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

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, 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 . 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.

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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 status of Folklore by specifically discussing the unique and Chitrakathi painting of 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. The other view is that peoples associated with them. It has been there is no need of separate Intellectual Property status estimated that half the world’s languages as it can be protected under present Intellectual Property – the storehouses of peoples’ intellectual regime through existing Intellectual Properties like heritages and the framework for their Trade Mark, Geographical Indication, Patents, unique understandings of life – will Copyright etc. disappear within a century”

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Independent of the research outcome, with respect heritage developed and maintained by a community or to the two views expressed above it is imperative to by individuals reflecting the traditional artistic note that the first question to be answered is whether expectations of such a community, in particular: folklore qualifies as the Intellectual Property (IP). I. verbal expressions, such as folk tales, folk poetry and riddles; FOLKLORE AS AN INTELLECTUAL II. musical expressions, such as folk songs and PROPERTY (IP) instrumental music; Intellectual Property (IP) refers to the property III. expressions by actions, such as folk dances, plays arising as a result of creation one‟s intellect such as and artistic forms or rituals; whether or not reduced to inventions, designs, literary and artistic works, symbols, a material form; and images, performances, cinematographic works, IV. tangible expressions, such as: trademarks, geographical indications etc. Copyright, for A. productions of folk art, in particular, drawings, instance, protects the original work in literary, artistic, paintings, carvings, sculptures, pottery, terracotta, musical, cinematographic, sound recordings and mosaic, woodwork, metalware, jewellery, basket dramatic works, against unauthorized uses such as weaving, needlework, textiles, carpets, costumes; copying, reproduction, adaptation, public performance, B. musical instruments; broadcasting, importation and exportation and other C. architectural forms.” forms of communication to the public. Patent protects the inventions and the utility models in order to Based on the above definition folklore can be facilitate business and creativity. Geographical broadly divided into 4 areas of studies, namely- Indication strives towards protecting the identity and 1) Artifacts (e.g. Voodoo dolls, Pottery, Paintings) reputation related to goods & services with respect to its 2) Describable and transmissible entity (e.g. oral place of Geographical Origin. Goodwill, brand name tradition), and financial interests are protected under the Trade 3) Culture (e.g. dancing culture), Mark laws. Comparatively new legal regimes like 4) Behavior (e.g. Ballads, Tales) Semi-conductor and Integrated Circuits Layout Designs Act provides for the protection of semiconductor Classification and Codification of Folklore integrated circuits layout-designs and for matters For folklore studies or “Folkloristics” as it is connected therewith or incidental thereto. The Socially usually referred to as, an appropriate classification beneficial legislation, Protection of Plant Variety and system must be selected so as to bring into the Universe Farmers Right Act, 2001 (PPVFR Act) provides for the of IP, the largely scattered Folklores. One of the most protection of the interest of the Farmer community by acclaimed classification is the Aarne-Thompson-Uther access & benefit sharing(ABS). Classification of Folk Tales (ATU), which is a catalogue of international tale types and is an expansion In the context of folklore as IP, the notions of of the system first developed by Aarne (1910) for „preservation‟ and „safeguarding‟ refer mainly to the European tales and later expanded by Thompson (1928, identification, documentation, transmission, 1961) to include more tales from Europe as well as revitalization, preservation and promotion of cultural tales from India. heritage in order to ensure its viability as IP under the IPR regime. The preservation and safeguarding of There is yet another Classification of Folk literature cultural heritage and the promotion of cultural diversity the Stith Thompson Motif-Index of Folk Literature are the key objectives of several international which is a voluminous listing designed for the aid of the conventions and programs as well as national folklorists through motifs and is an enhancement of the legislations, regional and national policies, and earlier existing ATU Classification.1 For instance in S. practices. Thompson. Motif-index of folk-literature : a classification of narrative elements in folktales, ballads, However, in spite of all the conventions and the myths, fables, mediaeval romances, exempla, fabliaux, legislations, an imperative step in intellectual analysis is jest-books, and local legends, Indian folktales a precise definition of terms. Ironically, there is no like “Barber as matchmaker”, “Marriage of person and concise definition of the term "folklore” in any of the object”, “Marriage of girl to a sword” etc are mentioned International conventions or the national legislations. under number T53.5, T117 and T117.2 respectively. The WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore One of the worth mentioning classification is the Against Illicit Exploitation and Other Prejudicial genre based classification based on European and Actions 1982 ("Model Provisions") defines American concepts of folklore that has been extensively "Expressions of folklore" under section 2 as: relied for folkloristic in Philippines. In India context also the genre based classification is equally applicable. "Expressions of folklore means productions consisting of characteristic elements of the traditional artistic 1 Journal of Folklore Research Vol.34 Nº3, pp 195–202. 