ARTICLES

Blog 01

Protection of folklores in India and Intellectual Property Rights

India is a land of diversity when it comes to folk and ethnic culture with hundreds of ethnic, linguistic and religious groups with diverse origins and lifestyles that, over time, intermingled in part and remained untouched in parts over centuries. Perception about folklore differs in India, mainly associated with tribals and simple rural people, rather crude and elemental in comparison to higher art forms.

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Folklore and its laws are complicated by the presence of hundreds of ethnic groups with their languages and dialects, dress styles, paintings, mythology, legends, songs, music, dance and theater among others. For the purpose of simplifying these folklore’s have some common denominators such as economics, size of community and so on.

In addition, tribes in India are classified into broad groups comprising of the North-East, South, Central and Western zones, each with their own group of sub-tribes. There are tribes that are deemed settlers and tribes that are nomadic in nature.

Regardless, each tribe has its own ethos and cultural identity as well as centuries of tradition that gave birth to distinctive styles. Modernity has touched some tribes while some tribes and their cultures still retain their original identity depicted in various forms, one of which is handicrafts.

Handicrafts are not only a legacy of a tribe but also a source of their livelihood, covering articles such as pottery, carving, metal work, wood work, textiles and furniture among others all of which fall under the purview of expressions of folklore.

Then there are traditional methods of herbal treatments idiosyncratic to a tribe or group of tribes and methods of agriculture in use since generations, which too fall under folklore rights. Knowledge of herbs and methods of natural treatments are indiscriminately exploited by large pharmaceutical firms without any benefit to the originators and it is a common phenomenon in other areas as well such as Madhubani painting, warli painting and tanjore art, to name a few. The field is so vast and since it touches virtually every aspect of thought and life of indigenous people, protection and defining folklore becomes a monumental task.

In recent times there has been a strong revival of interest in folk art and indiscriminate entrepreneurs have made use of expressions of folklore for commercial gain in India. These exploiters are in no way connected with originating communities nor do they acknowledge or contribute monetarily from their earnings to the welfare of benefit of originating communities. This is a pointer to the laxity of laws and implementation despite formulation of laws to protect folklore in India. This is further exacerbated by the rise of technologies such as information technology and biotechnology that pose further challenges.

WIPO’s Program and Budget for 1998-1999 was launched just to address rising concerns about intellectual property rights of indigenous knowledge holders.

The Constitution of India, Part III, in Article 29 states protection of culture of minorities is a Fundamental Right, elaborating that any citizen with a distinctive language, script or culture has the right to conserve it. The glaring discrepancy is that most ethnic groups whose expressions of folklore have been ruthlessly exploited are not covered by that provision of the Constitution. There is also Article 51A(f) that makes it the fundamental duty of each citizen to value and preserve the rich heritage of India’s culture but it has no legislative, enforceable tooth, which means it remains on paper.

The Constitution does provide for protection of cultural identity of tribal populations though Article 371 along with Schedule 6 granting such groups the right to have autonomous councils for self-governance according to their customs and traditions. Such councils have the power to formulate laws to protect traditions and customs.

Schedule 5 of the Constitution provides for creation of scheduled areas to protect a tribe’s interests and, applicability of usual laws of the land may not have force if the tribe and its council decide against it.

To prevent commercial exploitation of the folk cultures and preserve the originality, separate Intellectual property laws for folklore’s is the need of the day.

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Blog 02

Intellectual property at a Glance

The discussion on intellectual property starts with distributing it into three categories for the same of convenience and clarity.

The product of intellectual efforts:

The product of intellectual effort could be tangible or intangible encompassing such outcomes as literary creations, artistic creations, books, music, song, dance, drama, sculpture, paintings and even computer programs.

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It must be recognized that an idea by itself is not eligible for being copyright. The idea must be transformed into the tangible or intangible creation in order to be eligible for protection under copyright law.

Copyright law affords protection to the creator of the intangible or tangible asset and keeps him and his rights safeguarded against acts such as copying, modifications, displays, use in promotions, distribution or in any way make use of his intellectual effort for commercial or other gain. It must be understood that the creator or author retains copyright over his creation even if he licenses it for use by others save and except when he waives such rights under a contract that specifically states so. For copyright to be applicable the idea must be original and must be translated into concrete tangible or intangible creation and the use of such a creation is covered by copyright law. An example is when an author gets an idea but does not translate it into work. The idea is not eligible for coverage by copyright. However, if he writes a book based on the idea, then the book and its contents are covered.

Industrial designs, inventions, process flows and other aspects connected with industry:

Industrial property encompasses industrial designs, inventions, process flows and other aspects connected with industry and it also covers trademark, geographic indicators and service marks.

Industrial design is defined as a blend of art, engineering and science that results in improved aesthetics, ergonomics, functionality and also cost reductions of a product and contributes to its greater desirability in markets. Since it is a form of intellectual property, it deserves protection.

