Alliance Center for
Intellectual Property Rights
ROLE OF INTELLECTUAL PROPERTY RIGHTS IN THE PROTECTION OF FOLKLORE
July 1, 2023
*Ms. Chingireddy Sony
Introduction
India is a country of cultures and traditions that are followed by the people in their day-to-day life. It is a secular country with diverse states characterized by different languages, customs, and traditions. Folklore originated from the words 'Folk' and 'lore', where 'Folk' means 'People of a particular group' and lore means 'traditions and knowledge accumulated over a while'. Folklore in simple words means traditional stories and beliefs. It includes art, tales, literature, sayings, dances, and music among the people. It is an expression that is also known as tradition and cultural expression (TCE). Folklore is performed by a particular group from time immemorial and is followed from generation to generation.
Folklore is also one of the intellectual works that also involves art, music, dance, etc that are performed by a particular group of people in that community. It is comparable to the works that are covered under the Copyright Law. But the copyright is given to the original author for the period of the lifetime of the author and 60 years. But tracing the original author is difficult, as folklore has been practiced by a community at large as a TCEs since time immemorial, making it challenging to find a single author. Additionally, the right of the author is protected under copyright as an individual right. The folklore is all about the collective right, it is not an individual right.
Folklore is an identity of a society that includes the social and cultural aspects of the people who belong to that society. As folklore is an oral form, tracing the origin of folklore is difficult because it is identified as the whole community. So, protection is to be given to the folklore and the rights of folklore should be granted to the community as a whole.
Usefulness of Folklore
Despite having numerous laws and legal provisions in India, there is no proper legal mechanism in some areas. In the case of the protection and preservation of folklore in India, there is no proper law or regulation for the protection of folklore. The purpose of the law is to preserve and protect the folklore of the communities against infringement and undue advantage.
The international forum also recognized the importance of folklore. The UNESCO-WIPO VI model, 1982 introduced for the protection and preservation of folklore, it also provides awareness among the nations, and this model was adopted by a member nation which helped them to protect folklore. The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore was established by WIPO in the year 2000.
India has not enacted a law till date to protect folklore, although it is Intellectual property but is not included in India’s current IP law. Even though unauthorized users may bring folklore to the public’s attention and increase awareness about it, their actions still constitute as a violation of the rights of genuine folklore performers/rightful holders. Therefore, it is essential for individuals to obtain the consent of the specific community to which the folklore belongs before utilizing it. This ensures that the folklore performers receive both monetary and moral benefits. By following this approach, the community can generate income from their performances, while allowing the public to appreciate and utilize the folklore with the performers' consent. Thus, the need of the hour is to protect the folklore as the right of the community collectively and protect against the illegal and unauthorized use of such folklore.
Conclusion:
Folklore as the heritage of the country, speaks about the culture of the people. It is to be protected from unauthorized uses. As many people earn out of using the folklore without the consent of the actual folks it becomes an infringement of these rights of the folks. But no law protects the rights of folks and the folklore. This becomes an advantage to unauthorized users, and they are earning profit from it. This stresses the necessity that folklore must be protected.
Thus, it is the need of the hour to have sui-generis laws that protect folklore and benefit both the performers and users. The legislature should recognize the community rights and enact the laws and regulations relating to folklore. There should be the establishment of community centres in every state, which would give the knowledge of the folklore to the people and the centre should have a database of those folklore. The centre should conduct awareness programs that will be encouraging the communities to come with many folklores and register their work in the registered office. The community centre should act as an intermediary between the community and the person who has a commercial interest in the folklore of that community and there should be an agreement between them towards utilisation. The benefit arising out from it should be equitably shared with the community.
References:
- Anurag Dwivedi and Monika Saroha, Copyright Laws as a Means of Extending Protection to Expressions of Folklore, 10 J. Intell. Prop. Rts. 308, 309 (2005).
- Rajnish Kumar Singh, Protection of Traditional Cultural Expression/ Folklore: International and National Perspective, 8 Dehra L Rev 19, 23 (2016).
- Dr. Upankar Chutia, Folklore and Community Benefit Sharing in India, 4 Journal of Legal Philosophy. 111,114 (2016).
- Dr. Upankar Chutia, Folklore Protection Regime in India: An Analysis of Folk Songs and Tunes, May 20, 2021.
Author:
*Ms. Chingireddy Sony
LLM,
Advocate, Bar Council of the state of Telangana, Hyderabad.
Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights(ACIPR) and the Centre does not assume any responsibility or liability for the same.