The 161^st Report on “Review of the Intellectual Property Rights Regime in India” recently recommended the creation of an Intellectual Property (“IP”) Fund to develop an “IP culture” in tribal and hilly areas in India. The author believes that the creation of an IP Fund is not necessary to foster an IP culture among traditional communities.

Due to lack of development and adequate resources, traditional knowledge and traditional cultural expressions are often the primary forms of IP originating from the tribal and hilly areas of India. Currently, there is no framework or treaty at the national or global level dealing specifically with traditional knowledge. India has adopted defensive protection of traditional knowledge in the form of the Traditional Knowledge Digital Library, which prevents the patenting of inventions based on traditional knowledge. This is a passive form of protection which does not empower tribal communities to be in charge of the exploitation of their own IP.

An IP Fund becomes pointless if there is no mechanism in place for communities to harness and enforce their IP rights. The Fund might promote initiatives to raise awareness about IP, but a community cannot utilize this knowledge if it does not have recourse to legal action against those appropriating their traditional knowledge. Even if an IP Fund is established, it would need laws and regulations to govern its management and allocation of funds. Considering the lack of a global convention on this issue, enacting legislation at the national level would be a small but significant step. It would at least prevent unauthorized exploitation of traditional knowledge at the local level and grant a community a degree of ownership over their own traditional knowledge.

Many tribal and hilly areas in India are conflict-ridden zones. In such cases, a more holistic view of development and preservation of tribal culture would be more helpful than a Fund specifically meant for instilling IP culture within these communities. It is important to acknowledge the tribes as more than a mine for IP. The tribal and indigenous communities of India are a living source of dynamic traditional knowledge and practices. The welfare of these communities should be funded through various departments responsible for different facets of development instead of a single IP Fund.

While the intentions behind creating an IP Fund are admirable, doing so without first improving the IP regime surrounding traditional knowledge in India would be akin to putting a band-aid on a broken leg.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Ministry of Information and Broadcasting (MIB) vide notification dated June 18, 2021, has published the draft Cinematograph (Amendment) Bill, 2021 (“Bill”) based on the observations and recommendations proposed by The Standing Committee on Information Technology (2019-20). The Bill proposes changes in certification category, term of validity of certificate, revisionary power of Central Government and introduces provisions on piracy. The four major changes are outlined below.

The Bill proposes further subdivision of the category ‘unrestricted public exhibition subject to’ on the basis of age. The current draft identifies and proposes to bring the sub-division of U/A category into U/A 7+, U/A 13+ and U/A 16+. In furtherance of the same, the Bill proposes to amend provisions relating to Examination of Films [section 4(1)(i)]; Certification of Films [section 5A(1)(a)]; and Revisional Powers of the Central Government [section 6(2)(b)].

The Bill identifies the need for amending section 5A(3) concerning the restriction on validity of certificate. The current draft proposes the provision be amended to remove the stipulation of ten years such that the certificate is valid in perpetuity.

The Bill confers revisional powers on the Central Government by adding a Proviso to section 6(1) which will empower the Central Government to direct the Chairman of the Central Board for Film Certification (CBFC) to re-examine a film already certified for public exhibition. This power can be exercised on account of violation of section 5B(1) of the Cinematograph Act, 1952. The reasonable restrictions as provided for under Article 19(2) have been reproduced in section 5B(1) of the Cinematograph Act, 1952

The Bill also aims to address the concern of film piracy. The Bill introduces a new section 6AA to deter piracy which prohibits using an audiovisual recording device to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof without the written authorization of the author. Furthermore, it also proposes the insertion of new sub-section 1A in section 7 to stipulate the penalties for contravention of this part. The penalties include imprisonment for a term ranging from three months to three years and with a fine not less than three lakh rupees extendable to 5% of the audited gross production cost or with both. The penalty provision also contains a proviso that excludes acts mentioned under section 52 of the Copyright Act, 1957 from the purview of the proposed section 6AA.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Covid-19 pandemic has changed the world as we know it. It has redefined the bounds of workspace, and merged it with our homes. Hitherto, working-from-home was unheard of as far as the practice of law in India was concerned. While some firms did allow a modest hybrid work arrangement, most law firms were traditionally set up, requiring lawyers and administrators to be physically present in the office.

The shift from working in a traditional firm setup to working remotely was rather sudden but, over the past year, things have changed, boundaries pushed and new systems developed. Law firms have devised internal policies to be followed by the retained lawyers, invested in technological support to assure smooth functioning like digitisation of documents, evidence, etc., and have been educating their employees on best practices.

However, work-from-home is concomitant with the pandemic. Firms, as well as lawyers, have been waiting to get back to working normally once the situation eases. This is primarily because India’s legal and judicial processes are not yet fully equipped or ready for  a complete shift towards remote work. This is because a lot of the legal-administrative work still needs to be done physically like  examining voluminous pages of evidence or cross-examination of witnesses, etc. .While courts and other forums have started conducting video conference (VC) hearings, there is still much to be accomplished in terms of fixing/upgrading the tech support for conducting smooth VC hearings, digitisation of court records, enabling easy access to general litigation or chamber lawyers.  

In my opinion, IP firms seem to have an edge over general litigation firms. Even before the pandemic wreaked havoc, most IP-related at least transactional or prosecution work could be done via the internet- be it conducting searches, filing registration applications, or communication between the firm and the relevant authorities- to give a few examples. With the pandemic forcing IP authorities to hear even contentious matters online, the primary offline-exclusive work has been brought into the remote work-able category. At present, most IP firms have implemented complete work-from-home, and few operate in a hybrid set-up.

