Received: 20.04.2021 Revision: 30.04.2021 Accepted: 10.05.2021 Published: 20.05.2021
Divya Singh Rathor
Assistant Professor, Law (Research Scholar- NLUO) National Law University, Odisha Kathajodi Campus Sector-13, CDA, Cuttack
Abstract: Humans have a propensity to generate, refine and pass on the knowledge from one generation to another, so that their tradition is conserved through several generations. One of the most important aspects of traditional knowledge is “folklore”, which like other forms of traditional knowledge is under threat of exploitation as a result of too much of technological advancement and industrialization. The whole scheme of research is based on the hypothesis that Folklore is required to be protected as an Intellectual property but doesn’t qualifies to be an Intellectual Property(IP) under the existing regime and altogether a sui-generis approach by way of legislation or amendment in the existing legislation is the need of the hour. The existing Intellectual Property(IP) regime is an ineffective tool to protect the diverse folklore. Through research, an argument can be primed that whether Rajasthan’s Phad Painting, a folk art can be socially and legally protected in the form of folklore through a sui-generis protection system like Tunisian Copyright model and African Music Project. Through this research on Folklore vis-à-vis the IPR regime the researcher aims to examine if the folklore fits into the definition of “intellectual works/s” as protected under the IPR regime in India and across the globe and to look into the vulnerability of folklores like Phad Painting the folk art of Rajasthan and the address the need for protection. The research is primarily based on Doctrinal method of research wherein the researcher shall carry out the detailed study of primary sources as well as secondary sources. The scope of research is limited to only one Folklore i.e. Phad Painting, which is the famous folk art of Rajasthan.
In order to preserve the traditions, generating, refining and passing on knowledge from one generation to the other is a natural tendency of human communities since time immemorial. Such knowledge based on traditions and integral to the cultural identity of the social group in which it operates is generally termed as “Traditional knowledge”. What qualifies to be termed as traditional knowledge so as to be protected under the current legal regime is subjective and varies from community to community. Broadly speaking, Traditional medicines, Tales, Ballads, folklores etc can be considered as traditional knowledge. Such traditional knowledge can be used for food security (e.g. use of Hoodia cactus as life saving food on hunting trips in Kalahari deserts), medicinal uses( e.g. antiseptic properties of neem & turmeric), religious purposes(e.g. folk arts like Phad painting), entertainment purposes (e.g. chhau dance form), therapeutic use(e.g. use of essential oils) etc. One of the most important aspect of traditional knowledge is “folklore”.
“Folk” simply means people and “lore” as per the Oxford Dictionary means “a body of traditions and knowledge on a subject or held by a particular group”. Folklore primarily consists of ballads, music, recipes, oral history, proverbs, jokes, popular beliefs, fairy tales, stories, tall tales, arts and customs that are the traditions of a culture, subculture, or group and relate to the cultural identity of that group or sub-group in which they operate. It is also the set of practices through which those expressive genres are shared. For instance voodoo doll associated with some form of mythological magic, Musical tunes of African continent, practice of worshipping on the first harvest, heroic tales, Jatakas, etc are some of the folklores present in India and world. The most common example of folklore is the love tales of Arjun and the Nag-Kanya, the tale of Nanda Devi, tales about fairies visiting Khet Parvat, Aipan art etc in the state of Uttarakhand. Further, Bujhoval or questioning as a part of ancient yaksha worship and playing of Algoza( a pair of flutes operating as One) are some of the lesser known folklore of the state of Rajasthan.
The research is based on the hypothesis that Folklore is required to be protected as an Intellectual property but doesn’t qualifies to be an Intellectual Property under the existing regime and altogether a sui-generis approach by way of legislation or amendment in the existing legislation is the need of the hour.
Through the research, the researcher shall attempt to discuss and deliberate upon the role and importance of folklore in preserving the cultural heritage of India generally and the pristine state of Rajasthan specifically. The attempt shall be made to contrast the view that “Folklore” can be protected under the existing IP regime, by comparing the existing regime and the status of Folklore by specifically discussing the unique folk art form of Rajathan- Phad Painting. Undoubtedly, the state of Rajasthan is rich not only in flora & fauna but also in various cultural aspects such as folk-art, folk-music, folk-dance, ballads, tales etc and every art form is unique in its own way. However, the scope of this research has been limited to only one form of Folklore i.e. Phad Painting, which is the famous folk art of Rajasthan because not everyone is aware about the uniqueness of this art form due to which it is losing its authenticity. The art form is an unique combination of folk art, folktales, folkdance and folk music. The art form is perfect example where lacunae of the existing IP regime in protecting the folklore can be put forth and the reasoning for sui-generis approach in protecting folklore can be proved.
