FOLK AND FOLKLORE RIGHTS

The term folklore has not been defined in any national or international legal document, but the
term Expressions of folklore has been defined in the Model Provisions prepared by WIPO and
UNESCO to act as a guideline for the state to frame legislation in this area. The term Expressions
of folklore means elements of the traditional artistic heritage developed and maintained by a
community or by individuals reflecting the traditional artistic expectations of such a community.
It includes expressions such as folk tales, folk poetry, folk songs, folk dances, plays, productions
of folk art, etc.

Copyright Law as a medium to extend

protection to Folklore

n 1982, a Sui Generis model for the IP-type protection of expressions of folklore was developed
by a group of experts convened by WIPO and UNESCO called the Model Provisions, 1982.
Again In 1984, a draft treaty was prepared on the international protection of expressions of
folklore by IP which was based on the Model Provisions, but still, the majority of participants
considered it overhasty to establish an international treaty at that time.

Many Expressions of folklore like music and songs, paintings, carvings, handicrafts, designs, etc.
for which safeguarding is required constitutes the subject matter of copyright protection. The
protection provided by copyright is mainly the right to prevent or authorize, reproduction,
adaptation, communication to the public and others, and the moral rights of attribution and
integrity. This appears to be convenient to meet the needs and objectives of indigenous people
and traditional communities.

If folklore is to be given identification and shielding under the copyright laws, it must fulfill
certain standards, i.e. It must be original work, it should be an independent and unaided creation,
the nationality of the author should be clear and it should be in a tangible medium. The existence
of these standards and conditions for granting copyright protection annihilates the possibility of
folklore getting any kind of protection because, though it is original it has been through social
changes over the years and there are many versions of the same work and the present version
can’t be said to be original, as the said works belong to the whole community. There is no single
author of the work. Expressions such as dance, tales, etc can’t be fixed in a tangible form.

The Indian Copyright Act of 1957 provides special protection to certain types of expressions of
traditional culture. Section 38 of the Act provides that where any performer engages in any
performance, he has a special right known as performer’s right in relation to such performance
and it subsists until twenty-five years. This right can be granted to indigenous artists. During the
continuance of the performer’s right, any person who, without the consent of the performer
makes a sound or visual recording of the performance; or communicates the performance to the
public in any manner shall be deemed to have infringed the performer’s right.

Despite granting such rights to the performers of indigenous arts, they only provide limited
protection and there are few drawbacks. Firstly, this right is only granted to individuals or groups
of performers and not to the whole community (Folklore belongs to the whole community).
Secondly, the right is only permitted only for a limited period of time i.e. twenty-five years and
after that, it can be used by everyone in the public realm and they can use it in whatever manner
they choose.

So, there is a pressing need to resolve various issues regarding the concept of copyright before it
aims to provide protection to folklore.

Conclusion
Cultures are dying out faster than the people associated with them. Developing countries that
have rich and diversified folklores must take steps to protect their cultural heritage and ensure the
prevention of degradation and exploitation of folklores. They should also make sure that certain
communities are not being deprived of their economic and cultural rights.

Countries should undertake activities for the establishment, strengthening, and effective
implementation of systems and measures for the legal protection of Expressions of folklore. A
practical guide for the protection of folklore should be given to policymakers, on the basis of
which laws can be formulated, Code of conduct and guidelines should be developed for the use of
folklores.