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Presented by:
Kshiti Nim
USLLS,GGSIPU
LLM(Regular)

INTRODUCTION
 “Copyright is the exclusive legal right to reproduce, publish, sell, or
distribute the matter and form of something (such as a literary,
musical, or artistic work”, as defined in Merriam-Webster.
 “Copyright (or author’s right) is a legal term used to describe the
rights that creators have over their literary and artistic works. Works
covered by copyright range from books, music, paintings, sculpture,
and films, to computer programs, databases, advertisements,
maps, and technical drawings”, as defined by World Intellectual
Property Organisation(WIPO).

 Many countries where parties to the Berne Convention which was adopted in
1886. The Berne Convention manoeuvre “literary and artistic works” which
include “every production in the literary, scientific and artistic domain”.
 The term got amended after adaption of WCT i.e., World Copyright Treaty,1996
and WPPT i.e., World Performers and Phonograms Treaty,1996 where it started
to recognise many other forms of art work and giving digital protection.
 WIPO was the first organisation which began to examine the relationship
between Intellectual Property and the protection, promotion and preservation of
traditional cultural expression (TCEs) and Folklore of indigenous People.

WHO ARE INDIGENIOUS PEOPLE?
 Indigenous peoples are inheritors and practitioners of unique cultures and
ways of relating to people and the environment. They have retained social,
cultural, economic and political characteristics that are distinct from those of
the dominant societies .
 It is assessed that there are in excess of 370 million indigenous people
spread across 70 nations worldwide who are practicing special customs that
are distinct from those of the dominant societies in which they live.
 In the history of indigenous issues at the United Nations, there is considerable
thinking and debate on the definition of “indigenous peoples”, but no such
definition has ever been adopted by any UN-system body.

 The concept of the indigenous peoples was raised by Jose R. Martinez Cobo(1981), the
Special Rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities, in his famous Study on the Problem of Discrimination against
Indigenous Populations.
 The study offered a working definition of “indigenous communities, peoples and nations”.
In doing so he expressed a number of basic ideas to provide the intellectual framework
for this effort, which included the right of indigenous peoples themselves to define what
and who is indigenous.

What is traditional cultural knowledge?
 . Traditional cultural expressions’ (TCEs) are the creation of inter-generational, social
and communal creative methods, replicate and recognize a community’s history,
cultural and social identity, and values. The tradition is not just about artificial and
imitation but it is also about the invention and making of the traditional framework.
 It is an information people give to their community and development happens over the
time and it continues to develop based on the knowledge, experience and adaption
which is also know as Traditional Knowledge (TK). TCEs includes traditional songs,
dance, handicrafts, design, rituals, stories and many other artistic or cultural
expression

WHAT IS FOLKLORE?
• ‘Expressions of folklore’ mean “productions consisting of characteristic elements of the
traditional artistic heritage developed and maintained by a community of (name of the
country) or by individuals reflecting the traditional artistic expectations of such a
community, in particular:
(i) “Verbal expressions”, such as folk tales, folk poetry and riddles;
(ii) “Musical expressions”, such as folk songs and instrumental music;
(iii) “Expressions by action”, such as folk dances, plays and artistic forms of rituals whether
or not reduced to a material form; and
(iv) “Tangible expressions” such as, makings of folk art, in particular, drawings, paintings,
carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalwork, jewellery, basket
weaving, needlework, textiles, carpets, costumes, musical instruments and architectural
forms”

Timeline
 There are two aspect in which international laws pierce the ‘indigenous people’ claims that is in the
general ‘public international laws’ and other is the ‘international human right laws’.
 One of the important developments which happened in the public international laws was the Berne
convention in 1967. Before this convention there was no orientation of traditions or folklore. This was
because the work available to the public was unsettled. The amendment which took place in 1967 to the
‘berne convention for protection of literary and artistic work’ provided a contracting state to represent
unpublished and unidentified works and it protects them.
 In the year 1976, the ‘Tunis Model law’ of copyright for developing countries was implemented to include
the ‘sui generis protection’ for indefinite period whether or not folklore was fixed in material form.
 In 1982, a committee of ‘expert group’ convened by “WIPO” and “UNESCO” developed a ‘sui generis
model’ naming it as WIPO-UNESCO Model Provision, 1982. The model provided the term “expression or
production” which distinguishes between the work which was unique and ordinary copyright laws.

