Guest Post: Protection of Folklore

We bring to our readers a guest post by Shyama Kuriakose, a Masters Student at the NALSAR, Hyderabad. She has extensively worked on matters relating to intellectual property law and environmental law during her internships with civil society organisations, lawyers and law firms.

“You cannot really know where you are going until you know where you have been.”

The ancient civilizations of the world, with their contributions in the field of arts, literature, science, etc have led to the present glorious state of nations. The Aztecs, Incas, Mesopotamian civilization, the various African tribes, Australian aboriginals, tribes in the Indian sub-continent, some of which exist to this day, are continuing to make their contributions.

Their contributions include ancient folklore, stories, art forms, legends, rituals in written as well as oral forms. The oral contributions have been said to pass down from generation to generation. The Vedas are a good example. The peculiarity of this kind of knowledge is that it defines the culture and heritage of the community which contributes to it. It sets them apart from the rest of the people. Quite a number of tribes flourish to this day, in this modern world by keeping their culture alive. The value of the knowledge available from these people is not just of commercial value but also of spiritual, religious and social as well.

The information referred to above may not be traditional knowledge stricto sensu, the term ‘folklore’ being more suitable.[1] Protection for this knowledge is yet to be formalized. The Convention on Biological Diversity (CBD) recognized the value of traditional knowledge in protecting species, ecosystems and landscapes, and regulated access to it and its use. Its provisions obliges each contracting party, as far as possible to, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.[2]

WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The high-level Brundtland Report (1987) recommended a change in development policy that allowed for direct community participation and respected local rights and aspirations.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) contains provisions regarding protection of intellectual property. Great stress is laid down on exclusion of certain items from being patented as per Article 27. In the TRIPs-related Doha Declaration of 2001, Paragraph 19 expanded the review to a review of Article 27 and the rest of the TRIPs agreement to include the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore.

The possibility of protecting folklore by means of copyright was raised in 1967 at the Diplomatic Conference of Stockholm for the revision of the Berne Convention.[3] Although the issue was not fully resolved, the following provisions were included in the Stockholm Act of the Convention, and retained in the revision adopted in Paris in 1971. In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.[4] Countries of the Union which make such designation under the terms of this provision shall notify the Director General [of WIPO] by means of a written declaration giving full information concerning the authority thus designated. The Director General shall at once communicate this declaration to all other countries of the Union.[5]

Article 29 [6] of the Indian Constitution may help the community with a unique culture to protect its folklore but there has not been a legislation pertaining to this. Other relevant Article is Article 51 A [7] which imposes a fundamental duty on the citizens of India.

The Biological Diversity Act 2002, does not properly cater for the protection of folklore but is more on the lines of conservation of bio-diversity in India essentially related to traditional knowledge of various indigenous communities.

The provision relevant in this context is Section 31A of the Copyright Act 1957, which provides for compulsory licensing in unpublished Indian works. Herein, in the case of any Indian work, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a license to publish such work or a translation thereof in any language. This gives the finder of any knowledge, to have the right to apply for a copyright over the article or information discovered.

Many of the developing countries such as Iran, Kenya, Sri Lanka, China, etc have made attempts to include the term “folklore” into their copyright laws. Copyright protection to different forms of folklores is still a hard thing to grapple with, in India

Copyright law has some fundamental limitations in the folklore context. Firstly, copyright requires an identifiable author, the notion of individual authorship being a problematic concept in many traditional societies. Secondly, copyright has a time limit but folkloric expressions must have permanent protection. Third, copyright normally requires works to be fixed. However, among some traditional groups, folkloric expressions are not fixed, but are passed on orally from generation to generation. This normally excludes such expressions from eligibility for copyright protection. Copyrighting folklore is not yet possible in the Indian context because these expressions mostly come from common stock of ideas.

On a perusal of Section 31A, it is seen that this provision raises a difficulty with respect to keeping the treasures of a country, within its territory. Any person or agency which comes across such valuable knowledge has the right, under the Indian legislation, to claim a copyright over the said knowledge. The territory from which it was unearthed is not relevant for the purposes of copyright. For example, all the discoveries of the Harappa and Mohenjo-daro civilizations failed to stay within the territory of India probably due to lack of technology, initiative and also the dominance of British rule. Foreign archeological agencies did the necessary excavations and took away, all the discoveries to their own respective countries.

