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.

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