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Fixation, Definition, Delimitation: A series of impediments before Expressions of Folklore

Arijit Sanyal, Contributing Editor, LexGaze

Issue 26 | January 10, 2021

Among other prerequisites, Fixation is one of the most important conditions indispensable for an object to be protected under the copyright regime. The regimes, irrespective of jurisdiction, require works, claiming protection to be fixed in some form, which has made it difficult for unconventional forms of expressed work to obtain copyright protection. Traditional Cultural Expressions (TCEs) or expressions of folklore: a category of such unconventional works which have been denied Copyright Protection, let alone considered Intellectual Property owing to a greater emphasis on the fixation principle. However, fixation alone isn’t an impediment, as projects determining the subject matter of TCEs haven’t concluded in the desired way at the global stage [37th Session, Protection of TCEs, WIPO]. TCEs, being an inalienable part of a good number of communities across South-Asia, Middle-East, and Eastern Europe, have been passed down to successive generations and have been recreated in a way to make it unique for every generation which holds it. In its basic form, TCEs are the product of the community’s mental labour which has been absorbing social change in a way so as to give a novel product every time they are passed down and recreated.

Though a global definition is yet to be agreed upon, Nigerian lawmakers have attempted to define Folklore as productions handed down from one generation to another while also constituting the cornerstone of the cultural heritage of a nation [Article 53, Decree 93-027 on Copyright, Niger]. While even the Berne Convention recognises literary, artistic, and musical works as “protected works” [Article 2, Berne Convention], the provisions are toothless, as it recognises the rights vested in individuals and performers but not groups or indigenous communities. Furthermore, municipal laws, which are largely based on International Conventions, have a delimited period of protection ranging from 15 to 25 years, which isn’t sufficient owing to the changing nature of TCEs and their adaptability to social change. If, however, delimited protection is accorded under municipal law, the economic rights granted to the present communities will come at the cost of future generations who will not be able to claim any kind of protection. Consequentially, the data, being in the public domain, will give entrepreneurs unrestricted access to expressions having cultural and religious nexus with the concerned communities, which poses a greater risk of pushing these communities towards vulnerability and extreme poverty.

Arguably, one of the greatest hurdles engulfing the grant of copyright protection for expressions of folklore is, it cannot be accredited to a sole creator, as these works are community-owned and the know-how is passed down from one generation to another, which helps to absorb the socio-cultural changes over the years. This dynamic nature of such forms of tangible expressions strengthens the contention of its copyrightable nature for two specific reasons. Firstly, it tends to add on to the creative aspect, which in turn gives us a form of art such as painting, shawls, pottery, tapestry, etc., which is not the same as its predecessors, and secondly, with an escalation of globalisation and exposure to the outside world, these communities are becoming much more vulnerable to intellectual property theft and misappropriation which, apart from hurting their economic goals, also tends to misappropriate their culture, consequently jeopardising their social identity. Furthermore, though these forms of expressions might be made out of readily available raw materials such as silk, in case of traditional wear, tapestries, etc., canvas, in case of paintings and chisel and clay. With respect to pottery, we cannot undermine the elements of mental labour, time, and planning, which the concerned tribes put in to make them different from their contemporaries.

Intellectual Property Regimes have globally failed to extend protection to unconventional forms of arts and literary works, let alone recognise them as a product of mental labour. This, coupled with a lack of globally acceptable definition for TCEs, has endangered indigenous communities with the advent of scientific discoveries. Integral to a community as they are [AJ1], for reasons having social, political, and religious importance, they cannot simply be left to the mercy of narrow interpretations by the respective nations and the international organisations like WIPO, and WTO can play a greater role in it. Identifying the economic importance of these expressions to the communities, the method, by which the expression is fixed in a medium, should be granted protection similar to patents having an extended, if not indefinite protection period. Furthermore, the concerned communities should have a say vis-à-vis the adaptability of these expressions which would ensure representation at a governmental level apart from granting them a sizeable opportunity to interact with the globalised world and exploit their work economically to ensure socio-economic development of these communities in accordance with the globally recognised standards. [AJ2] South Asia; India, in particular, being culturally diverse, will be able to benefit from the prospective mechanism and system of international trade, thereby contributing to their respective economies respectively while also protecting their inalienable culture from getting misappropriated.

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