The need of Intellectual Property Protection For Indigenous Cultures & Art Forms

 

For a long time, India has been called a melting pot of different cultures and traditions, a venerated designation in its character as the largest functioning democracy in the world with the longest written constitution. Indigenous culture, tribal communities their traditions and culture persisting centuries of war and colonization have been part of the country’s long history. However, at the age of growing awareness and expanding cyber market spaces, what protections do these antique and sacred cultures have will require to keep themselves alive raised the biggest question.

The Current state of IPR and Traditional knowledge
In a current time where development in technology has been occurring at breakneck speeds, mechanisms for the exploitation of such indigenous genetic knowledge, art forms and folklore have also widened their scope, mainly in the areas of Information Technology and bioscience. An example of such exploitations is the results of Biopiracy, which is the practice of exploiting naturally based bioresources and their knowledge without properly providing scope for authorization or benefit-based agreements for tribal cultures where such genetic knowledge on natural resources have been passed on for generations. The importance of the protection of such cultural-based knowledge has now taken centre space in the international community. Seeing it, WIPO (World Intellectual Property Organization) recognize the importance of Indigenous people benefiting from Intellectual property tools for maintaining their cultural heritage and further explore the need to address existing legislations around Intellectual Property which fail to address tangible and intangible forms of the traditions passed down by Indigenous people and focuses on establishing the Intergovernmental Committee on Intellectual property and government resources, traditional knowledge and folklore (IGC) in 2009 for the protection and preservation for Traditional Knowledge (TKs), Traditional Cultural Expressions (TCEs) and Genetic Resources (GRs).  Another important concern for the communities which have been keeping and preserving traditional genetic knowledge on plants and herbs as well as cultural art forms and folklore is that due to easy accessibility of traditional knowledge on the internet, the knowledge so acquired from centuries by Indigenous communities may be misappropriated or misused for something other than its intended purpose. 
Though it is completely possible for any innovations based on Traditional knowledge to be patented, the concern still lies that traditional knowledge, being informal and antiquated, is mostly passed down orally or verbally, through stories and folklore and thus do not come under intellectual property protections. The worry this creates is that people from outside the culture of these communities may use their knowledge for cultural appropriation or may deliberately misinterpret details of such knowledge as well as use them in their original works without any authorized permission or access from the respective communities. It goes without saying that using a cultural symbol, story or practice among other things for any new or unintended purposes runs the risk of changing its true meaning irrevocably. A tragic example of such is the use of the Swastika, a cultural symbol in Hindu and Jain communities conveying unity and harmony now strikes as a horrendous memory of Nazi Germany.

Existing measures to protect IPR of indigenous communities

Thus, the WIPO through its research and sessions with the IGC has issued modal guidelines for countries with an abundance of traditional knowledge and genetic resources to form appropriate legislation for Intellectual Property preservation, mainly comprising  of 2 types of protection:

• Defensive protection: People belonging outside of the community may not claim any intellectual property rights over traditional knowledge. An example of this is the Traditional Knowledge Digital Library (TKDL) launched by the Government of India where individuals or organizations may apply for specific patents on traditional knowledge requiring there to be no pre-existing use or existence of such TK, otherwise the patent may be rejected.

• Positive protection: Granting of sui generis protection or rights to specific communities, so they may ultimately choose to preserve their traditions as trade secrets, etc., or choose to benefit from the commercialization of such practices. Many countries have already stepped up to form specific legislation for intended use by indigenous communities, however, an issue with this is that it may not enjoy such protection in other countries, still begging the need to form an internationally recognized legal instrument for the further scope of protection under international law.

As a result, countries are now taking the initiative to protect the diversity that is within their lands to further progress harmony among communities and acknowledge the diversity that lies around the world, and what better way to do exactly that but by preserving such knowledge as sacred and to give the keepers of these traditions the sole authority to conserve their ancient stories and practices.  

By: Vidhisha Singh

(Student (BBA LLB), Bharti Vidyapeeth)

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