International Academic Journal of Law ISSN Print: 2709-9482 | ISSN Online: 2709-9490 Frequency: Bi-Monthly Language: English Origin: Kenya Website: https://www.iarconsortium.org/journal-info/iajl Review Article Folklore and the need for Intellectual Property Status: A Study of Phad Painting in Bhilwara District of Rajasthan Article History Abstract: Humans have a propensity to generate, refine and pass on the knowledge from one generation to another, so that their tradition is conserved Received: 20.04.2021 through several generations. One of the most important aspects of traditional Revision: 30.04.2021 knowledge is “folklore”, which like other forms of traditional knowledge is under Accepted: 10.05.2021 threat of exploitation as a result of too much of technological advancement and Published: 20.05.2021 industrialization. The whole scheme of research is based on the hypothesis that Folklore is required to be protected as an Intellectual property but doesn‟t qualifies Author Details to be an Intellectual Property(IP) under the existing regime and altogether a sui- generis approach by way of legislation or amendment in the existing legislation is Divya Singh Rathor the need of the hour. The existing Intellectual Property(IP) regime is an ineffective Authors Affiliations tool to protect the diverse folklore. Through research, an argument can be primed that whether Rajasthan‟s Phad Painting, a folk art can be socially and legally Assistant Professor, Law (Research Scholar- protected in the form of folklore through a sui-generis protection system like NLUO) National Law University, Odisha Tunisian Copyright model and African Music Project. Through this research on Kathajodi Campus Sector-13, CDA, Cuttack Folklore vis-à-vis the IPR regime the researcher aims to examine if the folklore fits Corresponding Author* into the definition of “intellectual works/s” as protected under the IPR regime in India and across the globe and to look into the vulnerability of folklores like Phad Divya Singh Rathor Painting the folk art of Rajasthan and the address the need for protection. The How to Cite the Article: research is primarily based on Doctrinal method of research wherein the researcher Divya Singh Rathor; (2021); Folklore and shall carry out the detailed study of primary sources as well as secondary sources. the need for Intellectual Property Status: A The scope of research is limited to only one Folklore i.e. Phad Painting, which is the Study of Phad Painting in Bhilwara District famous folk art of Rajasthan. of Rajasthan. Int Aca. J Law; 2(3) (May- June, 2021): 6-16 Keywords: Traditional Knowledge, Exploitation , sui-generis legislation. Copyright @ 2020: This is an open-access article distributed under the terms of the Creative Commons Attribution license which INTRODUCTION permits unrestricted use, distribution, and reproduction in any medium for non In order to preserve the traditions, generating, refining and passing on commercial use (NonCommercial, or CC-BY- knowledge from one generation to the other is a natural tendency of human NC) provided the original author and source communities since time immemorial. Such knowledge based on traditions and are credited. integral to the cultural identity of the social group in which it operates is generally termed as “Traditional knowledge”. What qualifies to be termed as traditional knowledge so as to be protected under the current legal regime is subjective and varies from community to community. Broadly speaking, Traditional medicines, Tales, Ballads, folklores etc can be considered as traditional knowledge. Such traditional knowledge can be used for food security (e.g. use of Hoodia cactus as life saving food on hunting trips in Kalahari deserts), medicinal uses( e.g. antiseptic properties of neem & turmeric), religious purposes(e.g. folk arts like Phad painting), entertainment purposes (e.g. chhau dance form), therapeutic use(e.g. use of essential oils) etc. One of the most important aspect of traditional knowledge is “folklore”. “Folk” simply means people and “lore” as per the Oxford Dictionary means “a body of traditions and knowledge on a subject or held by a particular group”. Folklore primarily consists of ballads, music, recipes, oral history, proverbs, jokes, popular beliefs, fairy tales, stories, tall tales, arts and customs that are the traditions of a culture, subculture, or group and relate to the cultural identity of that group or sub-group in which they operate. It is also the set of practices through which those expressive genres are shared. For instance voodoo doll associated with some form of mythological magic, Musical tunes of African continent, practice of worshipping on the first harvest, heroic tales, Jatakas, etc are some of the folklores present in India and world. The most common example of folklore is the love tales of Arjun and the Nag-Kanya, the tale of Nanda Devi, tales about fairies visiting Khet Parvat, Aipan art etc in the state of