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Intellectual Property Rights & Folklore

Walikhanna, Charu is a Supreme Court Lawyer and Member of the Executive Committee of the Supreme Court Bar Association. She is a Member of the Inter-Ministerial Committee on protection of Holders of Indigenous Knowledge, Dept. of Education, Ministry of HRD, Govt. of India. Charu is a trained graphic designer from Sir J.J. Institute of Applied Art, Mumbai and a Doctoral Scholar (Law) in intellectual property. Founder and President of Social Action Forum for Manav Adhikar (SAFMA), an NGO working in the field of promotion of human rights and protection of the rights of vulnerable and marginalized sections of society. She has authored and edited several publications.

"Copyright is one of the three main branches of the traditional law of intellectual property, along with patent law and trade mark law. Overshadowed historically by the economic worth of patents and trade marks.."1

In today's information and knowledge based economy, every knowledge tradeable is a potential resource for intellectual property rights (IPR). In fact, in the present global economy of ideas; ownership, control, and access to creative works and scientific knowledge have developed considerable economic importance through the IPRs, giving rise to fierce competition over intellectual and creative works, or what analysts describe as the "knowledge wars".

Intellectual property is a legal concept which deals with creations of human ingenuity. Such creations, whether they be artistic works, such as music, books, films, dances, sculpture or photography; or inventions, designs or trademarks, are considered and protected as property for a certain period in time, provided that the creators meet a certain criteria, for example, originality, innovativeness or commercial use as defined by the relevant laws.

Intellectual property has three customary legal domains: copyright (author's rights), patent and designs, and trademark besides geographical indications of goods.

I. Copyright

Copyright law promotes the creation of literary, artistic, dramatic and musical works, cinematograph films and sound recordings by providing certain exclusive rights to their authors and creators; however in India there is no specific copyright protection provided for expressions of folklore. According to the Copyright (Amendment) Act, 1999 copyright subsists2 in original literary, dramatic; musical; artistic work; cinematographs films;3 and sound recording.

Many contemporary expressions of folklore are "original literary, dramatic, musical and artistic works", and therefore, in principle, constitute actual or potential subject matter of copyright protection. Examples would include: music and songs, dances, plays, stories, ceremonies and rituals, drawings, paintings, carvings, pottery, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes, musical instruments, architecture, sculptures, engravings, handicrafts.

  1. Original literary work

    Copyright Act are not concerned with the originality of ideas, but with the expression of thought, and in the case of literary work, with the expression of thought in print or writing.4 The word 'original' does not mean that the work must be the expression of original or inventive thought. To satisfy the originality requirement all that is necessary is that it has originated from the author, emanates from him and is not copied.. Two compilers covering the same area may reproduce identical or nearly identical street directories, two artists or photographers photographing a particular object may produce nearly identical representations, but each is entitled to copyright in his particular representation of the work in question.5In the case of the University of London Press, Mr. Justice Peterson said "Copyright Acts are not concerned with the originality of ideas, but with the expression of thought and, in the case of literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of thought. But the Act does not require that the expression must be in an original or novel form but that the work must not be copied from another work - that it should originate from the author."6

    Literary work" includes computer programmes, tables, compilations including computer databases [s.2(o)]. Author in relation to a literary work is the author of the work [(Section 2(d)(i)].

  2. Original Dramatic Work

    "Dramatic work" includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film [Section 2(h)].
    This definition is not exhaustive and author in relation to a dramatic work is the author of the work [(Section 2(d)(i)].

  3. Original Musical Work

    "Musical work" means a work consisting of music and includes any graphical notation of such work, but does not include any words or any action, intended to be sung, spoken or performed with the music [s.2(p)].

    According to this definition copyright protection is also provided to a musical work, which has not been reduced to any material form. A "composer" in relation to a musical work, means the person who composes the music regardless of whether he records it in any form of graphical notation. Author in relation to a musical work is the composer [(Section 2(d)(ii)].

    A song has its words written by one man and its music by another; its words are subject matter of literary copyright, and so is its music. But these two copyrights are entirely separate from each other and cannot be merged and thus there is no copyright in song. It follows that the songs itself has no copyright. As defined in the section, author in relation to a musical work is only the composer, which means that the composer alone has copyright in the musical work and not the singer.

    Copyright subsists in arranging music by adding accompaniments, new harmonies, new rhythm and transcribing it for different musical forces. In popular music there are many arrangements or original songs are made to suit a particular performer or a particular language version of the text or what in today's popular jargon are called "remix". Each such adaptation or arrangement is a musical work provided there is a sufficient element of intellectual creation.

