For millennia, India has been a centre of artistic and craft traditions, possessing exceptional talent across a wide range of disciplines. India’s cultural landscape is characterised by myriad traditions, including classical arts, folk music, dance forms, handicrafts, rituals, and traditional knowledge systems^[1].

The significance of traditional cultural expressions (TCEs) and traditional knowledge (TK) within legal frameworks has been recognized, requiring separate analysis from broader TK elements. The protection of TCEs involves addressing specific legal issues and developments^[2].

In recent years, the Indian government has intensified its efforts to strengthen its intellectual property (IP) system. Geographical Indications (GIs) have become a major topic of discussion for both national legislation and international agreements. The Parliament’s recent review of the Intellectual Property Rights (IPR) regime in India highlighted the importance of addressing the documentation and protection challenges faced by traditional knowledge.

The commercialization of traditional knowledge-based products and services provides a powerful incentive for communities to retain their traditional knowledge base. However, ensuring sustainability requires various measures, such as conservation, generating awareness, monitoring resource use, policy changes, training in sustainable practices, and assisting in the processing of TK-based products to add value. The current IPR regime does not adequately support the legal interests of low-income communities (LICs), making it crucial to assess the risks of over-exploitation and loss of traditional knowledge associated with commercialization^[3].

It is pertinent to note that over-emphasis is put on the commercialization of TK, rather than on its conservation and further development. It is necessary to protect the underlying values of TK.

Targeting local communities as beneficiaries may trigger conflicts between those of them that have overlapping resource bases or TK. The idea of a community knowledge fund as a recipient of benefits derived from the commercialization of TK-based products deserves special attention. However, overheads associated with such funds should be kept to a minimum.

What is Cultural Expression?

Traditional cultural expressions (TCEs), also called “expressions of folklore”, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.

Traditional cultural expressions:

• may be considered as the forms in which traditional culture is expressed;
• form part of the identity and heritage of a traditional or indigenous community;
• are passed down from generation to generation^[4].

The analysis of various folk dances in India which form a part of traditional cultural expressions (TCEs) such as Koli, Kalbeliya, Lavani, Ghoomar, Chau, Dumhal, and Nimbooda, reveals a pattern of appropriation and commercial exploitation by the Bollywood film industry. These TCEs, which are rich in cultural significance and deeply rooted in the traditions of indigenous communities, are frequently used in films without due attribution, compensation, or informed consent. This practice violates the principles of fair use and cultural respect, highlighting significant gaps in the legal framework protecting these cultural assets.

Copyright is claimed over the traditional music sung and produced by large music recording companies and these traditional folk artists are expected to obtain licenses to perform their very own traditional music, which has now been copyrighted by music companies.

Economic disparity and cultural dilution arise from the lack of compensation and IP protection for indigenous communities. Misuse of traditional cultural expressions in media further erodes cultural integrity. Legal reform is urgently needed to create robust IP laws that protect and fairly compensate these communities for their heritage^[5].

Effects on Economy

It is recognized that the making and marketing of some forms of TCEs present potential sources of livelihood to many indigenous communities currently marginalized in the socio-economic order.

India has the potential to gain a substantial competitive edge over less diverse and, consequently, less adaptable and innovative competitors in the long run if it can unite its citizens behind a common national vision that embraces its cultural, religious, and economic diversity. India will be able to capitalize on its democracy and increase the value of the demographic dividend by doing this.^[6] (financial inclusion), and having the ability and wish to consume (mass consumerism)

Through the creation of community enterprises, local job creation, skill development, appropriate tourism, and foreign earnings from community products, the use of traditional cultural materials as a source of contemporary creativity can aid in the economic development of traditional communities. IP acts as a tool by giving tradition-based creativity legal protection, allowing communities and their members to either keep out free-riding competitors or commercialize their creations if that is their desire. In addition, communities can demonstrate and enhance their cultural identity and promote cultural diversity through the marketing of artisanal goods. IP can help by verifying the provenance of handicrafts (via certification trademarks) or by stopping the illegal sale of counterfeit goods as “genuine” (via unfair competition laws). Communities have defended against the disrespectful and insensitive use of traditional works by using their intellectual property (IP) to exert control over how their cultural expressions are used.

Innovation and TCEs

Cultural heritage expressions can drive innovation by providing time-tested knowledge and techniques that can be adapted to modern challenges and technologies. Examples of how cultural legacy can spur innovation and breakthroughs across a range of industries include quinine, which was developed from traditional medical practices, and engineering designs influenced by origami^[7].

