Open Access Research Article
PRESERVING THE PAST: COPYRIGHT PROTECTION AS A SAFEGUARD FOR CULTURAL HERITAGE
Published Paper
Article Details
“PRESERVING THE PAST: COPYRIGHT
PROTECTION AS A SAFEGUARD FOR CULTURAL HERITAGE”
AUTHORED BY - SHRUTI
SHREE1
Cultural heritage is the
cornerstone of a nation’s identity, reflecting diverse traditions, art forms, and historical narratives. Preserving
this heritage is crucial for maintaining a connection with the past and fostering a sense of cultural
continuity. Copyright as a legal framework offers a unique avenue for safeguarding and promoting cultural heritage. The
paper delves into the role of
copyright as a legal mechanism for safeguarding and promoting India’s cultural
heritage. Beginning with an
exploration of the historical context and challenges faced by the country’s cultural
legacy, the paper
navigates through the intricacies of India’s copyright
laws. It examines
the benefits that copyright affords
in terms of protecting traditional art forms, encouraging documentation, and ensuring fair compensation for traditional artists.
Overall, the paper encapsulates the multifaceted exploration of how copyright
can serve as a
catalyst for the sustainable safeguarding of India’s cultural legacy.
Keywords: Artists, Copyright, Cultural, Expression, Framework, Heritage, Historical, Traditional Knowledge
INTRODUCTION
“Our
rich and varied cultural heritage has a profound power to help build our
nation”
- Nelson Mandela
Cultural heritage, the mosaic of traditions, artifacts, and narratives
that define the identity of a society
stands as an invaluable legacy passed down through generations. In the
globalized and rapidly evolving
nation of the 21st century,
the safeguarding of this heritage
becomes an imperative task. As nations grapple with
the dual challenge of technological advancement and cultural globalization, the role of legal frameworks,
particularly copyright, emerges as a critical
factor in keeping
cultural heritage intact.
Every culture has unique characteristics, and each group's essence is embodied in a specific persona. The Omaha
tribal dance in America, the Norwegian Bygdedans, the Totem and
1 LLM student, Symbiosis Law School, Pune, PRN 23010143055
Shamanic folklore
of native Europeans, the Indian culture and traditional expressions like Deepawali,
Holi, and Navratri celebrations, or any other variety of traditional science,
art, music, dance, and folklore
are all examples of civilizations. The
fundamental principles of the civilization are these deeply ingrained customs
and cultural manifestations.2
In
this complexity, copyright emerges as a tool with the potential to strike a
delicate balance between preservation and adaptation. It is traditionally designed to protect
the intellectual property of creators and its application
in the realm of cultural heritage is particularly intriguing, as it holds the promise of offering legal
protection to traditional art forms. India boasts a diverse range of cultural practices, ranging from
Kathak and Bharatnatyam dance styles to the ancient temples of Khajuraho temples.3 Preserving cultural
heritage is not merely a nostalgic endeavor but
a crucial element in the future. It fosters a sense of identity, belonging and
continuity offering a bridge between
the past, present, and future. Various communities face the challenges of rapid urbanization, cultural homogenization, and
the risk of losing traditional knowledge, and the need to proactively safeguard cultural heritage becomes more
pronounced. Cultural knowledge is the fundamental
allure of cultural interchange and a significant component of our identity is
our shared cultural knowledge and
customs. Our lives are made happier and more meaningful by the different
tastes and cultures
we encounter; these individuals have an inalienable right to protection. So, understanding the critical role that intellectual property rights play in safeguarding the diversity and depth of
regional cultures across the globe is essential.
Cultural heritage is more than a mere collection of antiquated artifacts or customs; it represents a legacy shaped by a continuous process of selection where individuals and societies decide what should be preserved for future generations, often influenced by both political and cultural factors. Every individual contributes to the global culture, emphasizing the importance of safeguarding all forms of cultural heritage through international agreements and national legislation. When cultural artifacts are illegally trafficked, archaeological sites are looted, or historic structures and monuments are destroyed, a nation's cultural heritage suffers irreversible damage. In 1954, UNESCO ratified international agreements to promote cross-cultural understanding and
2 Rohith Sharma,
Culture & Tradition at the Horizon
of Intellectual Property
with special Emphasis
ion India, THE IP PRESS,
(Nov 16, 2022),
https://www.theippress.com/2022/11/16/culture-tradition-at-the-horizon-of-intellectual-property-with-special-empha sis-on-india/
3 Khajuraho Group
of monuments, UNESCO
WORLD HERITAGE CONVENTION, (last visited Nov 8, 2023),
https://whc.unesco.org/en/list/240/
emphasize the value
of global cooperation in preserving cultural heritage. The protection of cultural property has been a longstanding
issue, involving a delicate balance between individual rights and the interests of the community, highlighting the recurring
challenge of finding
harmony between the private and public spheres in cultural
heritage preservation.4 Therefore, it is very important to protect and promote cultural heritage in
India and other countries as it is a valuable
and irreplaceable resource of the world. It also contributes to the social and
economic development of communities,
as it generates income, employment, and tourism. Moreover, it fosters
creativity, innovation, and diversity which are essential
for the advancement of humanity.5
OVERVIEW OF CULTURAL HERITAGE
India, one of the oldest civilizations on Earth, is incredibly diverse
and has a rich cultural history. In general,
socioeconomic conditions have improved since gaining independence. India, the seventh-largest country in the world, is
unique among Asian nations due to its topography, which is molded by the sea and mountains. The Great Himalayas border
it on the north, and the Tropic of Cancer marks the southern tip where it tapers
down into the Indian Ocean between the Arabian
Sea on the west and the Bay of Bengal on the east.6 Cultural
heritage is the result of generational inheritance which exists in different forms such as artifacts, structures, music, folklore, customs, and traditions. Intellectual property (IP)
laws play a crucial role in providing the
necessary legal protection for all of these. For their continued existence,
expansion, and transmission, the protection
of cultural heritage and the enforcement of intellectual property rights (IPRs) have a lot to offer to each
other for their subsistence, growth, and dissemination. Cultural heritage is an invaluable and multifaceted aspect of
human civilization that encompasses the traditions, knowledge, art, and artifacts passed down through
generations. It reflects the collective identity
of a society, providing a
window into its history, values, and aspirations. Cultural heritage is a treasure trove of knowledge and
creativity, serving as a bridge between the past and the future.7
4 Michael Di Giovine, UNESCO’s
World Heritage Program:
The Challenges and Ethics of Community Participation, (last visited Nov 8, 2023), https://books.openedition.org/gup/213?lang=en
5 Shaping the Global
Narrative for Inclusive Growth, G20 CULTURE, (last visited Nov 8, 2023), https://www.g20.org/content/dam/gtwenty/gtwenty_new/document/G20_Thematic_Webinars_Report_2023_India_R EVISED.pdf
6 Culture & Heritage,
KNOWINDIA, (last visited Nov 9, 2023), https://knowindia.india.gov.in/photo-gallery/culture-and-heritage.php
7 Safeguarding Cultural
Heritage Through Intellectual Property Rights, KIPG, (last visited Nov 9,
2023), https://www.kashishworld.com/blog/safeguarding-cultural-heritage-through-intellectual-property-rights/#:~:text=Cul tural%20heritage%20is%20the%20offspring,come%20into%20a%20definitive%20picture.
