India is a land of diverse cultures and religions with a long and enriching history. It accommodates within itself various tribes and societies, each of which have their own unique cultural expression and tradition. These expressions vary from folklore, music, dance to clothes, footwear, accessories and many more. These expressions are exclusively known for their unique designs and are generally known from the name of tribe itself or any specific name used by the people for the commodity.
These cultural expressions are unique to each tribe and play a vital role in preserving these tribes in the fast-developing world. They also protect every country’s history and are indicative of uniqueness of nativity of its people. These expressions are also a form which can be showcased to the other countries. It also serves as a source of income and livelihood and easing poverty and socio- economic disadvantage for such communities. These expressions are economic assets of an individual and community at large. These individuals or communities are creators, practitioners and custodians who need to be protected in order to prevent the exploitation of traditional expression by outside public and to gain advantage of the goodwill and reputation obtained by these expressions over a period of time.
Cultural Expression – Definition and Importance
Traditional cultural expression (“TCE”) is defined as, “any work done by indigenous people or the traditional community.” It also means, “expressions of folklore”. Folklore, per se includes both tangible and intangible expressions like music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, several different artistic or cultural expressions.
Within these cultural expressions are engulfed; certain characteristics of community heritage which have been passed on from generations and serve as an identity for the community. TCEs are integral to the cultural and social identities of indigenous and native communities which embody know-how and skills, and transmit core values and beliefs. Their protection is claimed in order to promote creativity, increase cultural diversity and preserve cultural heritage.
However, the rapid development in technology and easy access to the information across the globe has hampered the traditional culture of India. The Indian Laws, even though are undergoing change, yet are slow- paced and ill- equipped to render adequate protection to the Indian heritage. This leads to commercialisation by the other countries in form of usage of identical names or designs of the cultural expressions so as to gain benefit out of the goodwill acquired or built by such traditional expressions.
Intellectual Property and TCEs: Interface
Intellectual Property Laws play a vital role in protection and preservation of the cultural heritage of any country. These laws protect the creations of the mind like inventions, designs, literary, artistic works, symbols, names, images, and performances. They provide a right to the owner of such intellectual property to prevent or check its exploitation or misuse. Lack in existence or knowledge of IP laws in a country may trigger concerns with regards to TCEs being freely available in the public domain, thus allowing its use against the wishes of the community, where they first originated.
Geographical Indication Act, 1999
Geographical Indication (“GI”) is an important tool to protect and preserve TCEs. GI is a community right granted to entire area or community for protection of goods and other articles which are unique to such particular area or community. It grants right to the holder of such GI to restrain others from use of name and commodity similar or identical with the GI. In India, GI is protected under the Geographical Indication Act, 1999 (“GI Act”). The Act, under Section 2(e), defines geographical indication as, “means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured 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 essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.”
The Act does not expressly use the term “cultural expressions” however, it was implemented with an aim to protect and preserve the diverse tradition and culture of India. The Act has given recognition to various goods emanating from diverse cultures by providing them recognition in form of registration and consequently preventing the misuse of such names or goods by other persons not associated with such culture. Traditional cultural expressions, particularly in form of goods and specific names of such goods, are prone to misuse by outside world due to their long goodwill and quality. The Act, thus, expressly prohibits such use by any third person who is not associated with the registered GI, thus, protecting the rights of GI holders and the heritage and culture of the country. The Act, by recognizing such goods also encourages such societies and regions to promote their indigenous products in the world without any fear of misuse.
Exploitation of TCEs around the world
The TCEs are prone to exploitation worldwide due to lack of knowledge and awareness amongst the societies and tribes from where they originate. Often, the traditional societies and tribes lack any legal knowledge to protect their work which have been passed on from generations and claim exclusiveness on such work. These expressions are often exploited by people by using similar or identical name as that of the original TCE thus, harming the reputation and goodwill of such expressions. There have been cases both nationally and internationally wherein the names and designs of TCEs have been exploited by others to gain unfair advantage.
Walt Disney, in 2003, registered the word Hakuna Matata for clothing and footwear. The word Hakuna Matata is a swahili phrase spoken across East Africa. The phrase has been used by people of East Africa since time immemorial and was popularized in the year 1982 by a Kenyan Band, Them Mashroom and was later featured in the movie, The Lion King in 1994. However, due to lack of any registration or recognition of the phrase in East Africa, the Government was unable to proceed with any legal action against Disney. In another case, wherein Navajo, an indigenous nation of USA collaborated with an MNC to produce and sell authentic Navajo products, However, the company started using the name Navajo for panties and flask which were not associated with Navajian culture thus violating the tribe’s intellectual property and defaming the cultural heritage of the tribe. The Court held that it was illegal to market goods under a trademark that is not an indicator of exact origin, falsely suggesting that the Navajo had produced the products.
Recently, in 2019, Kim Kardashian launched a brand with name ‘Kimono’ which is a traditional symbol of the Japanese culture used for Japanese ethnic dress that represents the sense of beauty and values. The actress was accused of exploiting cultural expression and hence, withdrew all the trademarks registered under the name Kimono and rebranded its products as ‘SKIMS’.
TCEs have also been exploited by various high-end brands in India. Christian Dior, an international high-end fashion brand was accused of copying certain design from a small, Indian art collective and store known as ‘People Tree’ which was using the same design in its clothing range since 1992. The designs were produced by using wooden blocks and imprinting the same on the fabric which was later sent for stitching to marginalized women and children group. The garments so produced are also dyed with natural dyes. Later, the two settled the dispute outside the court.
In another recent dispute, Chakhesang Women Welfare Society (“CWWS”) filled a civil suit against designer Ritu Beri over the use of Chakhesang shawls during a fashion show wherein designer Ritu Beri has represented the shawls contrary to the characteristics as specified in registration application. Chakhesang shawls are worn by Naga people which are symbolic of various characteristics of its people such as beauty, prosperity, happiness, contentment etc., these shawls are worn according to the specific status of the individuals in society- some are worn only by women, some only by elderly women while others only by men. The CWWS has also obtained GI registration for its mark. The matter is still pending in the Court; however, this has raised questions as to the extent of protection under the Act.
Due to drawbacks and loopholes under the GI Act, the TCEs are bereft of actual protection under law. Considering the costs associated with managing and enforcing a GI and the lack of awareness amongst producers, GI registration has not acquired as much recognition as it should. The government needs to expand the reach and prevent its cultural and traditional heritage by granting them protection. Further, like most Ips, GI too is a territorial right which means that the protection is granted in a particular country and is not recognised in other parts of the world. India is also not a party to the Lisbon system for the international registration of GIs. This implies that any GI is protected in other countries if the producer organisation applies to a specific country or if the GI is included by the government under a bilateral or multilateral trade agreement for mutual recognition of GIs. The governments around the world need to work together in consonance so as to protect, preserve and cherish their cultural heritage. It is thus the need of the hour that more agreements be executed by the international community for the protection and preservation of the invaluable cultural heritage.