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Traditional cultural expressions are often the product of inter-generational and fluid social and communal creative processes which reflect and identify a community's history, cultural and social identity, and values. Indigenous art copied on to carpets, T-shirts and greeting cards; traditional music fused with techno-house dance rhythms to produce best-selling 'world music' albums; hand woven carpets and handicrafts copied and sold as 'authentic'; the process for making a traditional musical instrument patented; indigenous words and names trademarked and used commercially. These are the kinds of examples that indigenous and other traditional and cultural communities cite use. The protection against such exploitation of traditional writings, languages, customs, songs, paintings, handicrafts, rituals and ceremonies, traditional medical knowledge, legends and myths, referred to collectively as traditional cultural expressions ("TCE") or "folklore," has emerged as an aspect of the cultural and intellectual property rights of indigenous people and is a key issue in the international arena.
The term Folklore was coined by William Thomas in 1846, he referred the folklore word suitable to replace popular word 'popular antique' and 'popular literature' he summarized it as "lore of people". The term has not been defined in any national and international legal document, but the term "expression of folklore" has been defined in model provisions prepared by WIPO and UNESCO to act as guidelines for states desirous for framing legislation in this area. This defiantion is broad and all encompassing one 'Traditional cultural expressions'/ 'expressions of folklore' means productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of [name of country] or by individuals reflecting the traditional artistic expectations of such a community, in particular .
During 1998 and 1999, WIPO conducted fact-finding missions in 28 countries to identify the IP-related needs and expectations of traditional knowledge holders ('FFMs'). For purposes of these missions, 'traditional knowledge' included TCEs as a sub-set. Indigenous and local communities, non-governmental organizations, governmental representatives, academics, researchers and private sector representatives were among the more than 3000 persons consulted on these missions. The results of the missions were published by WIPO in a report entitled 'Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-finding Missions (1998-1999)' (FFM Report).
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 for Latin America and the Caribbean (June 1999). Each of the consultations adopted resolutions or recommendations, which included the recommendation 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 (the Committee) 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. Under the guidance of the Committee, the Secretariat of WIPO has issued a detailed questionnaire on national experiences, and undertaken a series of comprehensive analytical studies based on the responses to the questionnaire and other consultations and research. The studies have formed the basis for ongoing international policy debate and assisted in the development of practical tools. Drawing on this diverse experience, the Committee is moving towards an international understanding of the shared objectives and principles that should guide the protection of TCEs.
At international level the Berne Convention could be regarded as taking account of the protection of expressions of folklore. According art. 15 par. 4 of the Berne Convention, in case of unpublished works where the identity of the author is unknown, but where there is a ground to presume that he is a national of a country of the Union (signatory state), it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union. It seems that no such notification has been made to the WIPO Secretariat. Similarly according to art. 7 par. 3 of the Berne Convention, the term of protection of an anonymous work run only from the time the work is made available to the public. It is stated however that signatory countries are not required to protect anonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years. The protection granted to databases by article 5 of the WIPO Copyright Treaty covers compilations of data and therefore inventories and collections of expressions of folklore can be protected. Such protection is not to be confused by the protection of the data itself. The WIPO Performances and Phonograms Treaty extended the definition of performer (art.2) specifically to include persons performing expressions of folklore. Expressions of folklore are not works but protection is given to an artist that performs expressions of folklore, such as stories, poetry, music, song and dance, under the concept of neighbouring rights.
Examples from India:
The first is the case of the kantha-stitch industry in West Bengal and Bangladesh, which is a specific kind of decorative embroidery done only by the women of Bengal. The kantha-stitch industry has emerged as a highly lucrative industry, operating as an informal sector in India.10 However, over time fashion designers have come to stylize and innovatively apply the kantha technique on all kinds of apparel and accessories that are immensely popular in the market, thus, grossing millions for the fashion industry. The women who create the exquisite patterns, after laboring for days, however, receive meager remuneration and no recognition for their art. This is a classic instance of exploitation of traditional cultural expression that brings into sharp focus the issues of ownership and authorship of indigenous intellectual property.
Second is the Madhubani painting-one of the most widely exported art products from India. The Madhubani is a distinctive kind of painting using line drawings and vegetable dyes created by rural women from the Chota Nagpur Plateau and Chattisgarh areas in the state of Bihar located in eastern India. Apart from the problem of artistic non-recognition, as in the case of the kantha industry, the threat of fakes is paramount in this instance because cheap imitations flood both domestic and international markets.
Finally, the commercial exploitation of TCE in the area of folk music, the problem by focusing on contemporary Bengali pop, which is based largely on blatant misappropriation of folk tunes and songs. The core of the problem in the case of folk music protection, unlike in folk art, is the absence of fixation, leading to mutilation and distortion of folk music apart from non recognition of folk artists. Issues of moral rights and duration of protection are problems that find relevance in each of the areas described above.