Similarly in India the revival of khadi has not only provided sustainable and eco-friendly alternatives to mass-produced textiles but also supported rural artisans and preserved traditional craftsmanship^[8]. India’s rich cultural heritage can inspire and drive contemporary innovations. This fusion of heritage and innovation has been shown to create new markets and find contemporary solutions^[9].

Paintings :

Originating from various regions of India, several traditional art forms have faced commercial exploitation without proper recognition or compensation to the original artisans. Kalamkari painting from Andhra Pradesh is extensively used in fashion and home décor industries without acknowledging or financially benefiting the artisans. Phad Painting from Rajasthan is frequently replicated in commercial products without attribution or financial benefits to the local artists. Similarly, Patachitra paintings from Odisha are often copied and sold as souvenirs without crediting the original creators. Warli paintings from Maharashtra are widely utilized in advertising and design without proper authorization or compensation to the Warli tribe. Additionally, Madhubani paintings from Bihar are frequently replicated in various commercial products, again without due recognition or financial benefit to the artisans.

International Models

Peru: The law defines a performer as someone who executes literary, artistic works, or folklore. Folklore expressions include traditional cultural heritage elements passed down through generations. Protected works encompass original anthologies, compilations, and databases of folklore. Derived works as long as they are original, are granted due protection^[10].

To protect indigenous collective knowledge linked to biological resources, the law promotes fair benefit-sharing, including royalties. It mandates prior informed consent (PIC) and establishes National and Confidential Registers of Collective Knowledge to document and protect traditional knowledge, ensuring fair compensation and agreements for commercial use.

New Zealand’s legal frameworks protect Māori cultural expressions, ensuring the Māori community benefits from their commercial use^[11]. This protection enhances the appeal of Māori cultural experiences for tourists, generating significant income for Māori communities and boosting the country’s overall tourism revenue^[12].

Gap in Law

GIs – Even though GIs have protected a long list of commodities of specific geographical origin and possess qualities or a reputation due to that origin. However, the scope of protection is narrow as music, dance, art, rituals, and folklore, which may not be tied to a specific geographical location remain outside their purview. TCEs offer a flexible legal framework that can adapt to the dynamic and evolving nature of cultural practices and expressions without the fear of unauthorized adaptation or misrepresentation as GIs are limited to the prevention of unauthorized use of a name only.

The most striking feature of TCEs is the emphasis on collective ownership and rights of the communities involved in creating these expressions to empower them further to continue to practice these expressions by according to them due recognition and protection through measures like royalty payments and benefit-sharing mechanisms.

broader question of whether GIs can protect the traditional knowledge or indigenous knowledge of the stakeholders^[13].

Challenges posed by globalization, commercialization, and digitalization

As per the WIPO report on the protection of TCEs, globalization has exacerbated the inappropriate use and commercial exploitation of TCEs without proper understanding or respect for their cultural significance which leads to misrepresentation and the erosion of the original cultural context.

Commercial entities frequently profit from TCEs without providing fair compensation to the indigenous communities that created them. This economic disparity deprives communities of potential revenue from their cultural heritage.

This widespread and unregulated use of TCEs can dilute their meaning and significance, leading to a loss of cultural identity for the communities that hold these traditions. This dilution often results from digital platforms where TCEs are shared and altered without consent^[14].

A careful analysis of legal frameworks shows that many countries lack comprehensive legal protections for TCEs, making it difficult to enforce rights and prevent unauthorized use. Existing IP laws often do not adequately cover TCEs, necessitating the development of sui generis protections.

Digitalization is facilitating the rapid and widespread distribution of TCEs, complicating efforts to control and protect these expressions. The digital environment can also enable unauthorized copying and alteration, further undermining the integrity of TCEs^[15].

Digitalization of Cultural Expression

The digital age has presented significant challenges to the protection of traditional cultural expressions (TCEs). Piracy and Unauthorized Distribution is a major issue, as the ease of digital reproduction undermines the economic viability of creators by allowing unauthorized copies of movies, music, literature, and artwork to proliferate, damaging cultural institutions financially^[16].

Loss of Traditional Knowledge occurs when digital platforms inadvertently facilitate the unauthorized dissemination of traditional knowledge, leading to its exploitation without proper attribution or benefit-sharing with indigenous communities. Copyright Infringement is rampant in the digital age, where technologies make it simpler to copy and distribute copyrighted works without permission, impacting films, music, literature, and artistic creations integral to India’s cultural heritage.

