicitly used.

Different approaches towards protecting TCEs

The sui-generis approach

What is sui-generis?

Sui-generis is a Latin term which means ‘unique’, in the language of IP it can be understood as the unconventional way of dealing with the TCEs  as the knowledge that has historic roots and is often informal and oral—is not protected by conventional IP laws

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Safeguarding without any explicit mention concerning Folklore

Some countries have a propensity of safeguarding their TK against exploitation by the third party, without giving any explicit mention of folklore. Their traditional IP statutes cover or protect Traditional knowledge, this category includes countries like the United States, Australia, Canada, Japan, France, Germany, Italy, Belgium, Cyprus, Denmark, and Switzerland.

Safeguarding with an explicit mention concerning Folklore

Some countries have explicitly devoted well laid down laws in the form of sections, chapters, or some parts of copyright laws this category includes Burundi, Chile, Congo, Ghana, Kenya, Mongolia, Morocco, Namibia, Nicaragua, Niger, Algeria, Bolivia, Brazil, Burkina Faso Paraguay, Rwanda, Seychelles, Togo, Tanzania, Tunisia, Nigeria, Papua New Guinea, and Zimbabwe.

The rights are invested in the whole of the community whose TK is in question and not in a single individual, even if the work is produced by an individual, the appropriate usage of that expression or knowledge becomes very important which can be understood from the case

Measures taken internationally towards the preservation of TK

Berne Convention for the Protection of Literary and Artistic Works (1886) 

Article 15(4)(a) implicitly directs where an unpublished work is concerned, and the identity of the author is anonymous, and there are sufficient grounds to believe that the author is a national of a particular country, to designate the competent authority falls under the legislation of that country. (b) Countries making such legislation have the onus of notifying the Director-general of the Union [of WIPO] through a written declaration giving full information concerning the authority thus designated.

TUNIS Model Law (1976)

It was an initiative taken jointly by UNESCO and WIPO, The Tunis Model Law while addressing the contentions revolving around issues such as the protection of folklore, and limitations and exceptions to rights, such as those in Sections 3, 7, and 10 on “unprotected works, Fair use,”  or the limitation of the right of translation. The Model Law provided a basis for the protection of the author’s rights, including extensive provisions on licensing of works and enforcement of rights, and proposed language on the treatment of Domaine public payant which means Paying for public domain in Section 17.

The WIPO-UNESCO Model Provisions, 1982

This model provisions dealt with two main categories,” Illicit protection” and “other prejudicial actions”, elaboration of the ‘Need for the Legal Protection of Expressions of Folklore’ and it recognized the efforts to protect the expression of folklore, also talks about the indirect rights 

TRIPS Agreement (1994)

(TRIPS)  Trade-Related Aspects of Intellectual Property Rights made it mandatory for the developing countries to increase the various forms of IP Protection, though not explicitly mentioning Folklore/TCEs.

Formation OF IGC (Inter-Governmental Committee)

IGC was formed by WIPO, in the year 2000, It’s a committee on an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The objective of the IGC is to hold formal negotiations to reach an agreement on one or more international legal instruments, which would secure effective protection of genetic resources (GR), traditional knowledge (TK), and traditional cultural expressions (TCEs), which can be a set of recommendations to the Member-States, India, being a land rich in Traditional knowledge and culture, has been an active participant in the same.

U.N. Declaration on the Rights of Indigenous Peoples(2007) 

This declaration comprised the most comprehensive statements concerning the rights of the indigenous people, it has been one of the most pivotal steps taken towards the protection of the rights of the indigenous people.

An important case study

Milpurrurru & Others v. Indofurn Pty Ltd & Others

In this case, an action was brought against a Perth-based company, Indofurn Pty Ltd also known by the name Beechrow, It imported the carpets from Vietnam a country that was not a signatory to the Berne Convention for the Protection of Literary and Artistic Works, 1971 (the “Berne Convention”). and sold them in Australia for up to $4000 each. The work that was misappropriated was of eminent writers including George Milpurrurru(deceased) his work Goose egg Hunt was reproduced on the carpets, the first Aboriginal artist to have a solo exhibition at the Australian National Gallery. Banduk Marika, Tim Payunka, Ngaritj, Gamarang, Jangala, Tjapaltjarri and Wamut 

The Court granted damages

Banduk’s Marika is an internationally proclaimed artist. She is the first Aboriginal to be appointed to the Board of the National Gallery of Australia. 

She explained the importance of the image in question, that her artwork, “Djanda Sacred Waterhole” concerned herein belongs to her clan, the Rirratjingu, and forms an integral part of the mythological story of the creation of Djangkawu creation story, Her right to use the image arise by the virtue of her holding the membership of the landowning group.

