Author: Nandini Parihar, University Five Year Law College, University of Rajasthan

The tapestry of culture, traditions, diverse languages, arts, crafts, and unsurmountable knowledge is unmatched around the world. The classical folk dances, music, and unique architectural styles instill a sense of pride in us; however, it is distressing that such a legacy is not protected duly by our country. The absence of a unified and comprehensive legislation on Traditional Culture Expressions and folklore exacerbates the situation. Illegal acts of culture misappropriation and biopiracy have become rampant. Gradually, the indigenous communities practicing unique cultures are losing recognition and economic gains due to business giants and fastidious commercialization. Loss of traditions and culture breaks the unity and originality of the country. This paper explores the need for sui generis legislation for Traditional Cultural Expressions (TCEs) and Folklore. It analyzes the current legislation, which has proved to be grossly inadequate in safeguarding the traditions and the communities practicing them. The paper addresses the major loopholes in the current Intellectual Property regime and provides various solutions to ensure that the TCEs are better protected to sustain India’s rich cultural legacy. 

Keywords: Traditional Cultural Expressions, sui generis legislation, cultural misappropriation, indigenous communities, folklore, Intellectual Property, biopiracy. 

The tangible and intangible cultural heritage of a community, unique and practiced by them, is called traditional cultural expression and expressions of folklore. WIPO has defined it as “productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community.” Traditional Culture Expressions and Folklores are used interchangeably. 

The term has wide connotations as it accentuates a community’s cultural heritage, its history, social identity and the values around which it was formed. It may include “music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.

In June 2025, a famed fashion giant, Prada, in one of its fashion events, launched a line of shoes similar to the traditional handcrafted Kolhapuri sandals made in Maharashtra and parts of Karnataka. Prada gave due acknowledgement to the original Kolhapuri maker as inspirators only after a massive backlash by the netizens. In the legal world, it was baffling how brazenly Prada had cloned the shoes and suffered no legal implications for the wrongful act. Instances of cultural appropriation are not new in the Indian landscape. The British colonizers have been trading Indian textiles, fabrics, and prints, skilfully plagiarizing them to sell back to India. Other Indian designs and aesthetics like Paisley and chintz fabrics, were also replicated over the course of time. Unfortunately, the GI Tag laws and other existing laws for protecting traditional cultural expressions and folklore are not robust and sufficient. 

To accommodate new subject matters like TCEs, who are unique and differ from the matters listed for the current IPR regime, a Sui Generis legislation should be introduced for the better protection and accommodation of the subject matter regarding traditional culture expressions. While India boasts as a country of rich diversity and kaleidoscopic cultures, the current laws do not guarantee protection and sustenance of the country’s rich cultural topography. 

TCEs have become a burning issue for discussion in the IP regime, more incessant due to the recent Kolhapuri Chappal and Prada Controversy. Cultural theft and misappropriation of Indian Culture have been happening for ages, more rampant in the British colonial era and in the modern ages. The absence of a robust legal system renders folklore more vulnerable. The current IP regime does not provide a holistic approach for its protection. The time period for protection in the Copyright Act is very short, as pointed out by Diwedi & Saroha (2005). 

Various articles, papers, and academicians have pointed out that an individual framework is necessary to protect TCEs from misuse and theft. WIPO and UNESCO recommended a plan of action for conducting regional consultations for paving a way for a sui generis law, as mentioned in studies by James T. & Yadav D (2019). Had the Prada Controversy not taken place, the talks on TCEs would not have taken place. Only a few articles and research papers give importance to this obscure subject matter in the IP regime; this must change for the good of our traditions and the handful of indigenous communities surviving on their culture and traditions. 

This study relied on a secondary qualitative research approach to explore the topic of Traditional Cultural Expressions and Folklores. The information was derived heavily from research articles, publications, and credible online news sources. Discussions and reports of the international forums like WIPO and UNESCO further helped analyse and study the importance of TCEs in the modern world and models to protect them. 

There is no separate legislation in India protecting the TCEs. However, the Constitution of India, various IP legislations, and other international frameworks help regulate them.

