Introduction

The term traditional cultural expression refers to the work of indigenous people and the traditional communities, but the term has not been precisely defined. The term Traditional Cultural Expressions (TCEs) in the international community is also referred to as “folklore” and some nations prefer using the term “folklore” in their national copyright laws. The term “folklore” means the traditional beliefs, myths, tales, and practices of a group of people, transmitted orally. The term “folklore” was coined by William Thomas in the year 1846. Mr. Thomas meant to include manners, customs, observations, superstitions, ballads, proverbs and so on, in the term ‘folklore’, which he summarized as the lore of the people.

Traditional Cultural Expressions (TCEs) are in two forms, tangible and intangible. These include:

  • Verbal expressions or symbols (stories, epics, legends, tales, riddles, etc.)
  • Musical expressions (songs, instrumental music)
  • Expressions by action (dance form, play, ritual, etc.)
  • Tangible expressions (drawings, designs, paintings, body art, carvings, sculptures, pottery, terracotta, warli painting, mosaic, woodwork, rockwork, metal work, jewellery, basket, needlework, glassware, textiles, carpets, etc.)
  • Intangible expressions reflecting traditional thought forms
  • Architectural forms1

TCEs reflect a community’s cultural and social background and consists of characteristic elements of a community’s heritage. They are often made by authors who are unknown or unidentified, or by communities or individuals recognized as having the right, responsibility or permission to create them in accordance with the customary law and practices of that community. TCEs are often evolving, developing, and being recreated within source communities.2

TCEs are vital to the cultural and social identities of indigenous and local communities, they embody knowhow and skills, and they transmit core values and benefits. Their protection is linked to the promotion of creativity, enhanced cultural diversity and the preservation of cultural heritage. 3

Many international communities refer TCEs as “Traditional Knowledge” or “Indigenous knowledge”. These terms refer to the long-standing traditions and practices of certain regional, native, local communities. Traditional knowledge also includes the perception, knowledge and teachings passed on from generations to generations. Some forms of traditional knowledge are expressed through stories, legends, folklore, rituals, songs and even laws.

Characteristics of TCEs

Following are the characteristics of Traditional Cultural Expressions/Folklore:

  1. they are handed down from one generation to another, either orally or by imitation;
  2. they reflect a community’s cultural and social identity;
  3. they consist of characteristic elements of a community’s heritage;
  4. they are made by ‘authors unknown and/or by individuals communally recognized as having the right, responsibility or permission to do so;
  5. they are often not created for commercial purposes, but as vehicles for religious and cultural expressions; and
  6. they are constantly developing and being recreated within the community. 4

Major International Events For The Protection of TCEs

  • In 1967, the Berne Convention was amended to introduce optional copyright protection for folklore at the national level, in Article 15(4). According to the framers of this amendment, reflected in Article 15.4 of the Convention, it aims at providing international protection for expressions of folklore/ TCEs.
  • In 1976, the Tunis Model Law on Copyright for Developing Countries was adopted. It included sui generis protection for expressions of folklore.
  • In 1982, an expert group convened by WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO) developed a sui generis model for the IP-type protection of TCEs- The WIPO-UNESCO Model Provisions, 1982. They establish two main categories of acts against which TCEs are protected, namely ‘illicit exploitation’ and ‘other prejudicial actions’.
  • In December 1996, WIPO Member States adopted the WIPO Performances and Phonograms Treaty (WPPT), which provides protection also for a performer of an expression of folklore.
  • In April 1997, the ‘UNESCO-WIPO World Forum on the Protection of Folklore’ was convened in Phuket (Thailand).
  • In 1999, WIPO organized regional consultations on the protection of expressions of folklore for African countries (March 1999), for countries of Asia and the Pacific region (April 1999), for Arab countries (May 1999), and fore Latin American and the Caribbean (June 1999). Each of the consultations adopted resolutions or recommendations, which included the recommendations that WIPO and UNESCO increase and intensify their work in the field of folklore protection. The recommendations unanimously specified that future work in these areas should include the development of an effective international regime for the protection of expressions of folklore.
  • In late 2000, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was established. The Committee has made substantial progress in addressing both policy and practical linkages between the IP system and the concerns of practitioners and custodians of traditional cultures. The studies have formed the basis for ongoing international policy debate and assisted in the development of practical tools. Drawing on thisdiverse experience, the Committee is moving towards an international understanding of the shared objectives and principles that should guide the protection of TCEs.
  • In 2007, the United Nations adopted the U.N. Declaration on the Rights of Indigenous Peoples (2007) which highlighted the need to final legal approaches that fall outside the framework of the Berne Convention.

