Intellectual Property Rights and Protection of Indigenous Cultural Identity
January 28, 2021
With advancements in communication and the widespread availability of information, incidents of cultural identity misappropriation have become quite common. This leads to increased international concern for the protection of traditional cultural identity and cultural expressions, especially amongst developing countries. Though India has taken significant efforts in protecting Traditional Knowledge such as Ayurvedic knowledge and knowhow by establishing the Traditional Knowledge Digital Library and tangible Traditional Cultural Expressions (TCEs) with Geographical Indication laws, intangible TCEs such as folk music and folklore remain unprotected. This article aims to look into the need for protection of traditional cultural identity and expression, specifically folk music, the difficulties in implementing laws for their protection, and suggestions on possible ways they could be safeguarded from misappropriation.
Indigenous communities of India were always artistically robust; from intricate handicrafts to rich literature and traditional folksongs, India’s local communities have paved their alley into mainstream arts. This indigenous influence can be felt in the Indian music industry. Many times we recognize traditional instruments and even parts of folk song lyrics making appearances in pop music. For example, traditional folksongs of farmers from Tamil Nadu called “Naduvu Padal“, which are traditionally sung while working in the paddy or rice fields in villages were largely popularized by music director Ilaya Raja in the late 80s and early 90s.
Similarly, music producers and composers often derive beats, melodies, and lyrics from traditional music and folk songs which are indigenous to local communities. Though Indian folk music which is present sporadically and remotely was drastically popularized and promoted via such adaptations and addition into pop culture, it did not transmute into benefits for the communities which originated these songs. Originators of folk music remain unknown and discredited. This article aims to try to look into the difficulties in providing copyright protection for traditional songs and intangible Traditional Cultural Expressions (TCE) like folklore and possible ways to promote their work without detaching them from the origin communities.
TCEs are either tangible or intangible. Therefore, a musical expression such as songs, instrumental music whether or not reduced to material form would be considered as a TCE. The rights or ownership over TCEs are collectively held by the community rather than with an individual; this recognition of ownership usually arises out of customary practice. Usually, the original author of a TCE is unknown and through the usage of the same from generation to generation, they are freely available in the ‘Public Domain’.
The need for protecting the Indigenous Cultural Identity
India is extremely diverse and houses various indigenous communities and cultural identities, all unique in food, clothing, language, and even societal structure. Each community bears its cultural expression through its musical style. In recent years, with the free availability of content via social media and OTT platforms, traditional songs and musical instruments gained popularity amongst the masses. Pursuantly, more and more Indian pop musicians and music producers started sampling indigenous music styles as these folk songs and styles gained wide patronage and fan following of audiences. Thus, usage of indigenous musical instruments and styles became a widespread phenomenon in the mainstream Indian music scene such as pop albums and songs in movies.
This brought to light the musical richness of traditional Indian music and even generated many famous performers and musicians who then broke into the mainstream music industry successfully. An example of this is again taken from Tamil folk music, Gaana a genre of music that was popularized by Tamil cinema.Gaana is the city folk music that comes straight from the soul of Chennai specifically from the hearts of the marginalized people, mostly slum dwellers or fishermen communities who sing about their daily lives and problems with up-beat and fast-paced beats. It is a genre of music that is so intertwined with the lives of the people. Music producers have sampled and borrowed this music style and have incorporated it into musical works that belong to a completely different genre. Therefore, the original art becomes diluted.
In this case, traditional music styles are deconstructed and interpreted so differently to the point that they are forgotten and often looked down upon. Folk musicians are not taken seriously in the industry and are discredited. The same is the case with Rajasthani or Punjabi folk music which are remixed and incorporated in Bollywood songs. In a dispute between Coke Studio and the song producer and lyricist of a Sambalpuri folk song Rangabati, the main issue was that the song was branded as a remix of an Odiya number even though it was originally written as a Sambalpuri song.
