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ABSTRACT

Traditional Cultural Expressions (TCEs) or the Expression of Folklore is a valuable part of human heritage. They can be used to promote tourism, economic development, and cultural understanding. However, corporations often appropriate Traditional Cultural Expressions without the consent or compensation of the communities that created them. This article attempts to analyze the realm of protecting traditional cultural expressions within the context of intellectual property and the issue of cultural appropriations, focusing on its origins, forms, and impact on marginalized societies by discussing the issue of Massai vs. Louis Vuitton with relevance to Kenyan laws as well as do a comparative study on Indian laws for the protection of traditional cultural expressions and what changes need to be brought in to make the intellectual property laws more potent and efficient globally especially in a country like India with diverse and rich cultural heritage.

INTRODUCTION

Traditional Cultural Expressions (TCEs) or Expression of Folklore is the integral knowledge, practices, and artistic expressions that are inherited generationally within a community. Traditional cultural expressions can include anything from medicinal practices to musical instruments to even intangible elements constituting folktales and rituals. These are an important part of a community’s identity and heritage and can play a vital role in the community’s well-being.

The research paper aims to analyse issues surrounding the protection of traditional cultural expression raising the fundamental question: “Who owns a culture?”

Cultural appropriation has gained attention, unfolding the power dynamics between the appropriators and the marginalized holders. The struggles of the Maasai tribe[1] against cultural appropriation by Louis Vuitton demonstrate how global corporations exploit these cultural elements without consultation, respect, or compensation. The violation of Kenyan laws underpins the need for legal protection. The international efforts by the World Intellectual Property Organisation (WIPO) strive to protect traditional cultural expressions.

However, in India, there is a lack of specific laws protecting traditional cultural expressions. The suggestions for changes in global and Indian intellectual property laws involve defining traditional cultural expressions more inclusively by utilizing models of other nations. These suggestions aim to address the shortcomings in the current legal framework, recognizing the cultural significance, and ownership rights of traditional cultural expressions to preserve the cultural identity and knowledge.

Thus, the article tries to deliberate on the question ‘Who owns culture?’ and find solutions for it.

CULTURAL APPROPRIATION

The term cultural appropriation has gained traction in recent times. Its beginnings can be traced back to the 1980s when it was initially used in academic spaces in the context of the discussion of issues in relation to colonialism. Going by the Britannica definition of it, “Cultural appropriation takes place when members of a majority group adopt cultural elements of a minority group in an exploitative, disrespectful, or stereotypical way.”[2] Brigitte Vézina, who is an expert on Intellectual Property protection of cultural expression has put forward three primary features that hold superiority over the rest when it comes to defining cultural appropriation, i.e., altering the cultural context, a power dynamic between the taker and the holder, and finally, the absence or lack of involvement of the holder in the community.[3] Cultural appropriation is mostly seen with a kind of crowd who are unable to protect themselves and fight against the multi-dollar companies that exploit them and their culture. The Maasai people of Kenya are one example of a populace that has been harmed by the appropriation of their traditional cultural expressions. The Maasai people have been fighting for years to protect their Traditional cultural expressions. They have filed lawsuits against corporations that have appropriated their designs and have lobbied for changes to Kenyan law.

LOUIS VUITTON CASE

Louis Vuitton has been accused of cultural appropriation on several occasions. One such instance was in 2012 when the company released a line of clothing and accessories inspired by Maasai culture. The collection included beaded jewelry, brightly colored blankets, and spears. Many people found this collection to be offensive, as it appropriated elements of Maasai culture without any regard for the cultural significance of those items.

The use of Maasai culture by Louis Vuitton can be seen as a component of cultural appropriation for several reasons:

1. The company did not consult with any Maasai people before designing the collection. This suggests that they did not respect the culture or the people who created it.
2. The company marketed the collection as “trendy” and “exotic,” which further reinforces the idea that Maasai culture should be consumed rather than respected.
3. The company profited from the collection, while the Maasai people were not compensated.

For these reasons, cultural appropriation is a grave issue that can hurt marginalized communities. When proponents of a dominant culture adopt elements of a minority culture without giving due credit or recognition, it can lead to the minority culture being misrepresented or exploited. It is imperative to be cognizant of the issue of cultural appropriation and to avoid participating in cultural appropriation.