Traditional Cultural Expressions vis-à-vis Copyright Protection:
Taking an example during the opening ceremony of the 1996 Atlanta Olympics, the popular German-American world music band Enigma performed the theme song for the event, "Return to Innocence." As the song resounded in millions of homes worldwide, members of the Amis tribe in Taiwan identified it as resembling a folk song that formed an integral part of their upbringing and culture. Consequently, Enigma, Capitol-EMI Music, and Virgin Records were sued collectively for a hefty amount in royalties in U.S. district court. Eventually the parties reached an out of court settlement compelling Enigma to acknowledge the Amis people's contribution to the song.
Going by the provisions of Indian Copyright Act, provisions which attracts safeguards for TCE are Sec 2 2 (c) which describes artistic work", (d) describes author, (ffa) describes composer (h) describes a dramatic work, (p) describes musical work (q) describes performance, (qq) describes that performer' includes an actor, singer, musician, dancer and (y) describes work means any of the following works, namely[(i) a literary, dramatic, musical or artistic work]. Further Section 13(1)(a) describes works in which copyright subsists it include original literary, dramatic, musical and artistic works. So we can say that there are several provisions under India Copyright Act which talks for the defense of original work created by an individual.
Indigenous peoples seek respect for of their traditions and cultures, and for customary laws and protocols that govern use of their creations. They seek protection of their expressions to prevent
moral, cultural, and economic misappropriation, and also so that they might benefit economically from the value of their creative intellectual activity, in the same way that authors benefit from works through the copyright system. But those outside indigenous communities, indigenous works have often been regarded as belonging to the public domain, because they originated in centuries-old traditions, having no specific source or author. It has been common for researchers, artists, musicians and entrepreneurs to ignore the origins of traditional works and expressions and to use them, sometimes consciously and sometimes subconsciously, for profit or for artistic flair and depth. Traditional material is often used without consulting with indigenous groups, without researching the context of the works, without providing attribution for the works, without acknowledging the customary laws within the communities or tribes that exist to govern use of works, and when there is a commercial purpose, without sharing the benefits of the derivative products with indigenous peoples. To the indigenous peoples, a song, story, icon, or artwork does not belong to an individual but to the group as a collective whole determined by the customary laws of collective ownership of cultural property. But under Indian intellectual property creation and use within indigenous groups is not based on notions of individual talent and expression, but instead stems from a system of inherited rights and obligations. Despite this attempt, folkloric rights continue to have no standing in the international courts. Typically, therefore, indigenous peoples have sought to protect folklore under the framework of intellectual property, within which they have considered copyright laws best suited to protect traditional cultural expressions. However, as several authors have argued, the copyright regime in its present form is ill equipped to serve the interests of indigenous communities due to fundamental differences between the understanding of "protection" and the indigenous understanding of the same.
While indigenous works are not excluded entirely from protection under the present copyright regime, it does not give them any kind of special protection either. As of now, folk music, folk art, and other forms of folklore do not find special mention in any copyright statute in the world. The Indian Copyright Act of 1957 is no different in this regard.
The laws on geographical indications are better suited to the protection of expressions of folklore because they can be assigned to a territory rather than a natural or legal person. This type of protection can be applied only to certain tangible folklore products such as carpets, and textiles. If we go by the provisions of Indian GI Act 2000, section 1(e) explains the term Geographical Indications and it includes the term as "â€¦â€¦.where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be". Further Section 1 (f) include "goods" like any agricultural, natural or manufactured goods or any goods of handicraft or of industry and includes food stuff, It includes the term handicraft in it so we can say that this can also be claimed as a defence by the indigenous people in India. Than section 1 (g) describes "indication" it includes any name, geographical or figurative representation or any combination of them conveying or suggesting the geographical origin of goods to which it applies and section 1(k) describes the term "producer", in relation to goods, means any person who:-
(ii) if such goods are natural goods, exploits the goods;
(iii) if such goods are handicraft or industrial goods, makes or manufactures the goods, and includes any person who trades or deals in such production, exploitation, making or manufacturing, as the case may be, of the goods.
Under this also the term handicraft is mentioned and the person who is making the same is described as its producer or in simple words we can say that the sole proprietor of that good.
Further if we go by the section of Industrial Design Act, section 2(a) describes the term "article" which includes any substance, artificial, or partly artificial and partly natural and includes any part of an article capable of being made and sold separately. Than if we go by section 2 (d) it describes the term design and it includes "the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combinedâ€¦â€¦â€¦" .
So from these provisions it is clear that there is no lack of statute over TCE in India what lacking is the implementation of the same. So proper knowledge of existing laws should be conveyed to the people and lacuna in implementation of the same should be removed.
Traditional cultural expressions should be protected by applying classical principles securing moral values, culture and education. Finding the appropriate protection of expressions of folklore is a complex balancing act. At every level the goal should be the adoption of fair regulations based on principles of mutual respect, fairness and justice in an effort to protect cultural heritage of all nations and convert the elements of cultural diversity into elements of approach and coexistence.