  4. Original Artistic Work

    "Artistic work" means-[s.2( c)]

    (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not such a work possesses artistic quality;

    (ii) a work of architecture; and


    Author in relation to an artistic work other than a photograph is the artist [s.2(d)(iii)]. However in relation to any literary, dramatic, musical or artistic work which is computer generated the author is the person who causes the work to be created [s.2(d)(vi)].

    i. Painting - The word 'painting' is not defined however a painting must be fixed on a surface of some kind. As painting is not an idea, it is an object, and painting without a surface is not a painting

    ii. Sculpture - Section 2(za) clearly states that “work of sculpture” includes casts and models. Utilitarian objects such as plastic flying discs manufactured as toys, by an injection moulding process are not items of sculpture for the purpose of the Copyright Act. However the wooden model of such discs fall within the definition of sculptures and are properly the subject of copyright protection.

    iii. Drawing - In cases where three dimensional models had been made and from those models the drawings had been compiled they would qualify as original works. A person who has prepared drawings from the finished product and made the three dimensional object is an infringer of the copyright in the original drawings of the finished product. The original drawings and all the three dimensional objects which are normally intermediate steps in the manufacture of moulded products (and even the products themselves) are 'artistic works' irrespective of artistic quality are capable of copyright.

    iv. Photograph - Photograph includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of cinematograph film. Although cinematograph film is a photographic work it is excluded from the definition of photograph because it protected separately under the Act. Different persons can take a photograph of the same object from the same position and angle and claim independent copyrights. Author in relation to a photograph is the person taking the photograph (s.2(d)(iv)].

    v. Work of Architecture- "Work of architecture" means any building or structure having an artistic character or design, or any model for such building or structure [2(b)].

    Thus to qualify for copyright protection a work of architecture must be a work of art, in other words, it must have artistic quality. This is contrasted with other artistic works like painting, drawing etc. which are entitled to copyright protection "whether or not any such work possesses artistic quality". Copyright in a work of architecture does not extend to processes or methods of construction.

  5. Cinematographs Films

    "Cinematograph film" means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films. [s.2(f)]

    Under the Act video film are deemed to be work produced by a process analogous to cinematography. There is no express requirement that a cinematograph film should be original as in the case of literary, dramatic, musical or artistic works. However copyright will not subsist in a cinematograph film if a substantial part of it is an infringement of the copyright in any other work. The cine artists who act in the film are not protected by copyright law for their acting but actors and performers are conferred certain special rights called performers' rights under Section 38. Author in relation to a cinematograph film is the producer (Section 2(d)(v)].

    Both video and television are cinematographs and licenses for giving their public exhibition is necessary under the Cinematograph Act in spite of their having commercial licenses under the Telegraph Act, 1885.7

  6. Sound recording

    "Sound recording" means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. [s.2(xx)]

    Copyright will subsist in a sound recording only if it is lawfully made. Copyright will not subsist in any sound recording made in respect of literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed. According to Section 2(uu) "producer" in relation to a sound recording, means a person who takes the initiative and responsibility for making the work. Author in relation to a sound recording is the producer (Section 2(d)(v)].

    The right of sound recording is different from the subject-matter recorded since they are the subject to independent copyright protection. Hence musical works and sound recording embodying the music are considered separate subject-matters for copyright. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording, thus two independent copyrights come into existence simultaneously, one for the music and one for the sound recording.

    In order to prevent piracy Section 52A [introduced by the Copyright (Amendment) Act 1984], makes it mandatory to display information on sound recording or video films or video cassettes, as the case may be.8

II. MEANING OF COPYRIGHT

The meaning of copyright is set out in s.14 and describes it as the exclusive right of doing any of the following acts in respect of a work, namely:

  1. in the case of a literary, dramatic or musical work, not being a computer programme-

    (i)

    to reproduce the work in any material form including the storing of it in any medium by electronic means;
    (ii)

    to issue copies of the work to the public not being copies already in circulation;
    (iii)

    to perform the work in public, or communicate it to the public;
    (iv)

    to make any cinematograph film or sound recording in respect of the work;
    (v)

    to make any translation of the work;
    (vi)

    to make any adaptation of the work;
    (vii)

    to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

  2. in the case of an artistic work
    (i)

    to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
    (ii) to communicate the work to the public;
    (iii) to issue copies of the work to the public not being copies already in circulation;
    (iv)to include the work in any cinematograph film;
    (v) to make any adaptation of the work;
    (vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

  3. in the case of a cinematograph film -

    (i) to make a copy of the film, including a photograph of any image forming part thereof;
    (ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
    (iii) to communicate the film to the public;

  4. in the case of a sound recording -

    (i) to make any other sound recording embodying it;
    (ii)to sell or give on hire, or offer for sale or hire, any copy of the sound recording reardless of whether such copy has been sold or given on hire on earlier occasions;
    (iii) to communicate the sound recording to the public.

