Folklore, a creative social process consists of a multitude of things such as dramatic expressions, music, literature, dance and tapestry which though not always in a tangible form, falls within the meaning of literary and artistic work of the Berne Convention. Though not always present in a tangible form, it does form an inherent part of a particular civilisation such as the tapestry of Ladakhi people, folk tales of the Himalayan Tribes, Tribal dance drama of the Santhals etc. The globalised world today has made exploitation of folklore easier without making any recompense to the concerned community. Not only is their culture marketed heavily to obtain pecuniary benefits, but it is also adapted in a restructured way which undermines the identity of a civilisation. IP protection in the form of Copyright, Related rights or local legislations not only obviate such chances of adulteration and diminution by preventing unauthorised adaptions and reproductions but will also guarantee economic rights to the concerned community.
However, if Folklore is to be given recognition and protection under the international Copyright laws, it must fulfil certain benchmarks that is, it should be original, it should be independently created, nationality of the author should
be clear and it should allow fixation in a tangible medium. The presence of these conditions precedent for granting Copyright protection negates the chances of Folklore getting protection as with regards to the author, there is no single author, as it belongs to the community, though original it has absorbed social change over the years and the present version cannot be said to be original for the sake of protection and finally not all folkloric expressions such as drama, dance, tales etc can be fixed in a tangible form. Another major hurdle before folkloric expressions is the duration for protection and if it were even possible to identify a single author, it would be protected for their lifetime and a limited period thereafter before falling into the public domain.
However, there have been other developments which though won't extend copyright protection to folklore but will ensure sui generis protection, which will be extended from nation to nation basis. Such an idea emanates from the Model Provisions for protection of Folklore. The model provisions acknowledge the importance folklore holds for a developing country and provides for protection and points out towards a major drawback of the Paris Act. This came into being after both copyright laws and neighbouring rights failed to provide adequate protection to folklore and has laid down provisions for sui generis protection of Folklore is and when a country adopts the model laws.
The Model Provisions enumerates provisions for seeking authorisation whenever the purported act falls outside their customary domain however, the same does not extend to educational purposes and other related works falling under fair practices. The provisions also lay down a detailed scheme for penalties, civil remedies and seizures. The problem which makes its authority questionable and futile till a greater extent is that the model provision is not binding and leaves the implementation and execution part at the discretion of nations who may choose to proceed with the same.
India, being a developing country and having a rich folklore must take steps to protect the diverse cultural heritage spread across the provinces in order to prevent adulteration of the same and to ensure that the concerned groups are not alienated from their economic rights having a nexus with such folkloric works. India in furtherance of protecting the cultural heritage must learn from her eastern neighbour China which has cracked down hard on digitization of folklore and protected the interests of indigenous people. This step would strengthen India's foundation in the globalised economy and aid the ailing economy by providing employment to people and as a source of income for the government by marketing the same globally in accordance with the prospective legislation.
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