Abstract
Tribes are basically having a strong relationship with the environment, nature, and natural resources. They live as a community having strong faith and belief in their culture. Tribes live away from the common society and enjoy their customs. Nowadays they are left behind and not able to walk with the growing society. Even though they are given various rights from our constitution, they are not able to enjoy as well as protect their rights properly because they don’t bear adequate knowledge about the rules and regulations of the developing society. Tribes own various kinds of knowledge from their ancestors about their raw medicines, crops, various foods..etc. they have mastery of the indigenous knowledge-derived products, especially the medicinal properties of some trees, bushes.. etc. But nowadays they are not able to protect their intellectual rights as they are unaware of these newly involved rules and regulations in the society. Intellectual property rights are the intangible rights that are given over tangible property. In this case, the knowledge and the discoveries arising from the tribe peoples are worth of getting the protection under the Intellectual property right. This research paper attempts to scrutinize the numerous knowledge and pieces of information that the tribal people are having, as well as about the IP rights which should be given to them for the protection of their traditional knowledge and inventions.
Keywords
IP rights, tribe, traditional knowledge, indigenous people, artistic work
Introduction
Tribes are a group of people who belongs to the same ancestry, have a huge historical background, and love to live in a private society.
“Tribal peoples in independent countries whose social, cultural, and economic conditions set them apart from other parts of the national community, and whose status is governed entirely or in part by their own customs or traditions or by special laws or regulations. People in independent countries who are considered indigenous due to their ancestry from the populations that inhabited the country, or a geographical region to which the country was related.”[1]
In India various kinds of tribes are present. Tribes are given an intrinsic part of the Indian population. They are well attached to the environment, and their customs and are very religious. In India the number of tribes are scattered, most of the tribes are present in the union territories part of India. They belong to a very clumsy society, their literacy rate is very low in comparison to the persons who live in the developing part of India. Basically, the tribes believe in their rituals, customs, and culture which are quite different from the other group of people who lives in the well-developed society in India. Tribes are having great knowledge of art, crafts music, dance, and various other practices. However, although having so much value in our history, culture, and customs, they are given the least importance, and as a result, their art and craft, practices, music, handicrafts, dance, and way of life are slowly fading. In the era of the 20s, their upliftment in sectors like education, economic, and social interest is of utmost need.
This research paper attempts to provide light on the rights of these indigenous people and how their intellectual property rights will be protected. This research paper will address the importance of intellectual property rights for tribal people.
Research Methodology
This paper is descriptive in nature and the research is based on various tribes who are living in India and their innovative mind and creation which should protect under IP rights. Secondary sources of information like newspapers, journals, and websites are used for the research.
Review of literature
According to Article 366 (25) of the Indian Constitution, the term “Scheduled Tribes” refers to any tribes or tribal communities that are considered to be Scheduled Tribes under Article 342 of the Constitution[2]. In India there are various kinds of tribes living, they are familiar with the word ‘Adivasi’. There are over 600 numbers of tribal people living in India. However, their numbers vary from time to time. The numbers are like, in Mizoram (94.4% of the population), Lakshadweep (94%), Meghalaya (86.1%), and Nagaland (86.5%) have the most tribal settlements. Important tribal settlements can also be found in Madhya Pradesh, Orissa, Maharashtra, Rajasthan, Chhattisgarh, Assam, and West Bengal. In all, scheduled tribes account for 8.6% of India’s total population.[3] They are having mastery in making crafts, doing songs, poems, and artistic works which gives them a special face to be recognized in society.
The population of Scheduled Tribals (ST) is 21.1% of the state population (15.31 million out of 72.62 million), according to the 2011 census. About 154 lakhs out of the total population of 677 in India, which estimates about 22.75% of the total tribal population. It is one of these regions of India where scheduled caste form 15% & scheduled tribes Constitutes 23% forming a total of 38% of the state population. Near about 84,326,240 tribals in India around 12 percent live in the northeast region of the country. In the different states of India like
Madhya Pradesh-14.7%
Maharashtra-10.10%
Orissa-9.2%,
Gujarat-8.6%,
Rajasthan-8.9%,
Jharkhand -8.3%
Andhra Pradesh-5.7%
West Bengal-5.1%
Karnataka-4.1%
Assam-3.7%
Meghalaya-2.5%
Chhattisgarh-7.5% tribal people are found.