Cultural heritage
is at the heart of our collective identity. It connects
people to their roots, fostering a sense of belonging and pride in their cultural
heritage. Whether it's through music,
art, language, or traditional practices, cultural heritage binds communities and individuals together,
reinforcing their shared
history and values.
Cultural heritage offers us a window into the
past. Museums, historical sites, and archives house artifacts and records that
allow us to trace the development
of societies, their achievements, struggles, and evolution. It enables us to
learn from the past and make informed
decisions for the future. The world is a rich tapestry of diverse cultures.
Cultural heritage preserves
this diversity, preventing homogenization and
fostering appreciation for
different ways of life. It helps to create a world that values pluralism,
tolerance, and understanding,
ultimately contributing to global peace and harmony. Cultural heritage is a wellspring of artistic and creative
expression. From classical music and literature to indigenous crafts and folklore,
it is a source of inspiration and innovation for artists and creators. It continually
influences and informs contemporary artistic endeavors.8 Cultural
heritage is defined by the United Nations
Educational, Scientific, and Cultural Organization (UNESCO) as "Cultural heritage is the legacy of
physical artifacts and intangible attributes of a group or society that are inherited
from past generations, maintained in the present, and bestowed for the
benefit of future generations. It
includes tangible culture (such as buildings, monuments, landscapes, books, works of art, and artifacts), as
well as intangible culture (such as folklore, traditions, language,
and knowledge)”9. As UNESCO's definition of cultural heritage
emphasizes its intergenerational significance and the
need to preserve it for future generations, it plays a critical role in the preservation and protection of
cultural heritage worldwide.
Preserving cultural heritage
requires concerted efforts
in conservation and restoration. This involves
maintaining historical sites, protecting artifacts from deterioration, and
safeguarding manuscripts and
documents. Conservation experts, archaeologists, and historians play crucial roles in preservation. Cultural heritage
can be a powerful tool for diplomacy and international relations. It can facilitate cross-cultural understanding and dialogue,
promoting peace and cooperation.
Cultural exchanges and collaborations can strengthen international ties and
foster mutual respect. Preserved cultural heritage sites often become tourist attractions, contributing to
8 Eleni Polymenopoulou, Indigenous
Cultural Heritage and Artistic Expressions: “Localizing” Intellectual Property
Rights and UNESCO
Claims, ResearchGate (June,
2017)
9 Cultural Heritage, UNESCO INSTITUTE FOR STATISTICS, (last visited Nov 9, 2023),
https://uis.unesco.org/en/glossary-term/cultural-heritage#
local
economies. Sustainable tourism can help fund the maintenance and conservation
of these sites, ensuring
their long-term preservation while providing economic opportunities to local communities.10Cultural heritage
is a precious legacy that enriches our lives, deepens
our understanding of the past,
and guides us toward the future. Its preservation is an ethical duty that transcends national borders, and its
promotion fosters a sense of unity among humanity. By valuing and protecting our cultural heritage, we ensure that the
wisdom and creativity of our ancestors
continue to inspire and inform our journey into the future.
HISTORICAL BACKGROUND
India's
cultural heritage isn't limited to physical artifacts and structures; it also
includes a wealth of intangible heritage, such as classical music, dance forms,
folk traditions, cuisine, and language diversity. Practices like yoga,
Ayurveda, and traditional crafts are also integral to the country's cultural
identity. India is home to numerous UNESCO World Heritage Sites, including the
Qutub Minar, Red Fort, and Jantar Mantar in Delhi; the historic city of Jaipur;
the temples of Khajuraho; and the Western Ghats, among many others. These sites
are recognized for their cultural and historical significance.
? Ancient Indus Valley Civilization (3300 - 1300 BCE)11
The artifacts
and archaeological remains of
the Indus Valley Civilization, one of the oldest
urban civilizations in the world, contain the earliest indications of cultural
heritage in the Indian subcontinent.
Advanced urban planning, trade, and artistic expression as evidenced
by their seals, jewelry, and pottery are characteristics of
this era.