The creation of Derivative Works and Adaptations in the digital environment often occurs without adequate protection for the original creators or communities, leading to exploitation and loss of cultural integrity. Misappropriation and Cultural Appropriation are facilitated by digital platforms, which often exploit traditional symbols, motifs, or practices for commercial gain without respecting their cultural significance. Moreover, Lack of Digital Rights Management (DRM) means that India’s IP laws and enforcement mechanisms may not adequately address the protection of cultural expressions in the digital realm, complicating efforts to safeguard these expressions.

Cross-Border Challenges arise because digital platforms operate internationally, making it difficult to enforce IP protections and prevent infringement by foreign entities. Privacy Concerns also emerge when cultural events, rituals, or practices are digitized, exposing sacred or intimate traditions to global audiences without the community’s consent. The control of Monetization and Control by digital intermediaries often leads to economic disparities, as these intermediaries benefit from cultural expressions while creators and cultural custodians struggle to monetize their heritage. Finally, the Lack of Comprehensive Legislation in India tailored to address digitalization’s unique challenges hinders effective protection and enforcement of IP rights, leaving traditional cultural expressions vulnerable in the digital age.

Assessment of  India’s International Commitments

India has been a signatory to UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage (ICH) since 2003. This convention aims to safeguard the practices, representations, expressions, knowledge, and skills that communities recognize as part of their cultural heritage. India’s commitments under this convention include:

1. Identification and Documentation: India must identify and document intangible cultural heritage (ICH) within its territory, maintaining an updated inventory.
2. Conservation and Protection: The country is obligated to take necessary measures to ensure the viability of ICH, including its transmission through formal and non-formal education.
3. Awareness Raising: India must promote the significance of ICH and ensure respect for the intangible heritage of the communities, groups, and individuals involved.
4. International Cooperation: As a member state, India collaborates internationally to safeguard ICH, sharing knowledge and expertise with other nations.

Policy Recommendations

1. Develop Sui Generis Legislation: Create specific laws that recognize and protect traditional cultural expressions (TCEs) independently of the existing IP framework. These laws should include provisions for collective ownership, moral rights, and benefit-sharing mechanisms.
2. Strengthen the Traditional Knowledge Digital Library (TKDL): Enhance the TKDL to include comprehensive documentation of TCEs, ensuring accessible and transparent records that can be used to prevent misappropriation and provide legal proof of ownership^[17].
3. Implement Geographical Indications (GIs) for Cultural Products: Extend the scope of GIs to cover cultural products such as music, dance, and rituals, ensuring these expressions are protected from unauthorized use and that communities receive due recognition and economic benefits.
4. Enhance Community Participation: Establish legal frameworks that mandate the involvement of indigenous and local communities in decision-making processes related to the protection and commercialization of their cultural expressions.
5. Introduce Awareness and Capacity-Building Programs: Develop educational programs to raise awareness about the importance of protecting TCEs and provide training for communities and stakeholders on legal rights, sustainable practices, and commercialization strategies^[18].

Other Suggestions

1. Community-Led Initiatives:

To ensure expressions are maintained and transmitted to future generations, encouragement for the formation of community groups that document, manage, and promote TCEs is required.

Furthermore, support initiatives where communities can be enabled to create and manage local museums or cultural centres that showcase their heritage will provide both educational and economic benefits.

• Capacity-Building Programs:

Implementation of training programs for local communities by State Governments on IP rights, sustainable resource management, and business development will allow them to protect and commercialize their cultural heritage effectively and efficiently.

This can further be bolstered by developing partnerships with educational institutions and NGOs to provide technical assistance and resources for documenting and preserving TCEs.

• Legal Reforms:

Reforming existing IP laws to include specific protections for TCEs to award them due recognition and protection under the law will form the foundation of a successful TCE regime.

Introduce measures to ensure prior informed consent and benefit-sharing for the commercial use of TCEs, providing legal mechanisms for communities to negotiate fair terms.

Conclusion

India’s diverse traditional cultural expressions, which are a reflection of its rich cultural past, are an essential component of the country’s identity and socioeconomic structure. The Indian government has recognized the importance of safeguarding traditional knowledge (TK) under the existing IP regime, leading to initiatives like the strengthening of the Traditional Knowledge Digital Library (TKDL) and the promotion of Geographical Indications (GIs). However, significant gaps in the legal framework persist despite efforts to safeguard these cultural assets which fosters economic inequality and misappropriation. India can effectively protect its traditional cultural expressions by adopting a comprehensive approach that includes sui generis legislation, expanded documentation, and enhanced community participation, as well as by leveraging international practices. This ensures that the benefits of cultural heritage are fairly distributed among the communities that maintain it, while also preserving cultural integrity and promoting sustainable development and economic growth.