NEED FOR PROTECTION
Folklores are an integral part of cultural heritage and a valuable resource for historical and contemporary comparative folk narrative studies. They reflect moral values, beliefs, and identities of groups and individuals over time. In addition, folklores can be studied to understand variability in transmission of narratives over time.
In today’s world of globalization the most urgent concern is probably the alarmingly rapid disappearance of folklore and the traditional knowledge imbibed in it. At a time when Traditional Knowledge especially folklore has started enjoying mainstream acceptance it has not had before, human culture is eroding at an unprecedented and alarming rate.
According to the IUCN Inter-Commission Task Force on Indigenous Peoples:
“cultures are dying out faster than the peoples associated with them. It has been estimated that half the world’s languages – the storehouses of peoples’ intellectual heritages and the framework for their unique understandings of life – will disappear within a century”
If jhijhi, natua, jhumaror jogira appear alien to a 21st century person then it’s not the unawareness or the lack of knowledge that is to be blamed rather it’s the extinction of the dance form itself completely from the mainland of India because of which no one knows about it.
The Guardian on 27th of January 2010 reported that the Ancient tribal Bo language has become extinct as last speaker dies”. With the death of Boa Sr, last person fluent in the Bo language of the Andaman Islands, the link with 65,000-year-old culture of island was broken with no clue about its possible preservation. Furthermore, Domni dance of Maldah, West Bengal and Chitrakathi painting of Maharashtra which is art of depicting stories of Mahabharata, Ramayana and Nandi Puran on cloth with natural color are some other folklores which are on the verge of extinction and their patrons are dying without even two square meal.
With the advent of trade and commercialization the folklore has started losing its significance. The communities have started losing their traditions because of the entry of the Multinational Companies and industries, who exploit the age old traditional knowledge in form of folklore to the detriment of the community possessing such folklore.
The original possessor of these folklores i.e. the indigenous communities are deprived not only of the economic rights but also the moral right. The knowledge which is possessed by the indigenous community and should be used for the betterment of community possessing it, is being exploited by big players e.g. folk music is very often alleged to be copied and used in commercial cinemas for earning profits which generally never passes on to the community to which the original folk music belonged.
Because of the rapid misuse and misutilization there is a huge debate across the globe about status of folklore as an independent IP. Most significant challenges have been to the countries like India, Brazil and the African union which have got plethora of traditional knowledge in form of folklore.
In light of this debate about protection of folklore, there are two views which find place, the first one being that the folklore needs to be recognized as an independent Intellectual Property & to be protected under sui- generis legislation. The other view is that there is no need of separate Intellectual Property status as it can be protected under present Intellectual Property regime through existing Intellectual Properties like Trade Mark, Geographical Indication, Patents, Copyright etc.
Independent of the research outcome, with respect to the two views expressed above it is imperative to note that the first question to be answered is whether folklore qualifies as the Intellectual Property (IP).
FOLKLORE AS AN INTELLECTUAL PROPERTY (IP)
Intellectual Property (IP) refers to the property arising as a result of creation one’s intellect such as inventions, designs, literary and artistic works, symbols, images, performances, cinematographic works, trademarks, geographical indications etc. Copyright, for instance, protects the original work in literary, artistic, musical, cinematographic, sound recordings and dramatic works, against unauthorized uses such as copying, reproduction, adaptation, public performance, broadcasting, importation and exportation and other forms of communication to the public. Patent protects the inventions and the utility models in order to facilitate business and creativity. Geographical Indication strives towards protecting the identity and reputation related to goods & services with respect to its place of Geographical Origin. Goodwill, brand name and financial interests are protected under the Trade Mark laws. Comparatively new legal regimes like Semi-conductor and Integrated Circuits Layout Designs Act provides for the protection of semiconductor integrated circuits layout-designs and for matters connected therewith or incidental thereto. The Socially beneficial legislation, Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act) provides for the protection of the interest of the Farmer community by access & benefit sharing(ABS).
In the context of folklore as IP, the notions of ‘preservation’ and ‘safeguarding’ refer mainly to the identification, documentation, transmission, revitalization, preservation and promotion of cultural heritage in order to ensure its viability as IP under the IPR regime. The preservation and safeguarding of cultural heritage and the promotion of cultural diversity are the key objectives of several international conventions and programs as well as national legislations, regional and national policies, and practices.