    The Act confers on the owner of the Copyright exclusive right to multiply copies of his work for commercial exploitation. It also grants negative rights to refrain others from illegally multiplying the copies of his work. The guidelines given by the Supreme Court in R.G. Anand v. Delux Films are still referred to: "Thus, the position appears to be that an idea, principle, theme or subject-matter or historical or legendary facts being common property cannot be the subject-matter of copyright of a particular person. It is always open to any person to choose an idea as a subject-matter and develop it in his own manner and give expression to the idea by treating it differently from others…. Thus, the fundamental fact which has to be determined where a charge of violation of the copyright is made by the plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor changes or super additions or embellishment here and there….Care, however, must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, different tone, different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him. …In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. One of the surest and safest tests to determine whether or not there has been a violation of copyright is to see if the reader, spectator or viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence…."9

    S.16 clarifies that no copyright exists in any work except as provided in the Act.10 This makes it clear that under the present laws copyright is a creation of the statute and there is no such thing recognised as common law copyright. Further copyright subsists only in the items of work specified in Section13, though the scope of these works has been subject to judicial interpretations.



III. INFRINGEMENT OF COPYRIGHT

The owner of a work which is a subject of copyright has the exclusive right to do certain acts in respect of that work. The law not only grants a copyright holder a positive entitement to exercise rights but also enables the copyright holder to prevent others from exercising the rights or infringing his copyright. If any person commercially exploits the work for profit he will be committing an infringement of the copyright in the work The copyright in a work shall be deemed to be infringed (s.51) -

  1. when any person, without a licence granted by the owner of the copyright or the Register of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act -
    (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
    (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

  2. when any person -

    (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
    (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
    (iii) by way of trade-exhibits in public, or
    (iv) imports Into India, any infringing copies of the work.
    Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.

In the recent case of Barbara Taylor Bradford v Sahara Media Entertainment Ltd the High Court of Kolkata held that "The Copyright Law does not protect basic plots and stock characters. If it granted such protection, four or five writers writing 15 or 20 novels with stock characters and stock plots could stop all writers of pop literature from writing anything thenceforth. It is enough to refer in this regard to R.G. Anand's case (supra), paragraph 46, proposition No. 1 :- "There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work". (p. 140)"11

S.52 lists certain acts which do not constitute an infringement of copyright, if the prohibited acts are done for the for the purpose of private use, or research and criticism or review; fair dealing in reporting of current events and teaching; reproduction for use in judicial proceedings; or use of sound recording or visual recording of the broadcast in the course of the activities of an educational institution if the audience are limited to students and parents and guardians of the students and person directly connected with the activities of the institution.

IV. REMEDIES

There are three types of remedies available against the infringement of copyright namely, civil, criminal and administrative.

Civil Remedies. S.55 provides for civil remedies for infringement of copyright and the owner of the copyright can bring civil action in which reliefs such as injunction, accounts and damages can be sought. Civil suits provide remedy for claiming compensation for loss of profits.

Criminal Remedies. The infringement of copyright is a cognizable offence and punishment ranges with imprisonment for a period extending from six months to three years and with fine ranging from Rs. 50,000/- to Rs. 2,00,000/- with enhanced penalty on second and subsequent convictions.

The Act provides also for seizure of infringing copies and confiscation of all duplicating equipments used for manufacturing counterfeit copies. Special cells for copyright enforcement have so far been set up in the following 23 States and Union Territories: These are the States / Union Territories of Andhra Pradesh, Assam, A &N Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Due, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab, Sikkim, Tamil Nadu, Tripura and West Bengal. States have also been advised to designate a nodal officer for copyright enforcement to facilitate easy interaction by copyright industry organizations and copyright owners.