There is no ST population in 3 States (Delhi NCR, Punjab, and Haryana) and 2 UTs (Puducherry and Chandigarh), as no Scheduled Tribe is notified.[4]
Various Unique Works of Indian Tribes
Indian tribes are rich in aesthetic perfections. They are having adequate knowledge about making traditional arts and crafts. They represent their ideas and works beautifully through their artistic works. Almost every tribe groups in every state have some individuality and uniqueness in their art and crafts. Some of the famous arts of different tribes in India are:
Famous Warli folk paintings of Maharastra tribe people, Bhil art, Gond art, Kalamari art, Rajasthan Phad art..etc.
Tribes are well known for making various customize jewellrey and tribal clothing. They used to make different kinds of ornaments from flowers, leaves, shells, bones and stems which turned out to be beautiful necklaces or some kind of jewellery.
Tribes use many kinds of iron, gold, silver, peacock feather, copper, glass, and bronze-like materials to make customized ornaments. Some of the famous finest ornaments are Kaan( traditional earrings), Chik( gold choker), Hunsuli, Dokra, and coin jewellery.[5]
Another aspect of their famous work is their clothing. Tribes are having different kinds of famed clothes which are seen and appreciated by other societies. Different tribes are using different clothes which vary from one to another. The clothes of the tribal people of Odisha are different from the clothes of the tribal people of Jammu-Kashmir.
Some of the clothes are Mundum Neriyathum, Pawl Kut, Dumdyam, Dhara, Pano Bhaju ..etc.
Uplifting the IP rights of the tribal people
To know about the upliftment of IP rights of the tribal people we should know about the IP rights first. Nowadays various industrial development and rapid growth in science, technology, and artistic literacy work are happening. For these kinds of work, people are giving their innovative minds and time towards their work. To protect against the newness of their work there are certain rights are present. This will basically encourage the creative activity of the investors and guarantee them some privacy in return.
To empower individuals for their work and activities intellectual property rights play a vital role. There is no such proper definition of intellectual property rights, however, this right basically gives protection to the innovative and new works of people. This is an intangible right over tangible property. Various kinds of IP rights are patents, copyright, trademarks, geographical indication, design, integrated circuits, and trade secrets. When a person gets these IP rights, then that person has an exclusive right over certain products or works that he has made before. After getting that right over a certain product one person can restrict other people from using that product without his permission.
All kinds of innovative works of the tribes should be protected under IP rights. The literacy works of the tribal people are very low in comparison to the people of other societies. Our government has given different kinds of laws and rights to the tribes but has not taken any kind of important steps toward protecting IP rights. As mentioned above tribes are rich in doing various kinds of clothes, ornaments, crafts, poems, and songs by using their own mind and innovative ideas, but after making those things other people from different societies use their works without their permission.
The tribal ornaments as well as the clothing of India are appreciated by the people of different regions of the world. To empower the tribe community and to make them financially stable sometimes government organize different kinds of exhibition. The tribal people of different corners of India come to exhibitions to participate in the same. But as they are unaware of any kind of IP rights it might be possible their unique works ideas and procedures can be stolen by any of the visitors.
The persons adhered to the business steal their ideas and as well as buy their products at a very low price and make a profit out of it by selling those crafts and jewellery to other groups of people in different corners of the world. Tribal people are unaware of the actual cost of their ornaments and different products, they just make it to sell at a reasonable price that they can manage that with their lifestyles. Due to the unrestricted scheme, they are not able to protect their works, ornaments, crafts, and clothes with certain rights.
IPR has a direct and substantial impact on the business, as because the IPR holders can restrict and enforce certain rules and regulations as well as certain rights upon their innovative products. As a result, no other person can’t entertain their monopoly without the permission of the actual IPR holder. So due to this reason, the IPR holder can sell that product with a monopolistic reasonable cost.