However, in spite of all the conventions and the legislations, an imperative step in intellectual analysis is a precise definition of terms. Ironically, there is no concise definition of the term "folklore” in any of the International conventions or the national legislations. The WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions 1982 ("Model Provisions") defines "Expressions of folklore" under section 2 as:
"Expressions of folklore means productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community 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 actions, such as folk dances, plays and artistic forms or rituals; whether or not reduced to a material form; and
IV. tangible expressions, such as:
A. productions of folk art, in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes;
B. musical instruments;
C. architectural forms.”
Based on the above definition folklore can be broadly divided into 4 areas of studies, namely-
1) Artifacts (e.g. Voodoo dolls, Pottery, Paintings)
2) Describable and transmissible entity (e.g. oral tradition),
3) Culture (e.g. dancing culture),
4) Behavior (e.g. Ballads, Tales)
Classification and Codification of Folklore
For folklore studies or “Folkloristics” as it is usually referred to as, an appropriate classification system must be selected so as to bring into the Universe of IP, the largely scattered Folklores. One of the most acclaimed classification is the Aarne-Thompson-Uther Classification of Folk Tales (ATU), which is a catalogue of international tale types and is an expansion of the system first developed by Aarne (1910) for European tales and later expanded by Thompson (1928, 1961) to include more tales from Europe as well as tales from India.
There is yet another Classification of Folk literature the Stith Thompson Motif-Index of Folk Literature which is a voluminous listing designed for the aid of the folklorists through motifs and is an enhancement of the earlier existing ATU Classification.1 For instance in S. Thompson. Motif-index of folk-literature : a classification of narrative elements in folktales, ballads, myths, fables, mediaeval romances, exempla, fabliaux, jest-books, and local legends, Indian folktales like “Barber as matchmaker”, “Marriage of person and object”, “Marriage of girl to a sword” etc are mentioned under number T53.5, T117 and T117.2 respectively.
One of the worth mentioning classification is the genre based classification based on European and American concepts of folklore that has been extensively relied for folkloristic in Philippines. In India context also the genre based classification is equally applicable.
The classifications of folklore, be it ATU, Motif-Index or Genre based help in protecting the folklores by reducing them into fixed form which otherwise wouldn’t have been possible due to the lack of codification. According to Vladimir Propp the classification of folklore is not an easy task considering the very wide nature of folklore. Further, the above mentioned classification primarily deal with the folktales, which is only a part of the universe of folklore.
If we look into the categorical definitions and codifications of IPs vis-à-vis folklore then it can be stated that it doesn’t qualify to be classified as traditional IP because of the various reasons as listed under
There is no precise legal definition of the term “Folklore” and the term is wide enough to include several things within its ambit like folktales, Ballads, Folk arts, Folk music etc which require different treatment and protection as different IPs e.g. Phad Painting of Rajasthan is combination of Folk art as well as Folktales wherein it is believed that members of a particular Bhopa family can only paint the legends on piece of cloth hung between two bamboo poles which was to be carried from place to place for exhibition and performance before those who were otherwise not allowed to visit the temples
It is difficult to reduce the folklore in a fixed form as the there are several forms of a particular folklore and since mostly it’s orally transmitted which form qualifies to be “original and authentic” is highly debated e.g. Aipan is an ancient and traditional art of Floor painting with red color called geru and white color paste made out of rice flour. The uniqueness of the art lies in use of the two colors on the floor to draw the Aipan and depends upon the skill of the person drawing it, usually a woman as per the traditions.
The traditional knowledge in form of “Folklore” has crossed the boundary of community which originally possessed it and is so much in public domain that it can’t be conferred as Monopoly Right under IP regime e.g. Turmeric and it’s healing powers as Grandmother’s recipe are not peculiar to any particular and is known in almost all Indian households. Conferring IP status under IP regime would be monopolizing in favor of few against the larger public interest.
Folklore vis-à-vis Intellectual Property Rights Regime
As discussed in the preceding Para if one tries to protect the Folklore under the existing IP regime, the first challenge is with respect to the qualification and categorization of “Folklore” as IP. The prudence lies not in trying to define the “Folklore” under the existing IP definition but trying to treat it as a sui-generis IP considering the wide range of traditional knowledge involved and the interest of the stake holder communities possessing such knowledge. It is imperative to consider the other view also which states that Folklore can be protected under the existing IP regime. In order to examine the veracity of the above view an analysis of Folklore vis-à-vis existing IP laws is as under:-
Folklore vis-à-vis Copyright Laws
For many years indigenous people and communities have claimed that outsiders frequently reproduce their fixed cultural expressions such as artistic works, handicrafts, designs etc, not only without their permission but also without sharing the benefits arising out of such reproduction. At the international level the concern about these matters has been raised since 1960, when the idea of protecting traditional knowledge by applying Copyright emerged at the Diplomatic Conference of Stockholm in 1967 for the revision of the Berne Convention.