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The classifications of folklore, be it ATU, Motif- involved and the interest of the stake holder Index or Genre based help in protecting the folklores by communities possessing such knowledge. It is reducing them into fixed form which otherwise imperative to consider the other view also which states wouldn‟t have been possible due to the lack of that Folklore can be protected under the existing IP codification. According to Vladimir Propp the regime. In order to examine the veracity of the above classification of folklore is not an easy task considering view an analysis of Folklore vis-à-vis existing IP laws is the very wide nature of folklore. Further, the above as under:- mentioned classification primarily deal with the folktales, which is only a part of the universe of Folklore vis-à-vis Copyright Laws folklore. For many years indigenous people and communities If we look into the categorical definitions and have claimed that outsiders frequently reproduce their codifications of IPs vis-à-vis folklore then it can be fixed cultural expressions such as artistic works, stated that it doesn‟t qualify to be classified as handicrafts, designs etc, not only without their traditional IP because of the various reasons as listed permission but also without sharing the benefits arising under out of such reproduction. At the international level the 1. There is no precise legal definition of the term concern about these matters has been raised since 1960, “Folklore” and the term is wide enough to include when the idea of protecting traditional knowledge by several things within its ambit like folktales, applying Copyright emerged at the Diplomatic Ballads, Folk arts, Folk music etc which require Conference of Stockholm in 1967 for the revision of the different treatment and protection as different IPs Berne Convention. e.g. Phad Painting of Rajasthan is combination of Folk art as well as Folktales wherein it is believed Undoubtedly, Copyright was the first IP to protect that members of a particular Bhopa family can only folklore within its ambit, but it has some fundamental paint the legends on piece of cloth hung between limitations in the context of folklore protection. For two bamboo poles which was to be carried from instance, place to place for exhibition and performance  Copyright requires an “identifiable author” and the before those who were otherwise not allowed to notion of authorship is a problematic, in fact visit the temples impractical concept in many indigenous 2. It is difficult to reduce the folklore in a fixed form communities, as the folklore passes on from one as the there are several forms of a particular generation to the other generation. folklore and since mostly it‟s orally transmitted  Copyright gives temporary protection for fixed which form qualifies to be “original and authentic” time limit. is highly debated e.g. Aipan is an ancient and  Copyright requires the works to be fixed in some traditional art of Floor painting with red color material form, however most folklores are not fixed called geru and white color paste made out of rice and are passed on orally from generation to flour. The uniqueness of the art lies in use of the generation. two colors on the floor to draw the Aipan and depends upon the skill of the person drawing it, Folklore vis-à-vis Patent Laws usually a woman as per the traditions. Patents provide a legal monopoly over the use and 3. The traditional knowledge in form of “Folklore” exploitation of an invention which is innovative & has crossed the boundary of community which novel with industrial use for a specific period of time originally possessed it and is so much in public (usually about 20 years). The requirement of novelty domain that it can‟t be conferred as Monopoly may not be as difficult as one would think when it Right under IP regime e.g. Turmeric and it‟s comes to applying for patent based on some folklore. healing powers as Grandmother‟s recipe are not The expensive and time consuming claim of India over peculiar to any particular and is known in almost antiseptic properties of Neem and Turmeric and all Indian households. Conferring IP status under subsequent revocation of the Patents granted by United IP regime would be monopolizing in favor of few States Patent and Trademark Office based on Neem and against the larger public interest. Turmeric is the best example to this. The only way a patent can be denied on the basis of novelty is previous Folklore vis-à-vis Intellectual Property Rights documentation of the knowledge even if it has been in Regime the public domain centuries. As discussed in the preceding Para if one tries to protect the Folklore under the existing IP regime, the For example, despite the fact that maca, (Lepidium first challenge is with respect to the qualification and meyenii) was used by the Incas for fertility purposes categorization of “Folklore” as IP. The prudence lies not centuries before maca based patent applications were in trying to define the “Folklore” under the existing IP filed in the United States, patent examiners held the definition but trying to treat it as a sui-generis IP claims to be novel and non obvious, hence patentable. considering the wide range of traditional knowledge The key element in disproving novelty is prior existing

