THE TRANSITION FROM TRADITIONAL KNOWLEDGE TO TRADITIONAL CULTURAL EXPRESSIONS

Law being a definitional discourse, semantics play a significant role in determining the truth value of propositions made and conclusions reached. It is therefore important to understand how the term ‘Traditional Cultural Expressions’ (TCEs) has come to replay TK in formal and informal fora. Earlier, the term ‘Traditional Knowledge’ was, at times, crudely substituted with “folklore” and it was felt that the latter was derogatory, since it appeared to treat indigenous groups as (oxymoronically) inferior civilisations and their traditions as superstitions or at best pseudoscience, which were yet to measure up to “modern” mores and science. It was thus decided that the language and tone of the dialogue itself had to change, if both parties were to be considered and treated on par.

Accordingly, in the sixth report of the Inter-governmental Committee Report on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, the term TCE was introduced to reflect the value systems of indigenous groups and to reinforce their heritage and worldview. According to the said report, TCEs act as sources of inspiration for practitioners of traditional arts, and hence, they need to be protected. The question, which must be asked here, is what constitutes ‘protection’? Is ‘protection’ the same as ‘preservation’?

‘Protection’ stands distinguished from ‘Preservation’ since the former refers to either authorising or excluding one from exercising any rights in respect of such expressions, whereas the latter refers to mobilisation of resources to ensure the continued survival and perpetuation of the expressions.

Further, protection means protection against injury and more importantly, against derogatory and offensive use. The injury to a community’s cultural expressions could be in multifarious ways such as intrusion into their privacy, passing off their identity, stereotyping their customs and accessing their literature without their consent. The right against such injuries falls within the penumbras of a much wider concept of ‘Cultural Rights’. Though such rights are deemed to inhere in indigenous groups, the necessity for their assertion arises when indigenous groups interact with the rest of the world, outside their community. This interaction again raises a few pertinent questions with regard to cultural rights in TCEs.

First, if indigenous groups decide to allow themselves and their TCEs to be subject to scrutiny by rest of the world, does it prevent them from seeking isolation again? In other words, is the change in their status irreversible? Such a conclusion would be draconian and would defeat the very objective for which protection of groups is sought, since groups need greater during interaction. The reason being that indigenous groups could be taken for a ride on account of their ignorance of the law, in which case the party which accrues benefits would go scot-free, taking undue advantage of the groups.

Accordingly, not only should indigenous groups have the liberty to choose if they seek interaction, but also the limits and mode of interaction would have to be left to their discretion with generous help from the law. This means that besides the right to object to commercial use by others and the right to commoditisation which vests with the groups, the groups may assert their right to be “left alone”. Some argue, that this would mean encouraging preferential treatment of such groups to the detriment of others. It has to be understood, that although the law has a distinct Kantian tilt (“Greatest Good of Greatest Number”), it does not and cannot permit emasculation of the rights of one group at the altar of “the larger good”.

Second, what is the scope and extent of cultural rights of the groups in TCEs, which the law deems fit for recognition? In other words, how small is small and how big is big an injury for redressal in and by a court of law? Since subjectivity is inherent in this question, the answer is best left to the factual matrix of each case. Prescribing a de minimis line may not do justice to the nature of the subject-matter.

The third issue is the most crucial of all. Can the State or a conglomerate of States (in the form of a treaty) decide upon the criteria for defining the rights of groups without taking into account the customs of groups? When custom has the force of law in accepted commercial practices, can customary law form the basis for indigenous jurisprudence? Or can we coerce indigenous groups into accepting our definitions of their personality? Also, violation of customary law could lead to loss of privacy of groups, which no amount of monetary compensation or damages can make good. This is all the more relevant since if damages were a way out of such cases, every entity with heaps of greenbacks would violate customary laws with impunity no thanks to its financial clout. This explains calls from certain quarters for imposing a criminal deterrent.

Finally, it is to be noted that the law, which deals with reputation and cultural rights in cultural expressions, must not have a fixed boundary for, to delimit it would be self-defeating. Therefore, flexibility is a cardinal prerequisite to protect traditional expressions since such expressions are distinctive on account of their centrality to the lives of the groups.