Undoubtedly, Copyright was the first IP to protect folklore within its ambit, but it has some fundamental limitations in the context of folklore protection. For instance,
Copyright requires an “identifiable author” and the notion of authorship is a problematic, in fact impractical concept in many indigenous communities, as the folklore passes on from one generation to the other generation.
Copyright gives temporary protection for fixed time limit.
Copyright requires the works to be fixed in some material form, however most folklores are not fixed and are passed on orally from generation to generation.
Folklore vis-à-vis Patent Laws
Patents provide a legal monopoly over the use and exploitation of an invention which is innovative & novel with industrial use for a specific period of time (usually about 20 years). The requirement of novelty may not be as difficult as one would think when it comes to applying for patent based on some folklore. The expensive and time consuming claim of India over antiseptic properties of Neem and Turmeric and subsequent revocation of the Patents granted by United States Patent and Trademark Office based on Neem and Turmeric is the best example to this. The only way a patent can be denied on the basis of novelty is previous documentation of the knowledge even if it has been in the public domain centuries.
For example, despite the fact that maca, (Lepidium meyenii) was used by the Incas for fertility purposes centuries before maca based patent applications were filed in the United States, patent examiners held the claims to be novel and non obvious, hence patentable. The key element in disproving novelty is prior existing documentation, and when such documentation does not exist, then that knowledge is considered novel in the United States. This is a serious concern for the indigenous communities as most of the Folklores are generally not documented and orally transmitted.
However, the situation under Indian law is better and the amended patent law of India contains provisions for mandatory disclosure of source and geographical origin of the biological material used in the invention while applying for patents in India. Further, provisions have been incorporated to include non-disclosure or wrongful disclosure of the same as grounds for opposition and for revocation of the patents, if granted. To protect traditional knowledge from being patented, provisions have been incorporated which include anticipation of invention by available local knowledge, including oral knowledge, as one of the grounds for opposition as well s revocation of patent. Furthermore, a new provision has been added to exclude innovations which are basically traditional knowledge or aggregation or duplication of known properties of traditionally known component or components from being patented.
Folklore vis-à-vis Trade Secrets
Trade secrets is completely a new IP and still at its nascent stage which intends to protect undisclosed knowledge through secrecy and access agreements, which may also involve paying royalties to knowledge holders for access to and the use of their knowledge.
Three elements are required for knowledge to be classified as a trade secret. The knowledge:
1) must be commercially viable,
2) must be a “secret” i.e. should not be in the public domain, and
3) must be subjected to reasonable efforts to maintain secrecy.
Folklore that is maintained within a community could be considered a trade secret, but once the knowledge is disseminated to the public, this option no longer exists as a trade secret is only enforceable till the time it remains a secret. Further, as of now trade secrets have no legal protection except in cases of “breach of confidence and other acts contrary to honest commercial practices.” This means that one must be able to prove some form of malicious intent on the part of a contracting party for claiming the relief. This appears very much contrary to the nature of Folklore as there are usually no identified parties and the knowledge is refined and passed on from generations without any secrecy clause.
Folklore vis-à-vis Trademark
Trademarks are based on two principles of distinctiveness and avoiding confusion for the purpose of facilitating trade and commerce. Not always folklore has the trade or the commercial element in it e.g. the Folk festival of Phulari of Uttarakhand has so many folktales attached to it and not all have the commercial value and have only cultural relevance.
However, Trademarks can be applied to folklore in the following way-
Suppose a company sells a product comprised of maca, a plant native to the Andean region. An indigenous community in the Andes, the original knowledge holders of maca’s uses, may also want to sell maca or profit from their own natural resources and knowledge. By placing this symbol on packages of maca, the consumer knows that the original knowledge holders approve of the brand.
Folklore vis-à-vis Geographical Indications
A Geographical Indication identifies a good or services as originating in a territory or region, or locality in that territory, where quality, reputation, or other characteristic of the good or services can be attributed to the place of its geographical origin. For example, Roquefort cheese (from France) is product associated with high quality cheese and is also a Geographical Indication meaning that the Roquefort cheese can only be used to describe cheese produced in Geographical limits of Roquefort-sur-Soulzon, France.