V. PERFORMER'S RIGHTS

For the first time the Copyright Act by way of amendment in 1994 conferred certain special rights to singers and other performers, called performer's right in s.38 of the Act. Since there is no copyright as such in a live performance which is not included in the categories of work, the recording of sporting events or musical performance of music in a musical work is not technically an infringement of copyright. The lack of some kind of right to the performance of an actor, musician and dancer and so on was a great lacuna in the copyright law .The Act provides for certain special rights called performers' right for the benefit of various kind of performers like actors, dancers, jugglers, acrobats and so on, and the broadcasting and sound recording of live events cannot be done without the permission of the performers. The rights are somewhat analogous to broadcast reproduction rights

"Performer" includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance [s. 2(qq)]. And "Performance", in relation to performer's right, means any visual or acoustic presentation made live by one or more performers.[s.2(q)]

According to s.38(1) where any performer appears or engages in any performance, he shall have a special right to be known as the "performer's right" in relation to such performance and the performer's right shall subsist until fifty years from when the performance is made.

Despite the fact that the term performers of expressions of folklore has not been used, but as can be seen from the above the protection of performers rights is extended to the performers of expressions of folklore. The same can be said about the protection of the rights of producers of sound recordings and broadcasting organizations in respect of their sound recordings and broadcasts, respectively, embodying such performances. Folklore expressions are normally performed by the performers of the community of the country, where those expressions have been developed. If the performances of such performers and the sound recordings and broadcasts embodying their performances enjoy appropriate protection, this provides a fairly efficient means for an indirect protection of folklore, that is, protection in the form in which they are actually made available to the public.

The act also protects their rights against infringement. S.38 further states

(3) During the continuance of a performer's right in relation to any performance, any person who, without the consent of the performer, does any of the following acts in respect of the performance or any substantial part thereof, namely:-

  1. makes a sound recording or visual recording of the performance; or

  2. reproduces a sound recording or visual recording of the performance, which sound recording or visual recording was-

    >(i) made without the performer's consent; or
    (ii) made for purposes different from those for which the performer gave his consent; or
    (iii) made for purposes different from those referred to in section 39 from a sound recording or visual recording which was made in accordance with section 39; or

  3. broadcasts the performance except where the broadcast is made from a sound recording or visual recording other than one made in accordance with section 39, or is a re-broadcast by the same broadcasting organisation of an earlier broadcast which did not infringe the performer's right; or

  4. communicates the performance to the public otherwise than by broadcast, except where such communication to the public is made from a sound recording or a visual recording or a broadcast,

    shall, subject to the provisions of section 39, be deemed to have infringed the performer's right.


    It is important to note that once a performer has consented to the incorporation of his performance in a cinematograph film [s.34(4)], the provisions of sub-sections (1), (2) and (3) shall have no further application to such performance. In other words when the performer has consented to the incorporation of his performance in a cinematograph film the performer looses the right to complain of infringement of that performance which means he assigned his entire right on that performance to the producer of the cinematograph film.

    In principle at least, performances of expressions of folklore are protected by the law, although the objective may be to protect the interests of big stars and commercial performers, however the performers of expressions of folklore also benefit from this provision.



VII. AUTHORS SPECIAL RIGHTS

The author’s moral rights are independent of his economic rights. The author's special rights are given in s.57 as:

(1) Independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right-(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:

Explanation.-Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.


Thus as mentioned above these rights are independent of the author’s copyright . They exist even after the assignment of the copyright either wholly or partially. The author’s special or moral rights can be enforced under other branches of law: if the author’s reputation has suffered, under the law of defamation; breach of implied term of contract or breach of trust, if any person publishes the work without the authors consent;and if some person has misled the public into the belief that he is the author of the work, under the law of passing off. To succeed in the claim for derogatory treatment of work; an artist had to establish that the treatment accorded to the work was either distortion or a mutilation which prejudiced his or her honour and is aggrieved by what is occurred. 12 In the case of Amar Nath Sehgal v Union of India the High Court of Delhi held that: “When an author creates a work of art or a literary work, it is possible to conceive of many rights which may flow. The first and foremost right which comes to one's mind is the ''Paternity Right'' in the work, i.e. the right to have his name on the work. It may also be called the 'identification right' or 'attribution right'. The second right which one thinks of is the right to disseminate his work i.e. the 'divulgation or dissemination right'. It would embrace the economic right to sell the work or valuable consideration. Linked to the paternity right, a third right, being the right to maintain purity in the work can be thought of. There can be no purity without integrity. It may be a matter of opinion, but certainly, treatment of a work which is derogatory to the reputation of the author, or in some way degrades the work as conceived by the author can be objected to by the author. This would be the moral right of ''integrity''. Lastly, one can conceive of a right to withdraw from publication ones work, if author feels that due to passage of time and changed opinion it is advisable to withdraw the work. This would be the authors right to ''retraction''.

