Abstract
Folklore and traditional cultural expressions (TCEs) represent the heritage of communities, which reflects their identity, history and creativity. In the digital age, these expressions face risks of misappropriation and commercialization due to the ease of reproduction, dissemination and adaptation. Although intellectual property (IP) regimes such as copyright, designs and geographical indications provide some kind of protection, but they are insufficient to safeguard folklore, which is generally communal, anonymous and trans-generational. This paper examines the limitations of existing copyright laws in India, explores international frameworks such as the UNESCO-WIPO Model Provisions and evaluates the need for a sui generis system of protection tailored to folklore. The study further emphasizes the importance of awareness programs, digital archiving and policy reforms that balance cultural preservation with economic growth, thereby ensuring the safeguarding of intangible cultural heritage in the digital era.
Keywords
Folklore, traditional cultural expressions (TCEs), WIPO, copyright, commercial exploitation, digital age
Introduction
Folklore is a type of traditional art form that can be a performing art or a non-performing art. The performing arts can take the form of songs or dance, whereas the non-performing arts may include classical literature, paintings and so on. across India, we have various cultures and respective TCEs existing for a long time. TCEs or folklores are known to be passed from one generation to another and are a collective piece of work as an outcome of their community’s culture. Due to various people involved in creation, their author/creator remains unknown and rather than individual rights, it creates the community’s right.
Folklore plays a crucial role not only in history and entertainment, but it also plays a pivotal role in preserving culture, traditions and values. In India, we have a diverse culture and they have their TCEs; they are not aware of how their work is being exploited in the world without being acknowledged. In the international arena, for the protection of folklore, the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, established by UNESCO and WIPO, was the initiative taken internationally for the protection of traditional cultural expression, which is referred to as TCE, sets certain guidelines for the protection of folklore in developing countries. it states how folklore can be protected in the Copyright Act itself or through neighbouring rights. It also emphasizes the sui-generis protection in law by enacting separate laws regarding the same.
With the aid of technology, it has become effortless to record and adapt such work and place it in the public domain. This puts the community, which introduced that particular art form, in a vulnerable position, curtailing their right to receive benefits from their work. In the digital world, where every piece of art is being exploited and easily accessible, the challenge is in preserving TCEs. The digital age has a significant impact on folklore and traditional cultural expressions (TCEs), creating both challenges and opportunities for their preservation and protection. One major impact of technology is the ease of access and dissemination of folklore through the internet. While this democratization of information allows for broader appreciation and engagement with various forms of folklore, on the other hand, it raises concerns over unauthorized exploitation. For instance, traditional songs, dances and artworks can be easily reproduced and distributed online without the consent of the originating communities, leading to potential misappropriation and dilution of cultural significance.
The question that arises for the protection of Indian folklore is whether the protection of folklore can be granted in existing provisions of the Copyright Act of 1957 itself, or whether there should be new sections that should be inserted in the existing act, or whether there should be separate legislation for the protection of folklore. If we consider protection under the existing provision itself, then what are the requirements and problems associated with it? Firstly, for protection under the existing copyright regime, the main requirement is that the creator should be known, but many times we see that the creator of folklore is not known. Sometimes it originated from the community and evolved in periods with another issue coming up, i.e., from which time the protection will be given and for how long the protection will subsist, because folklore is very old, also, so it is difficult to identify the fixed period of protection. Another point of conflict is that protection is given for a limited period, after which it comes to the public domain, but in the case of folklore, it is already present in the public domain. Lastly, the point of conflict is an ownership right. Generally, folklore belongs to a group of people in the community. The question is who will hold the ownership right, whether it shall be a private right or a community right. And who shall have the right to grant a license for their work?
From the above discussion, it is clear that it is difficult to protect folklore under the existing provisions of the Copyright Act in India. It is up to legislation whether to make a separate law or add a provision related to protection under the Copyright Act.
Research Methodology
This research paper approaches a doctrinal and qualitative methodology, relying primarily on secondary sources to analyse the protection of expressions of folklore against illicit exploitation. The study does not involve empirical fieldwork rather based on a critical examination of existing legal instruments, academic commentaries and institutional reports. Data has been collected from online sources, including the official websites of international organizations such as WIPO and UNESCO, as well as academic articles, e-books, legal blogs and online journals available in the public domain.
Review of literature
In the WIPO National Seminar on Copyright, Related Rights and Collective Management
organized by the World Intellectual Property Organization (WIPO), has discussed the protection of folklore, in which they have emphasized the importance of folklore for developing countries, considering it a form of self-expression and social identity. The digital age created challenges as these are commercialized, which results in the exploitation of the creator’s rights without the sharing of benefits. They are widely broadcast, reproduced and audiovisual productions without due authorization is a challenging part. These activities exist because there is no protection of TCEs. Without such protection, markets are frequently inundated by falsified and low-quality counterfeit “folk-art” products manufactured by mass-production technology and distributed through aggressive marketing methods. From time to time in various conventions, the issue of protection was discussed. Various countries have tried to enact laws for the protection of folklore. The issue with statutes was whether copyright is sufficient for the protection of folklore, although folklore contains artistic and literary work, but it differs from each other in various aspects. The Berne Convention has ARTICLE 15(4), which has some essence of protection of folklore.