Before using elements of a culture that is not one’s own, one is expected to understand the cultural significance of those elements. Even if a particular culture merely inspires the work one does, credit ought to be given where it is due, in the absence of which the work amounts to gross disrespect to culture and the people who created it. Louis Vuitton being a powerful company with a global reach, its decision to use Maasai traditional cultural expressions without permission sends a message that it is okay to appropriate other cultures. This message can be harmful, leading to the erosion of cultural identity and the loss of traditional knowledge.

VIOLATION OF KENYAN LAWS

Kenya has several laws that protect Traditional Cultural Expressions (TCEs), including the Traditional Knowledge and Cultural Expressions Act (TKCE Act) of 2016.[4] The Traditional Knowledge and Cultural Expressions Act defines traditional cultural expressions as “any knowledge, skill, practice, performance, expression, or representation, or any other intangible aspect of culture, such as language, folklore, music, dance, and rituals.” The Act also furnishes protection of traditional cultural expressions against misappropriation, misuse, and unlawful access or exploitation. The Traditional Cultural Expressions law in Kenya is one of the most comprehensive laws in the world on the protection of traditional cultural expressions. In 2018, the Maasai community in Kenya filed a lawsuit against Louis Vuitton, alleging that the luxury fashion brand had violated the Traditional Knowledge and Cultural Expressions Act by using images and symbols of the Maasai people in its marketing materials without their permission. The lawsuit alleged that Louis Vuitton had used the Maasai images and symbols to create a “false impression” that its products were associated with the Maasai people and their culture.

The Traditional Knowledge and Cultural Expressions Act requires that any use of traditional knowledge be fair and equitable. Fair use means that traditional knowledge must be used for a legitimate purpose, such as education, research, or cultural preservation. The use must also be non-commercial and must not harm the traditional knowledge holder.

Louis Vuitton’s use of Maasai knowledge is not fair and equitable because it is commercial and does not benefit the Maasai community. Louis Vuitton is using the knowledge of the Maasai to make a profit, but the Maasai community is not receiving any compensation. Therefore, this use of traditional knowledge violates the Traditional Knowledge and Cultural Expressions Act. In addition to the Traditional Knowledge and Cultural Expressions Act, the Massai Louis Vuitton issue could also be considered a violation of the Paris Convention for the Protection of Intellectual Property. The Paris Convention is an international treaty that protects intellectual property rights, including trademarks.[5] Louis Vuitton’s use of Maasai patterns, symbols, and designs on its clothing and accessories could be considered trademark infringement under the Paris Convention.

PROTECTION OF TRADITIONS CULTURAL EXPRESSIONS IN THE INDIAN CONTEXT

Unlike Kenya, India has no specific laws protecting traditional cultural expressions. However, the country’s general intellectual property laws can be used to protect traditional cultural expressions. These laws include the Copyright Act of 1957, the Geographical Indications of Goods (Registration and Protection) Act of 1999, the Trademarks Act of 1999, and the Patents Act of 1970.

The Maasai, being an Indigenous community and a minority, would have had protection against the exploitation of their culture and traditions under Article 29. This article is intended to protect the interests of minority groups. It establishes that citizens residing in India have a distinct culture, language, or script and the right to conserve their culture, language, and script. The Copyright Act of 1957, the main piece of legislation regarding copyright in India, does not provide any specific provisions for the protection of traditional cultural expressions. However, they may be interpreted to fall under the ambit of protection of the many provisions in this Act. The works of the Maasai community can be seen as works withheld from the public or unpublished works. They can be bought under Section 31 and Section 31 A of the Copyright Act, which would mean that anyone using their work would require a compulsory license.

The Maasai tribe could have protected themselves and their products by using Geographical Indication or GI tag of a good. It is a unique method of Intellectual Property Rights (IPR) that can be used to protect traditional cultural expressions. It is a feature of intellectual property that designates a nation or a specific location as the nation or location of origin of that good and, offers an assurance of quality and originality that is primarily because it originated in that specific geographic place, region, or nation. The properties defined for GI-tagged goods are remarkably similar to those of traditional cultural expressions and, hence, could be used for their protection. A few examples of GI-tagged goods are the Kashmiri Pashmina, Udupi Mattu Gulla Brinjal, and Alleppey Coir. The Geographical Indications of Goods (Registration & Protection) Act, 1999 deals with the protection of GI-tagged goods in India.[6] Under section 2€ of the Act, Geographical Indication is defined as an indication that identifies goods produced 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 attributable to its geographical origin. Section 21 of the Act provides exclusive rights to use the GI, and if any violation or infringement of the GI occurs while under the protection of this Act, then the owners can obtain relief under this act.