Except for the 'divulgation or dissemination right' which perhaps is guided by commercial considerations, the other three rights originate from the fact that the creative individual is uniquely invested with the power and mystique of original genius, creating a privileged relationship between a creative author and his work.As I understand, this is the source of the last three rights noted in para 25 above and, therefore, could be captioned under the banner ''The Authors Moral Rights''.

The Court further held that “I am of the opinion that the mural, whatever be it's form today is too precious to be reduced to scrap and languish in the warehouse of the Government of India. It is only the plaintiff who has a right to recreate his work and, therefore, has a right to receive that the broken down mural. Plaintiff also has a right to be compensated for loss of reputation, honour and mental injury due to the offending acts of the defendants.”

The Court also referred to article by Mira T. Sundara Rajan which stated that, ‘‘The rights of attribution and integrity are particularly apposite to the cultural domain.Apart from the interests of individual authors in maintaining their standing and reputation, these moral rights are closely linked to a public interest in the maintenance of historical truth and cultural knowledge. Moral rights also promote the development of a social attitude of respect toward individual creativity. While authors must accept the responsibilities which accompany the privileges of creative work, is incumbent upon both the public and the state to acknowledge the value of artists' contributions to cultural heritage.''13

VIII. REGISTRATION OF COPYRIGHT SOCIETIES

Chapter VII of the Act provides for Registration of Copyright Societies in ss.33 to 35. The Act encourages setting up of collective administration societies and organization of seminars and workshops to create greater awareness about copyright law among the enforcement personnel and the general public.

S.33(2) states that any association of persons who fulfils such conditions as may be prescribed may apply for permission to do the business specified in sub-section (1) to the Registrar of Copyrights. There is a proviso to s.33 which states that that the Central Government shall not ordinarily register more than one copyright society to do business in respect of the same class of works. S.33(4) gives the Central Government the power to suspend registration and also cancel the registration of a society, if it is satisfied that a copyright society is being managed in a manner detrimental to the interests of the owners of rights concerned.

S.34 provides for the administration of rights of owner by copyright society which includes entering agreements with any foreign society, issuing of licences, collecting fees and distributing such fees among owners of rights after making deductions for its own expenses. S.35 provides for control over the copyright society by the owner of rights. For collective administration of copyright, copyright societies are set up for different classes of works. This chapter is of special benefit to traditional communities who should be encouraged to set up copyright societies in order to protect their expressions of folklore. At present there are three registered copyright societies. These are the Society for Copyright Regulations of Indian Producers of Films & Television (SCRIPT) for cinematographic films, Indian Performing Rights Society Limited (IPRS) for musical works and Phonographic Performance Limited (PPL) for sound recordings.

IX. LIMITATIONS

1. The originality requirement

The use of the word ‘original’ in Section 13(1)(a) of the Act in relation to literary, dramatic, musical and artistic works prevents the protection of pre-existing expressions of folklore by copyright.The Act protects only original works, and many traditional literary and artistic productions are not original.14 However, the originality requirement may not pose an insurmountable hurdle in relation to contemporary forms of expressions of traditional culture, being new productions made by current generations of society.

Secondly since the law makes no distinction based on the identity of the author, thus the originality requirement could be met even by person who is not a member of the relevant cultural community in which the expression originated. This may lead to conflict among traditional communities, who may wish to deny or restrict third persons from enjoying copyright in creations derived from their cultural community.For example in India Madhubhani paintings are being made by persons not belonging to Mithila, or Tanjore paintings are made by third persons.Does this cross cultural activity places upon the third person any obligation towards the community of origin of the expression; in terms of aknowledging the community and/or sharing the pecuniary benefits.

2. The identifiable author requirement

The author is recognised as the first owner of copyright; with not individual creators being protected but also of creators as joint authors or employees. 15 In each case it is necessary that the creator or creators be identifiable but in the case of expressions of folklore is often difficult, if not impossible, to identify the authors/creators since they are communally created and held and/or because the creators are simply unknown. One is not dealing with anonymous work, but simply the identity of the author is unknown.In some pre-existing expressions of folklore there may have been an ‘author’ at some stage and the whole context of authorship may not be sufficiently determinate to be anchored in copyright law. Though this does not apply in respect of contemporary folklore, for there is an identifiable creator.

Kutty in a study reports on a case in Indonesia involving a decorated wooden mask of Indonesian dancers, of folk creation, being manufactured and marketed in a foreign market for commercial gain.16 In fact, two different commercial groups indulged in the marketing of these artistic items. The aggressive competition between the two firms motivated one of the parties to claim copyright over the mask in question. The affected party objected to the claim of the first firm. Copyright in the mask was not recognized on the grounds that the artistic creation belonged to the people of Indonesia.