But here in the case of the tribe people they do have not any kind of monopoly rights upon their works. So they can’t restrict another person from stealing their products and as well as methods.
With these IP rights, they can have their strong stand in the free market without having a second thought. So intellectual property rights are necessary for these indigenous people for the protection of their ingenious work.
Different steps for defending tribal people’s intellectual property right
Respecting and appreciating tribal people’s distinctive knowledge, inventions, and cultural manifestations requires taking important steps to safeguard their intellectual property rights. Traditional knowledge that has been acquired and kept through generations is frequently important and is held by tribal communities. The following steps can be done to defend their intellectual property rights:
Making awareness
Raising awareness of tribal people’s intellectual property rights among decision-makers, organizations, and the general public. Recognize and value their cultural manifestations and traditional knowledge as important intellectual resources. So that the tribal people will be aware of such rights through this process.
Traditional laws and community norms
Assist tribal groups in the creation and application of their own unique customary rules and norms. Guidelines for safeguarding and maintaining their intellectual property, including traditional knowledge, then it should be outlined in these frameworks. They provide tribal communities the authority to enforce oversight of their rights to intellectual property according to local customs.
Legal framework
Advocate for the creation and enhancement of legislative frameworks that expressly recognize and defend indigenous people’s intellectual property rights. Work together with lawmakers, legal professionals, and tribal leaders to make sure that laws and regulations accurately reflect the unique requirements and conditions of tribal communities. Leaders of the tribal community should consult with legal activists and advocates about their protection of IP rights. They should enhance their knowledge by reporting effective reports for the concerned matter and take some suggestions from the legal workers.
Consultation and consent
When interacting with indigenous tribes, emphasize the value of free, prior, and informed consent (FPIC). Consult with them before making decisions that might impact their intellectual property rights to make sure they have all the information they need and the freedom to consent or object based on their own interests. Always try to make the tribal people understand all the pros and cons, profit and loss of their product. The consent should be without coercion.
Agreements for sharing benefits
Agreements that share benefits create benefit-sharing arrangements that are reasonable and equitable so that indigenous communities can profit from the usage and marketing of their intellectual property. These agreements should make sure that tribal people are fairly compensated, recognized, and given control over how their customary knowledge and expressions of culture are used and shared.
Building capacity
Help tribal groups develop their abilities so they can recognize and exercise their intellectual property rights successfully. Provide instructional materials, workshops, and training sessions on subjects such as benefit-sharing agreements, documentation, protection, and administration of traditional knowledge. Making the tribal people understand various topics, and making them literate will help them to have knowledge thoroughly towards this intellectual property rights.
International cooperation
Encourage international cooperation to address indigenous peoples’ intellectual property rights. Encourage the participation of tribal viewpoints and issues in global conversations on intellectual property, tribal rights, and the preservation of culture. Exchange best practices and take inspiration from other indigenous groups’ global experiences.
By implementing these actions, we can fight to improve tribal people’s IP rights and make sure their knowledge, discoveries, and artistic expressions are safeguarded, recognized, and appreciated appropriately. This promotes social fairness, community empowerment, and cultural preservation for native groups.
Tribal people in India have their intellectual property rights (IPR) protected by a number of laws and rules. Tribal groups’ rights are recognized under the Indian Constitution, which also offers them some protections. The following are some significant elements relating to Indian tribal people’s intellectual property rights:
Act of 2006 Recognising Forest Rights for Scheduled Tribes and Other Traditional Forest Dwellers
The privileges of tribal and forest-dwelling populations over forest resources and land are recognized legally by this legislation. It recognizes their rights to make use of, preserve, and safeguard their cultural assets, biodiversity, and traditional knowledge.
Protection of Plant Varieties and Farmers’ Rights Act, 2001
In terms of plant types and traditional knowledge, this legislation acknowledges and defends the rights of farmers, particularly those who are members of tribes. It seeks to protect farmers’ interests while advancing the preservation and wise use of genetic resources from plants.