In addition to these laws, India has also adopted several policies and initiatives to protect traditional cultural expressions. These include the National Intellectual Property Rights Policy of 2016, the National Biodiversity Act, of 2002, and the Traditional Knowledge Digital Library.

The National Intellectual Property Rights Policy recognizes the importance of traditional cultural expressions and commits the government to protect them. The National Biodiversity Act prohibits patenting inventions based on traditional knowledge without the prior informed consent of the traditional knowledge holder. The Traditional Knowledge Digital Library is a database of traditional knowledge that is being used to promote the appropriate use and development of traditional cultural expressions. [7]

While this is all true, if the Maasai Louis Vuitton case had been brought to an Indian court, the outcome would likely be negative as India has no specific laws as such to deal with TCEs, and thus the court would have to interpret the same within the earlier statutes to bring it within legal protection. However, it is important to note that the same is quite difficult as courts generally are reluctant to do the same as none of the acts had such a legislative intent to protect TCEs and thus for something that comes under the legislating power and authority of the parliament, the courts would be reluctant to bring change upon, the maximum that could happen is the courts requesting the parliament to come up with new legislation.

INTERNATIONAL EFFORTS TOWARD THE PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS

The 47^th session by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore held in Geneva has put out Draft Articles to protect the Traditional cultural expressions.[8]

The preamble discusses a series of principles related to protecting and recognizing the intellectual property rights of indigenous people and local communities. It acknowledges the importance of the UN Declaration on the rights and aspirations of indigenous people and local communities. The rights of indigenous people and the interests of local communities to control, protect, and develop their intellectual property rights related to their cultural heritage, including traditional cultural expressions, should be recognized as they possess significant value, including social, cultural, spiritual, economic, scientific, intellectual, commercial, and educational aspects. Traditional cultural expressions are integral to their social and creative life, varying from region to region. Therefore, the national, regional, historical, and cultural backgrounds should be considered. The users and holders should respect the ongoing use, development, exchange, and transmission of traditional cultural expressions and have balanced interests, promoting the dignity, cultural integrity, and spiritual values of those who maintain them. The preamble suggests recognizing the value of a vibrant public domain and traditional cultural expressions available for all, as they are essential for creativity and innovation. The nations must acknowledge the need for new rules and enforcement measures related to the rights of traditional cultural expressions while considering differences in the legal systems. The preamble emphasizes the importance of recognizing and respecting the intellectual property rights of indigenous people and local communities regarding their traditional cultural expressions while considering the diverse regional and cultural differences. It also underscores the need for mutually beneficial and fair practices that respect the consent and interests of these communities.

The objectives of this instrument are to offer strong and sufficient protection for traditional cultural expressions, to prevent erroneous granting of intellectual property rights for these expressions, and to officially acknowledge indigenous people and local communities as the rightful owners of traditional cultural expressions.

Traditional cultural expressions that qualify for protection are those:

1. Created, generated, received, or revealed by indigenous people, local communities, and other beneficiaries. These expressions must be collectively developed, held, used, and maintained by their customary laws and protocols.
2. Linked with and are an integral part of the cultural and traditional heritage of indigenous people, local communities, and other beneficiaries.
3. Transmitted from one generation to another, either in a consecutive or non-consecutive manner.

An example of traditional cultural expression that is an integral part of the cultural and traditional heritage is Bhootha Kola, featured in the Kannada movie ‘Kantara.’ Indian Intellectual Property Rights regime has provisions to protect literary and artistic work in the form of copyrights. While the Copyright Act allows for joint ownership of rights, the provision faces challenges involving generational traditions like Bhootha Kola. It involves various community members; hence, it is difficult to attribute these rights to just one individual, as the Copyrights Act states. Furthermore, the Copyright Act requires originality for protection. However, Bhootha Kola’s steps and performances are traced back to age-old traditions, making it ineligible for copyright protection due to a lack of originality. However, India has no framework that intersects law and culture. If proper legislation is set up to protect traditional cultural expressions, similar issues faced by different communities can be resolved. Thus, a need for proper legislation arises in the country.