Trademark covering the artifacts that are part of the goodwill of any individual or organization:

Trademarks abound with names such as Coca Cola, 3M, Macdonalds, Sony and LG being internationally recognized brands, each distinctive and connoting a whole lot about the product and the company. Much effort goes into the building up of a trademark over time.

Trademarks are broadbased covering those artifacts that are part of the goodwill of any individual or organization. These include labels, name, signature, brand, heading, numerals, shape, graphics, packaging, color themes and combinations of any of these that contribute to creation of a unique identity for that creator or possessor and help him realize value therefrom. Tradenarks need protetion to ensure the owner alone gains benefits for the efforts he has put in. It is an important constituent of intellectual property.

Owners of trademarks need to be alert to protect their trademarks and also keep a watch to ensure that there are no infringements being committed by anyone anywhere in the world. A company or an individual needs to register his trademark for greater protection under the law but he can just as well carry on a business with an unregistered trademark. In that case he has no or little protection. If he has registered it he is fully protected for a period of five years under the law.

A unique product or process which can be termed as an invention:

An individual or a company may develop a unique product or process which can be termed as an invention that no one has developed before and one which has positive results as regards functionality, production and costs or other properties. Patents are grated by authorities to such inventors to grant them exclusive and monopolistic use of commercializing that invention for a period of 20 years. Patents may cover a process or a product.

In order to obtain a patent, the process or product should be patentable in the country of its invention and it must adhere to established conventions. It should be new; it must be non-obvious and it should fulfill a purpose.

Confidential, proprietary information of an individual or an enterprise that may apply to method or process or formulations:

One of intellectual property’s important constituents is trade secrets. This is defined as confidential, proprietary information of an individual or an enterprise that may apply to method or process or formulations. Most countries still do not give proper emphasis to protection of trade secrets, so vital for the health of enterprises.

Geographical indications point to a product originating in a specific geographic location with specific attributes:

Geographical indications point to a product originating in a specific geographic location with specific attributes pertinent to that region or the traditions, processes and methods of production implemented there that make that product possess some qualities that make it desirable. This term in general applies more to agricultural and dairy produce that are influenced by local conditions. It can, however, also be applied to non-agricultural produce such as handicrafts. Geographic indicator certifications may confer qualities on a certain product simply due to its origin and the methods and processes in use in that region.


Blog 03

The evaluation of Intellectual Property Rights

Intellectual property has always existed since the dawn of time but there were no laws in place for their protection. Intellectual property is intangible asset, be it music, creative writing, arts, discoveries, inventions and development of unique words, symbols and artwork. Intellectual property rights is a generic term that covers copyright, industrial design, trade secrets, proprietary formulations, writing, music, dance, patents, trademarks and even trade dresses.

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Intellectual property is the outcome of the efforts of the mind of an individual expressed in creative forms that are tangible or intangible such as art or music or unique concepts that may appeal to a higher aesthete as in arts, lead to innovations and inventions furthering economic development or even bettering health and living conditions of people.

Intangible asset can be translated or transformed into tangibles such as authorship of books, prints of paintings, music CDS and records and so on. An idea could lead to design leading to invention of a device, which is another example. As can be seen, intellectual property is wide in gamut and if any laws are developed and implemented they need to be comprehensive in nature and vast in scope to cover the entire spectrum. This effort on the part of individuals or organizations needs to receive reward by conferring a legal status and rights much as in the way real estate or assets are valued.

Nations across the world have developed some form of intellectual property rights to safeguard creators and grant them sole and exclusive rights for a certain period of time. It entitles them to claim monetary compensation for use of their creations and protection in the event anyone violates the law. There are limitations too in the extent of protection available. Going further, intellectual property can be considered as material to be bought and sold.

Nebulous in nature, intellectual property rights began to take concrete form during the 19th century but it was not until the 20th century that the British Statute of Anne 1710 and Statute of Monopolies 1623 established the foundations of patents and copyright leading to further progress. Once in the domain of the World Intellectual Property Organization (WIPO), it also became part of World Trade Organization (WTO) charter. TRIPS agreement of WTO incorporates minimum standards to be incorporated in member states’ laws.

WIPO Convention 1967, Art 2(viii) defines Intellectual Property as the rights covering creations in literary, artistic, scientific and technological fields including performances, photographs, broadcasts, industrial design, trademarks, logos, service marks, names, designations and virtually all creations that emanate from the human mind and have significant value that can be commercialized.

IP can cover biology and biotechnology and it takes into consideration not only new ones that are being introduced but also established and age old techniques and technologies, some of which are wrongfully appropriated as in the case of age old herbal usage that companies are grabbing in order to derive commercial benefit. To be more precise, intellectual property while denoting something intangible, seeks to make it tangible and define it and then grant right and protection to the creator. Intellectual property rights for a specific creation belong solely to that individual or corpus body and confer rights on them to exploit such development while excluding or prohibiting anyone else from making any use of it. Its scope and the nature make intellectual property rights tangentially different from rights and laws pertaining to tangible assets.

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