? Vedic Period (1500 - 600 BCE)12
The
Vedic period saw the emergence of the sacred texts known as the Vedas, which continue to be a foundational aspect of
India's cultural and spiritual heritage. The period also gave rise to various philosophical and religious
traditions, including Hinduism and early
forms of Buddhism and Jainism.
?
Maurya and Gupta Empires
( 4th century - 6th century)13
10 Sustainable Tourism:
Empowering Communities & Preserving Cultures
| Halal In Travel Global
Summit 2023, THE WORLD’s LEADING
AUTHORITY ON HALAL
TRAVEL, (last visied
Nov 9, 2023),
https://www.crescentrating.com/magazine/all/4121/sustainable-tourism-development-preserving-local-cultures-and- empowering-communities.html
11 Indian Culture
and Heritage, EGYANKOSH, (last visited Nov 10, 2023),
https://egyankosh.ac.in/bitstream/123456789/79211/1/UNIT%201.pdf
12 Id.
13 Id.
The Maurya and Gupta empires were pivotal in the development of Indian art, architecture,
and literature. The famous Ashoka Pillars and the caves of Ajanta and Ellora are examples of their architectural and
artistic contributions.
?
Medieval
Period (7th century
- 18th century)14
This period witnessed the influence of various rulers and dynasties, including the Mughals,
the Delhi Sultanate, and various regional
kingdoms. Islamic art and architecture, such as the Taj Mahal, and
the fusion of Indian and Persian cultures left a lasting impact on the cultural heritage of India.
?
Colonial
Era (17th century
- mid-20th century)15
British
colonial rule had a profound impact on India's cultural heritage. While it led
to the preservation and
documentation of many cultural aspects, it also saw the plunder and loss of artifacts. The Indian struggle for
independence during this period became a significant part of the country's cultural heritage.
?
Post-Independence (1947 onwards)16
After
gaining independence from British rule in 1947, India indeed placed significant emphasis
on the preservation and promotion
of its cultural heritage. The Indian government took various measures
to protect and showcase the nation's diverse and culturally rich heritage. This included
the establishment of cultural institutions, museums, and the conservation of archaeological
sites. These efforts aimed to not only protect
India's heritage but also make it more accessible to its citizens
and the international community. India's
cultural heritage is incredibly diverse,
with a rich history of art, architecture, traditions, and customs, and
the preservation of these elements is of great
importance to the country.
COPYRIGHT AND CULTURAL HERITAGE
Copyright laws play a role in protecting cultural heritage by providing legal mechanisms to safeguard and preserve creative and intellectual expressions that are part of a nation's cultural heritage. Copyright laws protect artistic works, including music, literature, and visual art by ensuring that these works are protected, preserved, and restored. Cultural heritage institutions,
14 Id.
15 Id.
16 Museum Movement in India
from 1947, E PATHSHALA, (last visited Nov 10, 2023), http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/S000829IC/P001546/M021988/ET/1504074720P15-M06- MuseummovementinIndiafrom1947-ET.pdf
such as museums and libraries, can digitize
and maintain copyrighted materials, allowing for their long-term preservation. Copyright laws provide
creators with economic
incentives to produce new works. When artists, authors,
and creators are fairly compensated for their work, they are more likely to continue producing content that
contributes to the cultural heritage of a society.
It protects original documentation, such as photographs, manuscripts, and
recordings of cultural events and
traditions. These documents are essential for the preservation of intangible cultural
heritage and can be instrumental in documenting and sharing cultural
practices. Copyright laws
allow rights holders to control how their works are used. This can help prevent the unauthorized use or misappropriation
of cultural expressions, ensuring that they are used in ways that respect and honor their cultural significance. It is
used to protect traditional knowledge and indigenous cultural expressions. For example, traditional songs, stories,
and art may be protected by
copyright, preventing their unauthorized use or exploitation. It promotes the
growth of cultural industries, such as music, film, and literature. These industries can be
vital for preserving and promoting cultural
heritage by providing
a platform for cultural
expression. Copyright laws in some
countries include moral rights, which protect the integrity of a work and the reputation of the creator. These
rights can help ensure that cultural works are not distorted or used inappropriately. These laws, when
properly balanced, can facilitate the exchange of cultural works
between nations. International agreements, such as the Berne Convention, help to harmonize
copyright laws globally and
promote the exchange of cultural content.17
In India, copyright law has been used to protect and promote cultural
heritage in various ways.
? Traditional art forms: Various traditional art forms in India, such as Madhubani
painting, Pattachitra, and Warli art, have been protected through
copyright. Artists and art cooperatives
have registered their traditional designs to prevent unauthorized commercial exploitation. Copyright protection helps
these artists preserve their cultural heritage and earn a livelihood.18
?
Baul Music: Baul music is a traditional folk music genre from West Bengal. Musicians and cultural organizations have used copyright to protect their songs and compositions. By asserting copyright over their musical works, they have controlled how these are used,
Baul Music: Baul music is a traditional folk music genre from West Bengal. Musicians and cultural organizations have used copyright to protect their songs and compositions. By asserting copyright over their musical works, they have controlled how these are used,
17 Gede Agus
Kurniawan, The Existence of Copyrights on
Traditional Cultural Expressions Held by the State: Implications and Orientations, INTECHOPEN, (May 15, 2023), https://www.intechopen.com/chapters/1130457 18 Prasad Sunil Nikumbh et.al, A Magnificent Form of Indian Folk Art:
Warli, Madhubani and Pattachitra, IIKOGRETIN ONLINE,
Vol 20, 3000, 3008 (2021)
preventing
unauthorized use and ensuring that the cultural heritage of Baul’s music is respected
and preserved.19
? Yoga: While not directly related to
copyright, India has sought to protect its traditional knowledge and cultural
heritage through intellectual property laws, including
geographical indications. Yoga, for example, has been recognized as an
important part of India's cultural
heritage. Certain yoga postures and practices have been acknowledged as geographical indications, which can be
considered a form of protection that safeguards traditional knowledge.20
? Textile designs: India's diverse textile
traditions, such as Kalamkari, Banarasi silk, and Ikat, have been protected through copyright and other
intellectual property mechanisms. Artisans
and weavers have sought to preserve and promote these traditional designs while ensuring they benefit economically from their work.21
?