3. The term of copyright

Under the Act the term of copyright varies according to the nature of the work and whether the author is a natural person or a legal person or whether the work is anonymous or pseudononymous. According to s.22 the term of copyright in published, dramatic, musical and artistic work published within the lifetime of the author and continues for sixty years from the beginning of the calendar year next following the year in which the author dies.The explanation to the section states that reference to the author shall, in the case of a work of joint authorship, be construed as a reference to the author who dies last.

In anonymous or pseudonymous works, the term of copyright is until 60 years from the year of publication. If the identity of the author is disclosed before the expiry of 60 years, then it will extend for 60 years his death (s.23). In postumous publications the term is 60 years from the date of publication (s.24). Hence fixation or publication is mandatory. Also the limited term of protection requires certainty as to the date of a work’s creation or first publication, which is often unknown in the case of pre-existing expressions of folklore. Thus Copyright Act does not meet the need of folklore to be protected in perpetuity, unlike trademark and geographical indications protection which continues indefinitely (subject to conditions).

4. The fixation requirement

The fixation requirement poses a problem for intangible expressions of folklore. S.3 deals with publication or fixation and according to it, publication means making a work available to the public by issue of copies or communicating the work to the public. 17 Thus the fixation requirement prevents intangible and oral expressions of culture, such as tales or dances from being protected unless and until they are fixed in some form or media. Even certain “fixed” expressions may not meet the fixation requirement, such as face painting and body painting for example the Kathakali dancers make-up art. Undoubtedly fixation proves the existence of the work, and provides for a clearer and more definite basis for rights. It has been felt that expressions of folklore are often by their very nature in oral form and not recorded, and to demand that they be fixed in order to enjoy protection puts any such protection in jeopardy.

X. PATENT

A patent is a form of intellectual property of industrial property. The owner of a patent can sell this property and also grant licenses to others to exploit the patent. The object of granting a patent is to encourage and develop new technology and industry. A patent can be obtained only for an invention and according to S.2(1)(j) of the Patents (Amendment) Act, 2005 “invention” means a new product or process involving an inventive step and capable of industrial application.

The patentee’s right are exercisable only during the term of the patent which is twenty years from the date of filling of the application for the patent [s.53(1)].

Thus the definition of invention involves the consideration of two questions. Firstly, is it new ? Secondly, is it useful? It is clear from the above definition that in order to patent, the invention should in addition possess some inventive step, whereas indigenous knowledge and art have innovative elements, they are based on continuity with a tradition.

Moreover, patent rights are ordinarily granted to individuals or corporations, rather than to cultures or peoples, and have time limitations further limiting the usefulness of patents for the protection of cultural heritage, often leading to ‘bio-piracy’. 18 Though it is conceivable that expressions of folklore have patentable subject matter, but the numerous difficulties include lack of documented prior art to challenge others’ novelty claims, limited term of patent protection of what takes generations to develop besides the cost of prosecuting, enforcing, and challenging patents, etc.

XI. DESIGN

Often the purchase of articles is influenced not only by its practicality but by its appearance, hence, the object of the Designs Act 2000 is to protect new or original designs. “Design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark or property mark.”

Thus a design is something which is applied to an article and is not the article itself. The right conferred by registration of a design is called copyright. A design in order to be registrable must be new or original and is protected for a period of 10 years before falling in the public domain. Unauthorised application of a registered design or its imitation is called piracy. The Court has held that by introducing insignificant and small changes which do not introduce any novelty or a new design … is a mere fraudulent imitation of the old designs.19 Civil remedies include injunction, damages or compensation and delivery up.

XII. TRADEMARK

According to the Trade Marks Act, 1999, "trade mark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours { s.2 (1)(zb)]. It indicates a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and includes a certification trade mark or collective mark.

Registration of trade marks, which are imitation of well known trade marks, are not permitted, and punishment for the offences relating to trade marks to prevent the sale of spurious goods. Penalty ranges from 6 month to 2 years imprisonment and fine from Rs.50,000/- to Rs.20,00,000/- .