 A 1992 Report of the “United Nations Secretary-General” on the “Intellectual Property of Indigenous
People’s states that ‘Indigenous peoples' intellectual property can, for analytical purposes, be usefully divided
into three groups: “(i) folklore and crafts; (ii) biodiversity; and (iii) Indigenous knowledge”.
This report concludes that, “given the complexity of finding improved ways to protect the intellectual property
rights of Indigenous peoples, 'a greater understanding of the concerns of Indigenous peoples...; may be
needed before determining the specific legal remedies which might be appropriate’”
 Another important law was made which was World Performers and Phonograms Treaty in 1996 which provided
protection to the performers as the folklore. The era was of globalisation and digital technologies which emerged
various problems for the performers, producers and broadcasting organisation. The misuse of their work and to
protect their work, the treaty was adopted. It gave identification to the work which is produced by folklore
communities and even give protection to the modification made. It protected not only economic rights but also
moral rights that had right to claim and the identify the ‘performer’ and the right to object to any ‘distortion’,
‘mutilation’ or other ‘modification’ that would be prejudicial to the performer’s reputation
 During 1998 and 1999, ‘World Intellectual Property Organisation’ conducted fact-finding missions in 28 countries
to identify the IP-related needs and expectations of traditional knowledge holders.

 But still there as efforts been made to protect the illicit exploitation of these traditional
cultural and folklore.
 A draft declaration was established by Indigenous peoples and their representatives
during the annual sessions of the “United Nations Working Group on Indigenous
Populations”.
 This draft declaration is a strong statement of Indigenous people’s aims, and reflects
their thinking on a wide range of cultural and associated rights. The Draft Declaration
is currently being further considered by a special Working Group established by the
‘United Nations Commission on Human Rights’.

ESTABLISHMENTS IN INTERNATIONAL LAWS
• Wipo Intergoventmental committee on Intellectual Property and Genetic Resource, Taditional
Knowledge and Folklore
- It was established in September 2000, the WIPO Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore (IGC) where WIPO member states can discuss the
intellectual property issues that arise in the context of access to genetic resources and benefit sharing as
well as the protection of traditional knowledge and traditional cultural expressions.
- Its first session in 2001, the IGC’s achievements also include certain “intangibles” such as: Inclusion
and consultation; Clarity and understanding: age-old IP terms, such as “protection”, “originality”,
”novelty” and the “public domain”, are being re-thought; Content and context: the IGC is considering
innovative and sui generis (special, specific) approaches.
- In 2009, WIPO members decided that the IGC should begin formal negotiations with the objective of
reaching agreement on one or more international legal instruments that would ensure the effective
protection of genetic resources, traditional knowledge and traditional cultural expressions.

• WIPO Model Provision for National Alws on the Protection of
Expression of Folklore Against Illicit Exploitation and Other
Prejudicial Actions, 1982
- The accelerating development of technology, especially in the field of
sound and audiovisiual recording, broadcasting, cable televation and
cintematograpgy leads to improper exploitation
- In the industrialized countries, folklore are generally considered to belong
to the public domin. This approach explains why industrialized countries
generally need to establish a legal protection of the manifold national and
other community interst.

• Convention for safeguarding of the intangible cultural heritage, 2003
- Intangible cultural heritage adapts permanently to the present and constitutes cultural capital that can
be a powerful driver for development. Food security, health, education, sustainable use of natural
resources – intangible cultural heritage is a wealth of knowledge to be used in many aspects of life.
Women hold a special place in the transmission of intangible heritage and have knowledge that
contributes to their empowerment and to revenue generation.
- , UNESCO works to safeguard cultural heritage and promote cultural diversity as a force for dialogue
and development. It encourages international cooperation and knowledge-sharing and supports
Member States in building their human and institutional capacities.
- Adopted in 2003 after 60 years of work in this domain, the Convention is the international
community’s first binding multilateral instrument intended to safeguard and raise the profile of this
heritage. Its goal is to incite countries to care about and look after the ICH present on their territories.

TRADITIONAL CULTURE EXPRESSION AND FOLKLORE
AROUND THE WORLD
 As per International Labour Organisation (ILO), there are around 467.6 people in
the world which belongs to different groups in ‘90 nations’ worldwide. Indigenous
people living in every region of the world but only 705 of them lives in ‘Asia and
the pacific’, followed by “16.3% in Africa”, “11.5% in Latin America and the
Caribbean”, “1.6% in northern "America” and “0.1% in Europe and Central Asia”.
 There are 4000 languages currently spoken by Indigenous people around the
world.
 The Indigenous traditional cultural and folklore displays most important source of
inspiration and creativity for cultural industries such as the entertainment,
fashion, publication, craft and design industries. Many businesses have been
developed by many developing and developed countries by using the forms and
material of these traditional cultural and folklore. For example, music, publication,
audio visual industries in many countries.

 FOR EXAMPLE,
1. A cultural development project is the poverty alleviation program ‘Investing in Culture’ for the Khomani
San people in South Africa,
2. Visual fine art and skills are a vital source of income for Indigenous performers and communities in
Australia,
3. The Quechua people in Peru have a wealthy Cultural past that is spread across many nations and
continents in South America. ‘Quechua’ refers to ‘the ethnic group that speak their own language and roots’
from the Incan Empire of Peru
4. Over fifty per cent of the present society of Guatemala is made up of Mayan peoples, the culture is lively
and evident. The womenfolk still dress in traditional cloths. Their craft work can be created throughout
‘Guatemala’ including the ‘intricate baskets’, ‘wood carved animals ‘and ‘painted toys’.
5. The ‘Maasai tribe in Kenya’ or Tanzania are the semi-nomadic persons who constructs loaf- shaped
houses made of mud, sticks and cow dung as they move from places to places. Their antiquity is well
known and conserved through their culture of stories, melodies and folklore. The ‘Maasai culture’ offers
traditional medicine, grazing practices, landscape ecology.

CASE STUDY
 George Milpurrurru, T. Payunka, B. Marika & Others v. Indofurn Pty
Ltd 30 IPR 209 AT 210 (1994)
 Alva Studio inc v. Winneger 177 F supp 265,267 sdny 1976
 Wik Peoples vs Commonwealth (1996)
 L Batlin & Son Inc v. Snyder 536 F 2d 486,491 (1959) cir
 Bulun Bulun vs. R & T Textile Ltd, 1998

TRADTIONAL CULTURAL ANDFOLKLORE
IN INDIA
 India always been known for its cultural and traditional heritage. India’s heritage culture flows
from 5000 years back which is the oldest culture and civilization. It has constantly been
acknowledged as the land that portrayed its vibrant cultural heritage in various forms of art,
craft, songs and music.
 The folk and tribal art of India are very cultural and colourful and vibrant enough to speak
volumes about the country’s rich heritage. Folk art in India has a great potential in the
international market because of these beautiful elements.
 Some of the most famous and known folk painting of India which is known across the world are
the Madhubani painting, Patachitra painting, Nirmal painting etc. Folk art is not only restricted
to the painting but jewellery, ornaments, home decors, pottery, clothing, even wall art etc
 The regional dances in India are also important feature and a part of traditional heritage culture
where dance like Bhangra of Punjab being very famous around the world, the dance of Gujrat
i.e., Dandiya, the Buhu dance of Assam etc which projects the cultural heritage of the region.

• But Despite the rich stock of folklore and folk tradition there is no special laws which
has been made to protect the heritage, culture and the folklore from the unauthorize
commercial use by the interloper. Some of the societies so have their own habitual
practices to legalize the use of TCEs but these are not sufficient to protect the rich
heritage of Indian culture.
• In India the legislation that administers the rights to protect this known as the
Copyright Act, 1957. In India, section 13 defines “work in which copyright subsists”
and the word “sound recording” and “architectural of art” was added in 1994
Amendment. Under Section 22 of the Copyright act, 1957, the term of protection
lasts for the period of 60 years after the death of the author.
• Even the Constitution of India act, Folklore and TCEs are not clearly protected.
Article 29(1) and 51 A (f) , protect the culture and work of the traditional minority
community. Article 29(1) talks about the protection of cultural rights of minorities
as a Fundamental right.

 The ‘Ministry of Culture’ has formulated a Scheme titled “Scheme for Safeguarding the Intangible Heritage
and Diverse Cultural Traditions of India”, with the objective of “reinvigorating and revitalizing various
institutions, groups, individuals, identified non-MOC institutions, non-government organisations, researchers
and scholars” so that they may engage in activities/ projects for strengthening, protecting, preserving and
promoting the rich intangible cultural heritage of India.
 In 2016, the National Intellectual Property right policy (NIPR) was approved by the Union Cabinet of
Government of India to outgrow creativity and innovation.
 The National Mission for Manuscripts (NMM), established in 2003 by the Ministry of Tourism and Culture,
documents, preserves and digitalizes the vast wealth of manuscripts of India. These manuscripts have a
wide range of themes, textures, aesthetics, scripts, languages, calligraphies, illuminations and illustrations.
 Another initiative by the “Indira Gandhi National Centre for the Arts” is to digitalize document expressions of
traditional culture and folklore such as ‘manuscripts’, ‘books’, ‘audio’, ‘video’, ‘art’, etc. It includes projects
like the “National Databank on India Art and Culture” of Kalasampada, a digital library store for ‘Indian
cultural heritage project’ and ‘Cultural Informatics’ established with the ‘UNDP assistance’. The documented
material for which copyright is accessible on internet.

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Copyright and Indigenous People

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