However, according to its national law, a Member State or Contracting Party can require that protection is contingent upon the existence of these traditional cultural expressions for a reasonable period. The protection is extended to specific beneficiaries, primarily indigenous peoples and local communities, who are the custodians and practitioners of traditional cultural expressions. The beneficiaries are those who hold, express, create, maintain, use, and nurture the protected traditional cultural expressions. The protection is subject to be defined by national law where applicable.

The scope of safeguarding requires Member States or Contracting Parties to implement legislative, administrative, and policy measures to ensure the economic and moral interest of the indigenous people, local communities, and other relevant parties concerning their traditional cultural expressions in a reasonable and balanced manner. In cases where access to traditional cultural expression is restricted according to customary laws, indigenous codes, and practices, the beneficiaries have exclusive rights to control, authorize, or prevent access and use of their traditional cultural expression. It also includes the right to receive fair benefits and ensuring the integrity of these expressions whether the access was restricted or not. The Member States should establish mechanisms for indigenous people, local communities, or other beneficiaries to seek protection if it appears that traditional cultural expressions are being used without free, prior, and informed consent. They are encouraged to support the protection of traditional cultural expression by modifying and providing equitable access to existing intellectual property systems. They should facilitate consultation and consent from indigenous people and local communities when third parties seek to use their traditional cultural expressions. This ensures that the interests of the beneficiaries are respected and upheld in all relevant contexts.

The administration of rights or interests granted when the Draft Articles comes into force allows Member States to establish a competent authority per their national laws. The authority’s role is to manage these rights in close consultation with the beneficiaries, where applicable. The authority created should/shall communicate its identity to the International Bureau of World Intellectual Property Organization. The exceptions or limitations outlined in the Draft Articles allow Member States to establish appropriate measures with the condition that these measures do not unduly harm the legitimate interests of beneficiaries while considering the interests of third parties. However, the exceptions must be consistent with the beneficiaries’ customary use of traditional cultural expressions as defined by their cultural practices and laws. The protection of traditional cultural expression remains in effect as long as the expression continues to meet the eligibility criteria for the protection outlined in the Draft Articles. The indigenous people and local communities are not required to follow formal procedures or requirements as a precondition for protecting traditional cultural expressions as they are not obligated to undertake formalities for their cultural expressions to be safeguarded to ensure the protection process is less burdensome and accessible for these communities.

This instrument’s provisions apply to traditional cultural expressions that meet the eligibility requirements when it becomes effective. It shall align with other pertinent international agreements, such as the United Nations Declaration on the Rights of Indigenous Peoples, to ensure consistency and cooperation in safeguarding the rights.

The rights and benefits that a Member State grants to its own nationals must be provided to foreign beneficiaries within the territory. For example, the Chakma refugees from Bangladesh have their own age-old culture, language, and scripts, which shall be protected if the Draft Articles are passed, and India adopts them. When the same traditional cultural expressions exist within the territories of multiple Member States or Contracting Parties, these states should strive to have transboundary cooperations.

The Member States or Contracting Parties should/shall collaborate in activities related to capacity building and the enhancement of human resources, especially for the beneficiaries. Finally, the Member States or Contracting Parties must conduct review sessions five years after the instrument enters force.

Despite such international movements and statutes in other jurisdictions to protect TCEs, there are no concrete efforts within India despite such a potent situation existing to violate the rights of Indigenous people and their IP creations, formed as a result of generations of hard work and heritage.

SUGGESTIONS

There are several ways to protect traditional cultural expressions through intellectual property (IP) law. One approach is to use copyright law to protect traditional cultural expressions that are fixed in a tangible medium of expression. This includes works such as music, dance, art, and literature. Another approach is to use trademark law to protect traditional cultural expressions that are used in connection with goods or services. This includes things like traditional symbols, designs, and names. In addition to copyright and trademark law, several other intellectual property tools can be used to protect traditional cultural expressions. These tools include trademark law, geographical indications, and unfair competition law. Trademark law can be used to protect the names, symbols, and designs associated with traditional cultural expressions. Geographical indications can be used to protect traditional cultural expressions that are associated with a particular geographic region. Unfair competition law can be used to prevent third parties from using traditional cultural expressions in a way that is likely to cause confusion or deception.

