The concept of "cultural appropriation" is rather ambiguous. It refers to the act of an individual from a predominantly dominant culture appropriating/copying a traditional cultural expression and recontextualizing it without permission, recognition, or recompense, hence inflicting harm on the holders of the traditional cultural expression.
The biggest challenge with cultural appropriation is that it lacks statutory legal recognition and protection as well as an objective legal definition, existing in a nebulous area where acceptable inspiration transitions into detrimental appropriation. This ambiguity results from the fact that notions of misuse or misappropriation central to WIPO's initiatives regarding intellectual property and traditional cultural expressions, including the WIPO Intergovernmental Committee (IGC) discussions on safeguarding these expressions, may or may not coincide with the definition of "cultural appropriation," determined by the protective measures that WIPO's member states may establish.
Some current domestic and international legislations on protection of traditional heritage from cultural appropriation are WIPO’s The Protection of Traditional Cultural Expressions: Draft Articles, United Nations Declaration on the Rights of Indigenous Peoples (Article 31), USA’s Lanham Act and Indian Arts and Craft Act (IACA) along with many other regional copyright and trademark Acts incorporating protection of cultural property as well.
India has a distinct legal framework addressing cultural appropriation. This renders indigenous and local groups susceptible, as current intellectual property rules insufficiently safeguard traditional cultural expressions (TCEs).
The Indian Copyright Act of 1957 primarily restricts protection to original works. This presents difficulties for TCEs, which are typically collective and lack discernible authorship. Copyright often confers rights solely to the original inventor, complicating assertions by communities without established authorship.
Cultural Appropriation in Indian IPR Jurisprudence
While cultural appropriation remains a legally grey area, real-world disputes reveal how traditional knowledge is often repurposed by global corporations without due credit or compensation. Two illustrative cases from India—the landmark RiceTec patent controversy and the more recent People Tree-Dior copyright dispute—demonstrate how cultural assets are commodified, and why legal protections for Traditional Cultural Expressions (TCEs) must evolve to recognize, respect, and empower the communities that preserve them.
RiceTec Case
Basmati rice was patented by RiceTec in 1997, turning a traditional staple into a generic brand. India has farmed basmati rice in the Himalayan foothills for thousands of years, handing it down from generation to generation. Basmati is utilized in religious events, weddings, and centuries-old poetry. It's essential to Indian culture. When RiceTec obtained U.S. patent for its hybrid variety , an international legal battle erupted. In the case India argued that "Basmati" is not a generic term, but rather refers to long-grain aromatic rice uniquely grown in the Indian subcontinent for centuries. Allowing the name to be used for other rice varieties could confuse consumers and damage the reputation of authentic Basmati. Following objections from India and protests by local farmers, RiceTec voluntarily withdrew certain claims on its patent. The controversy raised concerns about biopiracy, as Indian farmers, who had cultivated Basmati for generations and relied on the export for their meagre income, saw the appropriation as unethical. Ultimately this case and several others like Neem and Turmeric impacted India to introduce the Geographical Indications of Goods (Registration and Protection) Act, 1999, to safeguard the cultural identity of indigenous products from cultural appropriation and biopiracy.
People Tree v. Christian Dior
Elle India's January 2018 cover featured actor Sonam Kapoor in a dress adorned with a traditional Indian print. The outfit appeared from Dior's 2018 cruise collection. Designer Orijit Sen accused Dior on Facebook and other social media platforms of copying his creation with the featured outfit. He asserted that he was selling the print a decade before Dior designed the outfit and continues to produce a similar traditional Indian pattern as of 2018.
The designer went on to say that his work is associated with the Kaladera communities' custom of "Dabu printing," which involves creating designs using block prints.
Orijit Sen asserts that selling a clothing without appropriate attribution undermines the collective contributions and livelihoods of the artists involved. This case initially involved allegations of copyright infringement. As social media pressure intensified and numerous individuals accused Dior of copyright infringement, it compelled Dior to engage in negotiations with People Tree. The negotiations were governed by NDA hence the settlement achieved remained confidential.
Proposals
The best way to preserve cultural elements is by recognizing them as Traditional Cultural Expressions (TCEs), provided they meet the established criteria. According to the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore of WIPO, TCEs are the forms, both tangible and intangible, through which traditional knowledge and cultural practices are conveyed. In their documents for the 39th Session in March 2019, the Committee outlined two forms of protection. Positive protection involves utilizing legal mechanisms, such as intellectual property rights, to prevent unauthorized exploitation and encourage the development of local enterprises based on TCEs. Defensive protection, on the other hand, aims to stop third parties from claiming illegitimate IP rights over these traditional expressions.
Another way to guard TCE is through GI, in fact in India mainly GI through the GI Act is responsible for protection of traditional knowledge. This is evident through the recent Sanganeri print scandal involving celebrity designer Sabyasachi’s collection Wanderlust in collaboration with H&M, which features the GI protected Sanganeri print without giving due credit or compensation to the artisans. India also has the Traditional Knowledge Digital Library that documents and protects India’s traditional knowledge.
Similarly, traditional copyright law protects TCEs in Australia. In Milpurrurru v. Indofurn Ply Ltd. aboriginal Australian artists sued a Perth-based company to stop it from importing Vietnamese carpets featuring the designs of several notable aboriginal artists without their permission. A portfolio of Australian National Gallery artworks inspired the designs. The federal court awarded aboriginal artists hefty copyright damages and an injunction against further infringement. The court noted that illegal use of the artwork was cultural heritage piracy and could harm the Australian cultural environment. The graphics on a carpet meant to be trod on were especially disturbing.
Even New Zealand's 2002 Trademarks Act prohibits the registration of trademarks based on Maori words or imagery that would offend Maori. A Maori Advisory Committee advises the Commissioner of Trademarks on whether a mark registration or use will be insulting.[1].
India could look to expand beyond GI and venture into Trademark and Copyright protection as well, taking inspiration from the above case of New Zealand and Australia, however, due to the time bound nature of these protection especially copyright I don’t think that would be suitable for TCE as they’re ancient knowledge systems which are continuously evolving and are passed down from generation to generation thus the protection should be indefinite.
Seeing as many of these cases are online petitions and social media outrage and most litigations end up in private settlements implementing a mandatory mediation requirement could foster constructive dialogue between stakeholders, reducing litigation and saving reputational damage.
In conclusion, both India and the international community currently lack robust legal protections for Traditional Cultural Expressions. However, the ongoing negotiations within the WIPO Intergovernmental Committee aim to establish a balanced international legal framework and offer hope to enable Indigenous peoples to exercise effective control over their cultural heritage.
References
- https://www.wipo.int/wipo_magazine/en/2019/04/article_0002.html (Accessed: 15 October 2024).
- https://journals.library.columbia.edu/index.php/TMR/article/view/5497/3231 (Accessed: 15 October 2024).
- https://www.researchgate.net/publication/353241941_Case_Study_of_Rice_Tech_India_-US_Dispute_and_Transformation_of_India_From_Trademark_Act_to_Sui_Generis_System
- https://www.ijlra.com/paper-details.php?isuurl=revisiting-people-tree-vs-dior-beyond-copyright-infringement-laws-for-protecting-handicrafts-by-divya-sampath
- https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=439151
- https://www.barandbench.com/law-firms/view-point/the-sanganeri-gi-dispute-cultural-misappropriation-and-the-need-for-benefit-sharing
- https://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/AILR/1996/20.html
- http://www.legislation.govt.nz/act/public/2002/0049/4.0/DLM164240.html
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