Patent injustice

Commercial interests profit from unprotected artisanal knowledges

Published: Sunday 31 October 2004

Patent injustice

-- With the world becoming increasingly knowledge-driven, protecting the rich traditions of Asia and the Pacific region has assumed great significance. The incomplete mandate of the Doha Round of talks followed by the failure of the Cancun summit last year has widened an already existing divide between the developed and the developing nations on the issue. There was some headway in the recent deliberations of the World Intellectual Property Organization in Geneva; nevertheless, according protection to traditional knowledge remains an unfulfilled task.

Such knowledge has flowed down generations of different societies and cultures, with each generation making substantial modifications and innovations to it. In India, traditional wisdom comprises many elements of folklore as well. Examples include Sanganeri and Bagru prints and Kota Doria weaving from Rajasthan, the Chavittu Natakam theatre of Kerala and Gujarat's Patan Patola weaving tradition.

It's a great pity, however, that India's rich repertoire of traditional knowledge faces extinction, today. In many cases, it has been exploited commercially without any benefit accruing to the original creators. The popular Hindi film song " Nimbuda " exemplifies such exploitation. Originally written by Gazi Khan of the Manganiyar clan of Rajasthan, the song was appropriated by the makers of Hum Dil De Chuke Sanam without acknowledging the original author -- the folk artist or his community getting monetary benefits from the commercial proceeds of Nimbuda was, of course, never an issue. This is not an isolated case: recently two composers were engaged in a bitter copyright tussle over a song which actually belongs to a folk community! Besides, there could be innumerable unreported cases where designs, craft techniques, processes or art forms of communities have been appropriated by commercial interests, without any benefits to their original creators. Such exploitation happens because most of our folk artists, artisans and other holders of traditional knowledge are either unaware of the commercial value of their wisdom, or are uninformed of ways in which they can use it to their advantage.

Meanwhile, the inability to eke out a living from their traditional crafts has forced many artisans to seek alternative employment. Today, only three families create the original Patola. Kani weavers of Kashmir are a fast diminishing tribe, while extreme poverty has forced the Patuas (potters) from West Bengal's Midnapore district to seek jobs as labourers or petty shopkeepers. The younger generation of traditional Gujarati block printers too has no economic incentive to pursue their forefather's trade.
But there is hope Much misappropriation of traditional wisdom stems from a fundamental lacuna in the current Intellectual Property Rights regime. Its main criteria calls for individual authorship, specific date of creation and a proper record or documentation of the work in question. But traditional wisdom and folklore satisfy none of these. So, globally there is a need for a sui generis system, an entirely new approach to protect traditional knowledge. Till that happens, existing legal mechanisms like geographical indications (gi), trademarks, certification trademarks, collective marks, industrial designs and trade secrets can be used to protect traditional wisdom -- for these have provisions for community ownership. In fact, India's gi Act -- operational since September 15, 2003 -- accords protection to creations on the basis of characteristics derived from their geographical origin. The act offers some hope to folklore, much of whose attributes stem from its place of origin.

Besides, India's lawmakers will do well to take a cue from other nations. For example, Australia's Bulun Bulun and Totem Pole cases led to the extension of the country's copyright law to protect community rights of aboriginal artists. The Phillipines also recognises rights of indigenous peoples over their biodiversity related traditional knowledge and cultural insignia such as designs and paintings.

Traditional wisdom is the very basis of existence for many communities. Documenting such knowledge -- after obtaining the holders' prior informed consent -- and vesting the original creators with intellectual property rights will offer many communities incentives to create, innovate and develop their art further. More, importantly this will help communities to sustain themselves on their traditional skills.

Manisha Gupta is a researcher on intellectual property rights and an artist

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