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However, the situation under Indian law is better Folklore vis-à-vis Trademark and the amended patent law of India contains provisions Trademarks are based on two principles of for mandatory disclosure of source and geographical distinctiveness and avoiding confusion for the purpose origin of the biological material used in the invention of facilitating trade and commerce. Not always folklore while applying for patents in India. Further, provisions has the trade or the commercial element in it e.g. the have been incorporated to include non-disclosure or Folk festival of Phulari of Uttarakhand has so many wrongful disclosure of the same as grounds for folktales attached to it and not all have the commercial opposition and for revocation of the patents, if granted. value and have only cultural relevance. To protect traditional knowledge from being patented, provisions have been incorporated which include However, Trademarks can be applied to folklore in anticipation of invention by available local knowledge, the following way- including oral knowledge, as one of the grounds for Suppose a company sells a product comprised of opposition as well s revocation of patent. Furthermore, maca, a plant native to the Andean region. An a new provision has been added to exclude innovations indigenous community in the Andes, the original which are basically traditional knowledge or knowledge holders of maca‟s uses, may also want to aggregation or duplication of known properties of sell maca or profit from their own natural resources and traditionally known component or components from knowledge. By placing this symbol on packages of being patented. maca, the consumer knows that the original knowledge holders approve of the brand. Folklore vis-à-vis Trade Secrets Trade secrets is completely a new IP and still at its Folklore vis-à-vis Geographical Indications nascent stage which intends to protect undisclosed A Geographical Indication identifies a good or knowledge through secrecy and access agreements, services as originating in a territory or region, or which may also involve paying royalties to knowledge locality in that territory, where quality, reputation, or holders for access to and the use of their knowledge. other characteristic of the good or services can be attributed to the place of its geographical origin. For Three elements are required for knowledge to be example, Roquefort cheese (from France) is product classified as a trade secret. The knowledge: associated with high quality cheese and is also a 1) must be commercially viable, Geographical Indication meaning that the Roquefort 2) must be a “secret” i.e. should not be in the public cheese can only be used to describe cheese produced in domain, and Geographical limits of Roquefort-sur-Soulzon, France. 3) must be subjected to reasonable efforts to maintain secrecy. Undoubtedly Geographical Indication provides for better protection to Folklore as compared to other forms Folklore that is maintained within a community of IP, but not all the Folklores can be covered under the could be considered a trade secret, but once the GI regime like Ballads, Folktales etc. knowledge is disseminated to the public, this option no Based on the arguments laid above it can be said that longer exists as a trade secret is only enforceable till the instead of the umbrella protection as expected and time it remains a secret. Further, as of now trade secrets required considering the vulnerable nature of both have no legal protection except in cases of “breach of Folklore and Stake Holders possessing it, the protection confidence and other acts contrary to honest accorded at present can be explained by the illustrative commercial practices.” This means that one must be diagrams mentioned below:- able to prove some form of malicious intent on the part

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EXPECTED PROTECTION PRESENT SITUATION