In this author’s view, IP firms can consider going virtual even after the pandemic ends to reap the benefits of work-from-home which inter alia allows greater diversity and inclusion. Remote work offers several advantages, such as reducing costs by minimising the need for physical office space and associated expenses, bringing in the possibility of flexible work timings, attracting a wider talent pool as a potential hire’s geographical location stops being a factor, increased productivity, reduction in overall carbon footprint, etc. If an IP firm does not want to go completely virtual, a hybrid workspace can surely be created, wherein lawyers get to work from their homes for a set number of hours or days each week, and still be efficient and productive.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Folklore: Repository of Culture 

Folklore, a part of cultural heritage, has witnessed worrying levels of exploitation and misappropriation in the last decade, especially owing to the advent of technology. Folklore denotes the age-old traditions which are curated over a considerable stretch of time by the creative expressions of a community, traversing over generations.

Copyright Regime vis-à-vis Folklore 

Protection of folklore is sine qua non to preserving the identity and uniqueness of cultural heritage, especially of indigenous people. The Copyright Act, 1957 (“the Act”) serves as a plausible armour to preserve and protect folklore by controlling its unauthorized usage, distortion, adaptation etc. .

The Act protects original literary and artistic works thereby securing an exclusive right in favour of the authors of the creative works for a limited time, ensuring no replication, mutilation, and adaptation of such works occur without the authors’ express consent. While the Act is bereft of any express provisions prohibiting misappropriation of folklore, some forms of it can be identified as copyrightable subject-matter. However, extending copyright protection to folklore exposes it to several challenges on account of certain inherent contradictions.

The Act is inadequately placed to salvage folklore in the sense that ‘originality’ which is a mandatory criterion for any creative work to be copyrightable cannot be ascertained in folklore. This poses an especial challenge for indigenous persons to secure copyright in folklore. It is simply unrealistic for them to fit the shoes of ‘originality’, as envisioned under the Act. This is owing to the several rounds of social variations folklores undergo over years. The authorship of folklore is not individual but social, and it is not ascertainable but diffuse. Unsurprisingly, it is difficult to determine authorship in folklore as required under the Act. Even if there are provisions to accommodate anonymous authorship, not all folklore can be brought under its realm since intangible folkloric expressions in the forms of dances, folktales, etc. cannot be attached to a tangible medium and are ultimately hit by the fixation rule.

Even though ‘originality’ has not been defined under the Act permitting judicial accommodation, recognising and enforcing copyright in folklore entails more accommodation than has been forthcoming. This is perhaps unavoidable given that the ethos of the Act is itself alien if not also violently antithetical, to indigeneity.  

The limited term of protection under the Act is also hard to reconcile with the intergenerational perpetuity of folklore.

Conclusion –

The copyright regime reflects deep rooted inadequacy to safeguard folklore from obliteration. A sui generis framework to recognize folklore, foster it and defend against its misuse is critically needed.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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A Primer to Traditional Knowledge Protection in India: The Road Ahead is a paper published on June 03, 2021 [Chakrabarty, S.P., Kaur, R. A Primer to Traditional Knowledge Protection in India: The Road Ahead. Liverpool Law Rev (2021). https://doi.org/10.1007/s10991-021-09281-4]. The paper aims to facilitate a better understanding of Traditional Knowledge (TK) and the social, economic and cultural benefits India can reap through the incorporation of Traditional Knowledge in the realm of Intellectual Property Rights.

The paper highlights that although India possesses vast traditional/indigenous knowledge, the same has been termed as primitive, backward and unscientific. The reason for this is because of cultural heterogeneity coupled with notions of superiority of modern scientific ideas over indigenous knowledge. This has significantly lessened the bargaining power of traditional communities over the years. The paper points to how unmoderated scientific interventions have caused an imbalance and damage to the environment. To solve this, the paper suggests reintroduction of  indigenous agricultural practices and traditional knowledge.

The paper draws attention to biopiracy as a challenge. Biopiracy refers to the appropriation of knowledge and genetic resources of indigenous communities by individuals or institutions that seek exclusive monopoly control (patents or intellectual property) over this knowledge. The problem is compounded by the fact that the majority of this knowledge is practiced within a closely knitted community and thus remains technically unpublished. Through examples of Neem and Rosy periwinkle, the same is explained in the paper.

The paper also features laws and policies protecting traditional knowledge in India. The paper highlights that the introduction of “The Biological Diversity Act, 2002”, the “Protection of Plant Varieties and Farmers’ Rights Act, 2001” and the “Geographical Indications of Goods (Registration and Protection) Act, 1999” accommodated traditional knowledge with IPR and were a step in the right direction. Further, creation of Traditional Knowledge Digital Library where a list of more than thirty thousand codified Traditional Knowledge practices of India is made available has led to a significant decline in biopiracy cases and frivolous filing of patent applications. Similarly, the National Innovation Foundation, established in 2000, engages with knowledge holders in protecting their innovations in accordance with the existing IPR regime.

The paper mentions a new proposed protection parameter known as ‘Tiered and Differentiated’ Approach introduced by an expert committee of the WIPO. Under this framework, various kinds of Traditional Knowledge and Traditional Cultural Expressions (TCE) are delineated, primarily based on their degrees of diffusion of knowledge. This, consequently, tries to identify the extent of exclusive rights that the custodians of such TK and TCEs would be entitled to receive. On the basis of this parameter, the exclusive right may lead to conferring licence on clans or communities to explore such TK.

The paper concludes that efforts must be made at the international level to push WIPO to urgently consider this discourse to protect Traditional Knowledge. The paper also recommends that in the meantime, India should also take further reasonable measures to protect the Traditional Knowledge that the country still possesses.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP