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July 29, 2021

Comment: Is the Current Copyright Regime Befitting or Betraying India’s Folklore?

Author: Sanjukta Kaushik

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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