Weaving the Law: Protecting Traditional Cultural Expression in Traditional South and Southeast Asian Attire

Introduction 

Traditional Cultural Expressions (‘TCEs’) as defined (page 6) by the World Intellectual Property Organisation (‘WIPO’), ‘may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions’. To this abstract definition, WIPO extends the scope even further by including any ‘form’ in which traditional culture might be expressed, and is characterised as forming part of the history of a ‘traditional or indigenous community’ which is passed down from ‘generation to generation’.

By sketching the idea of TCEs as one which is typified by its relation to society and culture over time, the exact ambit of the term has become convoluted. In 2000, the WIPO General Assembly established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (‘IGC’), which as per its updated mandate, works ‘on the protection of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs), with the objective of finalizing an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property, which will ensure the balanced and effective protection of TK and TCEs’.

Traditional Knowledge (‘TK’) is an associated yet parallel concept that refers to the ‘technical know-how’ behind traditional expression. However, recognizing that traditional clothing constitutes aspects of both TK and TCEs, for the sake of brevity of this work and to establish its scope, the subsequent work on Traditional Clothing is limited to TCEs, with brief references to the distinct forms of IP, not being TCEs, that are used protect traditional clothing- some of which may in theory equate to the idea of TK.

While the IGC has been able to adopt a treaty on intellectual property (‘IP’) and TK protection with regard to genetic resources, the work on TCEs has been rather halted. Material from the later IGC sessions makes it evident that the term TCEs was coined to replace ‘expressions of folklore’ (page 9), due to the shortcomings of the latter. The intent behind a broader, more inclusive term was to extend protection over a wider range of community and indigenous oriented forms of representation. However, the IGC has not yet adopted any document with respect to governance of TCEs internationally. 

This piece aims to conceptualise the gaps in protecting TCE over traditional attire, especially given the cultural context of South and Southeast Asia (SSACs). Further, there is an attempt made to situate this possible protection in existing Intellectual Property Laws, and it is argued that the existing laws' inability to do so requires the creation of sui generis legislation.

TCEs in South and Southeast Asian Countries 

In 2017, the two gap analyses conducted in 2008 on the protection of traditional cultural expressions/expressions of folklore and TK were updated in consonance with the work done post the 2008 analyses and a review of regional and international efforts. Regardless of the considerable time gap between the two analyses, much of the identified lacunae remained consistent between the two reports. One of the most crucial of them is the absence of a definition for TCEs. This inability in formulating a common definition is a logical consequence of the idea behind TCEs. TCEs, by their very nature, are supposed to be community-oriented rights, wherein the proof of authorship should not be a prerequisite, given their intergenerational sustenance. What may constitute social norms like ‘tradition’ and ‘culture’ in itself will vary from country to country, internationally and between community to community, domestically.

This problem exacerbates in SSACs where not only has the impact of colonialism been deep and is rather fresh, but where many community roots might find common heritage, which has now been divided due to the creation of separate nation-states. Within this discussion, it must be highlighted that the role that SSACs play is critical to the larger picture, too, which is the development of an international IP regime for the protection of TCEs. SSACs constitute a major voice of developing and least developed economies.

With the financial position that China, India, and Singapore have acquired globally, ignoring the economic rights of communities from these countries is unaffordable; this puts SSACs in a unique position to negotiate Model TCEs rights and trade regulations to their advantage. Given the multifaceted position that SSACs occupy in such discourse, their contribution to international discussions is pivotal. SSACs, therefore, act as beneficiaries, agents, and representatives all at once.

Alternate Forms of Regulating Traditional Clothing TCEs in SSACs 

Due to the absence of a sui generis law in any of the SSACs on the subject matter, countries that do afford any form of protection to TCEs in the form of handicraft or textile do so under other established IP regimes. Indonesia (chapter v) and Vietnam (article 14(k) and 23), for instance, have granted protection to TCEs under their respective copyright legislation. The Philippines, under its Indigenous Peoples Rights Act of 1997 (sections 3(o), 29 and 31), expressly includes textile designs as eligible for protection. In India, for example, traditional textile work tends to seek protection under the Geographical Indications of Goods (Registration and Protection) Act, 1999. Geographical Indications (‘GI’) have come to be increasingly favoured as the form of protection in the absence of a TCE-specific law. However, this confidence may be unfounded as GIs are typically a ‘law against unfair trade practices’ and the purpose of preventing those is primarily the protection of the consumer and subsequently, the market. By having to place TCEs within a law that is more consumer-centric than it is community-driven, driven would be moving away from the intent behind advocating for a separate set of protections for TCEs and TKs.