Patent Design and other IPRs

IPR Regime Trade Folklore Copyright Folklore GI Mark

Figure No. 1

It can be said that the current IPR system cannot Thirdly, the existing IPR regime adopts a restricted completely protect “Folklore” for the following three interpretation of invention which should satisfy the reasons:- criteria of novelty and be capable of industrial Firstly, the current IP system seeks to monopolize application, whereas traditional innovation is the ownership in favour of individuals or corporations, incremental, informal and occurs over time. Further, at whereas Folklore primarily has collective ownership times innovations based on Folklore might not even e.g. it‟s impossible to ascertain as to who is the owner qualify for the Novelty, Non-Obviousness and (in terms of IP) of the famous Folktale of Fairies Industrial application criteria. visiting and protecting the Khet Parvat in the New Tehri of the Garhwal region of Uttarakhand or horror stories relating to Bhangarh Fort in Rajasthan. Traditional IP This proves the first part of the hypothesis that the like Copyright can‟t protect this because neither the Folklore is required to be protected as an Intellectual author is identifiable nor the work is in fixed form. property but doesn‟t qualifies to be an Intellectual However, if someone creates any piece of literary, Property under the existing regime and simultaneously artistic, dramatic, musical, sound recording or the current IP laws are ineffective in protecting the cinematographic work based on the same folktale, it can plethora of Folklore that India has. definitely qualify for protection under Copyright law subject to the requirement of Originality, Idea- NEED FOR SUI-GENERIS APPROACH expression dichotomy and other statutory requirements. Through the World Trade Organization (WTO), However, only some of the “folklores” can be protected minimal intellectual property standards have been but it shall be like monopolizing the knowledge implemented on an international level and the possessed by a community in favour of person/s. Agreement on Trade Related Aspects of Intellectual Property 1994 (TRIPs), adopted two years after the Secondly, the protection under the existing IPR Convention on Biodiversity(CBD), creates some regime is extremely time-bound, whereas traditional specific challenges for protecting genetic resources and knowledge is held in perpetuity from generation to traditional knowledge. Some of the sui-generis generation. Be it any IP, Patent, Trade Mark, GI or legislation can be found in the developing countries like Copyright the protection is very time bound and after Costa Rica, Philippines, Lao People‟s Democratic the expiry of that timeline the work becomes a part of Republic. the Public domain.

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A sui-generis system could potentially be defined has resulted into naming this whole tradition as and implemented differently based on the country‟s folk “Moving Temples”. heritage and legislative intent. In addition, a sui-generis system might be defined to create legal rights that All Phad paintings have certain common features. recognize any associated traditional knowledge and For instance, every available inch of the canvas is promote access and benefit sharing. The government crowded with figures along with the flat construction of may choose to extend protections to folklore of a the pictorial space. While the figures are harmoniously community in the form of patents, copyright, trade distributed all over the area, the scale of figure depends mark, trade secrets, copyrights, farmers‟ and breeders‟ on the social status of the character they represent and rights, or IP form not currently established in the the roles they play in the story. Another interesting intellectual property regime. feature is that the figures in the paintings always face each other instead of the viewer. These paintings in In addition, a sui-generis system may adopt their traditional form are very wide to accommodate the measures of protection specific to traditional numerous episodes of the complex stories. knowledge in order to nullify inappropriate patents. For example, the Andean Community’s Decision 486 The professional Phads painters called Chitera states that:- and are known by the clan name 'Joshi' of the Chipa “The Patents granted on inventions obtained or caste. In 10th century Chochu Bhat commissioned Joshi developed from genetic resources or traditional Phad Painter to make Phad painting on 's knowledge, of which any member state is the whole life. After seeing that artwork, Devnarayan country of origin, without presentation of a copy privileged "Joshi" caste to make Phad paintings and of the proper access contract or license from the since then "Joshi" are doing Phad painting. Joshis community shall be nullified.” consider themselves belong from PUR, near Bhilwara city in Rajasthan and in 16th century they migrated to A sui-generis system may legally acknowledge and Shahpura. At the end of 19th century some Phad artists, protect knowledge related to folklore even when it is moved from Shahpura to Bhilwara and they established not officially documented, but instead exists in the form a new seat for Phad Artists. of oral information, traditional and historic use. In addition to this under the sui-generis system, the There was a time when the secrets of Phad painting protection can be accorded through amending the were confined to the Joshi family. However, when existing legislation in order to accommodate the Nand Kishor Joshi felt that the art form was slowly Folklore. The Tunisian Copyright model for Developing dwindling away, he felt the need to establish „Joshi countries is the best example of such legislative Kala Mandir‟ in 1970 to develop new artists other than protection wherein the requirement of “Fixed in any the Joshi family. Shree Lal Joshi, Pradeep Material Form” has been done away with respect to the Mukherjee and Nand Kishor Joshi, Shanti Lal Joshi are Copyright when it comes to the question of Author with the most noted artists of the Phad painting, who are respect to Folklore. known for their innovations and creativity. Prakash Joshi & Mukut Joshi are successfully following their PHAD PAINTING- AN ANALYSIS lineage. The art of painting the phads (which is a piece of cloth hung on bamboo poles from both the sides) is Need for Protection of Phad Painting approximately 700 years old which originated in These paintings were and still are a part of an Shahpura, a princely state, 35 kilometeres from the elaborate ritualistic song and dance performance by folk district of Bhilwara in Rajasthan. Phad paintings are balladeers that travel from village to village performing made on cloth or walls and most popularly depict the folk epics. The paintings provide the backdrop against story of the local hero-gods - Pabuji & Devnarayanji. which the songs, dances and narrations are used to Pabuji is also worshipped as a folk-deity. He lived in create an evening of magic and entertainment usually in 14th century in a remote village known as Kolu, near the centre of the village. The continuous royal , in Rajasthan. The Phad represents his divine patronage gave a decisive impetus of the art, which has character as an incarnation of Laxmana (brother of the survived and flourished for generations but like other Rama of the Ramayana Hindu epic story). folklores is facing the problem of survival, attribution and authenticity. Now a days many artists claim to be A series of these paintings represent a folk epic painting Phads but the authenticity is not credible as it narrative through a very specific style of representation is not merely painting rather it was a lifestyle of the filled with figures and pictorial incidents. Each painting people which has been confined to people of only one depicts a different episode and they are opened or lineage. unrolled only after sundown, in conjunction with an all night performance. The whole process of painting the Phads and presenting it alongwith the dance and music