Undoubtedly Geographical Indication provides for better protection to Folklore as compared to other forms of IP, but not all the Folklores can be covered under the GI regime like Ballads, Folktales etc.
Based on the arguments laid above it can be said that instead of the umbrella protection as expected and required considering the vulnerable nature of both Folklore and Stake Holders possessing it, the protection accorded at present can be explained by the illustrative diagrams mentioned below:-
Figure Image is available at PDF file
Figure No. 1
It can be said that the current IPR system cannot completely protect “Folklore” for the following three reasons:-
Firstly, the current IP system seeks to monopolize the ownership in favour of individuals or corporations, whereas Folklore primarily has collective ownership e.g. it’s impossible to ascertain as to who is the owner (in terms of IP) of the famous Folktale of Fairies visiting and protecting the Khet Parvat in the New Tehri of the Garhwal region of Uttarakhand or horror stories relating to Bhangarh Fort in Rajasthan. Traditional IP like Copyright can’t protect this because neither the author is identifiable nor the work is in fixed form. However, if someone creates any piece of literary, artistic, dramatic, musical, sound recording or cinematographic work based on the same folktale, it can definitely qualify for protection under Copyright law subject to the requirement of Originality, Idea-expression dichotomy and other statutory requirements. However, only some of the “folklores” can be protected but it shall be like monopolizing the knowledge possessed by a community in favour of person/s.
Secondly, the protection under the existing IPR regime is extremely time-bound, whereas traditional knowledge is held in perpetuity from generation to generation. Be it any IP, Patent, Trade Mark, GI or Copyright the protection is very time bound and after the expiry of that timeline the work becomes a part of the Public domain.
Thirdly, the existing IPR regime adopts a restricted interpretation of invention which should satisfy the criteria of novelty and be capable of industrial application, whereas traditional innovation is incremental, informal and occurs over time. Further, at times innovations based on Folklore might not even qualify for the Novelty, Non-Obviousness and Industrial application criteria.
This proves the first part of the hypothesis that the Folklore is required to be protected as an Intellectual property but doesn’t qualifies to be an Intellectual Property under the existing regime and simultaneously the current IP laws are ineffective in protecting the plethora of Folklore that India has.
NEED FOR SUI-GENERIS APPROACH
Through the World Trade Organization (WTO), minimal intellectual property standards have been implemented on an international level and the Agreement on Trade Related Aspects of Intellectual Property 1994 (TRIPs), adopted two years after the Convention on Biodiversity(CBD), creates some specific challenges for protecting genetic resources and traditional knowledge. Some of the sui-generis legislation can be found in the developing countries like Costa Rica, Philippines, Lao People’s Democratic Republic.
A sui-generis system could potentially be defined and implemented differently based on the country’s folk heritage and legislative intent. In addition, a sui-generis system might be defined to create legal rights that recognize any associated traditional knowledge and promote access and benefit sharing. The government may choose to extend protections to folklore of a community in the form of patents, copyright, trade mark, trade secrets, copyrights, farmers’ and breeders’ rights, or IP form not currently established in the intellectual property regime.
In addition, a sui-generis system may adopt measures of protection specific to traditional knowledge in order to nullify inappropriate patents. For example, the Andean Community’s Decision 486 states that:-
“The Patents granted on inventions obtained or developed from genetic resources or traditional knowledge, of which any member state is the country of origin, without presentation of a copy of the proper access contract or license from the community shall be nullified.”
A sui-generis system may legally acknowledge and protect knowledge related to folklore even when it is not officially documented, but instead exists in the form of oral information, traditional and historic use. In addition to this under the sui-generis system, the protection can be accorded through amending the existing legislation in order to accommodate the Folklore. The Tunisian Copyright model for Developing countries is the best example of such legislative protection wherein the requirement of “Fixed in any Material Form” has been done away with respect to the Copyright when it comes to the question of Author with respect to Folklore.
PHAD PAINTING- AN ANALYSIS
The art of painting the phads (which is a piece of cloth hung on bamboo poles from both the sides) is approximately 700 years old which originated in Shahpura, a princely state, 35 kilometeres from the district of Bhilwara in Rajasthan. Phad paintings are made on cloth or walls and most popularly depict the story of the local hero-gods - Pabuji & Devnarayanji. Pabuji is also worshipped as a folk-deity. He lived in 14th century in a remote village known as Kolu, near Jodhpur, in Rajasthan. The Phad represents his divine character as an incarnation of Laxmana (brother of the Rama of the Ramayana Hindu epic story).