In the course of trade one finds numerous examples of companies and persons unauthorizedly using folklore expressions belonging to traditional communities and registering them as trademarks, whether designs, symbols, or other distinctive signs. Often trademarks mislead or deceptively use expressions of folklore, and falsely suggested an association with or endorsement by an traditional or local community. Use of traditional signs as trademarks often give consumers the impression that such products are genuinely indigenous-made or have certain traits and qualities that are inherent to the Indigenous cultures, when they do not. On the other hand through use by others of their symbols, words and so on as trademarks, indigenous peoples and traditional communities become associated with products that may be inferior, stereotyped or associated with a certain lifestyle.

However due to the lack of awareness and resources, especially in India, very rarely is registration applied for or action taken against infringement. Moreover, indigenous peoples have limited access to legal advice and the relevant official gazettes and journals in which trademark applications are notified and practical obstacles such as the application and renewal fees etc. remain.

XIII. GEOGRAPHICAL INDICATIONS

The Geographical Indications Of Goods (Registration And Protection) Act, 1999 provides a more exhaustive definition than given in TRIPS Article 22.1. “Geographical indication” (GI), in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be [s.2(1)e].

GIs are useful where consumers are willing to pay a premium on the market for products manufactured in the relevant region according to that region’s traditional methods. They allow small local producers to enhance their reputation. As a type of intellectual property that is attached to territory, they enable the relevant social and industrial groups to distinguish their products, not by company or by brand, but by linking them to their origin in a particular territory and the natural and cultural characteristics of that territory relevant to the distinct character of the product. Since the qualities depend on the geographical place of production, a specific link exists between goods and their place of production. The place of origin may be a town or a village, a region i.e. “Darjeeling Tea”, “Basmati Rice”, “Alphonso Mango”, etc.

The law in India explicitly extends protection to GIs used not only for agricultural products but also for manufactured goods; though generally the use of geographical indication may be more predominant in respect of agricultural or natural goods; where such goods have qualities attributable to the specific geographical area and are influenced by factors such as climate, temperature, soil etc. It is also possible that certain geographical regions or localities may denote specific qualities due to human factors found in the place of origin of the goods, such as specific manufacturing skills or traditions like “Kanchipuram Saree”, “Bagru hand Block Prints”,”Kolhapuri Chappal”, “Bikaneri Bhujia”, “Agra Petha” etc.

Although GIs have the potential to respond to concerns of holders of expressions of folklore more effectively than other intellectual property rights and have great relevance to developing countries dependent on primary commodity exports; however they also suffer from drawbacks. Geographical indications are not intended to reward innovation, but rather to reward members of the community adhering to traditional practices. GIs can be maintained only as long as the collective tradition is maintained. GIs are not freely transferable from one owner to another. For instance, if an owner of a vineyard qualified to use an AOC sells the business and land to another, the buyer will not be allowed to use the AOC without maintaining the required practices. The producer that qualifies for an AOC does not thereby gain an unmitigated right to use it indefinitely. If the producer’s practices fall below the defined standards, then he lose the right to use the AOC.

XIV. CONCLUSION

Under current intellectual property law, there is no obligation for those who utilize or exploit expressions of folklore for commercial benefit to provide any compensation or to give recognition the holders of this knowledge; hence often resulting in uncompensated expropriation of traditional knowledge. Whether it is traditional healing methods, or homeopathic medicines, folk art or drama and music nurtured for generations in traditional societies; they all have a market overseas and in most cases with some sort of “value addition”, sold for many times the price of the original.

Yet the tide flows in the other direction as well. A common man looks at folk art and theatre with disdain and admires the transistors and televisions infiltrating his village.Holders of expressions of folklore often utilize contemporary designs, symbols, rhythms incorporating them innovatively in their expressions. For example in the frescoes of Shekhawati, Rajasthan traditional painters have interspersed illustrations of local legends, and mythological scenes with subjects associated with the advent of the British rule like portraits of Queen Victoria, King George V, English gentlemen riding bicycles etc.20

In conclusion the preceding pages demonstrate that folklore or traditional knowledge are being recognized as the components of modern international commerce and trade and have a tremendous influence in shaping the modern mechanisms of the intellectual property rights regime. However, I feel that it is important for the holders of expression of folklore to integrate into the modern economic system, if they are to develop to the utmost of their potential and to alleviate their poverty. In the long term, stronger intellectual property protection may help to stimulate local cultural industries in developing countries. As the World Bank has noted, “If knowledge gaps widen, the world will be split further, not just by disparities in capital and other resources, but by the disparity in knowledge.… There is also the danger of widening knowledge gaps within countries, especially developing ones, where a fortunate few surf the World Wide Web while others remain illiterate..”.21


1. Amar Nath Sehgal v Union of India and Another 117 (2005) DLT 717

2. S.13.- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings. (2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41 apply, unless,- (i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than a work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) in the case of a work of architecture, the work is located in India. Explanation.-In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work. (3) Copyright shall not subsist- (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed. (4) The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made. (5) In the case of a work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.