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Many a painting are sold in the market under the painting phads, art of rolling and unrolling alongwith name of Phad which appears similar to the Patchitra of the narration of the legends by folkmusic and Odisha but the other folklore elements are neglected folkdance. Below is a picture of Phad Painting titled completely as it is not simply a painting on cloth but it Kidnapping of Sanyogita on cotton cloth prepared with encompasses traditional knowledge with respect to Earthen Pigment colors.

Picture1- Source- http://phadchitrakari.com/histirical-gallery.htm

Phad Painting and the current IP regime In case of Phad painting, judging on the parameters In absence of any specific legal regime concerning of idea- expression dichotomy is very difficult as if folklores and considering the nature of Work at hand, many ways of expression are given protection under the prima-facie a Phad Painting may be considered for copyright law then it will lead to distortion of protection under the Copyright, Trademark and/or GI traditional knowledge. Secondly, if under the current subject to the statutory requirements and limitations. legislation, a person/s documents it and gets it However, all the three IPs as mentioned above have copyrighted it would monopolize the economic as well certain limitations when it comes to protecting the Phad as moral rights in favour of person/s which shall be Painting form especially Copyright and Trade mark. detrimental to the interest of the community possessing it. So, Copyright is not economically viable option As discussed in the preceding Para, Indian from the perspective of community possessing the Folk Copyright law requires the wok to be in materially fixed art in this case. Lastly, even if to some extent if form by Identifiable author with respect to the protection to the painting is accorded under the expression of an idea. Once it is established that the Copyright Laws, then also it is partial protection of the work is original then it confers monopoly on the art as the other folklores like folktales, folk music and Copyright owner. folkdance associated with the painting can‟t be effectively protected due to legal requirements of