Ancient India was wrought with literature varied and rich in many respects. However, only very less percent of this literature has been saved in writing. This is not because India’s past is barren of deeds worthy of remembrance. This neglect may have been either due to a lack of proper historical sense, or indifference of the religious orders, that controlled and developed the literatures. However, the history of ancient India suffers greatly from the initial difficulty of the want of genuine works of historiography. The ancient historian Alberuni once said that whenever Indians have been pressed for information and they are at a loss to say anything, they always take to tale telling. This is how the various legends and myths were born in India.

The various folklores and traditions passed from generation to generation are gradually getting extinct now. Much of this knowledge was transferred on a one to one basis.[8] In this way the secrets were well guarded, as nothing was recorded in the written form. It was feared that if such knowledge was freely made available to an unprepared mind, it may cause harm. A very pertinent example is the restriction on teaching of Sanskrit slokas and verses.

There is the well known incident where the University of Mississippi Medical Center was granted patent for the healing of wounds using turmeric. Indian authorities challenged this patent on the basis that it was already common knowledge in India but it could do so only after providing published documentation of the same fact. There is no copyright in ideas. It subsists only in the material form in which these ideas are expressed. That’s another huge problem seen with traditional knowledge especially for those which are in the form of folktales or legends.[9]

Various measures have been suggested to give effective protection to the folklore. It could be done by mainly following three approaches. Firstly, by giving this knowledge, the protection as cultural heritage, secondly by creating a national folklore database, thirdly by making certain amends to the existing laws and treaties. Sui generis laws enacted exclusively for the purpose of protection of folklore knowledge is advisable.

Creating a national folklore database requires huge infrastructure and incentives to be given to those who are the custodians of such heritage. More funds should be released for the excavation and preserving of structures which represent the cultural heritage. Latest of technology must be implemented for the same purpose. Promotion of tourism is another brilliant idea.

A conscientious and responsible approach must also be made on part of the citizens of a nation whose cultural heritage is at stake. This is not about restricting the sharing of benefits accrued from such knowledge to the world outside. This is about not paying a price for something that’s always belonged to us for ages. In our kitchens, on a daily basis, our mothers and grandmothers come up with various home-made remedies and aids to various problems, which have been passed down to them from their ancestors. There must not come a day, when such ideas are stocked up as products in international stores and we are forced to buy them in the form of pepper coffee (chukkumkappi vellam) drink for 2 dollars!!!!

[1] www.unesco.org/culture/copyright/folklore/html_eng/symposium.shtml accessed on 21-07-2008
[2] Wikipedia, accessed on 21-07-2008
[3] cyber.law.harvard.edu/openeconomies/okn/asiatk.html accessed on 21-07-2008
[4] Article 15.4[a]
[5] Article 15.4[b]
[6] “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”
[7] “to value and preserve the rich heritage of our composite culture.”
[8] www.achalasiddha.com/Folk/folk.htm accessed on 02-09-2008
[9] Donna Rosenberg, in her book Folklore, Myth, and Legends: A World Perspective defines folktales and legends as:

A folktale is a story that, in its plot, is pure fiction and that has no particular location in either time or space. However, despite its elements of fantasy, a folktale is actually a symbolic way of presenting the different means by which human beings cope with the world in which they live. Folktales concern people — either royalty or common folk — or animals who speak and act like people..

A legend is a story from the past about a subject that was, or is believed to have been, historical. Legends concern people, places, and events. Usually, the subject is a saint, a king, a hero, a famous person, or a war. A legend is always associated with a particular place and a particular time in history.

One comment.

  1. Anonymous

    I was hoping that the author would highlight the central argument about the issue of protectibilty of folklore and other cultural expressions such as poetry, dance and music in the light of the Biodiversity Rules 2009, but this post is just an arrangement of provisions from Conventions and Acts without any discussion on the absence of rationale about inclusion of ‘folklore’ into legistlations like the Biodiversity Act; in short a very unsatisfactory and commonplace account on the protection of folklore. This post doesnt attempt to explain or add value to the issue at hand. Can anyone please bring in some objectivity!



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