IPR AND FOLKLORE, FOLK-TALE, AND FOLK SONGS
This article is authored by Gayatri Sharma a 3rd year student at GGSIPU
There is no limitation in creating content which presents a certain je ne sais quoi in the minds of the audience. Creation of plays, stories, songs, poems or even quotes can attract and attach different spectrum of people under a single rainbow. The preciousness and purity that the classic tales offer enrich a particular community’s beliefs and inform other communities about a different society. With the advancement of technology and the growth of globalization, everyone is accessible and it is easy to be inspired. An artist is inspired when he feels a sense of belongingness in a particular subject and derives his own creation based on that institution of belongingness, but when the same artist creates not similar but replicates the same content, it is known as Plagiarism. We see plagiarized content, especially in the entertainment industry, on a continuous basis. It is important to note that the old classic tales have also been presented repeatedly within the reach of the audience of the current generation. The classic tales, be it Jane Austen’s Emma or Louisa May Alcott’s Little Women, have been renewed many a times and adapted under different names. The adaptation of creative content with different names gives out the intensity of the originality of one’s hard work. Therefore, developing countries that appreciate and consider their folklores an important part of their cultural heritage, in order to not disturb their indigenous knowledge, have inculcated the concept of copyrights. The United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Intellectual Property Organization (WIPO) have incorporated a long-lasting solution through a mechanism for protection and preservation of folklore. Considering the sentiments of the member countries, WIPO launched certain new initiatives, as reflected in its Program and Budget for the biennium (1998- 1999), for exploration of the issues relating to intellectual property rights of holders of indigenous knowledge. This further extended to protection offered through laws on copyright and related rights, other laws on intellectual property (IP), and non-IP laws like the laws relating to biodiversity issues and rights of indigenous people.
Concept of Folklore
In order to preserve and enrich the cultural heritage of different nations and different communities residing in these nations, the expressions of Folklores have been adopted by various groups of people. Folklores are basically productions with an artistic approach consisting of traditional concepts which include verbal expressions such as folktales, poetries or riddles; musical expressions such as folksongs or instrumental music; expressions by actions such as folk dances, plays, acts; tangible expressions such as creation of folk art, drawings, paintings, sketches and many more. All this construe to a richer cultural aspect of every person’s own heritage in a respectful yet artistic manner. Everyone is allowed to carry their own interpretation and develop their own creation, but without losing the essence of the cultural representation. It is the appreciation of these multi-faceted abilities of folklore that is important when one examines the question of its legal protection. The failure to take note of all these elements will surely result in inappropriate protection of folklore and the norms of legal protection being unacceptable to society.
Indian Legislation and Folklore
The pedestal of Indian culture has provided its citizens every aspect of entertainment. Its origination is the most ancient among representations of folks in different countries across the globe. The freedom and essence of any cultural activity and its portrayal have been aptly adopted and rejuvenated since the beginning of time. In fact, it is interesting to note that the Oscars, one of the most auspicious in the field of entertainment, was given to Parasite in the category of Best Picture the current year, whose storyline was completely in congruence with that of a 1999 Tamil movie called Minsara Kanna. The diverse tribes of India have further insinuated the reach to a wider spectrum across the globe.
Under the Indian Constitution, the basic law of the land has not directly addressed the issue of protection of folklores, although Article 29 of the Constitution, which provides for the protection of the culture of minorities, is defined as a “Fundamental Right” (Part III). Article 29 states that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same, which makes protection of the folklore of the distinct groups in India possible. On the contrary, majority of the folklores existing and misused presently in India belong to small communities who do not come within the scope of the aforementioned constitutional provision and no legislation has been inculcated to protect the same. The only other general provision in the Constitution that can be recognized as a source to protect folklore is Article 51A (f) which provides for the fundamental duty of every citizen of India to value and preserve the rich heritage of our composite culture. There is no legislation based on this provision as well for translating this constitutional objective into reality.
Irrespective of the constitutional provisions envisaging protection and preservation of distinct cultural groups, there is no special law prohibiting the exploitation of folklore of these communities without permission. In India, the law that takes care of the rights relating to literary and artistic works, sound-recordings, films, and the rights of performers and broadcasting organizations, is the Copyright Act, 1957. The Act has been amended frequently with the most recent update having been in 1994. The Indian Copyright Act does not provide any provision for the protection of folklore or expressions of folklore. There is also no other legislation along the lines of the Model Provisions, to serve the purpose of granting legal protection to expressions of folklore. Although, under the Amendment incorporated in the Copyright Act in 1994, a certain amount of protection is offered to the performers. According to the Amendment Act, a 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.”