Traditional Knowledge Digital Library (TKDL)
The Indian government launched the Traditional Knowledge Digital Library (TKDL) as a project to record and safeguard traditional knowledge, particularly that of tribal tribes. It serves as a storehouse for conventional medical knowledge and prevents the granting of patents on conventional information already in existence without the required approval and benefit-sharing.
Geographical Indication (GI) registration
Tribal groups may apply for Geographical Indication (GI) registration for goods that have special traits or characteristics connected to a particular geographic area and cultural practices. The customary skills, expertise, and cultural legacy of indigenous tribes are protected by GI.
Copyright and associated rights
Tribal individuals have a right to the protection of copyright as well as associated rights for their artistic, literary, and musical works, guaranteeing that their creative expressions are preserved and that they get credit and financial rewards for their works.
Suggestions
Indian tribes can uplift their intellectual property rights with the help of certain authorities and make themselves understand the scope and importance of IP rights. However, these intellectual properties have frequently been misused without the necessary recognition. Encourage collaborations between Indian tribes, legal professionals, and pertinent parties including governmental organizations, academic institutions, and non-profits. These collaborations can contribute to a better knowledge of tribal intellectual property rights and offer tools and assistance for their defence. The intellectual property rights of indigenous groups should be acknowledged and respected by governments, organizations, and society at large. This entails protecting their cultural manifestations and acknowledging their traditional knowledge as legitimate and useful. Governments should create or improve legal frameworks that safeguard indigenous people’s intellectual property rights. Adopting new legislation or integrating native rights into current intellectual property laws may be necessary to accomplish this. These frameworks have to have procedures in place for identifying, cataloguing, and preserving traditional knowledge and cultural manifestations.
Make sure that Indian tribes may obtain legal help and assistance in cases involving intellectual property rights. This can be done by creating specific legal aid programs that concentrate on tribal intellectual property concerns and forming collaborations with pro bono legal organizations, law schools, or all three.
Another aspect is making sure Indian tribes may get legal counsel and support in disputes over intellectual property rights. This can be achieved by establishing partnerships with pro bono legal institutions, law schools, or all three, as well as specialized legal aid projects that focus on tribal intellectual property issues.
Conclusion
Tribes are having hidden treasures with them. As we all know tribes are rich in art, music, crafts, and culture, by proper guidance and help from the legislature as well as legal protection they can access IP rights for their works. They are contributing to the economy through their art, crafts, and various types of products such as giving crops, medicinal plants, etc.
We all can help them by uplifting their intellectual property rights, which will help them to get financial benefits also, as making them understand the restrictive nature of IP rights will give them the right to put restrictions upon the products. So the other people cannot use them for their economic benefit. By promoting the works of tribes and globalizing the art, crafts, and tribal clothes, we can help them to get recognition in the world. With this kind of help, they will be benefited.
Pragnya paramita mohanty
SOA National Institute of Law,LL.B(H) 3rd year
[1] ILO Convention 169,Geneva, Switzerland, office of united Nations High for Human Rights,1999
[2] National Commission For Scheduled Tribe, https://ncst.nic.in/content/frequently-asked-questions#WrapperContent (last visited May 10, 2023).
[3] Byju’s Exam Prep, https://byjus.com/free-ias-prep/major-tribes-in-india/, ( last visited My 10, 2023)
[4] Dr. Jyoti Dwivedi, Indian Tribal Ornaments; a Hidden Treasure, Volume 10, Issue 3 Ver. II, IOSR Journal of Environmental Science, Toxicology and Food Technology, page 2(2016)
[5] Priyanka periwal, A Look Into Idia’s Tribal And Ethinic Jewellery, HOMEGROWN,( June 8, 2021,05:53 PM), https://homegrown.co.in/homegrown-explore/a-look-into-indias-tribal-and-ethnic-jewellery#:~:text=Bengali%20Tikli%20(forehead%20adornment)%2C,precious%20stones%2C%20and%20wooden%20beads.