Legal Protection to TCEs and IKS

The legal protection for TCEs should be considered in a comprehensive manner, and not as an end in itself. Before framing any policy in this regard it is very important to understand the needs and expectations of the TCEs/folklore custodians/guardians.

Indigenous and local communities have called for various forms of protection; these include:

  • protection of traditional literary and artistic productions against unauthorized reproduction, adaptation, distribution, performance and other such acts, as well as prevention of insulting, derogatory and/ or culturally and spiritually offensive uses;
  • protection of handicrafts, particularly their ‘style’;
  • IP protection to prevent unwanted use by others: communities may wish to gain IP protection in order to actively exercise IP rights to prevent the use and commercialization of their cultural heritage and TCEs by others, including culturally offensive or demeaning use.
  • IP protection to support economic development: some communities wish to gain and exercise IP in their tradition based creations and innovations to enable them to exploit their creations and innovations commercially as a contribution to their economic development.

An integral part of developing an appropriate policy framework within which to view IP protection and TCEs is a clearer understanding of the role, contours and boundaries of the so-called ‘public domain.’ The term ‘public domain’ is used here to refer to elements of IP that are ineligible for private ownership and the contents of which any member of the public is legally entitled to use. The ‘public domain’ is often characterized by indigenous and other stakeholders as having been created by the IP system and does not therefore respect the protection of TCEs that customary and indigenous laws require.

The global experience in the area of TCE protection so far has shown that it is difficult to provide a single comprehensive solution which will suit all legal and cultural environment, traditional communities in all countries.

The options include existing IP Laws (including unfair competition), sui generis aspects of IP laws, as well non- IP laws like customary laws, contract laws, common law remedies, criminal law remedies, rights of publicity, to name a few.

TCEs can be protected under the Trade Marks Laws, for instance some indigenous name, traditional images, symbols can be registered as trademarks. In Australia, certification marks have been registered by the National Indigenous Arts Advocacy Association (NIAAA) and in New Zealand the Maori Arts Board, Te Waka Toi, is making use of trademark protection through the development of the Toi Iho ™ Maori Made Mark.5

TCEs often have a strong link with a specific locality. This means that geographical indications can also protect TCEs, in particular when they are in the form of tangible products such as handicrafts that have qualities derived from their geographical origin – for instance, the Olinalá craft products from that region in Mexico.

Many countries and several regional organizations have elected to protect TCEs through sui generis measures. Most have done so within their copyright laws, following largely the Model Provisions, 1982. Others have elected to establish stand-alone IP-like laws and systems, examples of which are: the Indigenous Peoples Rights Act of 1997 of the Philippines; The Special Intellectual Property Regime Governing the Collective Rights of Indigenous Peoples for the Protection and Defense of their Cultural Identity and their Traditional Knowledge of Panama, 2000; the Special Intellectual Property Regime Governing the Collective Rights of Indigenous Peoples for the Protection and Defense of their Cultural Identity and their Traditional Knowledge of Panama, 2000 and the related Executive Decree of 2001; the Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002.

