ABOUT THE AUTHOR
This article has been written by Sagarika Shetty, a Law Student at
Christ University, Banguluru.
India is country which has twenty-two officially recognised languages and is a home to approximately nineteen thousand five hundred regional languages some of which have no scripts. Folklore has been an eternal part of all the various cultures that have existed in India. Folklores and Folktales have always been a vital source to revive and understand the cultures which have existed from time immemorial. It creates a bondage between the traditional values and the modern present-day generation. The word ‘folk’ has always had a wide range of meanings and connotations. The connotations vary from natural to native to rural and in most cases, it is from the heart. According to a wide range of meanings of the word ‘folklore’, the closest meaning of folklore is the outpourings from the heart of the native people which take the form of folklore. Folklores do not merely convey the outpourings from the heart of native or traditional people, but they are also carrying the customs, social norms, and the various forms of behaviour of the people. India has perennially been known to the world for its rich source of folklore which contains the exalted thoughts of times immemorial and highest philosophical truths.
The intersection between IPR and Folklore
The intersection between folklore and the copyright law has given way for new challenges with respect to the implementation of rules and principles of the copyright law especially in countries like India that majorly follows the author-centric approach. This can be noticed with respect to the Rajasthani folk song ‘Kesariya Balam’ that which is considered non-copyrightable but different versions of the song could however, be protected by copyright protection provided by law. The intersection also entails a very significant disconnect that appears to be present amidst the oralist and the literature traditions in India. This disconnect can be observed aptly through the myriad versions of the epic of Ramayana wherein many contradictions can be noticed in the oralist and literature versions of the epic and it is near to impossible to identify the correct version or the holder of the copyright in the modern sense.
There are basically to main issues when it comes to protection of Folklore , firstly The copyright laws flowing from the Berne Convention under Article 7.3 states that the countries need not provide protection to anonymous works of folklore where there are no identifiable authors or where the authors are presumed to be dead for fifty years or so. This provision largely ignores the existence of numerous works of community - originated folklore traditions that exist in the different parts of the world and fails to provide the appropriate protection to these works similar to other works where the author is identifiable. Secondly there is no exclusibe definition of Folklore in the Indian Copyright Act 1957 and hence leads to complete vagueness
The concept of originality is elusive in the sense that no international conventions or IP law across the globe has defined the exact meaning and scope of the word ‘originality’. Determining the true extent and scope of the originality is largely left for the courts to interpret due to which many traditional cultural expressions were left unprotected as any outsider could add significant innovations to the expression for it to be considered copyrightable.It is thus imperative for the courts to devise mechanisms to protect the interests of the communities in terms of their placing certain obligations on the artists who use the traditional cultural expression as a base for their creations.
It is pertinent to examine the instance of Badshah’s recently released song ‘Genda Phool’ that released on the 26th of March, 2020. The song is said to heavily draw source and inspiration from Ratan Kahar’s ‘Boroloker Biti Lo’ who in actuality is the original singer and lyricist received no due credit. The original composition was initially composed in the year 1972 and was subsequently performed in the year 1976 by Swapna Chakrabarti.
This question of fact, if proved beyond doubt then the creation of Badshah would violate Ratan Kahar’s exclusive rights over the song ‘Boroloker Biti Lo’ and would constitute copyright infringement under section 51 of the said Act.
It is further, important to analyse the specific due diligence defence that was taken by Badshah that the song actually was inspired by the folkloric compositions of Bauls of Bengal and claiming that the folklore compositions are in the open domain to recreate to constitute a transformative work with little variation. This defence is aptly worded as any folk song once classified as such belongs to the entire community in the public domain and anyone is free to use the composition to recreate it. Thus, Ratan Kahar in this case would not be able to sustain his claim over ownership of the said composition.
Some of the developing countries which have made an attempt to protect folklore creations by regulating frameworks in copyright laws, Tunisia, 1967 and 1994, Morocco, 1970, Sri Lanka, 1979, Indonesia, Panama, 1994 are some of the examples among many. The word folklore itself is called in different phrases by various countries. For example, majority of the countries mentioned above call it works of folklore and some other countries such as Benin, Indonesia, Kenya, Senega, Mali refer to word of folklore as just folklore. Whereas the International Bureau of WIPO considered the phrase “expression of folklore to be the most appropriate which is being used by Chile and China.
There is a need to for a Sui genreis system to protect folklore, The perfect example for a sui generis system to protect traditional cultural expression is the Tunisian Model Law on the copyright or developing countries, 1976. The law defines folklore and protects the expressions of folklore from any kind of misuse, wrongful gain and unjust enrichment outside the community’s customary and traditional group and prohibits them to be misrepresented by non- members as expressions of folklore. There are have been some countries who have attempted to frame a sui-generis system to deal with traditional and cultural expressions. Some of them are the Bangui Agreement on the creation of an African Intellectual Property Organization (OAPI), the Special Intellectual Property Regime governing the Collective Rights of Indigenous Peoples for the Protection and Defence of their Cultural identity and their Traditional Knowledge of Panama, The Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture and also the Indigenous Peoples Act in the Philippines.
The Kenya Traditional Knowledge and Cultural Expressions Act 2016 has enabled communities to control the use of culturally significant and economically valuable knowledge and expression. This objective was achieved by Kenya by introducing intellectual rights held by communities. The major aspect of this law is to ensure that the communities receive the appropriate royalties for the use of their culture and heritage. This initiative was highly appreciated by WIPO and also has encouraged various countries to enact laws which not only protect the work of the folklore artist but also help the world to understand relish their work by ensuring that appropriate royalties are paid. This provision would fit into the socio-economic structure of India.
Conclusion and Recommendation
For a country like India which has diverse languages and ethnicities, it becomes utmost importance to protect the folklore which forms the part of the rich Heritage of Indian. India must include the definition of folklore by following the footsteps of countries such as Algeria and Morocco who adopted its definition from the Berne Convention which would in turn give the folklore artists a better stand and a stronger recognition. India is a strong democratic country with deep roots attached to culture and hence having a sui generis laws for folklore such as law adopted by Africa and Panama and Community Protection provided in country such as Kenya would have numerous advantages towards the cultural sector of India and would also help in enriching the culture India is known for across the world.
Anurag Dwivedi & Monika Saroha, Copyright as a means of extending protections to expressions of folklore, 10 J. Intellect. Prop. Rights, 310, 308-314 (2005).
Intellectual Property in Asia and the Pacific, January-June 1998, No. 56/57 [ISSN 1014-336X, WIPO Publication No. 435(E)] by courtesy World Intellectual Property Organization