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Copyright laws. Here, if some exceptions are The Community possessing such folklore should introduced in the Copyright legislation by way of approach the appropriate forum for filing for various amendment on lines of Tunisian Model for Developing IPs with the help of local as well as the state Country, then protection can be sought under government after seeking legal advice. The first step Copyright. here should be towards documenting the art form in some fixed form by detailed research about the art in Further, the genesis of the Trademark law lies in consultation with the possessor of such knowledge and protecting the goodwill and facilitating the ease of prior literature, which usually is very scanty. After doing trade. In the case of Phad, more than the documentation the community may file for the commercialization and trading, the art is known for its Copyright over that documented work through the aesthetic, cultural and religious purposes. IP in form Department or the Institute involved in the research. Trade mark will only complicate the problem of the Once the Copyright is granted it will allow for the Fair- community possessing it as Trade Mark in general can‟t use by all the stake-holders and act as the deterrent for be used by Community as a whole. the probable infringers. In order to commercialize the art form, application for Geographical Indication Tag By far a Geographical Indication (GI) Tag, appears may be filed which not only protects the art form in its to be the best feasible option to protect the art as it gives originality but also brings reputation and income to the exclusive right to the community holding the Tag. area of its geographical origin. Considering the Phad painting has an identity associated with Geographical limits of Bhilwara, ONCLUSION AND UGGESTIONS Rajasthan it can be considered for protection under the C S GI Act. But the associated folk music, folktale and folk Other than, the traditional approach of attempting to dance still remain outside the purview of the GI Tag as protect the Phads under existing IPR regime by it requires identified Goods or Services and neither of applying “One Size Fits All” formula and getting these are goods or services. Briefly, GI can protect the entangled in the legislative cobweb, the proactive Phad painting but not the folklores associated to the approach of the local as well as State administration can painting. preserve the vanishing folk art by invoking the concept of Community benefit sharing in collaboration with the The above analysis of Phad Painting, proves the Government machinery and institution/s interested to second part of the hypothesis that Folklore can‟t be protect and use such folk art. The approach should be effectively protected under the existing regime and subjective on the nature folklore, extent of cultural & altogether a sui-generis approach by way of legislation economic loss and the stakeholders involved. Such or amendment in the existing legislation is the need of arrangements shall require following pro-active steps by the hour. the local as well as the State Government:- i. Identification and awareness about the Folklore; Probable Solution- the Community approach ii. Identification of the Original Community in The cultural, social and religious importance of which the Folklore operates; Phad can‟t be undermined taking into consideration the iii. Documentation of the Folklore after research by fact that this art form if protected and exploited legally involving the Stakeholders. In case of is a power house of economic benefits which can bring Traditional medicinal knowledge the same prosperity to the stake holders possessing it and should be registered with Traditional preserve the cultural and religious identity. However, in Knowledge Digital Library, an online order to use the Phad painting for economic benefits of repository to prevent bio-piracy; the people of Bhilwara Rajasthan, it is imperative to iv. Identification of the economic viability and prevent the use of the same by people who are not the marketability; original possessor of this art form. Such monopoly right v. Application for IP/s status depending upon the can only be granted if the art form is protected as IP of nature of the folklore; the community possessing it. vi. Identification and Negotiation with the interested industries to use such folklore on Considering the peculiarity and special nature of the terms and conditions mutually agreed between folk art of Phads it is imperative that the community the stake holders and the industry/ies on lines of possessing this art should exhibit pro-active approach in Access and Benefit Sharing; protecting the folk art. Currently, in absence of any sui- One of the most important element is the generis approach towards folklore protection it is incentive part, without which the artisans or the required that community possessing such knowledge folklorists might hesitate to share their should seek protection under the existing approach by knowledge. In this aspect FabIndia, Anokhi and trying to fulfil the respective criterion. Ritu Kumar‟s initiative are some of the models on which reliance can be placed for access and benefit sharing concepts. These commercial

