Why Traditional Knowledge Needs Legal Attention in India
India's vast and ancient cultural heritage holds deep reservoirs of Traditional Knowledge (TK)—wisdom systems, healing practices, agricultural know-how, folklore, and oral traditions passed across generations. These assets are not just cultural relics; they remain active contributors to local economies, identity, and sustainable development. Yet, they're alarmingly vulnerable to misappropriation—often commercialised without consent or benefit-sharing.
Legal systems rooted in Western intellectual property norms often struggle to accommodate the collective and intergenerational nature of TK. The Indian legal framework is in the process of catching up, balancing modern IP regimes with the need to protect community-owned knowledge. This article explores that delicate interplay, focusing on how the Indian Copyright Act, the Protection of Traditional Knowledge Bill, and evolving jurisprudence intersect with concepts like the public domain and copyright expiry.
By understanding this framework, creators, communities, and legal professionals can better protect India's cultural resources while ensuring they are not lost to exploitation or obscurity.
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The Indian Copyright Act and Its Limits on Traditional Knowledge
The Indian Copyright Act, 1957, governs protection of literary, artistic, musical, dramatic, and cinematographic works. It offers individual creators a statutory monopoly for a limited period—typically the author's lifetime plus 60 years in the case of literary, artistic, musical, and dramatic works and 60 years from the date of publication in the case of cinematographic films. This term-based protection assumes a fixed creator and a definable starting point for ownership, which traditional knowledge often lacks.
Traditional Knowledge (TK)—whether expressed through folk songs, rituals, textile patterns, or oral epics—typically emerges from communities, not individuals. It evolves over centuries and resists neat attribution. Consequently, much of India's folklore and indigenous expressions fall outside the purview of conventional copyright, unless they are documented, fixed in a tangible medium, and registered in the name of a person or legal entity.
Where traditional forms like tribal music or performance are fixed in recordings or transcriptions, those recordings may be protected. But the underlying knowledge—say, a healing chant or ancestral weaving technique—remains vulnerable if not formally recorded or recognised. This exposes TK to unauthorised reproduction or misrepresentation, especially by outsiders seeking commercial gain.
This disconnect between copyright law's individualistic structure and TK's communal nature has long been criticised, fuelling calls for sui generis protection tailored to traditional systems.
The Protection of Traditional Knowledge Bill – A Sui Generis Response
In response to the inadequacies of existing IP regimes, India introduced the Protection of Traditional Knowledge Bill, which seeks to create a sui generis framework. Though yet to be enacted, the draft bill outlines a legal mechanism to recognise, protect, and regulate access to traditional knowledge and cultural expressions held by communities.
The Bill proposes to establish a National Authority for Traditional Knowledge, with powers to register and maintain a comprehensive digital database of TK—especially undocumented or orally transmitted knowledge. Importantly, it introduces the principle of "free prior informed consent" (FPIC) and mandates benefit-sharing with the knowledge-holding communities.
What sets this draft apart is its focus on collective ownership. It doesn't require proof of novelty or originality in the conventional IP sense. Instead, it recognises that TK is often the product of centuries of community practice. The Bill prohibits unauthorised use, misappropriation, or any form of exploitation of registered TK, whether in India or abroad, and seeks to impose civil and criminal liability for violations.
However, the Bill also faces critiques. Some argue that codification could inadvertently fossilise TK or impose rigid definitions on what is inherently fluid and evolving. Others fear that community control could clash with academic or public access rights. Still, the Bill represents an earnest attempt to reconcile traditional community rights with modern legal frameworks.
Folklore and the Challenge of Cultural Attribution
Folklore—encompassing folk tales, music, dance forms, craft traditions, and rituals—is a key subset of traditional knowledge. In India, it is both rich in variety and deeply intertwined with regional identities. Yet, the legal framework offers little direct protection for folklore unless it has been transformed into a copyrighted work by an identifiable author or body.
Folkloric expressions like tribal drumming, bhil wall art, or the oral renditions of Ramayana in northeast India often face commercial exploitation without any credit or benefit flowing back to their source communities. Fashion designers, content creators, and global brands routinely incorporate such elements into commercial products, often without permission or acknowledgment.
While Section 31A of the Copyright Act allows the government to publish unpublished Indian works in certain cases, it does not offer robust remedies for misappropriation of living traditions still in use. The underlying issue is attribution. Traditional folklore is often anonymous, collectively nurtured, and continuously evolving. This makes it hard to assign ownership in legal terms.
UNESCO and WIPO have advocated for community-based rights over such expressions, and India has echoed these sentiments in international fora. However, domestically, much of folklore continues to slip through the legal cracks—used freely under the assumption that it belongs to the public domain.
Public Domain and the Afterlife of Copyrighted Works
In copyright law, the public domain refers to creative works no longer protected by intellectual property rights—either because protection has expired or because the work never qualified for it. Once in the public domain, a work may be freely reproduced, adapted, or commercialised by anyone, without seeking permission.
This principle, while fostering access and creativity, poses unique risks when applied to traditional and cultural assets. In India, once a work enters the public domain after the copyright term ends—typically 60 years after the author's death—it is no longer subject to copyright control. For instance, Rabindranath Tagore's compositions, which were under copyright until the 1990s, are now in the public domain and available for unrestricted use.
But traditional knowledge often predates the copyright regime itself. Unlike modern literary or musical works, it was never meant to be monetised or locked into proprietary models. When TK or folklore is assumed to be in the public domain merely because it lacks copyright, it creates a vacuum—where exploitation thrives and communities lose control over their heritage.
This is where the need for sui generis protections becomes urgent. Without them, cultural works of deep communal value—be they folk songs, craft motifs, or medicinal formulas—may be legally unprotected and wrongly treated as "free for all."
The Way Forward
The protection of traditional knowledge in India demands more than retrofitting old laws. It calls for a legal philosophy that respects collective authorship, intergenerational custodianship, and cultural sovereignty. Copyright law alone cannot carry this burden. Nor can assumptions about public domain status be allowed to displace community rights over ancestral knowledge.
Protecting India's cultural assets is not just a legal challenge. It is a moral and constitutional imperative. The legal system must evolve not merely to tolerate traditional knowledge—but to honour and safeguard it as a living, breathing part of India's legal and cultural landscape.
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