Folklore
and Oral Traditions Documentation: Folklore and oral traditions,
including folk songs and stories,
have been documented and protected under copyright. Cultural heritage institutions, researchers, and
folklore collectors have digitized and archived these materials, asserting copyright to control how they are used and
distributed while ensuring their preservation.22
?
Traditional Dance Forms: Classical
dance forms like Bharatanatyam and Kathak have
been preserved and promoted
through copyright. Dancers, choreographers, and dance schools have registered their compositions and performances
to protect and promote these cultural practices.23
? Navajo Nation and Rug Weaving Designs: The Navajo
Nation has used copyright to protect its traditional rug weaving designs.
By asserting copyright over
these designs, they have been able
to control their use and prevent unauthorized reproductions. This has
19 Baul Songs, UNESCO INTANGIBLE CULTURAL HERITAGE, (last visited Nov 10, 2023),
20 Benjamin Beck & Konstatin Von Werder, Yoga and Copyright, WIPO MAGAZINE, (last visited Nov 10, 2023),
https://www.wipo.int/wipo_magazine/en/2017/03/article_0008.html
21 Literature & Folklore, MINISTRY
OF CULTURE, (last visited Nov 10, 2023), https://indiaculture.gov.in/literature-folklore
22 Id.
23 Id.
helped
preserve their cultural heritage and ensure that the art form remains
economically viable.24
? Maasai Intellectual Property and Cultural Heritage Protection:
The Maasai people in East Africa have taken steps to protect their cultural heritage through
copyright and intellectual property
laws. They have asserted copyright over their traditional beadwork designs,
artwork, and cultural
expressions to prevent
unauthorized commercial exploitation. This has allowed them to
protect and promote their heritage and generate income for their
community.25
? Estonian Folklore Archives and Copyright Protection: Estonia
has a rich tradition of oral
folklore, including songs, stories, and traditions. The Estonian Folklore
Archives, which holds a vast collection of these materials, has actively used copyright to protect and preserve the country's cultural
heritage. They have digitized and documented folklore materials, and by asserting copyright, they control how these
materials are used, ensuring their cultural and ethical use.26
These
case studies demonstrate how copyright has been employed in India to safeguard
various aspects of cultural heritage, including traditional arts,
music, knowledge, and craftsmanship. Copyright can help protect
the interests of artists and artisans, ensuring
the continued transmission and recognition of India's
rich and diverse cultural heritage. However, it's important to strike a balance between copyright
protection and the broader goal of preserving and sharing cultural
heritage for the benefit of society.
NATIONAL AND INTERNATIONAL LEGAL FRAMEWORKS
The creative
expressions of Traditional Knowledge holders, such as migrant and
indigenous artists, can be shielded
against exploitation with the help of copyright. Any of the activities listed in Section 14 may be performed by the copyright
holder. While Section
31A protects unpublished Indian works, the Copyright
Act of 1957 makes no mention of protecting traditional cultural, literary, artistic, or folklore works. The scope of
traditional knowledge protection under this intellectual property is limited
because copyright protection is time-limited and subject to
24 The Craft and Beauty of
Navajo Weaving, PERMANENT STYLE, (July 9, 2021), https://www.permanentstyle.com/2021/07/the-craft-history-and-beauty-of-navajo-blankets.html
25 The Maasai are protecting their intellectual property
rights, what of others like India's Warlis?,
DOWN TO EARTH, (March 15, 2018), https://www.downtoearth.org.in/blog/economy/protecting-a-tribe-s-brand-59857
26 Risto Jarv, Estonian Folklore
Archives, ORAL TRADITION, 28/2 (2013), 291, 298, https://journal.oraltradition.org/wp-content/uploads/files/articles/28ii/14_28.2.pdf
certain
requirements. Section 57, of the copyright act is used to protect traditional
knowledge holders, and innovative
demonstrations, particularly those of indigenous and indigenous artists against
unauthorized replication and usage. The relationship between
authors, artists, and creators and their
works is governed by moral rights. These national and international legal frameworks provide the basis for the
protection of cultural heritage through copyright laws and related
intellectual property rights.
They seek to balance the rights of creators and the preservation of cultural heritage for the
benefit of society as a whole.
? Traditional Knowledge and Folklore Laws: Some nations
have enacted laws that specifically address the protection of
traditional knowledge and folklore. These laws can help preserve and protect traditional cultural expressions.
? Digital Repositories and Documentation: National cultural heritage institutions, libraries, and museums
often have a legal mandate to digitize and document cultural materials. These institutions navigate
copyright laws to manage and provide access to
digitized cultural heritage.
?
The Berne Convention for the Protection of Literary and Artistic Works is a fundamental international treaty in copyright. It sets forth essential standards
for protecting intellectual
property across different countries, including literary and artistic works. A key principle of the Berne
Convention is "national treatment," meaning that foreign works and creators are granted the
same level of protection in a member country
as that country affords its own domestic
works. This principle
promotes the equal treatment of works and authors, fostering
international cooperation and harmonizing copyright laws. The Berne Convention has played a pivotal role
in developing copyright protection globally, making it a cornerstone of the international copyright system.
?
