The need for the protection of Traditional Cultural Expressions

Just like with commercial entities, traditional artforms also have intellectual property that needs to be protected. The World Intellectual Property Organisation describes this as ‘Traditional Cultural Expressions’ or ‘Expressions of folklore’.  

What are Traditional Cultural expressions?

Traditional Cultural Expressions may be defined as productions that consist of characteristic elements of  traditional artistic heritage developed and maintained by a community or individuals reflecting the values of that community. This may include verbal expressions, such as poetry, folk tales, words or signs; musical expressions, such as the use of a particular musical instrument, songs; actions, such as dance, gestures, ritual; or tangible expressions such as pottery, sculptures, drawings, crafts etc.

For an art form to qualify as a Traditional Cultural Expression, it must satisfy the following conditions:

1. Must be handed down intergenerationally, either by imitation or orally
2. Must form a part of a community’s social and cultural heritage
3. Must consist characteristic elements of the community’s heritage
4. Must be made by communities that have the right, responsibility and permission to do so
5. Traditionally, not made for commercial purpose, rather cultural or religious purposes
6. May constantly keep evolving and developing through the community members

How is it different from traditional knowledge?

It is common for communities to use traditional cultural expressions in close association with their traditional knowledge. However, in the Intellectual Property policy framework, traditional knowledge refers to the knowledge related to medical, environmental and biological resources. Thus, it is differentiated from Traditional Cultural Expressions and naturally, the general principles of protection are likely to differ. The legal doctrines involved are closely related to copyrights and related rights systems.

Why is their protection important?

Being creations of the mind in their initial stage, these traditional cultural expressions are regarded as Intellectual Property. Their protection through laws, creates private rights over them as well as incentivises the continuation of their production.

Protection of IP in this area, also balances the implications of preservation and safeguarding of  the cultural heritage of communities in order to ensure its maintenance and viability. This refers to the identification, documentation, transmission, revitalization and promotion of cultural heritage. Now, this documentation may raise concerns about protection of IP as it may fall into the public domain. It may also cause an impression that this translation of the traditional cultural expression into another form or expression creates a new right vested with the persons involved in the process. Thus, IP protection must go hand-in-hand with the other initiatives for preserving cultural heritage.

One of the ways in which this benefits the communities is by giving them an exclusive right to produce these expressions and also monetise the same. Other benefits involve less material reasons such as prevention of the use of these expressions in offensive ways.

Thus, there is an inherent need for legal frameworks at the regional, national and international level to enforce IP protection. We shall be discussing the same in our upcoming blogs.

The recent case of Shein

Recently, the Chinese fast fashion company, Shein, got into a controversy for using the traditional form of embroidery and patterns in its “Fan-Trim Top with Floral Print”. The cultural Ministry of Mexico found that the motifs used in Shein’s product were similar to the traditional huipil embroidery used by an Artisanal brand of Mexico. Consequently, it has asked Shein to explain the use. They observed that the designs have been handed down from generation to generation and that they are a result of the collective creativity of the Mayan community. The artisans who have inherited the art and earn their livelihood through this work, are left unrecognised because of such misuse by a commercial entity outside the community.

Conclusion

It is therefore important to establish a legal framework to ensure the protection of IP that helps safeguard the interests of the indigenous people. This not only gives them recognition but also proprietary rights that would help in the economic development of these communities. Furthermore, it makes the use of their own traditions as opposed to external aids.