Cultural Appropriation or Creative Expression? The IP Debate Around Indigenous Designs

India is home to a mosaic of indigenous cultures and tribes each rich with its own heritage, art, and practices. Ranging from Warli Art to Pochampally Sarees, these designs and traditions are deeply woven into the very lifeblood of India. However, in recent years we have seen an increased commercialisation of these practices, often without consent or compensation to those from whom they originated. This begs the question- is using indigenous work, in Indian contexts or otherwise, theft or merely taking inspiration from existing art forms. And most importantly, do we as a nation have strong and solidified IP law systems to protect those who might be harmed from such appropriation?

What is cultural appropriation?

Within the Indian context, cultural appropriation occurs when a dominant group or its member adopts indigenous works or knowledge whilst not a member of the community to whom it belongs. Appropriation is marked by a lack of consent and knowledge of the real community regarding the practices being undertaken by a third party. There must exist a lack of proper attribution to credit the original creators and no fair benefit sharing, especially when commercial use or exploitation of the practices concerned is involved.

Such designs, works, or knowledge forms a part of “Traditioinal Cultural Expressions (TCEs)” and “Traditional Knowlegde (TK)” which are concepts recognised by WIPO (World Intellectual Property Organization). TCEs, according to WIPO, include music, dance, stories, art, ceremonies and designs and symbols, whereas TK consists of the knowledge passed down through the generations within indigenous groups.

Where modern IP laws lack

India, and numerous other countries, have their Intellectual Property laws built around characteristics such as individual ownership, new innovations, novelty of the subject matter, and offer a temporary protection within specified time frames.

Indigenous works do not usually comply with these standards. They originate and are developed over time, often spanning generations. Such practices are deeply imbibed in society or a certain community and hence could be argued they do not fulfil the criteria of a new novel invention. Such subject matter is communal in nature, not developed by an identifiable individual to whom its invention could be attributed. It is ancient in nature more often than not, thus non-novel.

The Copyright Act, 1957 establishes requirement of an identifiable authorship to grant a copyright by virtue of which it excludes collective traditions like Warli or Gond art. Trademarks could allow commercial enterprises to register names or symbols belonging to indigenous communities as their own unless governed thoroughly.

Rather often, those who are likely to be victims of unauthorised commercialisation of their practices may not be aware of the existing laws to protect their IP.

Owing to these factors, TK and TCEs remain relatively unprotected and thus open to appropriation and exploitation.

Existing provisions

1. Geographical Indicators (GI Tags)

India’s GI law provides for protection on the basis of origin and an established reputation, Madhubani work for example. It allows for legitimization and recognition of regional crafts. GIs prevent the use of cultural products like Darjeeling Tea and Kancheepuram Silk by other people due to the power given to communities over their product names. This Act, Protection of Plant Varieties and Farmers’ Rights Act, 2001, recognizes the contributions of the Indian farmer in conserving plant genetic resources

2. Traditional Knowlegde Digital Library (TKDL)

The TKDL was created to starve off biopiracy in traditional medicine, translating texts in old languages like Sanskrit into global patent language etc. It has helped challenge patents from major firms like Colgate-Palmolive that use ancient cultural knowledge rather than a novel formula.

3. India’s policy on TK is determined in the context of international arrangements that look to balance the conventional IPR aspects with the communal nature of TK.
4. The Convention on Biological Diversity (CBD) established in 2003 serves as an international framework for legislature that acknowledges the rights of indigenous communities to their genetic resources and TK and promotes equitable benefit-sharing with a focus on prior informed consent.
5. Nagoya Protocol on Access and Benefit Sharing (ABS)

This builds upon CBD by requiring companies using genetic resources or TK to get prior informed consent and equitably share benefits with source communities.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) recognised TK and TCE and IPR under its Art. 11, 24 and 31. Regardless of its non-binding nature, it still provides a moral authority for domestic reform.

Is it mere inspiration?

Frequently designers or sellers claim that they have merely obtained creative inspiration from cultural factors and are protected under fair dealing or freedom of expression. Yet, critiques hold that established desginers or multinational brands hold significantly more legal knowledge and power and means to justify their use than tribes or other such communities do in terms of protecting what is theirs causing unjust power imbalances.

A lack of credit further benefits and enriches a corporation rather than the true artisans. Commodification of generational practices leads to cultural erosion and the twisting of art forms or other factors into a marketable shell of what it truly is.

The Neem (2000) and Turmeric (1993) Patent Cases

The United States Patent and Trademark Office granted patents to US based entities for medicinal properties of neem and turmeric. However, these plants and their properties are a part and parcel of Indian traditional medicine. Indian experts as well as governmental bodies opposed and contested these patents. The claim relied on biopiracy by appropriation of longstanding Indian knowledge. The protest lead to a revocation of the patents by USPTO in 2000, but highlighted the urgent need to take immediate action to secure India’s traditional knowledge.

For the Indian legal framework to reflect its cultural diversity and expansive knowledge base and to appropriately accommodate its diverse, ancient base, it must move away from individualistic western frameworks. Indigenous designs and practices must not be treated as mere aesthetics but as the communal property they are and take into consideration their crucial nature to a large number of family’s livelihoods. Systems that establish control, recognition and equitable economic control for tribal groups and other such communities are essential for their protection and the preservation of India’s historical practices.

Author: Tarini Patki, in case of any queries please contact/write back to us via email to [email protected] or at Khurana & Khurana, Advocates and IP Attorney.

References

1. YESHWANTH SHARMA P & TRIVENI T, A COMPREHENSIVE ANALYSIS ON THE ROLE OF INTELLECTUAL PROPERTY RIGHTS ON THE PRESERVATION AND COMMERCIALIZATION OF TRADITIONAL KNOWLEDGE AMONG INDIGENOUS COMMUNITIES, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (4) OF 2024, PG. 635-643, APIS – 3920 – 0001 & ISSN – 2583-2344.
2. Indigenous peoples and inhttps://untoday.org/indigenous-peoples-and-intellectual-property/tellectual property – UN Today
3. https://www.wipo.int/en/web/business/traditional-knowledge
4. https://www.mondaq.com/india/patent/1286020/the-neem-patent-case