The word
folklore originates from two words, ‘Folk’ meaning the general
public of a community or society and ‘Lore’ meaning art, belief
or custom inherited by knowledge or experience over the time period of several
years or centuries. It includes those knowledge or traditions, which are passed
on orally from one generation to another and survives perpetually. It speaks on
various arenas, mainly in relation to the working of the society or in praise
of nature, hence popularly known as Traditional Cultural Expressions (TCEs).
Folklore or TCEs provide an insight into the customs and traditions of a
society. It reflects the cultures and its social background consisting of the essentials
of the community’s heritage. The ownership of such TCEs is often in question,
to answer this, numerous social and anthropological research has stated that
the community or folks involved in nurturing and preservation of such TCEs are
the actual custodians or the rightful holders of such Expressions. The creators
or authors are believed to be those unknown or unidentified or by the community
at large, thereby the credit of such original creations should go to the
communities who have been preserving it and developing it for ages and has
become an inherent part of their customs and traditions. Tradition and culture
play an important role in matters of upholding the identity of a certain
territory, the uniqueness and the cultural or traditional differences add to
the element of rendering a separate identity to that territory or the group of
people. Hence TCEs or folklores are very significant.
The realm
of intellectual property states that a work must be creative, artistic and
innovative in nature. TCEs must also be determined in the same manner; folklore
is similar to the works protected under copyright. TCEs relate to new
creations, they are innovative and artistic in nature, and thereby its creator
deserves protection.
With the
advent of globalization and the world evolving as a global village, the
exchange of cultures and traditions has increased significantly. Such an
exchange gave rise to issues or agendas on the need for the protection and
preservation of folklore in several international forums. It is often argued
that folklore is being illicitly utilized by those who do not have the right to
do so and are thus infringing the rights of its original custodians. If one
looks at the global regime towards the protection of folklore or TCEs most of the
countries put it in the public domain, as its nature and outlook (literary
and artistic attributes) resemble that of works protected under copyright;
which states that once the monopoly period is exhausted it goes into the public
domain. However, the scope of protection of folklore has many unique aspects
which are different from normal literary and artistic works and thus need to be
separated from the ambit of literary and artistic work under copyright law.
Moreover, copyright provides a form of protection that is individually centric,
rather than community-centric. Therefore, providing copyright protection to
TCEs would not suffice the purpose. Further, the protection provided under
copyright is limited, whereas folklores are considered as living lores, hence
the protection provided under copyright would not be sufficient. Furthermore,
keeping such folklores in the public domain has in turn facilitated its illicit
utilization.
The
Initiatives of UNESCO towards recognizing folklores as an inherent part of our
cultures and traditions as well as the initiatives of the World Intellectual
Property Organization’s (WIPO) to recognize the Traditional Cultural Expression
(TCE’s) or folklores has impacted globally to a great extent. These initiatives
have led to the growth of global awareness in the areas of protection and
prevention from abuse of the same, whereby the need for a new regime of
protection was sought by the nations. The UNESCO-WIPO Model
Provisions, 1982 was introduced for the purpose of providing model
legal provisions for the countries to protect and preserve the folklores. It
has also aided in raising awareness among nations and
paved a path towards incorporating the same model. As per the mandate of the
model, some nations did adopt these provisions as a part of their domestic
legislation, by enacting separate legislations or by introducing amendments to
their current legislation. Further, the Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
(IGC) was established by WIPO in the year 2000, which gave a boost to the
approaches of protection and prevention of abuses of folklores. In all the
discussions until now, the nations have shared their experiences on their
initiatives on protection and prevention of abuse of folklores as well as their
shortcomings. A separate or sui-generis legal mechanism based on the UNESCO-
WIPO model must be incorporated as an outcome of these discussions and
experiences shared by various nations in IGC. This will create a symbiotic
relationship between the rights of utilization as well as the right to protect
and prevent from abuses. Countries such as Tunisia, Ghana, Zambia, etc have
incorporated such protections and preservation regimes and their experiences
shared in IGC could be the answer towards bringing a positive regime.
In the
present day, the utilization of such expressions is being justified as fair use
due to their presence in the public domain. As seen above the global community
recognizes the TCEs as inherent rights of that community and considers them to
be custodians of such expressions, it is therefore also important for India to
recognize the rights of the communities of origin as the custodians of such
folklores. Incidents of dissatisfactions among folks with-regard-to illicit
utilization and distortion of folk songs and tunes have become very common in
the current times. They have been contending that, as it is part of their
cultural heritage distorting the expressions through remixes and producing it
in-front of the public in a different context is a diminishing factor for their
cultural heritage which they have preserved and nurtured since time immemorial.
Thereby recognition of community rights on folklores as rightful holders
becomes essential, as it will enable the community to stand against such
illicit usage.
Furthermore, once the recognition of community rights are acknowledged, it becomes easier to incorporate the system of community benefit sharing as per the mandates provided under the UNESCO-WIPO Model. The community benefit sharing (as per the model provisions) denotes sharing of the benefit towards commercial utilization of folklores within the community of origin. This can be made possible through sui-generis legislation based on the jurisprudence of the Model provisions and the experiences of incorporating nations, which shall further be modified towards the needs of Indian legal regimes. Furthermore, our domestic legislation shall include the provisions of Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT), similar to those incorporated under the Traditional Knowledge (TK) regime. Whereby the National, as well as State Cultural Authority, shall be established, working towards providing Access to Fair and equitable benefit sharing of folklores. The National, as well as State Cultural Authority, shall act as an intermediary between the users as well the right holders of folklore to aid in the process of Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT). The process of PIC and MAT are found to be efficient in obtaining access to any resources of folklore, wherein interested parties can approach the state boards to obtain consent from the community before utilization of such resources. The state boards can also help the interested parties to enter into a contract with the communities in order to enable fair and equitable benefit sharing through commercial utilization of the works. In addition to this, the sui-generis model must also provide for the establishment of Folklore Digital Library or digital archives of folklores, like the Traditional Knowledge Digital Library. This digital library will authenticate the origin and act as an archive to prevent illicit utilization of the folklores.
The
sui-generis legal regime for folklore will not hinder access to these
folklores, but in turn, will provide its users better access to authenticated
resources through its digital archives. It will further be beneficial to
folklores at large, as they can be saved from drifting into oblivion.
Furthermore, a quid pro quo situation will be established among the commercial
users of folklores and their rightful holders as the utilization will be
justified through benefit-sharing arising out of such commercial utilization.
Alliance School of Law
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