1. The Constitution of India 

“The Constitution of India is the grundnorm and all other acts, legislations, and rules have to be in conformity with the Constitution.” Article 21 of the Constitution provides the Fundamental Right to Life and Personal Liberty. It consists of a broad spectrum of rights which, if liberally interpreted, can protect TCEs and the expression of folklore. 

Article 29(1) provides protection to the cultural rights of minorities. It is an integral fundamental right forwarding to all sections of citizens in any part of India with distinct language and script or culture, the right to conserve and protect. It champions the rights for distinct minority communities to help preserve and follow their culture with pride; however, the ambit of the article becomes narrow to include varied traditional cultures. The majority powers of the article protect only the minority communities, more prone to the apprehension of exploitation than the prominent communities.

Article 51 (f) mentioned under Part IV A of the Constitution imparts a fundamental duty upon the citizens to value and preserve the rich heritage of India’s composite culture. It is a moral obligation upon the citizens to preserve the rich cultural heritage. Thus, the constitution does provide a specific provision for maintaining TCEs and expressions of folklore. Although the non-enforceability of fundamental duties underappreciates the provisions' effectiveness. 

2. IP Legislations 

The Copyright Act, 1957, must be amended to include the provision for the protection of TCEs. Certain provisions under the Act, like section 38 of the Act, provide that where any performer engages in any performance, he has a special right known as ‘performer's right’ in relation to such performance. The Act, although does not provide any specific mention for expressions of folklore but the definitions of artistic and dramatic works, engravings, Indian work, literary work, musical work, performance, and performers are thoroughly defined in the act which can include TCEs within its ambit. 

The Trademark Act, 1999, is an instrumental statute providing protection from infringement of trademark and for no-registered goods and services. It offers the idea to make collective marks that can be used for traditional or cultural brand images, safeguarding the rights and culture of the owner. 

“The majority of the TCE owners rely most on the GI Act to protect products of their labour, particularly in the case of handlooms and handicrafts.” GI Tags or Geographical Indication Tags legally recognize and protect intellectual property from a specific geographical region. GI Tags are given to handicrafts, cuisines, agricultural or natural products, etc. Thus, they are integral in ensuring the protection of TCEs. 

3. Internationals Legislations 

There is no such international framework that regulates TCEs at large. Various organisations like the UN and WIPO have time and again tried to form and regulate legislations and rule for the same. 

The United Nations Educational, Scientific and Cultural Organisation (UNESCO) adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CCD) in 2005 at the General Conference; it was the first ever instrument protecting the traditional expressions. The World Intellectual Property Organisation had created an expert committee to oversee the idea and aim to bring out a key legal instrument that would ensure protection to various subject matters under the Intellectual Property System. “Various international forums have discussed the need to protect traditional knowledge” and “traditional cultural expressions. These include agreements, conventions, and treaties of the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO); the Convention on Biological Diversity (CBD) and the Trade Related Aspects of Intellectual Property Rights (TRIPS), the work of WTO, International Undertaking on Plant Genetic Resources for Food and Agriculture (now the FAO International Treaty).”

5. At the crossroads of separate legislation: Inadequacy in the current IP Regime. 

In the absence of separate legislation and weak legal implications of the present laws, Traditional Cultural Expressions are often misused by a few rich and powerful. The unique cultural traditions of indigenous communities are advantageously used by various people to gain economic benefits, like Bollywood has taken unsurmountable references from folk dances and traditional music of various tribal communities to be used in their glamorous frames. Tribals dances like Ghoomar of the indigenous community Bhils in Rajasthan, showcased in the movie “Padmavat”, and Dhumal of the Wattal Tribes of Jammu and Kashmir, presented in the movie “Haider”, were not given any consideration even when they were used extensively outside of their traditional scope. The traditional practices by the communities since time immemorial are commercially exploited by Bollywood, and the original artists and their music are never given due credit. Quite often, fashion moguls around the world have copied and refashioned Indian fabrics and textiles. From Madras Checks to linen, Nehru jackets, Khaki, Chintz, and, quite recently, the Kolhapuri sandals introduced in the West by Prada, there is an endless list of traditional Indian wear being present as the latest vogue and trends, although they are being produced, perfected, and marketed by a handful of indigenous communities for generations in India. 