3. In 1957 cinematograph films derived separate copyrights apart from its various components, namely, story, music etc

4. Fateh Singh Mehta v. Singhal (1990) IPLR 69 (Rajasthan). See also supra note 7 at p. 1618

5. L.B.Plastics v Swish Products (1979) RPC 551 at p. 567

6. University of London Press, 1916(2) Chancery 601. Also referred to in Barbara Taylor Bradford v Sahara Media Entertainment Ltd. 2004 (28) PTC Cal 474 para 97

7. Balwinder Singh v Delhi Administration AIR 1984 Del 379 : 1984 Rajdh LR 302

8. Sound recording- (a) the name, and address of the person who has made the sound recording; (b) the name and address of the owner of the copyright in such work; (c ) the year of its first publication. Video film or video cassette (a ) if such work is a cinematograph film required to be certified for exhibition under the provision of the Cinematograph Act1952, a copy of the certificate granted by the Film certification under s.5A of that act is respect of any work; (b ) the name and address of the person who has made the video film and the declaration by him that he has obtained the necessary licence or consent from the owner of the copyright in such work for making such video films (c ) the name and address of the owner of the copyright in such work.

9. supra note 7 at paras 45-46. Also referred to in Barbara Taylor Bradford v Sahara Media Entertainment Ltd. 2004 (28) PTC Cal 474 para 65.

10. Section 16. No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.

11. supra note 7 at para 216

12. Pasterfield v Denham [1999]FSR 168

13. Mira T. Sundara Rajan, ‘Moral Rights and the Protection of Cultural Heritage’, International Journal of Cultural Property, Vol.10. No. 1, 2001 pp 79-94

14. Hungary, stated in its response to the WIPO folklore questionnaire that “. . . an expression of folklore can never be a work of authorship, since its main characteristic is not the reflection of the unique personality of an author, but the unchanged representation of the features of cultural public domain.” http://www.wipo.int/globalissues/questionnaires/ic-2-7/index.html.

15. Section2(z)- “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.

16. PV Valsala G Kutty, ‘A Study on the Protection of Expressions of Folklore’, study prepared for WIPO, (1999),

17. Section 2(ff)- “communication to the public” means making any work available for being seen by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears, or otherwise enjoys the work so made available.

18. Basmati rice is grown in the Terai region of India and Pakistan for centuries. Working with nature's own creative capacities, farmers in this area have, over time, cross bred and cultivated this distinct form of rice known for its fragrant aroma and unique taste. Rice Tec Corporation of Alvin, Texas, USA. claims to have invented the basmati rice they sell under the trade name, "Texmati" (Rice Tec products also include "Jasmati" and "Kasmati" rice).In 1997, the United States Patent and Trademark Office accepted Rice Tec's application to patent basmati rice (patent # 5,663,484). By cross-breeding two basmati rice varieties this corporation insists that it has "invented" a "novel" variety of basmati and has patented it as "basmati 867." The Rice Tec patent covers any basmati variety crossed with a semi-dwarf strain grown anywhere in the western hemisphere. Despite Rice Tec's claims of 'novelty', "basmati 867" has been derived from Indian and Pakistani basmati rice lines crossed with semi-dwarf varieties. The basmati varieties used to "invent" Rice Tec's "basmati 867" are farmers' varieties bred over centuries in South Asia. What Rice Tec has done with its patent is to pirate what until now had been communally shared and claimed it as their own private property.

19. Glaxo Smithkline Consumer Healthcare GmbH and Co. Kg and Anr. v Anchor Health and Beautycare Pvt. Ltd 2004(29)PTC72(Del)

20. Shekhawati is an area in Rajasthan, India known as the ‘Open air Art Gallery’. Here the traditional painters decorated houses with frescoes which are today a great tourist attraction. The earlier frescoes dealt mostly with religious and traditional themes, whereas the later frescoes were influenced by the oleographs, lithographs and photographs from England, also in particular by the works of Raja Ravi Verma of Travancore (1848-1906). A new school of painting emerged called the Company School, in which Indian miniatures were crossed with the naturalism of European paintings to produce curious results.

21. World Bank, ‘World Development Report 1998/99 : Knowledge for Development’, (1999) p 14 , http://www.worldbank.org/wdr/wdr98/



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