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Traditional Knowledge Protection Through The Existing Copyright Regime-Experience In Us, Australia And India



Tradition-based literary, artistic, or scientific works; performances; inventions; scientific discoveries; designs; marks, names, and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary, or artistic fields are all considered traditional knowledge by WIPO.Traditional knowledge has been passed down from generation to generation as an element of cultural identity. They communicate history, beliefs, aesthetics, ethics, and traditions of specific people by being intertwined inside practical solutions.Indigenous peoples have their own regionally specific systems of jurisprudence with regards to the categorization of different types of knowledge, proper procedures for attaining and sharing knowledge, and the nature of the rights and obligations that come with possessing knowledge, according to Russel Barsh, an indigenous peoples scholar and representative.

Protectection to TK in India

In India, copyright can be used to safeguard TK holders’ artistic expressions, particularly those of indigenous and homegrown artists, against unlawful copying and exploitation.Tales, legends and myths, traditions, and poetry are examples of literary works; theatrical works; visual works; textile works include fabrics, clothing, textile compositions, tapestries, and carpets. pieces of music; and three-dimensional works, such as pottery and ceramics, sculptures, wood and stone carvings, and various artifacts, is included in it.

As established under Sections 38 and 39 of the Copyright Act, 1957, related copyright rights, such as performing rights, could be utilised to protect singers and dancers’ performances, as well as presentations of stage plays, puppet shows, and other such performances.The focus on “original” works would effectively eliminate the prospect of conserving pre-existing traditional cultural manifestations, however derivative works would still be permitted. The Act confirms the common-law definition of “literary work,” which is to include work expressed in print or writing, regardless of quality or style.The idea of using copyright law to safeguard intangible cultural manifestations, such as those of traditional peoples and communities, dates back to the 1960s, and is known as folklore.The topic of copyright protection for folklore was discussed at the Stockholm Diplomatic Conference in 1967 for the revision of the Berne Convention.

The intervention of outsiders without their permission, the failure to ask for their permission before reproducing their work, and not only the third part pass on their work, but also traditional communities have had serious problems throughout the years with their set and unfixed creative forms, designs, handicrafts, music, and dramatic performance because they have failed to recognise the source of creation.It is impossible to prevent such difficulties and misappropriations that traditional groups confront, and India lacks a robust protection mechanism. Although no genuine cases have been reported in India to date to indicate the real situation.

Protectection to TK in Australia

Aboriginal artists in Australia have successfully sued on the basis of copyright infringement on a few occasions. The Dene of Canada, as well as various other indigenous people throughout the world, employ copyright law to regulate the use of their traditional knowledge by others.This means that when developing nations fully implement the TRIPS-mandated levels of enforcement, an increasing number of people and communities will be able to benefit from copyright protection.

The protection of TK has developed through various cases. In Yumbulul v. Reserve Bank of Australia[1], the Federal Court dismissed the claim of communal ownership of religious pictures. The trial court judge held that Australia’s copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works that are essentially communal in origin, and that law reformers and legislators should consider the issue of statutory recognition of Aboriginal communal interests in the reproduction of sacred objects.

Milphurrurru v. Indofurn Pry Ltd[2] was another case in which the court awarded damages for copyright infringement to a number of Aboriginal artists whose patterns were improperly replicated on carpets. The court recognised that this was a particularly serious copyright violation because the infringing works were used in a culturally degrading manner.

As a result, there have been a number of cases in Australia that depict its scenario, which does not provide complete relief but does provide a glimpse of relief through enactments, compensation for personal suffering, and the establishment of issues relating to Traditional Knowledge protection, and Australia’s experience is long-term but needs to be improved.

Protectection to TK in United States

US is one of the countries whose IP laws do not explicitly cover folklore, neither it extends to Traditional cultural expression (TCEs).However, the absence of these statutes does not imply that traditional knowledge is unprotected. TCEs are instead protected in these nations under traditional IP, customary, regional, or international laws, or under sui generis legislation[3].

In some countries where, when TCEs are not mentioned in national statutes, trademark law has been used to protect them. Indigenous peoples have used trademark law or its equivalent to protect tribal names and other designs and motifs from unlawful use (with different degrees of success).Under conventional trademark law, major efforts have also been undertaken to safeguard holy and culturally significant emblems, as well as collective and certification marks.

In response to Native Americans’ aspirations to reclaim self-governance and regulate the use of their traditional knowledge of non-community members, the United States has occasionally adopted narrow statutes. Some of the statutes are, the Antiquities Act of 1906, the Historic Sites, Buildings and Antiquities Act of 1935 etc.


Because of its limitations in terms of time, labor fixation, and authorship, the current copyright law for the protection of traditional knowledge is unable to provide an acceptable remedy.Thus, indigenous peoples require a sui generis regime for stronger community security, in order to avoid exploitation and misuse of their traditional knowledge, as well as to prevent other parties from reaping undue benefits from it.

It’s also difficult to believe that international conventions, declarations, and organizations, such as the Berne Convention, WIPO, WTO and the United Nations, are oblivious to the fact that traditional knowledge protection is still in place and are unwilling to change the existing copyright regime in order to avoid disparities affecting knowledge holders.

As a result, the Sui generis system will provide a better protection regime, providing relief to both fixed and unfixed forms of TK.As a result, international conventions must prepare to provide remedies to traditional knowledge holders for the more equitable use of knowledge passed down from generation to generation, so that not only India and Australia, but other countries suffering from similar disadvantages, can adopt a new regime for their traditional knowledge protection laws.




Contributed by:– Nidhi Jha, Legal intern at LLL

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