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Cultural Heritage and Intellectual Property Rights: preservation and repatriation effects

Introduction

Intellectual property means the legal rights that can be associated with any intellectual activity in the industrial, scientific, literary and artistic fields. Its aim is to promote creation and innovation to contribute to economic and social development in society and reward creators by providing them monopoly for the use of the creation.

The cultural group collections such as unique arts and traditions are protected under cultural intellectual property. It consists of traditional knowledge and traditional cultural expressions.

The 3C’S rule i.e. consent, credit and compensation are used for developing and for inspiration from cultural heritage. Consent means to obtain free and prior will from the craftsperson or the community. Credit means to provide grant praise to the relevant community and inspiration. Compensation means to provide monetary terms to the authority.

Need for protection

  • To prevent it from any negative use and effects.
  • To protect livelihood and culture mentioned by organization of African Unity’s.
  • Necessary to bring and provide equity.
  • Conservation on such knowledge.
  • Preservation of practice and culture.

Art, Music & Dance

Art, music and dance Indian music dance and hold an important place in globally drawing inspiration from ancient sculptures and narratives. Traditional works like stone and marbles sculptures are used to decorate temples and depict stories watercolor, charcoal and vegetable dyes are also used. These artworks have endured over time and reflect India’s cultural heritage and have captivated millions of people worldwide by their aesthetic appeal.

Ancient Monuments

Ancient monuments Ancient monuments are old structures or artifacts that are at least 100 years old and are important because they hold historical, archaeological, or artistic value. India has 32 out of 46 UNESCO World Heritage sites, which are special places recognized for their significance. These monuments aren’t just a work of art but they help us understand how people lived in the past and understand country’s history. Tourists love visiting them, and they help India share its culture and history with the world, making us proud of our heritage.

Language and Scriptures

Language is a medium of conversation, which originally evolved from symbols to oral and written means. It depicts the culture of a place. The study of language ultimately leads to the culture and history of a nation and its people. It is quite interesting that it evolves and over time some rare languages even get lost in the process. Losing out on a language implies that we are losing precious insights into the history of a country.

According to the 2011 Language Sensus, India has 22 scheduled languages and 99 non-scheduled languages. As of now, there are over 300 languages and dialects spoken in India. The most common language Hindi, spoken by around 41% of the total population, has several dialects and subsidiaries, which are on the edge of extinction.  So are the other languages, whose native speakers are declining.

Traditional Knowledge and Traditional Cultural

Traditional knowledge and traditional cultural expressions are the main highlights when it comes to protecting cultural heritage in terms of intellectual property. All the knowledge and practices of traditional communities including art farming science and medicine are a part of traditional knowledge. On the other hand, traditional cultural expression must be a key part of the tradition that still practiced by the community, many indigenous group awards to protect their culture for making money from traditional knowledge and stop others from using it without permission.

Constitutional Remedies

Government of India has laid down legal rules to protect the cultural heritage:

  • As per the Article 51A (F), every citizen has a duty to value and preserve rich heritage.
  • As per the Article 49, it is the State obligation to protect every monument or place or object of artistic etc declared under the law by the Parliament, to be of national importance.
  • As per Article 29(1), citizens residing in the territory of India or any part; having a distinct language, script or culture shall have the right to conserve the same.

Statutory Framework:

  • According to Ancient Monuments Preservation Act, 1904 came into force under Lord Curzon in British India for the preservation, protection and acquisition of Ancient Monuments and for the object of archaeological, historical or artistic interest and for the prevention of over-excavation in places.
  • In 1958 the Ancient Monument and Archaeological Sites and Remains Act came into force to preserve ancient, historical monuments and archaeological sites to protect sculptures, carvings etc.
  • The AMASR (Amendment and Validation) Act came into force in 2010 under the National Monuments Authority to protect the ancient monuments and the surrounding restricted. Under this act, two months notice are given by the Archaeological Survey of India, for any objections, to take over or protect any monuments, sites and any national important.
  • The Prevention of Damage of Public Property Act came in 1984 for the protection of monuments and remains from any damage. For the regulation of trade in antiquities and art treasures and the prevention of smuggling and fraud dealing the Antiquities and Art Treasures Act was enacted in 1972.
  • The 1961 recorded 1652 mother tongue languages where census dropped by 808 in 1971. The People’s Linguistic Survey of India, in 2013, identified around 860 Indian languages and categorized 97 of them as Endangered. Lack of recognition, bias against native speakers and the influx of the English language, which began from the time the British established strong roots in India, has led to the death of several languages here.
  • The Ministry of Human Resource Development, in 2013 came with the Scheme for Protection and Preservation of Endangered Languages (SPPEL) to document and archive the country’s languages that are endangered or going to be endangered in future. In 1969, the Ministry established the Central Institute of Indian Languages (CIIL), to coordinate the development of Indian languages and to protect and document minor, minority and tribal languages. In 2003, the Ministry of Tourism and Culture set up the National Mission for Manuscripts (NMM) to document, preserve and digitize the vast wealth of manuscripts of India.
  • The Antiquities and Art Treasures Act, 1972 came into force to protect the artworks of the country. To provide effective control over the movable cultural property consisting of antiquities, which refers to coins, sculptures, painting epigraphs or other work of art or craftsmanship that has been in existence for 100 years or more, or refers to any manuscript, record or other documents which has been in existence for over 75 years. The Draft Antiquities and Art Treasures Regulation, Export and Import Bill, 2017 highlighted changes to the government mandate to acquire license to trade in antiquities.
  • Indian Copyright Act, 1957 protects artistic work consisting of a painting, sculpture, drawing, engraving, photograph, a work of architecture or artistic craftsmanship, dramatic work, literary work etc.

Preservation of Cultural Heritage through IP Laws

The Patent Route: Different kinds of knowledge have classically acquired and may be qualified for patent protection if they achieve the three requirements of novelty, non-obviousness, and industrial usefulness. For example, traditional knowledge could be the knowledge belonging to the ‘Kuuku I’yu Northern Kaanju’ ancestors for the use of a medicinal bush, which was utilized by the University of South Australia that led to the identification of compounds used in the treatment of inflammations; the same is now conjointly owned by both.

The TK Route: Defensive protection is provided under this. For example, the turmeric case between the US and India, where the procedure to use turmeric was patented by an investor for the healing of wounds, that was granted. However, it was found out in ancient Sanskrit literature, which leads to revocation of patent. However, one cannot always be sure if TK literature will always be taken into due account while looking for prior-art due to lack of availability of such resources.

Repatriation effects

All significatory objects aren’t protected under IP rights. Intellectual property rights cannot always “travel” with objects; an entity or individual might own something yet forfeit the copyright associated with its manufacture. Intellectual property rights may not be repatriated with an object when it is returned. For example, museum owns the copyright in cataloguing data, museum owns database rights in database of images / thin copyright in digitized copies, traditional songs and dances not covered by IP rights, but performers may have some rights, researcher owns the copyright in photographs and video etc.

Conclusion

It is important to know the culture of our country since it is richest in the world. The government has taken various steps to preserve such heritage. It’s important to know the importance of cultural heritage and its history to protect from any negative use. However proper implementation of laws is necessary which shall be taken by citizens too.

References

https://www.ohchr.org/sites/default/files/Documents/Issues/IPeoples/EMRIP/Reportrepatriation/seminar-presentations/Panel4-Deacon.pdf

https://origins.osu.edu/historytalk/museums-cultural-heritage-repatriation-restitution-african-art?language_content_entity=en

https://www.iiprd.com/protection-of-traditional-knowledge-and-cultural-heritage-under-ipr-an-indian-outlook/

https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_2.pdf

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