IP Protection for Folkloric Expression: A Need?
Updated: Aug 22, 2020
[This article is authored by Arijit Sanyal, Bharati Vidyapeeth's New Law College]
Folklore is an all-encompassing term for a domain of diverse cultural knowledge and practices which includes folk arts, music, dance, poetry, plays, etc in an abstract form and jewelry, tapestries, shawls, needlework and carvings showing a tangible side.  Presence of such a wide variety of subjects under the umbrella term, “Folklore” makes it difficult to have a precise and globally-endorsed definition as what might be folklore for a particular civilization might fail to qualify as one for others. It has absorbed social change and has morphed from time to time. Owing to this fluid nature, it has not been granted IP protection over the years, but with technological advancement, the economic interests of the folklorists have come under a threat, especially from the outgroups, which have capitalized on the lack of protection and have exploited the cultural practices of various civilizations without any recompense.
Folklore, a creative social process consists of a multitude of things such as dramatic expressions, music, literature, dance, and tapestry which though not always in a tangible form, falls within the meaning of literary and artistic work under the Berne Convention. Folklore does not have a uniform mode of expression and might not be fixed all the time, as for instance the tapestry of Ladakhi people, folk tales of the Himalayan Tribes, the Murals of Naga and Kashmiri tribes, accessories of Kalash tribe, Tribal dance drama of the Santhals, etc. The globalized world today has made exploitation of folklore easier without making any recompense to the concerned community. Not only is their culture marketed heavily to obtain pecuniary benefits, but it is also adapted in a restructured way that undermines the identity of a civilization.  IP protection in the form of Copyright, Related rights, or local legislations not only obviate such chances of adulteration and diminution by preventing unauthorized adaptions and reproductions but will also guarantee economic rights to the concerned community.
What can be protected under the IP ecosystem
In any case, if Folklore is to be given recognition and protection under the international Copyright laws, it must fulfill certain benchmarks, that are, it should be original, it should be independently-created, the nationality of the author should be clear and it should allow fixation in a tangible medium.  The presence of these conditions precedent for granting Copyright protection negates the chances of Folklore getting protection, for instance regarding authorship, there is no single author to whom the work might get credited, as the work belongs to the community, and has absorbed social change over the years and the present version cannot be said to be original for the sake of protection and finally not all folkloric expressions such as drama, dance, tales, etc can be fixed in a tangible form. Another major hurdle before folkloric expressions is the duration for protection and if it were even possible to identify a single author, it would be protected for their lifetime and a limited period thereafter before falling into the public domain. 
However, there have been other developments which though would not extend copyright protection to folkloric expressions but will ensure sui generis protection, which will be extended from nation to nation basis. Such an idea emanates from the Model Provisions for the protection of Folklore.  The model provisions acknowledge the importance folklore holds for a developing country and provides for the protection and points out towards a major drawback of the Paris Act.  This came into being after both copyright laws and neighboring rights  failed to provide adequate protection to folklore and has laid down provisions for sui generis protection of Folklore is and when a country adopts the model laws.
The Model Provisions enumerate provisions for seeking authorization whenever the purported act falls outside their customary domain , however, the same does not extend to educational purposes and other related works falling under fair practices. The provisions also lay down a detailed scheme for penalties, civil remedies, and seizures. The problem which makes its authority questionable and futile to a greater extent is that the model provision is not binding and leaves the implementation and execution part at the discretion of nations who may choose to proceed with the same.
Folklore and the Indian Perspective
India, being a developing country and having rich folklore must take steps to protect the diverse cultural heritage spread across the provinces in order to prevent adulteration of the same and to ensure that the concerned groups are not alienated from their economic rights having a nexus with such folkloric works. India, in furtherance of protecting cultural heritage, must learn from her eastern neighbor China which has cracked down hard on the digitization of folklore and protected the interests of indigenous people.
Folkloric expressions in the form of Buddhist murals, Kashmiri Shawls, Pottery from Sikkim and Arunachal Pradesh, generate a lot of revenue for the local workers. However, the lack of protection for their works has led to the availability of pirated works in the form of pottery, carpets, etc. Not only does it infringe the rights of the indigenous people who own the cultural expression but it hampers their economic interests as the counterfeit accessories and objects are available for a lesser price. It is thus imperative for the government to work closely to monitor the situation of the tribes whose cultural expressions are marketed and grant them the necessary protection. This should be seen by the concerned authorities not just as a way of protecting the interests of a group of people, but a way to boost the economy by the same. This step would strengthen India’s foundation in the globalized economy and aid the ailing economy by providing employment to people and as a source of income for the government by marketing the same globally in accordance with the prospective legislation.
 Michael Jon Andersen, Claiming the Glass Slipper: The Protection of Folklore as Traditional Knowledge, Case Western Reserve Journal of Law, Technology & the Internet, Volume 1 (2), 2010.
 Article 2, Berne Convention for the Protection of Literary and Artistic Work, 1876. The said article expressly states that literary and artistic works include dramatic works, sermons, songs, books, compositions, lithography irrespective of the form of its expression. Article 3, Berne Convention for the Protection of Literary and Artistic Work, 1876.
 Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes: A Reprisal of the Tensions between Individuals and Communal Rights in Africa and the United States.
 Available here.
 Article 15(4) of the amendment provides for the designation of authority, by communicating to the Director-General of WIPO, for the protection of works of an unknown author, which may consist of folkloric expression.
 Report by Working Group of Model Provisions for National Laws on The Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions.
 Section 3, Model Provisions for National Laws on The Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, 1985.
©Image Courtesy: EFE (Spanish Press Company), see here.