The WIPO Copyright
Treaty, established by the World Intellectual Property
Organization (WIPO), is an international agreement that focuses
on addressing the evolving challenges of copyright in the digital
age. This treaty extends copyright
protection to digital works,
including those distributed over the internet, and aims to harmonize copyright laws across different
countries. It includes provisions that safeguard the rights of authors, creators, and copyright holders in the
digital realm, ensuring that their works are protected
from unauthorized reproduction, distribution, and other forms of infringement. The WIPO Copyright
Treaty reflects the need to adapt copyright laws to the digital
era and provides a framework for international cooperation in the protection of intellectual property rights in the
digital context.t extends copyright protection to digital works and includes provisions for safeguarding the rights of authors and creators.27
? The UNESCO Convention for the Safeguarding of
the Intangible Cultural Heritage is
an international agreement that is distinct from copyright but plays a crucial
role in preserving intangible cultural heritage. It
places emphasis on safeguarding traditional expressions, practices, and living cultural
traditions that are passed down from one generation to another.
Intangible cultural heritage includes oral traditions, performing arts, social practices, rituals, festive events,
knowledge systems, and more. This convention
acknowledges the value of these elements in promoting cultural diversity and fostering a sense of identity and
continuity within communities. It aims to protect and promote these cultural practices and expressions, ensuring their
vitality and relevance in contemporary
society. While it is not directly related to intellectual property or
copyright, it underscores the significance of preserving and respecting cultural
traditions and knowledge that are essential to the
identity and well-being of communities around the world.
? The Nagoya Protocol on Access to Genetic Resources and
the Fair and Equitable Sharing of
Benefits Arising from their Utilization is an international agreement that operates
under the Convention on Biological Diversity. This protocol focuses
on regulating access to
genetic resources and aims to ensure fair and equitable sharing of the benefits that result from their
utilization. In addition to genetic resources, it also extends to traditional knowledge
associated with these resources. The Nagoya Protocol
is designed to protect traditional knowledge and prevent
its exploitation, especially by external entities. It emphasizes the importance of recognizing the rights
of indigenous and local communities
and promoting sustainable and mutually beneficial relationships between
those who access genetic resources and the countries and
communities that provide them. The protocol
seeks to strike
a balance between
scientific research,
27 Summary of the WIPO Copyright Treaty
(WCT) (1996), WIPO, (Last visited Nov. 10, 2023), https://www.wipo.int/treaties/en/ip/wct/summary_wct.html
commercial
interests, and the preservation of biodiversity while respecting the rights and interests
of the providers of genetic resources and traditional knowledge.28
? Trade-Related Aspects of Intellectual Property
Rights (TRIPS): TRIPS is a part of the World Trade Organization (WTO) agreements and sets minimum
standards for intellectual property protection, including
copyright. It requires
member countries to provide
copyright protection but allows flexibility for the protection of traditional knowledge.29
? Ancient Monuments Preservation Act, 1904: Under Lord
Curzon, British India passed the Ancient
Monuments Preservation Act,
1904, which prohibited over-excavation in some areas and provided
for the purchase, acquisition, and preservation of Ancient Monuments as well as artifacts of historical, archeological, or artistic significance.30
?
The Ancient
Monuments and Archaeological Sites and Remains Act (AMASR Act) was enacted in 1958 with the
primary objectives of protecting and preserving sculptures, carvings, and related artifacts, along
with ancient and historically significant monuments, archaeological sites, and remains of national importance. This legislation was instrumental
in regulating archaeological excavations and research, ensuring that these valuable historical and cultural assets
are safeguarded for future generations and that their study and conservation are carried out in a responsible and organized manner.
The AMASR Act reflects the government's commitment to the preservation and understanding of India's rich archaeological and cultural
heritage.31
?
The
Antiquities and Art Treasures Act of 1972 was enacted in India to
protect and preserve the nation's
artistic heritage. This legislation aimed to provide the government with comprehensive control
over movable cultural
property, specifically antiquities. Antiquities were defined
as items with historical and cultural significance, such as manuscripts, records, or documents that
have been in existence for over 75 years, as well as coins, sculptures, paintings, epigraphs, and other works of
art and craftsmanship that have been in existence for 100 years
or more. The Act's purpose
was to regulate the
28 The Nagoya Protocol
on Access and Benefit Sharing,
CONVENTION ON BIOLOGICAL DIVERSITY, (Last visited Nov. 10, 2023) Text of the Nagoya Protocol
(cbd. int)
29 Overview: The TRIPS Agreement, WORLD TRADE ORGANIZATION, (Last visited Nov 10, 2023), https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
30 G B Krishna Rao, Legislation
On Conservation Of Ancient Monuments
And Archaeological Sites And Ruins: A Critical
Appraisal, JOURNAL OF THE INDIAN
LAW INSTITUTE, Vol. 22, 108, 133, (Jan - Mar, 1980)
31 Id.
acquisition,
export, and transfer of such artifacts to prevent their loss or illegal trade
and to ensure their conservation for future generations, reflecting the government's commitment to
safeguarding India's rich cultural
heritage.32
LANDMARK JUDGEMENTS TO SAFEGUARD
OUR CULTURAL HERITAGE
?
M.C. Mehta v. Union of India,
(1986) 2 SCC 176
The Taj Trapezium Case is a significant legal landmark in India's cultural
heritage preservation
efforts, focusing on safeguarding the iconic Taj Mahal and its surrounding region from environmental degradation.
