Protection Folklores India Intellectual Property Rights

Dec 2022

India is a land of diversity when it comes to folk and ethnic culture with hundreds of ethnic, linguistic and religious groups with diverse origins and lifestyles that, over time, intermingled in part and remained untouched in parts over centuries. Perception about folklore differs in India, mainly associated with tribals and simple rural people, rather crude and elemental in comparison to higher art forms.

Folklore and its laws are complicated by the presence of hundreds of ethnic groups with their languages and dialects, dress styles, paintings, mythology, legends, songs, music, dance and theater among others. For the purpose of simplifying these folklore’s have some common denominators such as economics, size of community and so on.

In addition, tribes in India are classified into broad groups comprising of the North-East, South, Central and Western zones, each with their own group of sub-tribes. There are tribes that are deemed settlers and tribes that are nomadic in nature.

Regardless, each tribe has its own ethos and cultural identity as well as centuries of tradition that gave birth to distinctive styles. Modernity has touched some tribes while some tribes and their cultures still retain their original identity depicted in various forms, one of which is handicrafts.

Handicrafts are not only a legacy of a tribe but also a source of their livelihood, covering articles such as pottery, carving, metal work, wood work, textiles and furniture among others all of which fall under the purview of expressions of folklore.

Then there are traditional methods of herbal treatments idiosyncratic to a tribe or group of tribes and methods of agriculture in use since generations, which too fall under folklore rights. Knowledge of herbs and methods of natural treatments are indiscriminately exploited by large pharmaceutical firms without any benefit to the originators and it is a common phenomenon in other areas as well such as Madhubani painting, warli painting and tanjore art, to name a few. The field is so vast and since it touches virtually every aspect of thought and life of indigenous people, protection and defining folklore becomes a monumental task.

In recent times there has been a strong revival of interest in folk art and indiscriminate entrepreneurs have made use of expressions of folklore for commercial gain in India. These exploiters are in no way connected with originating communities nor do they acknowledge or contribute monetarily from their earnings to the welfare of benefit of originating communities. This is a pointer to the laxity of laws and implementation despite formulation of laws to protect folklore in India. This is further exacerbated by the rise of technologies such as information technology and biotechnology that pose further challenges.

WIPO’s Program and Budget for 1998-1999 was launched just to address rising concerns about intellectual property rights of indigenous knowledge holders.

The Constitution of India, Part III, in Article 29 states protection of culture of minorities is a Fundamental Right, elaborating that any citizen with a distinctive language, script or culture has the right to conserve it. The glaring discrepancy is that most ethnic groups whose expressions of folklore have been ruthlessly exploited are not covered by that provision of the Constitution. There is also Article 51A(f) that makes it the fundamental duty of each citizen to value and preserve the rich heritage of India’s culture but it has no legislative, enforceable tooth, which means it remains on paper.

The Constitution does provide for protection of cultural identity of tribal populations though Article 371 along with Schedule 6 granting such groups the right to have autonomous councils for self-governance according to their customs and traditions. Such councils have the power to formulate laws to protect traditions and customs.

Schedule 5 of the Constitution provides for creation of scheduled areas to protect a tribe’s interests and, applicability of usual laws of the land may not have force if the tribe and its council decide against it.

To prevent commercial exploitation of the folk cultures and preserve the originality, separate Intellectual property laws for folklore’s is the need of the day.

Trending Blogs
Need for Kashmiri Saffron to get the GI tag
The Kashmiri Saffron has been given geographical indication tag recently from Lieutenant Governor G C Murmu. The acquiring of GI tag is a step ahead in bringing the brand among the list of top ones. The tag has been given for the saffron grown in Kashmir. In this regard, it can be said that the […]
Read More
Delhi HC’s Ex Parte Order in Coca-Cola Company & Anr vs Glacier Water Industries Ltd.
This is a case of a Delhi High court ex parte proceeding concerning trademark dilution. The plaintiff filed a suit seeking a permanent injunction, damages and to restrain them from passing off their products as that of the plaintiff. The plaintiff also pleaded the court to restrain the defendants from using the mark ‘KINLEY’ and […]
Read More
Liability Of Internet Service Providers In Digital Environment
Isp Liability In India: Internet Service Providers (ISPs) can be liable for the content on the sites they host. They can be liable even if they were merely passively hosting the site, unless they take down the objectionable material when they receive notice of it. The Copyright Act and the Information Technology Act includes the […]
Read More
The Big Push to Reform Music Copyright for the Digital Age
Music creators of the present digital age should be aware of the copyright issues better due to different reasons. Music is made available on different websites, and it is necessary to prevent the increasing problem of infringement. Pertaining to this, a number of bills are proposed in Congress that can enhance royalty payment for the […]
Read More
Intellectual Property and its Role in the Pharmaceutical Industry
Intellectual property rights are considered to be an important asset of any corporate unit. It is an indication of the creation of mind and the work that makes one entity different from the other. With better IP or intellectual rights, it would be easy to promote the possible innovations and this would be useful in […]
Read More
PTAB Should Not Disapprove Claims on the Grounds of Indefiniteness in IPR
Federal Circuit has disapproved of arguments of claims that show any reason other than anticipation pertaining to party procedures. Federal Circuit has rejected the challenge shown by Samsung Electronics America, Inc. The company challenged that PTAB can disapprove claims that are considered indefinite in IPR. Samsung has been charged on the grounds of infringing U.S. […]
Read More
Why Intellectual Property Rights
Intellectual property rights create a situation in which the inventor or the creator enjoys full ownership and rights to commercial exploitation of his creation while everyone else is excluded. The justification is that such a creation, if it has material value, must benefit the creator while preventing others who would otherwise commercially exploit the concept […]
Read More
Breaking News: Toyota Loses Trademark Battle over Prius at Indian Supreme Court
The plaintiff, in this case, is Toyota Jidosha Kabushiki Kaisha and they seek to prevent the defendant, a spare parts supplier by the name M/S Prius Auto Industries Limited, from the usage of the trademarks- “Toyota”, “Innova”, and “Prius”. According to the finding of the court, two of the three trademarks mentioned, namely Toyota and […]
Read More
Can Religious Symbols Be Registered As Trademarks?
Are you planning to register religious symbols as trademarks? Well, you should research thoroughly to understand the use of religious symbols as trademarks. You have to consider the sentiments of people before you plan to use regions symbol for your business. India being a secular country encourages different citizen follows different religions, practicing it and […]
Read More
The Common Law Protection Of Trade Secrets And The Need For A Statue
Introduction: A trade secret is anything you use in your business that gives you an advantage over your competitors. A trade secret can be a recipe, process, formula, strategy, technique or device that your competitors do not know, do not have, and cannot use. With development in technology, as well as the ease of sharing, […]
Read More
X
Download Firm Profile