Since the Berne Convention mainly deals with the protection of copyright, which was not enough to provide appropriate protection of folklore, there was a shift in the mode of protection by recommendation of a sui-generis mode of protection. UNESCO/WIPO together came up with Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions. This takes about a sui generis framework because the copyright model under the Berne Convention was not sufficient for folklore, which is communal, anonymous and traditional. Their purpose was to safeguard folklore from misuse, which required authorization for its utilization for commercial purposes or beyond its traditional or customary context, while exempting small community-based enterprises producing folklore goods in harmony with cultural traditions. The Provisions identified specific acts against which protection was required, including unauthorized use, failure to indicate the source community, distribution of counterfeit works falsely presented as folklore and the distortion or mutilation of folklore expressions in ways prejudicial to the cultural interests and dignity of the community. In this way, the Model Provisions aimed to balance the commercial and cultural protection of folklore while ensuring respect for the collective moral and economic rights of the communities concerned.
WIPO in CONSOLIDATED ANALYSIS OF THE LEGAL PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS/ EXPRESSIONS OF FOLKLORE, in which it is mentioned about policies for the protection of TCEs, in which it was emphasised on the protection of cultural heritage and promoting and safeguarding the cultural rights, which leads to economic development of the country. Commerce and the digital age have created a threat to folklore, where they are reproduced, created and used. IP protection of such TCES plays an important role, how these are protected under IPs regime and what the expectations of such communities are need to be addressed. Tradition and innovation go hand in hand they need to be given importance and need future development. Thus, it is required to preserve such tradition, but it does not mean that replication of TCES needs to be done to ensure its preservation. These TCEs may be beneficial for development, but the community that originated them must be rewarded. Nowadays, these TCEs are commercialized worldwide but do not get recognition. Since here the concern relating to IP protection arises. IP law, particularly copyright, between pre-existing traditional culture and contemporary creations inspired by such traditions. Pre-existing folklore is typically trans-generational, communally owned and of anonymous origin, making it largely ineligible for copyright protection under current frameworks. In contrast, contemporary literary and artistic productions that reinterpret, adapt, or build upon traditional cultural expressions, whether through new arrangements, adaptations, digital enhancements, or design innovations, can qualify as copyrightable works if they meet the standards of originality and novelty. It is important to note that the law does not require such works to be “authentic” or authored by members of the originating community, which raises concerns about equitable recognition and benefit-sharing. This distinction places much of folklore in the public domain, thereby exposing it to potential commercial exploitation without adequate safeguards for the cultural interests of source communities, underscoring the ongoing policy debates on how to protect traditional cultural expressions within or beyond existing IP regimes.
Commercial value of handicrafts
Folklores plays the very important role in any country it is not only concern of particular community but it values to development of any country according to Australia, the communities of Australia enjoys high level of copyright and other IP protections and visual arts and crafts are considered to be great source of income for the indigenous artists and communities, as per report issued in 2002. It is estimated that the indigenous visual arts and crafts industry has a turnover of approximately US$130 million in Australia, of which indigenous people receive approximately US$30 million. In Colombia, ‘Artisans de Colombia’ is the national institution charged with the development and promotion of the handicrafts sector. In many cases in Colombia, craft items are the only tradable products of small communities. The handicrafts sector employs a majority of women, considered an important factor in wealth distribution in small-income or single-parent families.
Similarly, India can also provide protection and help the communities to grow and create income out of folklore, as India is rich in cultural heritage, which will help to reduce poverty and result in the development of the country and community. Their source of creativity paves the way for the economic development of their region. Through this, the commercialization of their work is possible and they will have access to benefits for which they are the true owners, which will help them to grow commercially. If they grow and commercialize their traditions, they would be able to curb the unfair advantage taken by others from their traditions.
In India, a large number of communities exist and have various cultural work forms, which form an essential part of the country’s intangible cultural heritage. However, in India, there is no sui-generis legislation particularly for the protection of pre-existing folklore. Instead, protection is sought indirectly through existing Intellectual Property (IP) laws. For instance, the Copyright Act, 1957, extends protection to original literary, artistic, musical and dramatic works, which may include contemporary adaptations of folklore if they meet the originality requirement. Similarly, traditional designs may be safeguarded under the Designs Act, 2000 and certain folklore-based products may fall within the scope of the Geographical Indications of Goods (Registration and Protection) Act, 1999, which protects handicrafts like Madhubani paintings, Warli art and Channapatna toys.
The Copyright Act ,1957
The Copyright Act is the cornerstone of intellectual property protection in India, primarily focusing on safeguarding original literary, artistic and musical works. The Act protects the creators of original works, provided that these works meet the criteria of fixation and originality. However, the Act poses challenges for folklore, as traditional cultural expressions are often created collaboratively and anonymously, making it difficult to attribute authorship and protection.