A series of these paintings represent a folk epic narrative through a very specific style of representation filled with figures and pictorial incidents. Each painting depicts a different episode and they are opened or unrolled only after sundown, in conjunction with an all night performance. The whole process of painting the Phads and presenting it alongwith the dance and music has resulted into naming this whole tradition as “Moving Temples”.
All Phad paintings have certain common features. For instance, every available inch of the canvas is crowded with figures along with the flat construction of the pictorial space. While the figures are harmoniously distributed all over the area, the scale of figure depends on the social status of the character they represent and the roles they play in the story. Another interesting feature is that the figures in the paintings always face each other instead of the viewer. These paintings in their traditional form are very wide to accommodate the numerous episodes of the complex stories.
The professional Phads painters called Chitera and are known by the clan name 'Joshi' of the Chipa caste. In 10th century Chochu Bhat commissioned Joshi Phad Painter to make Phad painting on Devnarayan's whole life. After seeing that artwork, Devnarayan privileged "Joshi" caste to make Phad paintings and since then "Joshi" are doing Phad painting. Joshis consider themselves belong from PUR, near Bhilwara city in Rajasthan and in 16th century they migrated to Shahpura. At the end of 19th century some Phad artists, moved from Shahpura to Bhilwara and they established a new seat for Phad Artists.
There was a time when the secrets of Phad painting were confined to the Joshi family. However, when Nand Kishor Joshi felt that the art form was slowly dwindling away, he felt the need to establish ‘Joshi Kala Mandir’ in 1970 to develop new artists other than the Joshi family. Shree Lal Joshi, Pradeep Mukherjee and Nand Kishor Joshi, Shanti Lal Joshi are the most noted artists of the Phad painting, who are known for their innovations and creativity. Prakash Joshi & Mukut Joshi are successfully following their lineage.
Need for Protection of Phad Painting
These paintings were and still are a part of an elaborate ritualistic song and dance performance by folk balladeers that travel from village to village performing folk epics. The paintings provide the backdrop against which the songs, dances and narrations are used to create an evening of magic and entertainment usually in the centre of the village. The continuous royal patronage gave a decisive impetus of the art, which has survived and flourished for generations but like other folklores is facing the problem of survival, attribution and authenticity. Now a days many artists claim to be painting Phads but the authenticity is not credible as it is not merely painting rather it was a lifestyle of the people which has been confined to people of only one lineage.
Many a painting are sold in the market under the name of Phad which appears similar to the Patchitra of Odisha but the other folklore elements are neglected completely as it is not simply a painting on cloth but it encompasses traditional knowledge with respect to painting phads, art of rolling and unrolling alongwith the narration of the legends by folkmusic and folkdance. Below is a picture of Phad Painting titled Kidnapping of Sanyogita on cotton cloth prepared with Earthen Pigment colors.
Picture Image is available at PDF file
Picture1- Source- http://phadchitrakari.com/histirical-gallery.htm
Phad Painting and the current IP regime
In absence of any specific legal regime concerning folklores and considering the nature of Work at hand, prima-facie a Phad Painting may be considered for protection under the Copyright, Trademark and/or GI subject to the statutory requirements and limitations. However, all the three IPs as mentioned above have certain limitations when it comes to protecting the Phad Painting form especially Copyright and Trade mark.
As discussed in the preceding Para, Indian Copyright law requires the wok to be in materially fixed form by Identifiable author with respect to the expression of an idea. Once it is established that the work is original then it confers monopoly on the Copyright owner.
In case of Phad painting, judging on the parameters of idea- expression dichotomy is very difficult as if many ways of expression are given protection under the copyright law then it will lead to distortion of traditional knowledge. Secondly, if under the current legislation, a person/s documents it and gets it copyrighted it would monopolize the economic as well as moral rights in favour of person/s which shall be detrimental to the interest of the community possessing it. So, Copyright is not economically viable option from the perspective of community possessing the Folk art in this case. Lastly, even if to some extent if protection to the painting is accorded under the Copyright Laws, then also it is partial protection of the art as the other folklores like folktales, folk music and folkdance associated with the painting can’t be effectively protected due to legal requirements of Copyright laws. Here, if some exceptions are introduced in the Copyright legislation by way of amendment on lines of Tunisian Model for Developing Country, then protection can be sought under Copyright.
