The LexGaze Weekly - COVER STORY

Traditional Cultural Expressions and Traditional Knowledge: A Call for Preservation and Reformation

Amreen Taneja, Programme Officer, NIPO The Indian IPR Foundation

Jan 10, 2021

Issue 26

India writes in many languages and speaks in many more dialects. It has been the home to some of the oldest and richest civilizations in the world. Indian culture is an amalgamation of various traditions, and it has been shaped and influenced by a history that is nearly 2,50,000 years old, with over 19,500 languages spoken in the subcontinent. One can, therefore, only imagine the rich cultural heritage that has been inherited by us.

India’s indigenous communities are a repository of traditional and cultural expressions and play a crucial role in defining our cultural identity. In the last year alone, the Indian Government granted Geographical Indication tags to 19 indigenous products ranging from Pawndum, Ngotekherh, and Hmaram- traditional woven fabrics from Mizoram to Srivilliputtur palkova, a ‘native’ sweet of milk and sugar, made specifically by the people of Virudhunagar district of Tamil Nadu. Albeit, some products that have been granted the GI Status may embody characteristic features of ‘traditional artistic heritage’, GI only goes so far as to protect traditional knowledge from being exploited, given that it can afford protection against counterfeiting but cannot prevent misappropriation. [1]

The National IPR policy of India highlights the need to reach out to the ‘less-visible IP generators’ and holders, especially in rural and remote corners of the country, to create awareness for promoting and protecting their intellectual property which may be in the form of handicrafts, textiles, songs, health practices, crafts, languages, rituals, customs, hymns, religious practices, recipes, art, architectural designs, etc. [2]

The tangible and intangible translation of these ideas, customs, and social behaviours are a result of intergenerational communication and are often referred to as Traditional Cultural Expressions (TCE) or expressions of folklore. Unlike Traditional knowledge (TK), which refers to the information, skills, and practices that are evolved and performed over centuries, traditional cultural expressions refer to the manner in which such traditional knowledge is conveyed or translated. [3]

With the advent of the digital age, information regarding varying ways of life, cultures, and traditions followed in remote corners of the world, have become accessible through the click of a button. Thus, it is more important, now than ever before, to conserve this culture from pirates and imitators, who may seek to make financial gains by misappropriating various indigenous cultural expressions like handicrafts and other works of art and deem them as their original creations.

The power and knowledge of Intellectual property rights, when bestowed upon the rightful owners of such Traditional knowledge and Traditional Cultural Expressions, can contribute towards the welfare, socio-economic development, and improvement of the cultural vitality of such tribal and non-tribal communities. Granting such protection would not only safeguard indigenous people from incurring losses but will also help in the conservation of such traditional practices. Thus, there is a need for binding international legislation to combat transboundary counterfeiting of TK and TCEs, especially with regard to combating bio-piracy, which refers to ‘the practice of commercially exploiting naturally occurring biochemical or genetic material, especially by obtaining patents that restrict its future use, while failing to pay fair compensation to the community from which it originates.’ [4] Numerous Indian products, including neem and turmeric, have faced the brunt of such ‘bioprospecting’ and have made international headlines on overturning wrongfully gained patents by foreign companies over the product’s medicinal properties, which have been used by Indigenous Indian communities since ancient times.

At present, India does not have any specific domestic provision to prevent the commercial utilization of traditional cultural expressions without proper authorization of the indigenous or local people associated with such knowledge. TCEs are instead protected under various branches of IPR law which fall short of granting adequate protection to India’s ancient reservoir of traditional knowledge and cultural expressions.

Section 3(p) of the Indian Patent Act, 1970, forbids the grant of patents for inventions requiring any duplication or aggregation of traditional knowledge. This provision, however, does not extend to traditional cultural expressions. The Copyright Act, 1957, aims to protect literary, artistic, dramatic, and musical works of art. Albeit Section 38 protects the performer’s rights and Section 57 provides special moral rights to authors which allows them to restrain any distortion or mutilation of their work or to claim damages for such distortion, it is not sufficient to protect the interest of the owner of TCEs [5] Moreover, the limited life of a copyright licence renders it inadequate for providing permanent protection to TCEs.

The Indian Government, in an attempt to extend effective protection to Traditional Knowledge, created the Traditional Knowledge Digital Library (TKDL) in 2001, which served as a database of indigenous products of India. This repository has been shared with thirteen foreign patent offices to conduct patent examinations and prior art searches at pre-grant stages to prevent any unauthorised use of traditional knowledge. To date, more than 230 patent applications have either been set aside/withdrawn/modified based on prior art evidence provided in the TKDL database without any cost. [6]While this is a unique initiative towards combating bio-piracy, it does not render protection to traditional cultural expressions. According to the WIPO- Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and folklore, TCEs reflect the cultural and traditional values of indigenous society and thus, need to be preserved. Furthermore, Article 51A (f) of the Indian Constitution lays down the fundamental duty of every Indian citizen to preserve, respect, and protect the rich heritage of our composite culture.[7]

Thus, there is an urgent need to formulate sui generis laws for the protection of Traditional Cultural Expressions and Traditional Knowledge and also to address the two-pronged challenge of protecting such rights and promoting them to ensure the economic development of indigenous groups.