Some suggestions for changes to global and Indian IP laws on how to protect Traditional Cultural Expressions (TCEs):

• Define Traditional Cultural Expressions more broadly: The current definition of traditional cultural expressions in many countries is too narrow and excludes many traditional expressions, such as oral traditions, rituals, and performances. A broader definition would be more inclusive and would better protect traditional cultural expressions.
• Provide for Collective Rights Management: Collective rights management (CRM) is a system that allows communities and individuals to collectively manage the rights to their traditional cultural expressions. Collective Rights Management can be used to collect royalties from the use of traditional cultural expressions, to prevent unauthorized use, and to promote the use of traditional cultural expressions in a way that is respectful of the communities and individuals that created them.
• The Australian system of “moral rights.”: The Australian system of moral rights gives creators the right to attribution, the right to integrity, and the right to prevent derogatory treatment of their works. These rights can be used to protect traditional cultural expressions from unauthorized use and disrespectful treatment.
• The Canadian system of “community-based sui generis[9]“: The Canadian system of community-based sui generis rights allows communities to register their traditional cultural expressions with the government. This registration gives the community the right to control the use of their traditional cultural expressions, and to prevent unauthorized use. Create sui generis rights for traditional cultural expressions. Sui generis rights are special rights that are not covered by existing Intellectual Property (IP) laws. Creating sui generis rights for traditional cultural expressions would give communities and individuals more control over their traditional cultural expressions and would make it easier to enforce their rights.
• The Peruvian system of “intangible cultural heritage.”: The Peruvian system of intangible cultural heritage recognizes traditional expressions as part of the country’s cultural heritage. This recognition gives the government the authority to protect traditional cultural expressions from unauthorized use.

The optimal action would be to bring Traditional Cultural Expressions within the purview of one of the statutes specified above and to reinterpret the statutes to ensure protection if none of these are possible.

CONCLUSION

Traditional cultural expressions form a crucial part of the culture of a particular community in India or any other country. These communities own the traditions and cultures which are expressed as music, dance, art, and performances, and not  third parties, even if they compensate the community or obtain a license to use it.  However, there needs to be a specific legal recognition for this form of expression. Even though these cultural expressions are recognized as rights under the United Nations Declaration on Rights of Indigenous People and can be granted protection under the Berne Convention, an internationally binding mechanism is currently needed to deal with specific sui generis protection.

While Traditional Cultural Expressions are recognized and protected under the international regime, there is no indication of such a concept in the international and Indian Legislative system. Though the Constitution mentions the rights of minorities to preserve and protect their culture, it deals explicitly with minorities; therefore, it would prevent any community that is not a minority from protection.

The current copyright regime in India is not feasible due to the limited years, originality criteria, and individual protection. India has a vibrant cultural heritage; hence, it is necessary to establish sui generis protection by creating specific legislation dealing with traditional cultural expressions and developing a mechanism under which state governments recognize and register the traditional cultural expressions.

It is important to note that there is no single “best” approach to protect the expression of the folklore. The best way to approach will differ depending on the specific circumstances of each country or community. It will also depend on the efficiency and the desire of each community and country to protect the folklore belonging to them. Only if they, being the stakeholders, fight and are empowered to fight can they bring a change ultimately.

 

Article authored by Maria Therese Syriac.

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.

Bibliography

[1] Maasai are a Nilotic ethnic group inhabiting northern, central, and southern Kenya and northern Tanzania.

[2] What is cultural appropriation? (no date) Encyclopædia Britannica. Available at: https://www.britannica.com/story/what-is-cultural-appropriation (Accessed: 12 October 2023).

[3] Tougher laws needed to police cultural appropriation in fashion, study says (2019) CTVNews. Available at: https://www.ctvnews.ca/business/tougher-laws-needed-to-police-cultural-appropriation-in-fashion-study-says-1.4367126 (Accessed: 12 October 2023).

[4] Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016 (Kenya)

[5] WIPO. (2019). Summary of the Paris Convention for the Protection of Industrial Property (1883). Wipo.int. https://www.wipo.int/treaties/en/ip/paris/summary_paris.html

[6] The Geographical Indications of Goods (Registration and Protection) Act, 1999, No. 48, Acts of Parliament, 1999 (India).

[7] National Intellectual Property Rights Policy (2016), Government of India, Ministry of Commerce and Industry, Department of Industrial Policy & Promotion.

[8] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, The Protection of Traditional Cultural Expressions: Draft Articles, WIPO Doc. WIPO/GRTKF/IC/47/5

[9] Sui generis is a Latin expression that translates to “of its own kind.”