Agricultural goods like Turmeric and Basmati rice were patented by the U.S. 

In the “Turmeric Patent Case” or the “Haldi Battle,” researchers of the University of Mississippi Medical Centre were granted a patent by the U.S. Patent Office for Turmeric for its wound healing properties. “This patent also granted them the exhaustive right to sell and distribute turmeric worldwide.” India had to prove the turmeric’s healing properties were authentically an Indian practice and still in use since ages. Similarly, Basmati rice and its variants were patented by RiceTec. Facing massive opposition by various protesters and after a 3-year legal battle between the Governments of India and the United States, the USPTO finally accepted the petition for re-examination of Patent' '484. As a result, RiceTec agreed to withdraw 15 out of 20 patented claims and agreed to change the title of the invention, i.e., no longer using the term, Basmati.

There have been numerous instances where traditional Indian culture has been exploited by foreigners for economic gain. 

Various countries like France, Sweden, Egypt, Morocco, Italy, etc have a separate legislation to govern matters related to TCEs. “The traditional IP statutes in some nations contain no explicit references to folklore, but TCEs may still be protected in those nations under copyright law, other traditional intellectual property doctrines, or through special statutes. For example, most countries in Europe have copyright legislation that may be used to cover traditional knowledge, but do not have any provisions explicitly mentioning TCEs.”

The present Indian Law that accommodates the subject matters of TCEs often falls short in guarding them. Copyright Laws often fall short due to their Western-centric framework, which may not fully accommodate the communal and evolving nature of TCEs. A majority of TCEs' subject matters, which are a part of the public domain for a long time, find no protection from the copyright laws in India. Moreover, ‘Originality’ and ‘individuality’ are two principles of copyright laws which do not conform to TCE works The Act emphasizes ‘authorship,’ which is primarily missing in the case of traditional communities.

The Copyright Act provides protection for a limited period, which makes TCEs vulnerable as they are present in society for a long time. The performer’s right granted to any indigenous community who records the performance is granted for a short duration of 25 years and only to those communities, the traditional cultural expression belongs to.

GI Tags, although a dynamic approach in protecting TCEs, often fall short in their applicability due to their narrow scope. Some traditional cultures that are not geographically tied to a certain place cannot be protected. Further, there are numerous loopholes in the present system of law for GI Tags, misused by many, like Prada, in the recent Kolhapuri Chappals controversy. Even though the footwear was strikingly similar but since Prada never named the footwear as “Kolhapuri Chappal,” there was no infringement of law.

At the international level, there is no single framework that systematizes TCEs and mandates the member nations to form a separate national framework for the same. The TRIPS Agreement, formed to proliferate various forms of intellectual property protection, fails to mention expressions of folklore. ILO Convention No. 169 protects the indigenous rights globally and in Africa but countries are yet to ratify this convention, reduced to only a document. 

A trademark is only effective for a few commercial goods. The Indian Trademark requires proof of commercial use. Many cultural expressions do not have a direct link to commerce and are not used as designations of source to the consuming public. Patent laws do not provide much scope for TCEs. Since folklore culture is passed down to generations and is already present in the public domain hence the principle of prior public use excludes the option of patents to protect TCEs. All major Intellectual property protections do not provide a definitive scope for protection of TCEs; hence, it is more viable to ensure that a sui generis model for TCEs protection is made. 

6. Towards a better IP regime for Expressions of Folklore

   
   

7. A sui-generis legislation

Sui Generis is a word derived from the Latin meaning “a special kind.” In terms of TCE’s it means a system or regime of law made especially to protect and provide rights to meet the needs of those practicing Traditional cultural expression and folklore. There is no separate legislation in our diverse and multi-cultural country that deals with the matter of TCEs. It is imperative that expressions of folklore and the rich cultural heritage of our country are preserved. The current IPR framework is inadequate to protect the property rights of traditional culture and folklore. Hence, a novel sui generis system is a must. 

