Cultural heritage is the offspring of generational inheritance, which manifests in many different forms as we know; like, relics, buildings, songs, folklore, traditions, etc. All these need to be protected within the legal framework, and this is where Intellectual Property (IP) laws come into a definitive picture. The enforcement of Intellectual Property Rights (IPRs) and the protection of cultural heritage have a lot to offer to each other for their subsistence, growth, and dissemination.
Understanding the Term Cultural Heritage
Before we try to understand the convergence of both the subject-matters, let us make ourselves aware of the term ‘Culture Heritage.’ Cultural heritage is the knowledge, practice, and conscious display through fixation of the said knowledge, which is attributable to a group of people who have inherited such knowledge from the past, many generations. As per the UNESCO Convention for Safeguarding of the Intangible Cultural Heritage, 2003, ‘intangible cultural heritage,’ is said to encompass “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.” Therefore, such heritage may be tangible or intangible. Where tangible heritage includes historic literature books, artifacts, buildings, etc., intangible heritage includes folklores, songs, music, traditions, etc.
Intellectual Property (IP)
IP consists of two major kinds of rights, including industrial property rights and rights emanating from copyright. These are intangible since they are a result of human intellect. The industrial property rights cover patents, industrial designs, and trademarks, and copyright includes original artistic creations like books, sculptures, movies, poems, etc.
Interplay of Cultural Heritage and Intellectual Property
When we see the cultural heritage in the light of IP, it usually happens in terms of Traditional Knowledge (TK) and Traditional Cultural Expression (TCE). The issue lies in the fact that there subsists no international or widely accepted definition of TK or TCE.
The ambit of TCE is vast enough to incorporate pre-existing materials dating from the distant past to the very recent contemporary expressions of such materials in the form of adaptations, imitations, revitalizations, etc. The qualifying requirement for a TCE is that it should be a “defining characteristic of a tradition,” and the same should be existent as a “living tradition amongst a community” that practices it. Several indigenous people have longed for such protection to commercially exploit the fruit of their generational knowledge and prevent third-parties from taking unaccredited advantage of such TCEs.
Traditional Knowledge (TK), on the other hand, includes the cultural heritage, the practices, and the know-how behind such practices, belonging to traditional communities. Traditional knowledge is not limited to just art forms but has an extensive scope extending up to fields of agricultural, scientific, technical, ecological, biodiversity-related and medicinal knowledge. Such prolonged knowledge should at least span up to 05 generations before it qualifies as a TK, as per the WIPO Draft Article on TK.
How can we Preserve Cultural Heritage through IP Laws?
The level of consciousness and awareness of such rights emanating from IP laws have gained relevance amongst the cultural communities. They realize that the many forms of cultural expression in the form of folklore, music, craft, etc., are susceptible to illegitimate copying and adoption.
A). The Patent Route: Different kinds of knowledge emanate traditionally and maybe patent-protected, provided they qualify the three-prong test of novelty, non-obviousness, and industrial utility. One such example of patentable subject matter emanating from the application of traditional knowledge could be the knowledge belonging to the ‘Kuuku I’yu Northern Kaanju’ ancestors for the use of a medicinal bush, which was utilized by the University of South Australia that led to the identification of compounds used in the treatment of inflammations; the same is now conjointly owned by both.
B). The TK Route: It can provide defensive protection. To quote an example, consider the turmeric instance between the US and India, where an inventor patented the procedure to use turmeric to augment the healing process of wounds, which was initially granted. However, on finding the same to be inclusive within the ancient Sanskrit literature, the patent was revoked on account of being constitutive of prior-art. However, one cannot always be sure if TK literature will always be taken into due account while looking for prior-art due to lack of availability of such resources.
C). The Trademark Route: Many others are trying to protect their symbols and logos against exploitation, as also observed in the Lego Bionicle’s or the Sony PlayStation case, where they used Māori imagery. Such symbols are often used by communities to identify the indigenous origin of goods.
D). The GI Route:Lately, 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. The same is also a part of the shared cultural heritage belonging to the people of Ethiopia.
Therefore, to defensively protect themselves, along with their craft from foreign entities, while also leveraging the benefits thereof – to the benefit of the communities – these rights have gained relevance. Although such methods often resort to better protection, the safeguarding of cultural heritage in the form of TK has often raised eyebrows because of the element of secrecy involved. Where benefit-sharing is sought, such secret knowledge should be considered as a vital element comprising the agreement between two parties where the one upon whom the knowledge is conferred should act in ‘fiduciary capacity.’ An enhanced mechanism is required to secure not just the physical manifestation of these creative art forms but also the thought of the people that goes behind it.
The Way Forward
The Difference between Cultural Heritage and IP – It has often been acclaimed that cultural knowledge has universal beneficiaries exceeding traditional borders, and therefore, should be accessible to all mankind. However, the notion of IP is very opposite since it is territorial. Hence, the granting of monopolistic IPRs in favor of some may deprive others of accessing the same knowledge and heritage. Also, where TK or TCE may be limited by the law for enjoying the stipulated right, cultural heritage cannot succumb to such limitations of time since it is eternal and everlasting. For example, Leonardo Da Vinci’s Monalisa painting might have its rights expired by now, but it remains as an eternal masterpiece of Cultural heritage for all of humanity to enjoy.
Eliminate Passing-off of TK – To make sure that no-one passes-off such masterpieces, it is imperative to have access to relevant information to ensure prior informed consent and access-benefit-sharing on equitable terms. It is also for this reason that India made a Traditional Knowledge Digital Library (TKDL), which consists of 30 million pages on Indian traditional knowledge, which is translated into many different languages. The same helps in documenting and establishing prior-art in broader terms.
Similarly, the USPTO (US Patent and Trademark Office) has created a database for recording insignias of Native American Tribes, which can be accessed by the examiner to identify identical/similar trademark logos that are found within the database to reject any Trademark Registration that falsely suggests a connection with a group. These are examples of progressive steps in the direction of preservation of cultural heritage and should be undertaken by all countries with indigenous knowledge.
Many organizations are attempting to understand the relationship between modern IP laws and Cultural Heritage. It includes the (IPinCH) Intellectual Property Issues in Cultural Heritage Project, Light Years IP, and African IP Trust. They all are trying to find ways and means to prevent outsiders from using the law to the disadvantage of traditional communities because there is a serious interplay of heritage and IPRs.
Therefore, the prevalent IP framework affords better protection to TK and TCE; and many countries have already afforded protection to such rights to address the concerns of the indigenous and local communities to allow them to prevent unauthorized access and safeguard their cultural heritage. The current time requires that the rigid divide between the two subject-matters gets erased to afford better protection in the light of globalization and digitization of craft, art, literature, architectural designs, and whatnot.