Initiated through a public interest litigation in 1983, the case defined the Taj
Trapezium Zone and established a series of stringent regulations to combat pollution and industrial activities that
posed a threat to the Taj Mahal's integrity. It also emphasized the critical connection between environmental conservation and the preservation of cultural heritage. Ongoing
efforts, including the formation of
the Taj Trapezium Monitoring Committee, ensure the continuous protection and maintenance of this UNESCO World
Heritage Site, underscoring the importance of
balancing cultural
significance with environmental
stewardship.33
? The case Her Majesty vs. Lord Shiva (1982) is a significant example of India's
efforts to repatriate cultural
heritage items that were taken from the country during the colonial period. It demonstrates the importance
India places on the preservation and return of its cultural artifacts and heritage. In this case, "Her Majesty" represents the British
government, and "Lord Shiva" refers to the Nataraja idol,
which is a significant religious and
cultural symbol in Hinduism. The idol, like many other cultural artifacts, was
taken from India during the colonial
era and ended up in the possession of museums and private collectors in the United Kingdom and
other parts of the world. The legal
battle to reclaim such artifacts
typically involves arguments
related to issues of ownership, cultural heritage, and
ethical considerations. These cases often highlight the need for restitution and repatriation of cultural artifacts to their countries of origin. India, along with many
32 Atreya Mathur,
An Excursion into the Antiquities Law of India,
CENTRE FOR ART OF LAW, (last visited
Nov 10, 2023), https://itsartlaw.org/2020/06/01/an-excursion-into-the-antiquities-law-of-india/
33 Yukta Chordia, Case
Analysis, VIDHI NAMA, (last visited Nov 10, 2023), https://vidhinama.com/case-analysis-m-c-mehta-v-union-of-india-1987-scc-1-395/
other
countries, has been actively engaged in efforts to repatriate cultural items
that were taken during colonial or historical periods.34
? The Padmanabhaswamy Temple Case (2011): It is a
significant legal and cultural heritage
case in India. It revolves around the Sree Padmanabhaswamy Temple, a Hindu temple located in Thiruvananthapuram, Kerala, which is
one of the richest and most sacred
temples in the country. The temple is dedicated to Lord Padmanabhaswamy (a form of Lord Vishnu) and is renowned for its architectural and
religious significance. The case gained national
and international attention
due to the discovery of a vast treasure
trove within the temple's vaults. The temple's underground chambers had not been opened for many years, and the
discovery of immense wealth, including gold, silver, precious gemstones, and antique artifacts, was made by a team
appointed by the Supreme Court of India. The estimated
value of the treasure was in the billions of dollars. The legal proceedings that followed emphasized
the need to protect and preserve the cultural
heritage contained within
religious sites.35
? Indian Performing Rights Society (IPRS) vs. Sanjay
Dalia (2015): This case pertained to the rights of authors and copyright holders
in the context of music and artistic
performances. It underscored the importance of copyright laws in protecting the intellectual property of artists and cultural expressions.36
?
Copyright
Dispute over Tagore's Works: Several legal cases have revolved
around the copyright of Rabindranath
Tagore's literary and artistic works. These cases have clarified the copyright status of Tagore's
works, which are a vital part of India's cultural
heritage.37
These landmark judgments
and legal actions
in India reflect
the country's commitment to preserving its rich cultural
and historical heritage.
They have addressed
issues related to the
34 Ramesh Chandran, Indian Government Wins Stolen Nataraja
Idol Case in British Court,
INDIA TODAY, (last visited Nov. 10, 2023),
35 Apurva Vishwanath, Explained: PadmanabhaswamyTemple Case, and What Verdict Means for Travancore Royal Family, INDIAN
EXPRESS, (July. 16, 2020),
https://indianexpress.com/article/explained/explained-the-padmanabhaswamy-temple-case-and-what-verdict-means- for-travancore-royal-family-6503543/
36 Arun C Mohan, Guest Post:
Shedding Light on IPRS v. Sanjay Dalia,
SPICY IP, (Last visited Nov. 10, 2023),
https://spicyip.com/2015/07/guest-post-shedding-light-on-iprs-v-sanjay-dalia.html
37 Debamitra Mitra, Visva
Bharati has been Clumpsy with Copyright, TIMES OF INDIA, (Dec. 29, 2001), https://timesofindia.indiatimes.com/city/kolkata/visva-bharati-has-been-clumsy-with-copyright/articleshow/1509738 636.cms
protection
of religious artifacts, historical sites, and intellectual property, ensuring
that India's cultural treasures are
safeguarded and respected.
HARMONIZATION OF COPYRIGHT LAWS WITH CULTURAL HERITAGE
PRESERVATION
Harmonizing copyright laws with cultural
heritage preservation presents
numerous intricate challenges. One of the primary hurdles
lies in defining the ownership and control of cultural heritage items. Copyright laws typically grant rights to
individual creators or their heirs, but traditional cultural
expressions are often the collective heritage of communities. Striking a balance between individual creators'
rights and collective ownership can be complex and requires careful consideration. Furthermore, the
duration of copyright protection, which can extend for many decades, may far exceed the preservation needs of cultural
heritage items, which may be much
older. This incongruity necessitates a thoughtful approach to ensure that
cultural heritage is not needlessly
locked behind copyright restrictions. Additionally, access to and reproduction
of cultural heritage can be impeded
by stringent copyright regulations, limiting the ability to engage in essential research, education, and
public engagement. The challenge of orphan works, where the copyright holder is unknown
or untraceable, poses further obstacles
to the efficient management
and use of cultural heritage materials. Lastly, as cultural heritage often
transcends national borders,
navigating the differing copyright laws and international treaties of various nations
can create complexities when preserving and sharing heritage across
borders.38
While challenges exist, there are also significant opportunities to
harmonize copyright laws with cultural
heritage preservation. Fair use and fair dealing exceptions, which allow the
restricted use of copyrighted content for purposes
like research, criticism, and education, are frequently included in copyright laws. These
exclusions can be used to support cultural heritage access and preservation in an ethical manner.
