Fortifying Folklore – Using the Shield of Intellectual Property Rights for Protecting Folklore
We see indigenous art replicated onto carpets and clothes, traditional music blended with contemporary songs which are presented to the public as original and authentic compositions, handwoven and handcrafted products copied and sold as authentic, these types of indigenous works are used for commercial purposes. Therefore, indigenous and cultural communities contend that traditional creativity and cultural expressions require greater protection in association with Intellectual Property (IP).
Before getting into this topic any further it’s important to get an overview of the concepts like folklore and Intellectual Property Rights (IPR). Folklore is the expressive body of culture shared by a particular group of people, it reflects and identifies a community’s history, cultural and social identity, and values. It consists of a multitude of things such as dramatic expressions, music, literature, dance which can be in a tangible and intangible form or a combination of both.
The term folklore has not been defined in any national or international legal document, but the term Expressions of folklore has been defined in the Model Provisions prepared by WIPO and UNESCO to act as a guideline for the state to frame legislation in this area. The term Expressions of folklore means elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community. It includes expressions such as folk tales, folk poetry, folk songs, folk dances, plays, productions of folk art, etc.
Intellectual Property Rights are the rights given to persons over the creations of their minds such as inventions, literary and artistic works, and symbols, names, and images used in commerce. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. It safeguards the rights of creators and encourages innovation. IPR is divided into two parts i.e. Copyrights and industrial property. Copyright protects the products of creativity, in the form of original works, against certain uses such as reproduction, adaptation, public performance, broadcasting, and other forms of communication to the public.
The artistic heritage can play a significant social and cultural role for a community, and in addition, as a source of creativity and innovation plays a role in economic development. Rapid progression and development have facilitated the commercialization and exploitation of works of arts, music, and knowledge of traditional societies on an unparalleled scale. Here Intellectual property rights become effective, IP protection in the form of copyright and copyright-related rights eliminates the possibility of alteration and attenuation as it prevents unauthorized conversions and reproductions and will also guarantee economic rights to the community.
The need to fortify and protect Folklore
The exploitation of traditional art and knowledge has led to the deprivation of economic benefits for the communities and even if they do gain something, such benefits are ineffectual and they are nothing in comparison to the huge profits made by the exploiters. The exploitation leads to permanent and irreplaceable loss to the communities. Cultural items are degraded and displayed outside their traditional environment and for purposes different from those for which they were originally created. For example, religious artifacts are sold as mere decorative art. These copies of cultural works misrepresent communal values and are being used in ways that are insulting, degrading, and culturally offensive.
Here, IP can provide legal protection for tradition and cultural-based creativity. IP protection can enable communities and their members to commercialize their tradition-based creations if they wish to do so. Through certification trademarks, IP can assist in certifying the origin of arts and crafts, or by the law of unfair competition, it can combat the passing off of fake products as authentic. For example, IP rights can be used by communities to exercise control over how their cultural expressions are used and to defend against insensitive and degrading use of traditional works.
Efforts made towards protecting Folklore
The exploitation and abuse of folklore have been noticed and discussed by the international communities and thus efforts are being made to bring a strong legal framework for its protection. An active program of policy development and legislative assistance has been made by the World Intellectual Property Organization (WIPO), which examines the relationship between IP and the protection, promotion, and preservation of expressions of folklore.
In 1982, a Sui Generis model for the IP-type protection of expressions of folklore was developed by a group of experts convened by WIPO and UNESCO called the Model Provisions, 1982. Again In 1984, a draft treaty was prepared on the international protection of expressions of folklore by IP which was based on the Model Provisions, but still, the majority of participants considered it overhasty to establish an international treaty at that time.
In October 2000, the WIPO General Assembly established an Intergovernmental committee as an international forum for debate and dialogue regarding the interaction between IP and Genetic Resources, Traditional knowledge, and Folklore. In its Seventh Session held at Geneva, in November 2004, the Committee formulated draft provisions on the Protection of Expressions of Folklore and it was agreed that this would lay down common general directions for protection and provide a consistent policy framework.
How Intellectual Property Law can shield Folklore?
There are no prescribed laws that accord ownership rights of folklore to any community or group of persons and which prohibit its exploitation. Since the conventional and orthodox outlook of societies has always been to keep folklore as part of the common heritage of the community without individual right of possession. Hence it’s important that this protective legislation must be made under every field of law.
The expressions of folklore are a product of creations of mind and human intellect and therefore deserve appropriate safeguarding under the system of intellectual property rights laws. One such important shielding and safeguarding can be given through Copyright protection. Thus, existing copyright laws are scrutinized with an intent to determine their potential to extend protection to these vulnerable rights, which for their unique characteristics need a special degree of protection.
Copyright Law as a medium to extend protection to Folklore
Many Expressions of folklore like music and songs, paintings, carvings, handicrafts, designs, etc. for which safeguarding is required constitutes the subject matter of copyright protection. The protection provided by copyright is mainly the right to prevent or authorize, reproduction, adaptation, communication to the public and others, and the moral rights of attribution and integrity. This appears to be convenient to meet the needs and objectives of indigenous people and traditional communities.
If folklore is to be given identification and shielding under the copyright laws, it must fulfill certain standards, i.e. It must be original work, it should be an independent and unaided creation, the nationality of the author should be clear and it should be in a tangible medium. The existence of these standards and conditions for granting copyright protection annihilates the possibility of folklore getting any kind of protection because, though it is original it has been through social changes over the years and there are many versions of the same work and the present version can’t be said to be original, as the said works belong to the whole community. There is no single author of the work. Expressions such as dance, tales, etc can’t be fixed in a tangible form.
The Indian Copyright Act of 1957 provides special protection to certain types of expressions of traditional culture. Section 38 of the Act provides that where any performer engages in any performance, he has a special right known as performer’s right in relation to such performance and it subsists until twenty-five years. This right can be granted to indigenous artists. During the continuance of the 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.
Despite granting such rights to the performers of indigenous arts, they only provide limited protection and there are few drawbacks. Firstly, this right is only granted to individuals or groups of performers and not to the whole community (Folklore belongs to the whole community). Secondly, the right is only permitted only for a limited period of time i.e. twenty-five years and after that, it can be used by everyone in the public realm and they can use it in whatever manner they choose.
So, there is a pressing need to resolve various issues regarding the concept of copyright before it aims to provide protection to folklore.
Sui Generis Protection to Folklore
Sui Generis stands for its own kind and includes a set of laws that are nationally recognized and ways of extending a variety of protection other than through copyrights and patents. The Model Provisions which was prepared by a group of experts and convened by WIPO and UNESCO ensures sui generis protection to folklore though not in a manner extending copyright protection. The Model provisions recognize the importance and the value folklore holds for a community and a country.
The Model Provisions specifies provisions such as: Whenever an act falls outside the customary domain, authorization should be sought, but educational purposes and other works falling under fair practices are excluded from this provision. In addition, a detailed scheme for penalties, civil remedies, and seizures has been laid down. A major downside is that the Model provisions are not binding and their implementation and execution are totally left at the discretion of nations who may or may not choose to implement these provisions.
Cultures are dying out faster than the people associated with them. Developing countries that have rich and diversified folklores must take steps to protect their cultural heritage and ensure the prevention of degradation and exploitation of folklores. They should also make sure that certain communities are not being deprived of their economic and cultural rights.
Countries should undertake activities for the establishment, strengthening, and effective implementation of systems and measures for the legal protection of Expressions of folklore. A practical guide for the protection of folklore should be given to policymakers, on the basis of which laws can be formulated, Code of conduct and guidelines should be developed for the use of folklores.