In our previous blogs, we have discussed the need for protection of Traditional Cultural Expressions (TCE) as well as the formulation of policies and institutions for the same. This would be incomplete without pointing out the systems that we already have in place in India that work towards TCE protection.
There exists great scope of cultural expansion in India, given the diverse heritage of the country. If we were to see these TCEs as assets, the legal protection of TCEs would facilitate their utilization, leading to monetization. Additionally, it would ensure protection against their misappropriation or abuse.
Although there are multiple initiatives by Indian Government agencies and even non-governmental organizations and social groups, India lacks a sui generis law to effectuate the protection of TCEs. This must not be construed as a complete lack of protection. India has, in fact, taken the alternative approach of protecting TCEs through the existing statutes. Moreover, the supreme law of the land, the Indian Constitution contains provisions that recognizes conservation of cultural practices as well. Article 29 confers to minorities, the right to conserve their culture, Article 51A(f) creates a duty on all citizens to preserve the rich heritage of our composite culture. The Directive Principles of State Policy, has the provision for preserving environment in Article 48A which enables legislative steps in this regard. Culture might as well be taken to mean a facet of the environment and thus, the constitution creates a responsibility on the State too.
The moral rights related to copyright law such as the right of authorship and against mutilation or destruction of the work under Section 57 of the Copyright Act, 1957. Section 38 deals with performers’ rights that would be valid for 25 years from the first date of performance. Although, this does not have the explicit mention of Performers of Expressions of Folklore, they might be included within its ambit. Conversely, the Act gives compulsory licencing to public of anonymous works under Section 31A, which could be seen as barrier to TCE Protection.
The nature of works under TCE, indicate their protection be done under Copyright laws, however there are certain challenges to do so. Firstly, the term of protection is 60 years from first publishing or 60 years after the demise of the author, whereas TCEs, being carried on for generations, would require a much longer term. Secondly, copyrights require the work to be ‘original’, meaning that the ‘work’ must have originated from the author. This is difficult to establish in the case of TCEs as they are stored and transmitted as cumulative knowledge and practices of various generations from the community.
Some brands and traders may want to register trade marks that are deceptively similar to either, TCEs themselves, or certain signs of symbols of the community. This gives the consumer an impression that their goods are associated with the respective community. Registration of trade marks by member of the community themselves, or legal action against the infringers can help avoid this.
Certain TCEs, mostly in the form of crafts and tangible product may be granted protection under the Geographical Indications Act, 1999. It is pertinent to note that all forms of TCEs cannot be protected under this Act and in order to seek protection, it must be registered under this Act. Another less probable scenario may arise where the TCE is not strictly limited to a geographically representable territory. This is where the protection under the Act falls short.
In one of our previous blogs, we have differentiated between traditional knowledge and traditional cultural expressions. However, they cannot be said to be mutually exclusive and manifest some interlinkage. In those case, the recording of TCEs in a State-endorsed library that can potentially preserve them, comes in effective.
In the absence of a sui generis law providing explicit protection to TCEs, it is crucial that the existing be amended or judicially interpreted to include within their purview, the vast horizons of TCEs. However, the foundation needs to be set by the members of indigenous communities after they are made aware of the potential of TCEs.