International agreements, such as the Berne Convention and the WIPO Copyright Treaty, provide a
framework for harmonizing copyright laws on a global scale, addressing cross-border challenges in preserving cultural
heritage. Advances in technology have
made it possible to digitize and preserve cultural heritage items, enabling the
creation of digital copies that can
be stored and made available to the public, all while respecting copyright restrictions. Collaboration between copyright
owners and cultural
heritage institutions through
38 Wallace, Revisiting Access
to Cultural Heritage
in the Public Domain: EU and International Developments, SPRINGER LINK,
823, 855, (July.
28, 2020), https://link.springer.com/article/10.1007/s40319-020-00961-8
licensing
agreements can further enable the digitization, preservation, and responsible
public access of works. Ethical
considerations, community engagement, and the protection of traditional knowledge also offer opportunities for addressing the delicate balance
between copyright protection and the preservation of
cultural heritage. These aspects can lead to more inclusive, culturally sensitive solutions and promote the responsible safeguarding of valuable cultural
assets.
Several initiatives have been taken globally to harmonize copyright laws
with the conservation and preservation of cultural heritage.
These initiatives aim to strike a balance between the protection of intellectual property rights and the broader
societal goal of safeguarding and promoting
cultural heritage.
? Marrakesh Treaty to Facilitate Access to Published
Works for Persons Who Are Blind, Visually
Impaired, or Otherwise
Print Disabled (2013):
This international treaty, administered by the World
Intellectual Property Organization (WIPO), promotes access to copyrighted works for persons
with print disabilities. It emphasizes the importance
of making cultural and educational materials accessible to those who might otherwise
be excluded due to copyright restrictions.39
? Creative Commons Licensing: The
Creative Commons organization provides a set of copyright licenses that allow creators to retain certain rights
while granting others the freedom to use, share, and adapt their works.
These licenses enable cultural heritage institutions, educators, and creators to share content
more flexibly while respecting copyright.
?
Open Access
Initiatives: Many cultural heritage institutions and research
organizations have adopted open
access policies for scholarly and cultural heritage materials. Open access encourages the sharing of research,
historical documents, and cultural artifacts,
allowing wider access to these resources.
?
National
and International Copyright Exceptions: Some countries have enacted or expanded
copyright exceptions for purposes like education, research, and preservation of
39 Marrakesh Treaty
to Facilitate Access
to Published Works for Persons
Who Are Blind, Visually Impaired
or Otherwise Print Disable, WIPO, (LAst visited
Nov. 10, 2023),
https://www.wipo.int/treaties/en/ip/marrakesh/
cultural
heritage. International agreements, such as the Berne Convention and the TRIPS Agreement, provide the flexibility for
countries to introduce copyright exceptions.
? Public-Private Partnerships: Collaborative
efforts between public and private entities,
such as cultural heritage institutions and technology companies, aim to
digitize and make cultural heritage
materials accessible. These partnerships often involve copyright
arrangements that balance access and protection.
? Orphan Works Legislation: Various countries have introduced or considered legislation to address orphan works, allowing cultural institutions to
digitize and provide access to works
for which copyright holders are unknown or untraceable.
?
Cultural
Heritage Preservation Laws: Specific laws or provisions in some
countries address the preservation of
cultural heritage materials, even if copyrighted. These laws may allow institutions to copy and
preserve materials for the public interest.
?
Extended Collective Licensing: In some countries, extended
collective licensing agreements facilitate the use of
copyrighted works for purposes like education, research, and preservation. These agreements offer a practical way to
manage copyright in the context of
cultural heritage.
These initiatives reflect
the growing recognition of the importance of balancing copyright
protection with the preservation and accessibility of cultural heritage.
They provide mechanisms and legal frameworks to ensure that cultural heritage materials are not
unduly restricted by copyright but remain accessible for research, education, and public appreciation. Different countries have different approaches for protecting cultural heritage through copyright laws.
? USA: In the United States,
copyright laws are designed to maintain cultural
heritage while safeguarding
intellectual property rights. The acknowledgement of works in the public domain, which can be freely used
for the preservation of cultural heritage, and fair use, which permits the restricted use of copyrighted materials
for purposes like research and
preservation, are important features and tenets of U.S. copyright law.
Libraries and archives are granted exceptions under provisions such as Section
108 of the U.S. Copyright
Act, which permits
them to make copies for lending, research,
and preservation. Copyright
exemptions tailored to libraries and museums acknowledge the significance of safeguarding and providing access to cultural
heritage materials. Additionally, copyright provisions permit
the digital preservation of copyrighted
materials,
enabling the long-term accessibility of cultural heritage items. Understanding copyright notice, duration, and exemptions
for digital preservation, as outlined in the
Copyright Act, is essential for cultural heritage institutions. Furthermore,
U.S. copyright law allows for the
destruction of copyright-infringing materials to protect the rights and integrity of cultural heritage items.