At the international level, the discussions of a sui generis model have been made several times. “The UNESCO/WIPO World Forum on Protection of Folklore, 1997, viewed existing copyright law provisions to be inadequate for the protection of folklore. It recommended a plan of action for conducting regional consultations for paving a way for a sui generis law.”

A separate legislation will ensure clarity to those who hold the rights to a particular unique culture and practice. Many model laws for sui generis rights such as Tunis Model Law on Copyright for Developing Countries (1976) and WIPO Draft Provisions(2004) contain features of holding rights of TCEs (although the Tunis Model has been proved to be incoherent with the Indian Laws) “Holders of rights can be split into (1) legal owners (title holders) of TCE, (2) beneficiaries of protection, i.e. the actors entitled to receive compensation, and (3) actors responsible for negotiating access with non-traditional users.” Sui generis frameworks will provide a collective ownership for their produced work. Communities collectively working for decades on their practice can gain benefits for their hard work; no single person will hold rights over the TCEs, which will further strengthen the nature and practices of TCEs. 

The mechanism should include positive mandates as well as negative mandates. Any illegal infringement causing distress and loss should be punished and positive mandates will ensure exclusion of others further guaranteeing robust ownership. 

Developing a sui generis mechanism for the country to recognize TCEs as one of the forms of IPR, thus, Indians will be able to adopt various international treaties and conventions necessary for changing times. It will also make India’s reputation grow in this field at the world stage. 

Many have advocated for sui generis law, and it is only right that India tailors a specific law for the unheard and unsung artisans, agriculturalists, crafts persons, dancers, singers, and others who can become a part of the mainstream society. 

While IP Laws will still take time to adapt, some necessary changes could be made in the present laws to ensure that TCEs are protected. The existing frameworks include the Copyright Act, 1957, which should be amended to fit the criteria of collective ownership, ensure a lower economic burden, and have a flexible timeline for the protection of TCEs

The Geographical Indication (GI) Act 1999 should be amended to include intangible cultural expressions along with the goods as given before. Its scope should be widened to include TCEs. 

Documentation and registration for TCEs should be done at intervals to ensure better protection; it would give surety for legal claims and safeguard against unwarranted use of cultural and traditional knowledge. Supporting cultural communities through awareness campaigns and events makes sure that they thoroughly know their skills and innovations, which motivates them to protect them as well. A well-developed enforcement mechanism will help report unwarranted use of TCEs and report them effectively.

India is a diverse country with rich cultural heritage and distinctive indigenous communities who are pioneers of art, culture, scientific knowledge, unique skills, and knowledge. However, in the 21st century, where everything is a finger click away, there is a threat looming over such communities as their unique knowledge and skills are easily available to all around the globe. The recent Kolhapuri chappals-Prada controversy is one such example. In the world of AI and the internet, their cultural skills and knowledge can be easily misused, which results in theft, biopiracy, modifications of their culture to amass economic gains, and cultural misappropriation. The emerging challenges are tougher to handle due to the insufficiency of laws for TCEs. A sui generis model is proposed to ensure that TCEs are protected, as other laws in the IPR regime are stringent and not robust enough to solve the problems faced by the indigenous communities. If India regulates its TCEs through a separate legislation, international mandates of the UN, WIPO, UNESCO, and other such organisations can be easily adopted, raising India’s reputation in protecting its culture and art. To ensure that a flexible and well executed IP regime for folklore, equity, and collective ownership should be its principles, which ensures cultures are protected and their sovereignty maintained. Cultures should be recognised and neatly registered so that it makes sure they are recognised. The lack of literature and research on TCEs should be eradicated at the national level. It is the utmost duty of all citizens to ensure their cultures are shielded from the uncultured indulging in cultural appropriation, for it is said that people without the knowledge of their past history, origin, and culture are like a tree without roots.

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