Uttarakhand. Further, Bujhoval or questioning as a part of ancient yaksha worship and playing of Algoza( a pair of flutes operating as One) are some of the lesser known folklore of the state of Rajasthan. Available Online: https://iarconsortium.org/journal-info/iajl 6 Divya Singh Rathor; Int Aca. J Law; Vol-2: Iss-3 (May-June, 2021): 6-16 The research is based on the hypothesis that If jhijhi, natua, jhumaror jogira appear alien to a Folklore is required to be protected as an Intellectual 21st century person then it‟s not the unawareness or the property but doesn‟t qualifies to be an Intellectual lack of knowledge that is to be blamed rather it‟s the Property under the existing regime and altogether a sui- extinction of the dance form itself completely from the generis approach by way of legislation or amendment in mainland of India because of which no one knows the existing legislation is the need of the hour. about it. Through the research, the researcher shall attempt to The Guardian on 27th of January 2010 reported that discuss and deliberate upon the role and importance of the Ancient tribal Bo language has become extinct as folklore in preserving the cultural heritage of India last speaker dies”. With the death of Boa Sr, last person generally and the pristine state of Rajasthan fluent in the Bo language of the Andaman Islands, the specifically. The attempt shall be made to contrast the link with 65,000-year-old culture of island was broken view that “Folklore” can be protected under the existing with no clue about its possible preservation. IP regime, by comparing the existing regime and the Furthermore, Domni dance of Maldah, West Bengal status of Folklore by specifically discussing the unique and Chitrakathi painting of Maharashtra which is art of folk art form of Rajathan- Phad Painting. Undoubtedly, depicting stories of Mahabharata, Ramayana and Nandi the state of Rajasthan is rich not only in flora & fauna Puran on cloth with natural color are some other but also in various cultural aspects such as folk-art, folklores which are on the verge of extinction and their folk-music, folk-dance, ballads, tales etc and every art patrons are dying without even two square meal. form is unique in its own way. However, the scope of this research has been limited to only one form of With the advent of trade and commercialization the Folklore i.e. Phad Painting, which is the famous folk art folklore has started losing its significance. The of Rajasthan because not everyone is aware about the communities have started losing their traditions because uniqueness of this art form due to which it is losing its of the entry of the Multinational Companies and authenticity. The art form is an unique combination of industries, who exploit the age old traditional knowledge folk art, folktales, folkdance and folk music. The art in form of folklore to the detriment of the community form is perfect example where lacunae of the existing possessing such folklore. IP regime in protecting the folklore can be put forth and the reasoning for sui-generis approach in protecting The original possessor of these folklores i.e. the folklore can be proved. indigenous communities are deprived not only of the economic rights but also the moral right. The NEED FOR PROTECTION knowledge which is possessed by the indigenous Folklores are an integral part of cultural heritage and community and should be used for the betterment of a valuable resource for historical and contemporary community possessing it, is being exploited by big comparative folk narrative studies. They reflect moral players e.g. folk music is very often alleged to be copied values, beliefs, and identities of groups and individuals and used in commercial cinemas for earning profits over time. In addition, folklores can be studied to which generally never passes on to the community to understand variability in transmission of narratives over which the original folk music belonged. time. Because of the rapid misuse and misutilization there In today‟s world of globalization the most urgent is a huge debate across the globe about status of folklore concern is probably the alarmingly rapid disappearance as an independent IP. Most significant challenges have of folklore and the traditional knowledge imbibed in it. been to the countries like India, Brazil and the African At a time when Traditional Knowledge especially union which have got plethora of traditional knowledge folklore has started enjoying mainstream acceptance it in form of folklore. has not had before, human culture is eroding at an unprecedented and alarming rate. In light of this debate about protection of folklore, there are two views which find place, the first one being According to the IUCN Inter-Commission Task that the folklore needs to be recognized as an Force on Indigenous Peoples: independent Intellectual Property & to be protected “cultures are dying out faster than the under sui- generis legislation.