We’re pleased to bring to you an interesting guest post by Dr. Sunanda Bharti. Dr. Sunanda is an Assistant Professor in Law at Delhi University. She has written two guest posts for us in the past as well, which can be viewed here and here.
Saree Draping Styles as a ‘Traditional Cultural Expression’ (TCE)
Dr. Sunanda Bharti
Whether it be Atpoure shari, the most identifiable saree draping style of West Bengal popularised now by so many Bollywood movies – where the the female actor is shown in a saree with pallu appearing on both the shoulders and a bunch of keys tied to the veil end that goes over the right shoulder; or the Nauvari (nine-yard saree identified with the folk dance lavani) worn like a dhoti (loincloth), with one end going front to back between the legs, which is then tucked around the waist; or the ubiquitous Nivi drape worn most commonly – saree in India has had many forms since times immemorial. The drape, essentially the tying style of the unstitched garment, differs according to region, community, functionality and sometimes occasion. Irrespective, saree is an indispensable part of the Indian culture, tradition and expression.
Exploring laws where various facets of saree may be covered
Interwoven within the folds of the above obvious understanding is the claim to protection of sarees through the intellectual property regime. Is it protected? Well, the answer to that question is both, a yes and a no. Let me explain why. The answer would be in the affirmative if one is looking at trademark law since a saree brand can definitely be trademarked. Garden vareli, Co-optex, Nalli etc. are popular examples. Likewise, a print on a saree may be an ‘original artistic work’ under the Copyright Act, 1957 or an industrial design under the Designs Act, 2000 if it’s appealing to the eye and registered.
The answer to the question whether sarees are protected is a big yes again if one looks at the protection that the Geographical Indications of Goods Act, 1999 (GIGA) has given to sarees. In fact, the most immediate branch of IP that the mind connects with sarees is Geographical Indications (GIs). However, not many of us would know that out of the 344 registered GIs, as many as 27 are in respect of sarees. And this number does not include those in the registered name of which the word ‘saree’ does not figure—for instance, Bhagalpuri silks, Kaanchipuram Silks, Mysore and Muga Silks, which are world-famous as fabrics associated primarily with sarees. That brings the count to 31. Needless to mention that given these impressive statistics, sarees are definitely an object of some serious protection by law. In fact, seen from this perspective, GIGA appears to be a good recourse towards protecting some of the traditional knowledge (TK) associated with Indian sarees. However, the difficulty is that in the context of sarees, all TK might not be comprised in the end product. So much of the TK is in the art of draping those 6 to 9 yards which seems to be protected nowhere!
Advocating that saree draping styles are TK in the form of Traditional Cultural Expressions (TCEs)
Saree draping essentially is an ‘activity’ or a process or a style that does not seem to be protected under any statute. Usage of the word ‘process’, may take one to the domain of patent protection; but due to lack of novelty or matter being in the public domain, one cannot imagine any patent protection for a saree draping style. Hence, to conclude briefly, what is protected by above laws, including GIs, is the process of production, the weave, the fabric, the unique designs, motifs or a combination of all, along with the producers who have been responsible for protecting/maintaining the standards and nurturing the culture and tradition associated with the concerned GI.
And that brings us to another branch of IP – Traditional Knowledge (TK). TK is that organic element of knowledge that is passed on from generation to generation within a community, not necessarily through any institutionalized or formal means of teaching. WIPO’s program on TK also addresses traditional cultural expressions (TCEs). Traditional Cultural Expressions (TCEs) are taken to be synonymous with folklore. One good definition has been attempted by section 2 of the WIPO- UNESCO Model Provisions for National Laws on the protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions, 1985. Under this model law, folklore has been defined to mean and include–productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of or by individuals reflecting the traditional artistic expressions of such a community, in particular:
(i) Verbal expressions, such as, folktales;
(ii) Musical expressions, such as, folk songs and instrumental music;
(iii) Expressions by actions, such as, folk dances, plays and artistic forms or rituals; whether or not reduced to a material form; and
(iv) Tangible expressions, such as:
(a) productions of folk art, in particular, drawing, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewellery, basket weaving, needlework, textiles, carpets, costumes;
(b) Musical instruments;
(c) Architectural forms.
Two points are worth noting in the above context:
1. There is no comprehensive exhaustive list of what can be branded as folklore or TCE.
2. Tangible expressions in the form of costumes, traditionally used by ‘folk’- that is, men and women of a community or country are distinctly covered and saree draping styles can be covered here.