The Act grants protection for a limited duration, typically the life of the author plus 60 years, after which the work is put into the public domain. Concerning folklore, which is usually trans-generational and communal. Weaknesses in this framework are evident in cases where the original creators of folklore are unidentified and disputes arise over ownership and rights.
The copyright owner of an artistic work has the exclusive right to do all or any of the following acts:
to reproduce the work in a material form;
to publish the work;
to communicate the work to the public
Under Section 38, a performer is granted a special entitlement referred to as a performer’s right over their performance. This provision benefits indigenous artists by recognizing and safeguarding their creative contributions. The right remains valid for twenty-five years. During this period, any individual who records the performance, either in audio or visual form, or communicates it to the public without the performer’s consent, will be considered to have infringed upon this right—except in cases involving educational use or reporting. While this recognition marks a progressive step towards protecting indigenous art forms, the scope of protection still remains limited.
The Designs Act, 2000
The Designs Act protects the visual design aspects of an article and is relevant to TCEs in terms of traditional designs such as crafts, fabrics and other artistic creations. This Act aims to prevent unauthorized copying of registered designs, thereby providing some level of protection for traditional crafts. Similar to the Copyright Act, the Designs Act operates on individual ownership principles, which again is a problem for communal and collective works inherent in folklore.
The Geographical Indications Act, 1999
The Geographical Indications (GI) Act protects products that originate from a specific geographical region and possess qualities or a reputation due to that origin and are associated with that region. This legislation is particularly beneficial for traditional handicrafts, artisanal products and agricultural goods that stem from indigenous practices and knowledge. Examples include the protection of handloom textiles and native crafts such as Madhubani paintings and Warli art.
India has also been an active participant in WIPO-UNESCO discussions on the international protection of folklore and supports the development of a sui generis framework for safeguarding traditional knowledge and TCEs. The National IPR Policy (2016) recognizes the need to protect India’s traditional knowledge and cultural expressions and the Traditional Knowledge Digital Library (TKDL) has been created to document indigenous medicinal knowledge, though it focuses more on traditional medicine than folklore.
Despite these regimes, folklores are still not protected and community ownership, benefit-sharing and protection against misappropriation of folklore remain unprotected. They are still facing challenges from commercial exploitation.
Suggestions
In India, a sui generis protection system for folklore is required, which will protect the pre-existing folklore across the country, the cultural rights from where it is originated and what safeguards will be the safeguards available to the community, how such work shall be reproduced and replicated and commercially exploited.
A strong IP protection framework is required to protect the TCEs, along with the protection they can claim and exercise their IP in their productions, through which they can facilitate the economic growth and development of the country.
Since the digitalization is deep rooted across the world and people are engaged in directly or indirectly exploiting the TCEs, the IP laws much ensure that the unauthorized use of such folklores can curb, not only unauthorized used but also falsely claims regarding connection of their product with any community need to be curbed and provisions should be their for such activities.
An awareness program by the government should be made to ensure that communities are aware of their TCEs and what protective measures they can take to protect themselves. Acknowledge their cultural rights and promote tradition-based creativity as sustainable economic growth.
Although the digital era comes with various kinds of threats, these digital technologies offer innovative tools for documenting and preserving folklore. Initiatives such as digital archiving projects enable communities to record and store their cultural expressions in a manner that is both accessible and secure. However, these advancements necessitate strict regulatory frameworks to protect communities from harm. Intellectual property laws must adapt to the dynamics of digital sharing, ensuring that there are mechanisms in place to prevent unauthorized uses while still allowing for the celebration of cultural heritage.
Conclusion
The protection of folklore in the digital age requires a unique legal and cultural challenge. While India has attempted to provide indirect safeguards through existing intellectual property regimes such as the Copyright Act, the Designs Act and the Geographical Indications Act, these frameworks remain inadequate in addressing the collective, anonymous and timeless nature of folklore. The digital environment, though a powerful tool for preservation and dissemination, has also enabled the rampant exploitation and misrepresentation of traditional cultural expressions without acknowledgment or benefit-sharing with the source communities.
To strike a balance between cultural preservation and commercial utilization, a sui generis legal framework is essential in India. Such a framework needs to recognize community ownership, ensure equitable benefit-sharing and impose obligations against unauthorized reproduction, distortion, or commercialization of folklore. Furthermore, awareness programs, governmental support and international cooperation are vital in empowering communities to protect and promote their cultural identity.
Ultimately, safeguarding folklore in the digital age is not merely a legal issue but a cultural necessity. Protecting traditional cultural expressions means preserving the diversity, dignity and creativity of communities, while also ensuring that their heritage contributes to sustainable development. By recognizing folklore as a living legacy rather than a relic of the past, India can both honour its traditions and harness them for cultural and economic advancement in the modern world.
KHUSHI SETH
JAGRAN LAKECITY UNIVERSITY, BHOPAL