Such misappropriation and unauthorized remixes discourage the creativity of indigenous communities eventually threatening their cultural identities. Though creating adaptations and derived work is important for the creative process in its way, we must also flip the coin to understand that folk music is an economic asset and originally belongs to the community that safeguards it. This would also resonate with IP law’s core values of balance between benefits to the creator and the societal benefits. Moreover, India still does not have sui generis laws for extending IP protection for TCEs.
Though India has acknowledged the need for protections of folklores and TCEs in recent years, there still exist many difficulties in legislating formal protection to the TCEs. The Copyright Law in India is based on authorship and the notion of individualauthorship. This is a problem with Traditional Cultural Expressions as they are usually practiced by a whole community and a single author is unknown.
In the case of the abovementioned Sambalpuri song dispute, the authors of the song were known which is not the case for most folk songs. Moreover, copyright is for a fixed period after which the work would fall within the public domain, but in the case of folklore and TCEs the copyright awarded should be permanent. The contemporary copyright laws do not foresee these difficulties within its provisions. The Copyright Act does not even mention the protection of TCEs anywhere directly. Certain provisions of the Act may indirectly protect TCEs owner’s rights; however, they are more useful in protecting contemporary TCEs.
In 2001, the Indian Permanent Mission to the United Nations submitted a paper on studying the existing IPR law’s scope of protecting the TKs, TCEs, and GRs and the scope of developing new laws wherever the existing laws fall short of protection. However, such a legislative system is yet to become a reality as the IGC is still working on developing an international instrument that is mutually agreed upon by all nations.
Presently, there is no such law that gives formal protection to intangible TCEs. In the absence of a law protecting the TCEs, there is no obligation to reward or compensate the communities that are responsible for preserving and practicing the heritage.
What could be the step forward?
To extend protection to TCEs and folklore they should be first identified. Similar to the “Traditional Knowledge Digital Library“, which is a digitalized library containing around 3,30,044 traditional medicinalformulations, the TCEs and folk music should be registered in an online library and classified with the community or communities that practice and safeguard it. This requires extensive study about the TCEs and their communities. Such a registry will act as a sort of defensive protection by way of acknowledging the TCE and its users.
The main object of extending protection to TCEs is to vest them the right over the elements that constitute the folklore or folk music and to give the communities economic and moral rights over it. This means communities should be given the right to have their names or community names mentioned as authors wherever the song is used and the right against the distortion of their work and other moral rights. Though there has been no working model as to how this could be done, experts have suggested that communities have their organizations that can function as nodal centers for this purpose.
Though this would pose a challenging task, through extensive study, communities can be identified and organizations or trusts can be formed for the promotion of their folk music and art. Mechanisms can be put in place for payments of royalty and assigning credit through these organizations. However, the government will have to play a significant role in backing them with legal aid and conducting IP awareness programs amongst artists of folk music and folklore.
The IP Department of the Government can form a separate specialized wing for protection and promotion of TCEs nation-wide and state-wise and can actively restrain the inappropriate usage of folk music, lyrics of cultural significance in pop culture by framing sui generis rules and issuing notices. These are some of the broad suggestions that can be looked into for developing a mechanism for protecting the indigenous IP and economically empowering their community.
To preserve one’s cultural identity is a fundamental right provided by the Constitution of India in Article 29, and the Government has to enable the indigenous communities to preserve their cultural identity. Though it is a challenge to identify and prevent misappropriation of intangible TCEs, there has to be some form of formal protection put in place at least to deter potential offenders from misappropriation and more importantly, to protect the community which has been safeguarding the art from becoming extinct and to acknowledge their right and to economically empowers them. It would also put forth precedence to future development and much-needed study in this area.
Editor’s Note The protection of indigenous cultural identities, particularly in the form of Traditional Knowledge and Traditional Cultural Expressions has become increasingly important in the present times, as there are increasing incidents of cultural misappropriation.
This article explains the meaning of Traditional Cultural Expressions (TCEs), the need for protecting TCEs as well as the difficulties faced in that regard. The author has also thrown some light upon the current developments and has also given certain suggestions as a step forward in this aspect. The author has concluded by saying that there is a need for a formal legislative mechanism for the protection of indigenous cultural identities, particularly intangible TCEs.