To elaborate, in context of the saree draping styles, the author wants to emphasise that saree is a costume identified with India, draped in more than 100 ways—ways that were learnt informally and unofficially from everyday experience. It, hence, fits perfectly in the above proposed definition of TCE by WIPO-UNESCO. Clearly, TK, that subsumes TCE, is a category that is open for some unventured forms of knowledge where saree draping may fit in.
Rta Kapur Chishti, who is perhaps the only person who can be categorised as an authority on sarees in the world, maintains that there are more than 100 ancient ways of draping the garment (see the picture above). No one can deny that the myriad ways in which a saree can be draped in India is an integral part of the Indian tradition. This traditional wisdom and cultural expression of the preceding generations is nourished and vitalised by the succeeding generations and the process continues. It is, in fact, rare that TK or TCE gets transmitted in the written form to the succeeding lineage. The next question that arises is how this IP can be (mis)appropriated?
Can TCEs, that manifest as saree draping styles, be misappropriated?
Having made out a case for saree draping styles to be TCEs, a question that needs to be answered is whether its misappropriation is possible. The author suggests the answer to be a ‘yes’. Misappropriation here essentially has two forms—1) commercial exploitation of traditional Indian saree draping styles and 2) exploitation that disturbs the uniqueness, aesthetics, sanctity and cultural sensitivity of the garment. Since the various Indian saree draping styles have continued to be timeless and now even gone global by serving as an inspiration to other creators and innovators who have adapted this traditional expression/version to make it universally palatable, these should be taken as examples of appropriation of TCE. After all, there are elaborate gowns and dresses being designed and stitched to get the ‘look’ or comfort of a particular saree drape which is innate to and hence, can be traced to some region of India (see picture below).
Saree is just a sartorial choice and not a problem if cultural sanctity of the drape is maintained and the activity is non-monetary: Wearing of the saree by non-Indian communities and cultures has never been a problem and it is not a cause of protest in this write-up as well. It is commercialization of various ‘inspired’ saree draping styles into horrendous gowns and other apparel that hits ones cultural sensitivities. The knowledge, traditions, rituals and practices that are associated with sarees are often sacrosanct and there is no harm in being skeptical in partaking with the same freely, with the outside world. The crises of identification of world’s diverse cultures and languages is far greater than the biodiversity crisis, only if we recognise it.
Suniti Ila Rao, the producer of the project The-Sari-A-How-to-Drape-Film-Series, hints that since Indian saree has been a fluid garment acceptable across economic stratas and cultures, its appropriation by the western world is not considered as profane by Indians. Those foreign to the saree culture tend to inquire –‘is it religious?’ (Answer: No); ‘does one have to be married to wear it?’ (No); ‘is it meant to be worn only by Hindus?’ (No). Suniti maintains that perhaps this is overwhelmingly why Indians are not offended, and in fact, enjoy seeing others embrace the garment.
What may be taken as culturally offensive: The various ways in which one can swathe in the garment has inspired many a fashion designers from across the globe. So, we have ruffled sarees, plastic sarees, steel versions and saree ‘inspired’ evening gowns etc, as modern foreign avatars, which the traditional puritans might judge as vulgar, indelicate, offensive and as cultural misappropriation. It must be clarified again that casually picking up a certain fashion, dialect, customs, and traditions of a certain country or community is different. It is only the commercial use of the TCE that is proposed to be problematic. Any TCE, including a saree draping style may be safely and fairly used for purely personal and educational/research purposes.
According to Nadra Kareem Nittle [i], ‘cultural [mis]appropriation is the adoption of certain elements from another culture without the consent of people who belong to that culture. Cultural appropriation typically involves members of a dominant group exploiting the culture of less privileged groups.’ The author of Who Owns Culture? Appropriation and Authenticity in American Law, defines cultural appropriation as ‘taking intellectual property, traditional knowledge, cultural expressions, or artifacts from someone else’s culture without permission. This can include unauthorized use of another culture’s dance, dress, music, language, folklore, cuisine, traditional medicine, religious symbols, etc…’
Much like the misappropriation of traditional knowledge in medicines, biodiversity etc., the tangible expressions of folklore manifested in the various saree drapes have also been usurped from their traditional context, indiscriminately commercialized without adequate attribution and sensitivity towards the communities/countries to which they belong. Copying the unique saree draping styles of India and presenting them in [what may be considered] as gross versions of the original, is hence a violation of TCE.