One of the most fundamental questions that arises, and the point of divergence in granting protection to TCEs under other kinds of IP laws, is the ultimate ownership of the granted IP. With TCEs, it remains uncontested that the ownership must lie with a ‘community’. This will naturally raise questions and necessitate an inclusive provision for the establishment of what constitutes a ‘community’.

This resonates with the discussions at the 37^th session of the IGC, wherein, upon reviewing the 2008 gap analyses, the report makes it expressly clear that the frame of reference for the term ‘community’ is in a broad relation and does not reflect a consensus amongst the member states. The quandary surrounding the exact meaning of TCEs and associated terms is a reasonable ground for advocating for sui-generis legislation within domestic law for TCEs. While provisions, in so far as the types of rights and limitations, might be inspired by a Model Law that IGC creates, there must necessarily be specificities that cater to the needs of independent countries.

A Case for Sui Generis Legislation 

A peculiar problem in the case of traditional clothing is the extent of use. As highlighted earlier, TCEs at large suffer from the problem of indeterminate language, where establishing a standard of proof universally might be a double-edged sword and not necessarily advised. However, specifically in the case of traditional clothing, given the rapid speed at which globalisation has taken its course, traditional clothing has been one of the very first identifiers to disappear. Under the scales of previously colonial, and now sovereign state-backed policies aimed at erasing indigenous identity in the name of development, and the subsequent coercion to assimilate with the ‘urbanised’, ‘civilised’ or however the most recent nomenclature approved by the Global North classifies it, has led to ostracisation of traditional clothing. This implies the need for subjective and independent state-based assessment before formulating any policy or law on the matter. A foundational objective of IP regimes such as copyright is to promote original expression and incentivise individuals in creating more of what they do by assuring them protection and claim over their work. Similarly, it would be naïve to view the granting of TCEs as solely protecting an already established community function. An encompassing law on protection of TCEs in traditional clothing would help to revive dying forms of textile and manufacturing, providing communities with an impetus for the same, at least, at the domestic level. By this, we inversely empower indigenous communities and reinforce their socio-economic presence by allowing them to reclaim their own work, backed by law.

India recognised the importance of understanding its unique position and introducing legislation for plant varieties despite being unregulated by the TRIPS agreement (The Protection of Plant Varieties and Farmers Rights Act, 2001). It came out with a sui generis law in order to address nation-specific challenges in the field. The legislative intent behind TCEs must function similarly across SSACs. The need for sui generis law on point has been supported by SSACs countries at IGC over the years. Even in the absence of an international IP regime on the subject-area, the United Nations Convention of the Development of the Right of Indigenous People (UNDRIP) provides for an overarching commitment in Article 31(1) by stating the right of indigenous people to “maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”

Conclusion  

There are two sides when assessing the nature of TCEs' protection we aspire to have for traditional clothing. Firstly, protection for traditional clothing may be granted along with the right to exclusivity. Unlike GIs, wherein the production of the same good is not prohibited, however, its representation as belonging to a GI-tagged location to garner benefit is; such a right of exclusivity will result in the exclusive production and sale of the TCEs' protected clothing by the community, which has rights over it. The second way forward is to look at the protection of traditional clothes similar to GIs, whereby production of the specific clothing is permitted elsewhere as long as they do not claim to be coming from the community with rights of TCEs. The latter side is replete with problems and forms a strong critique as to why traditional clothing should in fact not be brought under GIs. However, this does not imply the completeness of the former.

In order to ensure the highest possible economic and moral interests of the community, some form of alternative production of clothing needs to be permitted. Any new mechanism or rights and limitations to the production of such traditional attire must necessarily be in recognition of the unique nature of market and community interests of independent states. Succinctly, legislation on the protection of TCEs must be cognizant of ensuring that it expressly delineates what constitutes TCE for the purpose of the act, what forms of rights and limitations different forms of TCE carry and above all, keep the indigenous communities as the ultimate beneficiaries of the Act.

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This article has been authored by Anusha Verma, a fourth-year student at Rajiv Gandhi National University of Law, Punjab. It is a part of the RSRR's Blog Series on 'Ideas in Motion: Contemporary Frontiers in Intellectual Property Law’, in collaboration with Ahlawat & Associates.