These legal measures and principles are fundamental to preserving and
sharing the United States' rich cultural heritage.40
? EUROPEAN UNION: European countries have
undertaken a range of initiatives to preserve
their cultural heritage through copyright law and related measures. One notable approach
is the implementation of Extended
Collective Licensing (ECL) systems, employed
by countries such as Finland,
Sweden, and Norway. ECL permits cultural heritage institutions to digitize copyrighted works for
preservation and research purposes, even
in cases where obtaining individual copyright holders' permission is challenging. Orphan Works Legislation is another key
development, with countries like the UK and France
introducing laws to address the use of orphaned work for which the copyright owner cannot be identified
or located. These legal provisions facilitate the digitization and preservation of cultural heritage
materials, crucial for ensuring access to these valuable resources. In addition, a lot of European countries
have special copyright exceptions
that allow archives and libraries to duplicate copyrighted content for public access, research, and preservation. These
exclusions recognize how crucial it is to support cultural heritage organizations in their efforts to preserve
and make important historical materials accessible. To assist in determining the copyright status of works, some countries have developed public domain
calculators. These online tools are invaluable
resources for cultural heritage institutions and researchers seeking to
ascertain whether a work is in the
public domain and can be used without copyright restrictions. At the European
Union level, the EU Directive on Orphan Works harmonizes orphan works legislation across member states. This
directive permits cultural heritage institutions to use orphan works for specific
purposes, promoting the preservation of cultural heritage
on a broader scale. National
and regional digitization initiatives are prevalent throughout Europe,
involving collaboration between
cultural institutions, government bodies, and
40 Copyright Law of the United States,
BYTESCARE, (Last visited
Nov 10, 2023), https://bytescare.com/blog/copyright-law-of-the-united-states/
copyright
stakeholders. These projects are aimed at digitizing and providing access to cultural heritage materials, ensuring that
they are preserved and accessible to the public. In addition to legislative measures, several European countries
have developed cultural heritage
copyright guidelines and best practices. These resources help cultural heritage institutions navigate copyright issues while preserving and providing access to their heritage materials, maintaining a delicate
balance between copyright
protection and public access. Cross-border collaboration is common among European countries,
with collaborative projects that aim
to preserve and promote shared cultural heritage. These initiatives often involve
discussions and agreements on copyright matters
related to digitization and access. Lastly,
many European countries
periodically update their copyright laws, incorporating
reforms and modernization efforts to adapt to the digital age and address
issues related to cultural heritage
preservation. These reforms
are essential in ensuring that
copyright laws remain in harmony with the preservation and accessibility of Europe's rich cultural heritage.41
?
SINGAPORE: Singapore has implemented a range of initiatives to preserve its cultural heritage through copyright law. These measures include copyright exceptions for cultural institutions, enabling libraries, archives, and museums to make copies of copyrighted materials for preservation and research. Digitization projects conducted by the National Library Board aim to preserve and provide online access to historical resources, contributing to cultural heritage preservation. Orphan works legislation allows institutions to utilize works with uncertain copyright ownership. Collaborative efforts with cultural institutions, public domain calculators, public engagement and education, and the use of digital rights management and licensing arrangements are all part of Singapore's multifaceted approach. These initiatives showcase Singapore's commitment to maintaining its cultural heritage while respecting copyright laws and intellectual property rights, ensuring that cultural materials are both safeguarded and accessible to the public.42
SINGAPORE: Singapore has implemented a range of initiatives to preserve its cultural heritage through copyright law. These measures include copyright exceptions for cultural institutions, enabling libraries, archives, and museums to make copies of copyrighted materials for preservation and research. Digitization projects conducted by the National Library Board aim to preserve and provide online access to historical resources, contributing to cultural heritage preservation. Orphan works legislation allows institutions to utilize works with uncertain copyright ownership. Collaborative efforts with cultural institutions, public domain calculators, public engagement and education, and the use of digital rights management and licensing arrangements are all part of Singapore's multifaceted approach. These initiatives showcase Singapore's commitment to maintaining its cultural heritage while respecting copyright laws and intellectual property rights, ensuring that cultural materials are both safeguarded and accessible to the public.42
41 Mapping of
Cultural Heritage Actions in European Union Policies, Programmes and
Activities, EUROPEAN COMMISSION,
(last visited Nov. 10, 2023),
https://dc5k4hhhkzdqp.cloudfront.net/media/Mapping_of_Cultural_Heritage_actions_in_European_Union_policies_ programmes_and_activities.pdf
42 Gavin Foo, Singapore’s biggest copyright reform in 30 years, WIPO
MAGAZINE, (Aug, 2019), https://www.wipo.int/wipo_magazine/en/2019/04/article_0003.html?gclid=CjwKCAiAxreqBhAxEiwAfGfndCtyng Aiclxzvfx-tmGyDeFynXPsoI8_nkT67WK8zivNnAbfn-yx-BoCf0wQAvD_BwE
5.1 CONCLUSION AND SUGGESTIONS
To enhance the preservation of cultural heritage
through copyright laws in India,
firstly, there is a need to strengthen copyright exceptions and limitations, ensuring
that they explicitly cover digital preservation, access, and educational
uses of heritage materials. This step would facilitate the work of cultural institutions in preserving and providing
access to valuable cultural assets. Secondly, India should take a proactive
approach to protect
traditional knowledge and expressions through
copyright laws. Collaborating closely with indigenous
communities and acknowledging their
rights in this context is of paramount importance. It is essential to ensure that traditional knowledge remains within
the control and benefit of the communities from which it originates. Additionally, supporting digitization and preservation initiatives is crucial. Providing
cultural institutions with the
necessary funding and resources will enable them to preserve and make accessible their valuable heritage assets,
ensuring their longevity for future generations. Promoting
public awareness and education about the significance of cultural heritage preservation and the role of
copyright laws is another key recommendation. Conducting public campaigns, workshops, and educational programs can help
instill a sense of pride and responsibility
among citizens in preserving their cultural legacy. Lastly, India should actively
engage in international forums and agreements that address the
harmonization of copyright laws for
cultural heritage preservation. Collaborative efforts with other countries can
lead to effective solutions for
preserving heritage materials across borders.
Protecting cultural heritage through copyright laws in
India is a multifaceted challenge that demands a thoughtful and balanced approach.
The recommendations provided
offer a path forward for India to strengthen its efforts in safeguarding its rich cultural
heritage. By implementing these measures, India can not only preserve
its historical and traditional knowledge but also foster a sense of
cultural pride, understanding, and shared identity among its diverse
population. Striking the right equilibrium between copyright protection
and heritage preservation is
essential to ensure that India's cultural legacy continues to inspire, educate,
and unite generations to come.
Article Information
PRESERVING THE PAST: COPYRIGHT PROTECTION AS A SAFEGUARD FOR CULTURAL HERITAGE
Authors: SHRUTI SHREE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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