India’s stance on the protection of TCEs

India, what are the thoughts that come after listening or talking about India, some of those to be mentioned right away are rich culture, diversity, and heritage, India has its whole history of development, Amidst the waves of Modernization and globalization nearly everything got transformed, but its culture is still dominant in the life of people over here, That culture is deeply rooted in Indian minds, behavior, traditions and belief system.

So, the need to preserve that ‘culture’, is still apparent:

Can saree draping style be copyrighted?

The protection of Traditional knowledge can be quite complex under IP laws let’s take an interesting example, The sarees that is one of the identity of our motherland India, can be protected on so many grounds, Sarees has been given protection as Geographical indicators (GI Tags), There are undoubtedly so many varieties of fabrics, in india itself, and so is the number of GIs pertaining to the diverse culture.

Saree as a product can be and has been protected, but what about the way of draping a saree

There can be ‘n’ number of ways of draping a saree in India, it can also qualify as an art, as it can be mastered by some amount of practice. And it can be misappropriated by exploiting it commercially or targeting its authenticity, cultural sanctity by disrespectfully draping a saree for commercial gains

Indian Constitution

Article 29(1) identifies the protection of cultural rights of minorities as a Fundamental Right, But this article, even though maintaining its place under the ambit of Fundamental rights, fails to protect a wide range of communities, as the rights of the minorities(falling under the ambit of the section) have been particularly protected under it., thus leaving out of the scope the protection of smaller communities relatively more vulnerable to the threat of  exploitation than the prominent communities

Article 51A(f) This article comes under the ambit of Fundamental duties, it implicitly puts the onus of preservation, respecting and safeguarding the rich heritage of the Indian culture on every citizen of India as their fundamental duty, as unlike Fundamental rights, Fundamental duties cannot be enforced, this article though well intended remains handicapped when it comes to actually preserving Cultural expressions.

Under IP legislations

The protection or preservation of TCE though not explicitly mentioned under IP legislations

The copyright act of India protects Cultural expression under some sections, 31A, section 38, and section 57, which deals with compulsory licensing, Performer’s right, and moral rights.

Section 38 of this Act provides that where any performer engages in any performance, he owns a right known as ‘performer’s right’ concerning such performance, The rights are vested with the indigenous artists. This right prevails for a period of twenty-five years. During the continuance of performer’s right, any person who, without the consent of the performer makes a sound or visual recording of the performance; or communicates the performance to the public in any manner shall be deemed to have infringed the performer’s right (an exception is made about the usage for educational or reporting purposes).

There is some limitation concerning this right, for instance, it protects the interests of an individual or group performers but not of any community, and TCEs are meant to be associated with communities, The period of 25 years could have been increased as the cultural expressions take a considerable large amount of time to enter into the public domain, and till the time they arrive, the right is time-barred.

Indigenous people demand their cultural expressions to be protected in perpetuity, and oppose the protection for a limited period, however, the conviction behind limited-term protection is the introduction of the cultural work ultimately into the public domain.

The aforementioned legislations are capable of eradicating the manipulation of contemporary cultural expressions, however, they are of no major usage where the exploitation of pre-existing TCE works is concerned which are already in the Public domain.

Conclusion

Many nations have taken active steps to preserve their TK/TCEs, by modulating their existing laws, while some others chose to rely upon the existing laws, and the rest have opted for a sui-generis approach.

There have been many arguments against working towards a standard TK due to factors such as complexities while dealing with intangible expressions, Issue revolving around ‘Originality’ of the work, ‘Authorship And widely discussed ‘The term of protection’ as in an ample number of countries, TK is protected for a limited term and not for an ‘indefinite period’  Many forms of TK are older than the copyright term. As a result, copyright protection may be unavailable for them.

To avoid these difficulties, countries can modify copyright legislation so that it has different requirements for folklore or cultural expression. For example, the Tunis Model Law for Copyright in the Developing Countries, adopted in 1976, advocates extending copyright protection to works of folklore without requiring fixation and with an unlimited term of protection

India doesn’t have a sui-generis law to protect its cultural expressions, Due to Inherent disputes between the very nature of TCEs and IP laws the sole reliance over IP laws has been criticized, 

Desired research over TCEs is somewhere missing.

NGOs (one to be mentioned right away The Indian National Trust for Art and Cultural Heritage 0(INTACH)  and civil societies have performed a commendable job towards raising awareness by the digitalization of TCEs, creation of databases and libraries.

Due to the absence of clarity in IPR policies associated with these digital formats, there are growing concerns with the copyright generated or associated with them.

References

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