The Secretariat of WIPO continues to undertake, upon request, legal-technical cooperation activities for the establishment, strengthening and effective implementation of systems and measures for the legal protection of TCEs. As a component of this program, it is developing a comprehensive ‘Practical Guide’ for lawmakers, policy makers, communities and other stakeholders, and is also preparing more tailored guides for other interested parties, such as commercial users and handicraft organizations. In addition, the development of model contracts, codes of conduct and guidelines for use by folklore archives, museums and other institutions to assist them in managing the IP aspects of their cultural heritage collections is being explored.

Legal Protection to TCEs Under Indian Laws

India is a country of rich and diverse culture and religions. It is a country where one can find big city culture and village/country side culture co-exist peacefully. Tribal culture is one of India’s proudest symbols of heritage. A strong value system which manifests itself in the form of self-respect, honesty, integrity, sincerity and contentment is the main force that sustains the tribal communities to tackle the complex problems attendant on human existence even today. The tribal communities in India are the primary source of folk culture and folk tradition. Rich folk literature and handicrafts, handlooms, folk painting, etc., contributed by these communities are significant components of the folklore of India. Folklore traditions in India bear testimony to the co-existence of tribal, non-tribal and even urban culture, many times influencing each other and developing into a common culture.

The Constitution of India, the basic law of the land, has not directly addressed the issue of protection of the folklore. Article 29 of the Constitution recognizes as a “Fundamental Right” (Part III) the protection of the culture of minorities. According to Article 29, “any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.” It is possible to protect the folklore of the distinct groups in India based on this provision. However, the majority of the folklore existing and misused now in India belong to small communities who do not come under the scope of the aforementioned constitutional provision. But no legislation has been enacted to protect the same. The only other general provision in the Constitution that can be identified as a source to protect folklore is Article 51A (f).

Irrespective of the constitutional provisions envisaging protection and preservation of distinct cultural groups, there is no special law prohibiting the exploitation of folklore of these communities without permission. There are many customary norms in these communities prohibiting the use of some of their folklore by outsiders and of those that are confined only to customary practices. For example, some of the folklore practiced by the communities are confined to religious or social occasions such as marriages, death rituals, or birth ceremonies, etc. These are not to be used out of the definite context. As there is no law prohibiting the use of such folklore by outsiders, increasingly they are being used for commercial gain.

In India the legislation that takes care of the rights relating to literary and artistic works, sound-recordings, films, and the rights of performers and broadcasting organizations, is the Copyright Act, 1957. The Indian Copyright Act does not contain any provisions for the protection of folklore or expressions of folklore. There is also no separate legislation along the lines of the Model Provisions, to serve the purpose of offering legal protection to expressions of folklore.

From the aforesaid it is clear that like many countries of the world India too has no provision to protect expressions of folklore in the intellectual property laws or in any other legislation. As such, exploitation of folklore expressions without taking the permission of the communities and compensating the communities concerned, is not illegal. The general outlook of those business interests who extensively borrow from the collection of the folklore of the communities or tribal settlements is that of exploitation of material available in public domain.

The reason for lack of adequate protection for TCEs/ folklore in India is the lack of knowledge and awareness about the need for IP protection. It is very important to understand the need to protect the TCEs/folklore and the expectations and needs of the communities who are the owners/custodians of TCEs.

It is important to consider a few factors:

  • The existence of an appropriate legal system within the country of origin or the country where protection is sought • The existence of goodwill and reputation in a TCE • The cost of protection • The length of time it will take to set up the system of protection
  • The support of stakeholders
  • The ability to promote the system of protection
  • Ensure that values of TCEs holders are given meaningful consideration.6 The legislators can consider the policies framed by WIPO and frame guidelines for the use and exploitation of TCEs.

Conclusion

The fact that TCEs are the product of social relations suggests that they are subject to evolution and that these cultural endeavors do not exist in a vacuum from other considerations and aspirations in human development. Further research is needed to understand how the preservation and innovation of TCEs intersect with considerations such as gender equality, education (including inter-generational transmission of language and knowledge within the communities), sustainable livelihoods and cross-fertilization of ideas with other cultures.