Structuring Legal and Institutional Initiatives for TCE Protection

In furtherance of our previous blog which recognised the need for protection of the Intellectual Property (IP) involved in Traditional Cultural expressions (TCE), this article discusses the Legal and Institutional Initiatives that Nations or bodies may use to pave a way for their protection.

The entire process may be broadly divided into 6 phases:

1. Determining objectives of policy formulation
2. Identifying the available options under conventional IPR
3. Analysing the role of non-IP institutions
4. Comparing the routes available
5. Identifying and implement operational measures
6. Creating a system of coordination of national systems with regional and International bodies.

Objectives of Policy Formulation

Subject to micro-level objectives based on specific communities, the objectives of a TCE policy may include the following:

1. Creation of trade and commerce opportunities for economic development
2. Preservation and promotion of TCEs and folk art
3. Prevention of exploitation, unauthorised or illicit use of folk art or its abuse
4. Promotion of the communities involved in the TCE
5. Preservation of the cultural identity of the community
6. Promotion of cultural diversity

Conventional IPR

The form of IPR that seems to have a role here is Copyright and the related rights system. As we are looking at communities as the owners and custodians of the TCEs, the ownership of copyrights should be collective. One way of awarding such ownership is by forming associations and societies with elected persons from the community itself.

Another way of protection is by derivative works by the members of the community. This, however, is tricky as outsiders may also be interested in doing so. Words and symbols that are used to identify a community, may also be protected as Trade Marks.

Non-IP Institutions

Normally, countries would have cultural institutions that help communities in the promotion of their culture. These institutions have the objective of preserving and safeguarding the culture which may overlap with the objectives of IP protection. They provide recognition by creating awareness programmes, issue grants for the pursuance of TCEs and much more. There needs to be a nexus between these two that can effectively achieve the goals of TCE protection.

Comparison of routes

In the road to IP protection of TCEs, there also exists a bifurcation. Based on their existing laws and the status of the communities whose TCE is sought to be protected, nations have the option to choose between a sui generis system or alterations to their existing laws. A stand-alone sui generis system would recognize the rights related to TCE in a very specific manner, made to define the scope and actions that may be taken thereon. On the other hand, if the scope of existing IP laws allow so, nations may modify them so as to bring within their purview, the indigenous rights and TCEs.

Operational measures

Needless to say, laws are just as good as their implementation. This is the most challenging part of bringing in institutional changes. What is required is establishing institutions that are easily accessible to the communities. These institutions may also seek aid from industrialists to promote TCE using their vast channels and International ties. Adaptations of craftwork that form a part of TCEs, in premium goods can give immense wealth benefits to the artisans.

Coordination with regional and International bodies

Considering the rapid globalisation and the extensive access to information by people world-wide, protection must also be at an International level. Laws are made at a national level, for the protection of communities at a regional level, from perils that might arise at an International level. Hence, coordination ensures a more streamlined system of protection.

Conclusion

Since, the subject-matter under protection here, is very geo-specific and bound to the fabric of indigenous communities, the framework that proposes to protect them must also be custom-made for their protection. This prevents a universal policy framework that works for all countries alike. Hence, the above-mentioned phases only provide a broad model and are left open-ended for the countries to construct their own system.