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^[1] Protection of traditional expressions and cultural knowledge in India (2022) IP Helpdesk. Available at: https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/protection-traditional-expressions-and-cultural-knowledge-india-2022-09-26_en (Accessed: 02 May 2024).

^[2] Wong, T. and Fernandini, C. (no date) Traditional cultural expressions: Preservation and innovation (Chapter 5) – intellectual property and human development, Cambridge Core. Available at: https://www.cambridge.org/core/books/abs/intellectual-property-and-human-development/traditional-cultural-expressions-preservation-and-innovation/B8CE0EF3E43661AD113BB5DC0EAB37EB (Accessed: 06 May 2024).

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^[4]WIPO, Traditional cultural expressions WIPO, https://www.wipo.int/tk/en/folklore/index.html (last visited May 26, 2024).

^[5]Amlan Chakraborty & Charu, Missing legal protection for Traditional Cultural Expressions in India? : A brief write-up on issues concerning them at contemporary times.** The IP Press (2020), https://www.theippress.com/2020/05/07/missing-legal-protection-for-traditional-cultural-expressions-in-india-a-brief-write-up-on-issues-concerning-them-at-contemporary-times/ (last visited May 20, 2024).

^[6]India’s diversity is a strategic asset, https://www.greaterpacificcapital.com/thought-leadership/indias-diversity-is-a-strategic-asset (last visited May 26, 2024).

^[7] Sofowora, A. (1993). “Medicinal Plants and Traditional Medicine in Africa.”

• Lang RJ, Magleby SP, Howell LL. (2018). “Origami-Inspired Structures and Materials for Engineering Applications.” Nature Reviews Materials.

^[8]Prasad S;Aggarwal BB;, Turmeric, the golden spice: From traditional medicine to modern medicine National Center for Biotechnology Information, https://pubmed.ncbi.nlm.nih.gov/22593922/ (last visited May 16, 2024).

^[9]Peter Gonsalves, Khadi: Gandhi’s Mega Symbol of Subversion (introduction) Academia.edu (2018), https://www.academia.edu/1240173/KHADI_GANDHIS_MEGA_SYMBOL_OF_SUBVERSION_Introduction_ (last visited May 20, 2024).

^[10] Copyright law (legislative decree no. 822 of April 23, 1996), Copyright Law (Legislative Decree No. 822 of April 23, 1996), https://www.wipo.int/tk/en/databases/tklaws/articles/article_0109.html (last visited May 26, 2024).

^[11] New Zealand: Maori culture and intellectual property law – loc, https://tile.loc.gov/storage-services/service/ll/llglrd/2018298829/2018298829.pdf (last visited May 5, 2024).

^[12] NZ Māori Tourism annual report 2020, https://maoritourism.co.nz/sites/default/files/NZMT Annual Report 2020 Digital.pdf (last visited May 15, 2024).

^[13] Akanksha Jumde & Nishant Kumar, Protection of traditional art forms under geographical indications law: A case study of madhubani and Sujini art forms of Bihar, India SSRN (2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4184130 (last visited May 06, 2024).

^[14] Mira Burri, Digital Technologies and traditional cultural expressions: A positive look at a difficult relationship: International Journal of Cultural Property Cambridge Core (2010), https://www.cambridge.org/core/journals/international-journal-of-cultural-property/article/abs/digital-technologies-and-traditional-cultural-expressions-a-positive-look-at-a-difficult-relationship/467FD6AEC4AF2D212142D365042B8745 (last visited May 12, 2024).

^[15] https://www.cambridge.org/core/journals/international-journal-of-cultural-property/article/abs/digital-technologies-and-traditional-cultural-expressions-a-positive-look-at-a-difficult-relationship/467FD6AEC4AF2D212142D365042B8745

^[16] Intellectual property rights and online piracy in India, The Amikus Qriae (2024), https://theamikusqriae.com/intellectual-property-rights-and-online-piracy-in-india/ (last visited May 26, 2024).

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^[18] Amlan Chakraborty & Charu, Missing legal protection for Traditional Cultural Expressions in India? : A brief write-up on issues concerning them at contemporary times.** The IP Press (2020), https://www.theippress.com/2020/05/07/missing-legal-protection-for-traditional-cultural-expressions-in-india-a-brief-write-up-on-issues-concerning-them-at-contemporary-times/ (last visited May 20, 2024).

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Author: Rajeshwari Singh Rathore

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