Considering the absence of any law, the scholarly opinion on the issue of protection of saree draping is likely to fall in two main categories—those who would scowl at the very prospect of protecting it, maintaining that the idea to be an absurdity; others who (like the author) would advocate that the different forms of saree drapes/styles are an important part of the Traditional Cultural Expressions (TCEs) of India and hence, deserve some respect and possible protection from blatant and gross misappropriation.
This brings us to its legal protection: can we have a law to curb appropriation of these TCEs – saree draping styles? Can we identify and reward those who have been assiduously preserving this artistic and stylistic aspect of our culture – benefit sharing a la GI style? Answers to these questions are not easy but nonetheless need to be explored.
What can be done to protect saree draping styles?
The author believes that TCEs can also be economic assets, and they should, for culturally diverse and rich countries such as India – and if sensibly exploited can be a source of income generation, and branding for the country. The author proposes to utilise the often forgotten economic right called Domaine Public Payant (Paying for Public Domain) in the context of TCEs like saree draping styles that have been in the public domain since long. Briefly put, the right of Domaine Public Payant refers to royalty that is payable for commercial use of works in the public domain.
Upon implementation, every non Indian person who commercially exploits the saree draping styles of India would be expected to pay a certain royalty, which may be deposited in the government treasury. Generally, the system works like a compulsory license scheme. So, the use is conditioned on payment of the prescribed fee to the collecting society or equivalent.
The author would like to point out that we would not be the first ones to implement the scheme. More than 4 decades ago, the WIPO published the Tunis Model Law on Copyright for Developing Countries, Section 17 of which proposed the idea of domaine public payant. Nation states willing to establish a paying public domain were free to do so and many did. However, presently just a few countries like Argentina and Uruguay still have a thriving domaine public payant structure.
The Tunis Model law has a functional appeal and relevance in the present century as it provides a feasible mechanism to compensate traditional knowledge including traditional cultural expressions. The money collected can be used for promoting tourism in the country and projecting India as a unique cultural and traditional hub along the lines of the ‘Incredible India’ campaign.
Developing sensitivity towards others’ cultures and the self regulation that it commands, is perhaps also another offshoot of the answer. TCE has an allurement in it, to which the outside world is attracted. The moment it is used by the outer world, it no longer retains that asthetic quotient and everything degenerates into a money making venture. As Nadra Kareem Nittle puts it, “genuine interest in other cultures is not to be discounted. The sharing of ideas, traditions, and material items is what makes life interesting and helps diversify the world. It is the intention that remains most important and something everyone can remain conscious of as we learn from others”.
Having made out a case for protection to saree draping styles through the uncodified TK/TCE, I would like to leave you with a teaser:
Would the art of saree draping be covered by the Copyright Act, 1957?
After all, ‘any other work of artistic craftsmanship’ as a residuary clause under the definition of artistic works [section 2(c)(iii)] does seem to beckon! But there are problems associated with the above. Some pressing ones are as follows:
1. If saree draping is absorbed under the current copyright regime by treating it (as suggested) as ‘any other form of artistic expression’, it would be impossible to calculate the term of protection-there being no definitive traceable person to whom one can attribute the ‘authorship’ of introducing to the world, the art of any particular saree drape for the first ever time. Also, such a pre-condition would fail to address the need of indigenous and traditional communities to protect TCEs in perpetuity.
And then of course, is the core related issue of ‘originality’ of the saree draping styles; as calculated in the context of contemporary times, the various styles have been in the public domain since times immemorial.
2. The above nagging and recurring problem of locating ownership of TCEs may be compounded by the fact that sarees are culturally a common garment in other countries like Bangladesh and Nepal. So, there are proprietary/territory issues related to this TCE.
Post Script: A brief research, compelled by curiosity, took me to investigate whether the various saree drapes of some of our national dances, for instance Bharatnatyam and Mohiniattam are protected. The answer is in the negative, as the authority that tags them as ‘national’ is Sangeet Natak Academy, a registered society. Can the Copyright Act, 1957 come to the rescue here too?
[i] Nadra Kareem Nittle has written about education, race, and cultural issues for a variety of publications including the Robert C. Maynard Institute for Journalism Education and Change.org.