Further, the genesis of the Trademark law lies in protecting the goodwill and facilitating the ease of doing trade. In the case of Phad, more than the commercialization and trading, the art is known for its aesthetic, cultural and religious purposes. IP in form Trade mark will only complicate the problem of the community possessing it as Trade Mark in general can’t be used by Community as a whole.
By far a Geographical Indication (GI) Tag, appears to be the best feasible option to protect the art as it gives exclusive right to the community holding the Tag. Considering the Phad painting has an identity associated with Geographical limits of Bhilwara, Rajasthan it can be considered for protection under the GI Act. But the associated folk music, folktale and folk dance still remain outside the purview of the GI Tag as it requires identified Goods or Services and neither of these are goods or services. Briefly, GI can protect the Phad painting but not the folklores associated to the painting.
The above analysis of Phad Painting proves the second part of the hypothesis that Folklore can’t be effectively protected under the existing regime and altogether a sui-generis approach by way of legislation or amendment in the existing legislation is the need of the hour.
Probable Solution- the Community approach
The cultural, social and religious importance of Phad can’t be undermined taking into consideration the fact that this art form if protected and exploited legally is a power house of economic benefits which can bring prosperity to the stake holders possessing it and preserve the cultural and religious identity. However, in order to use the Phad painting for economic benefits of the people of Bhilwara Rajasthan, it is imperative to prevent the use of the same by people who are not the original possessor of this art form. Such monopoly right can only be granted if the art form is protected as IP of the community possessing it.
Considering the peculiarity and special nature of the folk art of Phads it is imperative that the community possessing this art should exhibit pro-active approach in protecting the folk art. Currently, in absence of any sui-generis approach towards folklore protection it is required that community possessing such knowledge should seek protection under the existing approach by trying to fulfil the respective criterion.
The Community possessing such folklore should approach the appropriate forum for filing for various IPs with the help of local as well as the state government after seeking legal advice. The first step here should be towards documenting the art form in some fixed form by detailed research about the art in consultation with the possessor of such knowledge and prior literature, which usually is very scanty. After documentation the community may file for the Copyright over that documented work through the Department or the Institute involved in the research. Once the Copyright is granted it will allow for the Fair-use by all the stake-holders and act as the deterrent for the probable infringers. In order to commercialize the art form, application for Geographical Indication Tag may be filed which not only protects the art form in its originality but also brings reputation and income to the area of its geographical origin.
CONCLUSION AND SUGGESTIONS
Other than, the traditional approach of attempting to protect the Phads under existing IPR regime by applying “One Size Fits All” formula and getting entangled in the legislative cobweb, the proactive approach of the local as well as State administration can preserve the vanishing folk art by invoking the concept of Community benefit sharing in collaboration with the Government machinery and institution/s interested to protect and use such folk art. The approach should be subjective on the nature folklore, extent of cultural & economic loss and the stakeholders involved. Such arrangements shall require following pro-active steps by the local as well as the State Government:-
Identification and awareness about the Folklore;
Identification of the Original Community in which the Folklore operates;
Documentation of the Folklore after research by involving the Stakeholders. In case of Traditional medicinal knowledge the same should be registered with Traditional Knowledge Digital Library, an online repository to prevent bio-piracy;
Identification of the economic viability and marketability;
Application for IP/s status depending upon the nature of the folklore;
Identification and Negotiation with the interested industries to use such folklore on terms and conditions mutually agreed between the stake holders and the industry/ies on lines of Access and Benefit Sharing;
One of the most important element is the incentive part, without which the artisans or the folklorists might hesitate to share their knowledge. In this aspect FabIndia, Anokhi and Ritu Kumar’s initiative are some of the models on which reliance can be placed for access and benefit sharing concepts. These commercial firms of long standing maintain active health, education, and other social programs in their artisan communities. Many of the designers involved with crafts producers see the artisan as a partner, regard their work with some idealism, and accept responsibility for equitable sharing of profits and other returns. The most committed try to work with artisans in their traditional settings. Recently, Fashion designer Sabyasachi Mukherjeee has started a new initiative to provide opportunity for the young girls by collaborating with Citta organization to create uniforms for the students of Rajkumari Ratnavati Girls school in Jaisalmer using Ajrakh textile, natural dyes and the block printing technique which is the essence of textiles in Rajasthan.
Utilisation of the consideration received under such arrangement for the development of the folklore and the community.