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firms of long standing maintain active health, a whole tradition by the actual possessor of the folk education, and other social programs in their knowledge. This way, if knowledge is passed on in a artisan communities. Many of the designers Formal manner then it can be saved from manipulation involved with crafts producers see the artisan as & deterioration and simultaneously it can be preserved a partner, regard their work with some idealism, & saved from exploitation by others. Further, the and accept responsibility for equitable sharing folklore like Phads can also be used to promote tourism of profits and other returns. The most on lines of the Bhangarh Fort model where the horror committed try to work with artisans in their folktales attracts many a visitors and is a well traditional settings. Recently, Fashion designer maintained tourist spot bringing revenue to the area. Sabyasachi Mukherjeee has started a new initiative to provide opportunity for the young In light of the above and considering the social, girls by collaborating with Citta organization to economical, cultural and religious importance of the create uniforms for the students of Rajkumari various folklores like folk art of Phads, Aipans etc and Ratnavati Girls school in Jaisalmer objectives of Indian government as laid down under using Ajrakh textile, natural dyes and the block Indian IP Policy, 2016, it is need of the hour that in printing technique which is the essence of absence of any specific IP recognition and legislation, textiles in Rajasthan. State administration in collaboration with the free vii. Utilisation of the consideration received under spirited and dedicated institutes, Start-ups, NGOs and such arrangement for the development of the local government should take pro-active “Folklore folklore and the community. specific” steps in spreading awareness, management, preservation and development of the folklores for the For instance, in collaboration with some university overall economical development and cultural identity of formal diploma/degree course can be started which can the community possessing such Folklore. impart education with respect to Folklores like Phads as

Abbreviations Used S.No Abbreviation Full Form 1. ABS Access and Benefit Sharing 2. ATU Aarne-Thompson-Uther Classification of Folk Tales 3. CBD Convention on Biodiversity 4. GI Geographical Indication 5. IP Intellectual Property 6. TRIPS Trade-Related Aspects of Intellectual Property Rights 7. UNESCO The United Nations Educational, Scientific and Cultural Organization 8. WTO World Trade Organization

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3. Dutfield, Graham. „Protecting Traditional Economic and Political Weekly 42(Jul. 14-20), p Knowledge and Folklore- A review of progress in 27-28. diplomacy and policy formulation‟, [Online]. 9. Upadhyaya, K.D. „A General Survey of Folklore Available at: Activities in India‟, Midwest Folklore- Indiana https://unctad.org/en/PublicationsLibrary/ictsd2003 University Press, 4(4). ipd1_en.pdf (Accessed: 15 April 2020) 10. Venkataraman, K.(2008) „Intellectual Property 4. Georgitis, Nathan, „A Case Study in Folklore Rights, Traditional Knowledge and Biodiversity of Archives Management: The Randall V. Mills India‟, Journal of Intellectual Property Rights Archives of Northwest Folklore at the University of 13(July). Oregon‟, Journal of Folklore Research by Indiana University Press, 52(1), pp.85-98 [Online]. International Conventions and Legilations Available at: 1. Convention on Biodiversity , 1993 https://www.jstor.org/stable/10.2979/jfolkrese.52.1. 2. Trade Related aspects of Intellectual Properties 85 (Accessed on 30 March 2020). 3. Tunis model law on copyright for developing 5. Krishnaswamy, Mohana.(1999) „How to Protect countries, 1976 „Ancient IPR‟, Journal of Intellectual Property 4. WIPO-UNESCO Model Provisions for National Rights 4(November). Laws on the Protection of Expressions of Folklore 6. Orozco, David and Poonamallee, Latha. „The Role Against Illicit Exploitation and Other Prejudicial of Ethics in the Commercialization of Indigenous Actions 1982 Knowledge‟, Journal of Business Ethics, 119(2) [Online]. Available at: Web Resources https://www.jstor.org/stable/42921290 (Accessed: 1. http://phadchitrakari.com/home.htm 03 April 2020). 2. www.jstor.org 7. Simon, J. Bronner. „Folklore as a Mirror of 3. www.lawsociety.org.sg Culture‟, [Online]. Available at: 4. www.law.jrank.org https://www.jstor.org/stable/j.ctt4cgrzn.6 5. www.ssrn.com (Accessed on 30 March 2020). 6. www.guides.lib.uw.edu 8. Srinivas, K.R.(2007) „Intellectual Property Rights 7. www. babel.hathitrust.org and Traditional Knowledge: The Case of Yoga‟, 8. www.euttaranchal.com 9. http://www.tourism.rajasthan.gov.in/

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