Safeguarding Legacy: Role of IPR in Preservation of Cultural Heritage

Each civilisation possesses a distinct persona of its own which is manifested in the form of cultural expressions and practices. From unique artistic expressions to traditional knowledge, the Intellectual property regime has evolved to protect the deeply rooted practices and cultural expressions which are the core of civilization. However, the protection of traditions and historical creations have been a bone of contention amongst various communities all over the world. This article shall analyze the protectability of the distinct cultural expressions under the domain of Intellectual Property Rights and the perplexities that ensue with the same.

Protection of Cultural expressions under IP Regime

In the domain of IP Rights, the protectable subject matter for cultural expressions is termed as intangible cultural heritage and tangible cultural heritage. Intangible cultural heritage includes the “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artifacts, and cultural spaces associated therewith that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.” In this regard the UNESCO Convention for Safeguarding of the Intangible Cultural Heritage, has been established for the protection of intangible heritage like traditional music, designs etc. Moreover the tangible heritage that is protectable includes the historical literature, artifacts, monuments etc.

Any creation which is attributable to the culture and tradition of a group, community and has been inherited from generations, can enjoy protection under various forms of IP law, provided, they satisfy the protectability criteria under them.

Traditional Knowledge

Traditional Knowledge is commonly understood as the “knowledge that is developed, sustained, and passed on through generations within a community.”[1] This knowledge is not restricted to artistic and other creative works, but also encompasses the knowledge developed by communities in the fields of science, agriculture, medicine, architecture etc. Traditional knowledge is integral to the identity of most local communities. It is a key constituent of a community’s social and physical environment and, as such, it’s preservation is of paramount importance.

The Protection of Traditional knowledge is not effectuated through a sui generis system. The Article 8(j) of the Convention on Biodiversity provides that “parties are to respect and maintain knowledge held by indigenous communities and promote the broader application of Traditional Knowledge-based on fair and equitable benefit sharing. A wider application of such practices shall take place with approval and involvement of the holders of traditional knowledge.” [2]This provision forms the core of national policies that have been created by countries to ensure protection of traditional knowledge and prevent biopiracy. The world has come to recognise the importance of gaining access to traditional knowledge for novel innovations; however, with the evolution of policies, there are strict policies in place to ensure mutual benefit sharing for the users and providers of such knowledge. These policies have fostered a stronger international cooperation and have paved the path for preventing the any misappropriation of the invaluable traditional knowledge.

In view of fostering international cooperation and protecting cultural heritage, India has created the ‘Traditional Knowledge Digital Library’ which is a digitized library of resources on the traditional knowledge available in the public domain for global access. This resourceful move by India has not only induced smooth dissemination of knowledge but has ensured the protection of India’s rich cultural heritage.

Patenting for protection

In 1997, the US based corporation RiceTec obtained a patent over basmati rice, a food product which has been an essential part of the traditional food of India since generations. This had led to years of international legal battle and finally culminated into the patent being struck down in 2001. This case sparked the discussion of the limitations of IP Rights and the economic and cultural repercussions of bio-piracy.

It was further understood that any resource which possesses inherent cultural value cannot be subject matter of private ownership under any form of IP Rights. Owing to this, the national legislations around the world were amended to include the prevention of Bio piracy with immediate effect.

In India, the legislation governing patents, i.e., the Patents Act, 1970 was amended to include the provisions which specified that any patent is open to revocation if the “the invention was anticipated to have regards to the knowledge available within any local or indigenous community in India or elsewhere”[3]. The Patent law in India has reformed in the manner to ensure protection of cultural traditional resources from infringement, but the policy has yet to be developed to confer the explicit rights to the indigenous people over the novel traditional innovations created by them.

Geographical Indication

The most effective route to ensure protection of any cultural resource is through the GI route. The GI legislation is built on the premise of providing legitimacy through registration of a class of goods in respect of any specific area or region which may extend to protect the tangible works of indigenous communities. In a recent case, Ethiopia has succeeded in an action against Starbucks to accredit Ethiopian ownership for their popular coffee designations like Yirgacheffe, Harrar, and Sidamo, regardless of whether or not they are registered with the Registry. It was observed that these coffees are a part of the shared cultural heritage belonging to the people of Ethiopia, and therefore deserve to be protected in their name.

As GI provides collective ownership, it is one of the most effective ways of preserving the rights of culture and heritage exclusive to geography.

Conclusion- Prevention of misappropriation of Traditional knowledge

Cultural institutions, which encompass museums, libraries, and archives, as well as cultural experts such as anthropologists, historians, and researchers, have a vital role in safeguarding the global cultural heritage. However, research activities conducted by such entities, may often result in unintentional encroachment upon the rights and interests of indigenous and traditional communities. The prominent example in this regard is the act of commercializing folk songs or designs. Such creations which hold great cultural significance, are being openly adopted by artists for commercial benefit, have exposed such rich creations to the risk of misappropriation and inappropriate use, particularly in today's digital age.

In view of such tangible risk WIPO and other organizations are actively working on creating an effective synergy between the modern intellectual property laws and the preservation of Cultural Heritage. Some international initiatives in this regard include the Intellectual Property Issues in Cultural Heritage Project (IPinCH), Light Years IP, and the African IP Trust. They all share a common goal: to devise strategies that prevent unauthorized access and misappropriation of traditional resources through IP laws to the detriment of traditional communities.

As a result, the existing IP framework is being reexamined to provide more robust protection for Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE). Many countries have already taken steps to grant such protections, addressing the legitimate concerns of indigenous and local communities, enabling them to prevent unauthorized utilization and safeguard their cultural heritage. The Traditional Knowledge Digital Library in India, the UNESCO Convention on Protection of Promotion of Diversity of Cultural Expression , etc are the positive steps in this direction. In today's context, it is imperative to work towards affording better protection of traditional resources which may begin to deplete in value with increase in globalization and the digitization of various forms of creative expression, including crafts, art, literature, architectural designs, and more.

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