For instance, in collaboration with some university formal diploma/degree course can be started which can impart education with respect to Folklores like Phads as a whole tradition by the actual possessor of the folk knowledge. This way, if knowledge is passed on in a Formal manner then it can be saved from manipulation & deterioration and simultaneously it can be preserved & saved from exploitation by others. Further, the folklore like Phads can also be used to promote tourism on lines of the Bhangarh Fort model where the horror folktales attracts many a visitors and is a well maintained tourist spot bringing revenue to the area.
In light of the above and considering the social, economical, cultural and religious importance of the various folklores like folk art of Phads, Aipans etc and objectives of Indian government as laid down under Indian IP Policy, 2016, it is need of the hour that in absence of any specific IP recognition and legislation, State administration in collaboration with the free spirited and dedicated institutes, Start-ups, NGOs and local government should take pro-active “Folklore specific” steps in spreading awareness, management, preservation and development of the folklores for the overall economical development and cultural identity of the community possessing such Folklore.
Access and Benefit Sharing
Aarne-Thompson-Uther Classification of Folk Tales
Convention on Biodiversity
Trade-Related Aspects of Intellectual Property Rights
The United Nations Educational, Scientific and Cultural Organization
World Trade Organization
Anthons, Christopher.(2009) Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region (Max Planck Series on Asian Intellectual Property Law Series).Kluwer Law International, 2009.
Honds, Julia (2008) The Protection of Traditional Indigenous Knowledge by Intellectual Property Law. Germany: GRIN Publishing.
Jha, Amit. (2002) Traditional Knowledge System in India. India: Atlantic Publication.
Latif, A.A., Robinson D. F. and Roffe, Pedro(eds) (2019) Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. United Kingdom: Routledge Publication.
Reddy S.R.(2016) Biodiversity Traditional Knowledge and Intellectual Property Rights. India: Scientific Publishers.
Ahuja D.R. (1980) Folklore of Rajasthan: National Book Trust, India.
Smith John D., (1991) The Epic of Pabuji, Cambridge University Press.
Dallapiccola Anna L., (2011) Indian Painting: The Lesser Known Traditions, Niyogi Books.
Carvalho, N.P. de (2000), “Requiring disclosure of the origin of genetic resources and prior informed consent in patent applications without infringing the TRIPS Agreement: the problem and the solution”, Washington University Journal of Law and Policy, 2, p 371-401.
Dundes, Alans. ‘The American Concept of Folklore’, Journal of Folklore Institute, 3(3) [Online]. Available at: https://www.jstor.org/stable/3813799 (Accessed: 23 April 2020).
Dutfield, Graham. ‘Protecting Traditional Knowledge and Folklore- A review of progress in diplomacy and policy formulation’, [Online]. Available at: https://unctad.org/en/PublicationsLibrary/ictsd2003ipd1_en.pdf (Accessed: 15 April 2020)
Georgitis, Nathan, ‘A Case Study in Folklore Archives Management: The Randall V. Mills Archives of Northwest Folklore at the University of Oregon’, Journal of Folklore Research by Indiana University Press, 52(1), pp.85-98 [Online]. Available at: https://www.jstor.org/stable/10.2979/jfolkrese.52.1.85 (Accessed on 30 March 2020).
Krishnaswamy, Mohana.(1999) ‘How to Protect ‘Ancient IPR’, Journal of Intellectual Property Rights 4(November).
Orozco, David and Poonamallee, Latha. ‘The Role of Ethics in the Commercialization of Indigenous Knowledge’, Journal of Business Ethics, 119(2) [Online]. Available at: https://www.jstor.org/stable/42921290 (Accessed: 03 April 2020).
Simon, J. Bronner. ‘Folklore as a Mirror of Culture’, [Online]. Available at: https://www.jstor.org/stable/j.ctt4cgrzn.6 (Accessed on 30 March 2020).
Srinivas, K.R.(2007) ‘Intellectual Property Rights and Traditional Knowledge: The Case of Yoga’, Economic and Political Weekly 42(Jul. 14-20), p 27-28.
Upadhyaya, K.D. ‘A General Survey of Folklore Activities in India’, Midwest Folklore- Indiana University Press, 4(4).
Venkataraman, K.(2008) ‘Intellectual Property Rights, Traditional Knowledge and Biodiversity of India’, Journal of Intellectual Property Rights 13(July).
International Conventions and Legilations
Convention on Biodiversity , 1993
Trade Related aspects of Intellectual Properties
Tunis model law on copyright for developing countries, 1976
WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions 1982
1 Journal of Folklore Research Vol.34 Nº3, pp 195–202.