Author(s): Hansraj
Paper Details: Volume 4, Issue 3
Citation: IJLSSS 4(3) 46
Page No: 505 – 515
ABSTRACT
Traditional Cultural Expressions (TCEs), such as folk art, designs, music, and performances are increasingly used in industries like fashion, tourism, and digital media. According to UNESCO, cultural and creative industries generate more than USD 2.25 trillion annually. However, the main problem is that the communities who create and preserve these cultural expressions often do not receive proper recognition or financial benefits.
This paper examines whether the existing intellectual property (IP) laws in India are capable of protecting Traditional Cultural Expressions. It argues that the current IP framework is not suitable for TCEs because it is based on individual ownership and limited duration, while TCEs are collectively owned and passed down through generations. This mismatch leads to problems such as misuse of cultural expressions, absence of prior informed consent, lack of fair benefits-sharing, and weak protection of community rights.
The study adopts a doctrinal and analytical approach, supported by case analysis and reference to international frameworks such as WIPO. It evaluates laws like the Copyright Act,1957 and the Geographical Indications of Goods (Registration and Protection) Act, 1999 to highlight their limitations in protecting community-based cultural heritage.
The paper concludes that a sui generis (a special and separate legal system designed specifically for TCEs) framework should be introduced in India. Such a system would ensure community ownership, prior informed consent, proper recognition, and fair sharing of benefits.
Keywords: traditional cultural expressions, intellectual property, commercialization, benefit sharing, consent, community rights, GI Act, cultural protection.
INTRODUCTION: COMMERCIALIZATION OF TRADITIONAL CULTURAL EXPRESSIONS AND INTELLECTUAL PROPERTY RIGHTS
In the context of increasing globalization and market expansion, Traditional Cultural Expressions (TCEs), commonly referred to as folklore, have gained significant commercial value. TCEs include music, art, textiles, crafts, rituals, and traditional designs that are developed and preserved over generations. These expressions are collectively owned and represent the identity, history, and values of communities. Unlike conventional intellectual property, which is based on individual authorship and originality, TCEs are dynamic, intergenerational, and rooted in shared cultural heritage.
With the rapid growth of industries such as fashion, tourism, and digital media, TCEs have moved beyond local communities and entered global markets. This process of commercialization has created new economic opportunities and enhanced cultural visibility, particularly for artisans and indigenous groups. However, it has also led to serious concerns regarding misappropriation and exploitation. In many instances, corporations use traditional designs and cultural elements without obtaining prior consent, providing acknowledgment, or sharing the economic benefits. Such practices reflect a structural imbalance where communities, despite being the original custodians, are excluded from recognition and financial gains. Recent controversies reported by The Hindu and The Indian Express including disputes over the commercialization of Bandhani Sarees [1]and Kolhapuri Chappals by private brands without community attribution further illustrate the persistence of such exploitation in contemporary market.
The limitations of existing legal frameworks aggravate this issue. The Supreme Court in Eastern Book Company v. D.B. Modak [2]held that protection under the Copyright Act, 1957 requires a “modicum of creativity,” thereby excluding most TCEs due to their collective and evolving nature. Similarly, the High Court of Calcutta in Tea Board of India v. ITC Ltd[3]. held that the Geographical Indications of Goods (Registration and Protection) Act, 1999 is limited in scope, protecting only specific goods and not broader cultural expressions. The Basmati Rice dispute further demonstrates how traditional knowledge can be commercially exploited at the international level due to weak legal safeguards. Although the Constitution of India under Article 29(1) and Article 51A(f) [4]emphasizes cultural preservation, it does not provide enforceable economic rights or effective remedies against commercial misuse. At the international level, instruments such as the Berne Convention,[5] the WIPO-UNESCO Model Provisions 1982, [6]and the United Nations Declaration on the Rights of Indigenous Peoples remain largely non-binding and insufficient. Despite ongoing efforts by the World Intellectual Property Organization, a comprehensive and enforceable global framework is yet to emerge.
This study adopts a doctrinal and analytical methodology based on statutory interpretation, case law analysis, and international instruments to examine the commercialization of TCEs at both the Indian and international levels. It argues that the existing legal regime suffers from structural inadequacies, particularly in failing to recognize community ownership, ensure prior informed consent, and provide equitable benefit sharing. Therefore, it emphasizes the urgent need to introduce a sui generis legal framework in India, supported by stronger international cooperation, to protect cultural integrity and ensure that commercialization promotes fairness, cultural justice, and sustainable development rather than exploitation.
CONCEPTUAL FRAMEWORK OF TRADITIONAL CULTURAL EXPRESSIONS (TCES) AND INTELLECTUAL PROPERTY RIGHTS (IPR)
Traditional Cultural Expressions (TCEs), often identified as folklore, represent the collective creative heritage of a community. They include a wide range of cultural manifestations such as folk performances, traditional music, oral storytelling, rituals, indigenous crafts, and symbolic artistic patterns. These expressions are deeply rooted in communal life and are shaped through shared participation rather than individual authorship. A distinctive aspect of TCEs lies in their continuous transformation over time. They are not static works fixed at the moment of creation; instead, they are transmitted orally or practically across generations. During this process, each generation may introduce subtle modifications, ensuring that the tradition remains alive, relevant, and responsive to changing cultural environments. Consequently, TCEs function as living cultural systems that reflect collective memory, identity, and social continuity.
According to the World Intellectual Property Organization (WIPO[7]), such expressions are considered part of the intangible cultural heritage of communities, maintained and developed collectively rather than individually owned. A relevant example is the Kalbelia dance of Rajasthan,[8] practiced by the Kalbelia community. It has been preserved through performance traditions and oral transmission rather than formal documentation or personal ownership claims. This demonstrates that the cultural value of TCEs lies in collective stewardship rather than individual control.
In contrast, Intellectual Property Rights (IPR) operate through a legal mechanism designed to protect individual intellectual achievements. This system covers creations such as literary works, artistic expressions, inventions, and commercial symbols, granting exclusive rights to identifiable creators for a specific duration. For instance, Harry Potter by J.K. Rowling [9]is legally protected under copyright law as an original literary work associated with a single author. However, this model is fundamentally based on individual ownership and fixed authorship, which contrasts sharply with the communal, evolving, and non-assignable nature of TCEs. This divergence creates a structural gap between traditional cultural systems and modern intellectual property regimes.
RESEARCH QUESTION
“Despite the existence of various Intellectual Property Rights laws, why is the commercialization of Traditional Cultural Expressions still not effectively protected from misuse and misappropriation.”
Traditional Cultural Expressions (TCEs) such as Madhubani painting[10] and Sikki craft of Bihar, Kanjeevaram silk sarees of Tamil Nadu, Warli art of Maharashtra, and Pattachitra of Odisha and West Bengal are not merely artistic outputs. They represent living cultural traditions that carry the identity, history, and collective memory of entire communities across generations. However, in the present era of global markets and digital reproduction, these cultural expressions are increasingly being copied, adapted, and sold commercially without proper authorization, acknowledgement, or meaningful benefit reaching the communities from which they originate.
In this context, Abhradip Banerjee (2020) [11]draws attention to the persistent economic and structural difficulties faced by traditional artisans. These include heavy dependence on middlemen, limited access to wider markets, and the absence of strong institutional mechanisms capable of safeguarding their interests. Such conditions not only weaken the economic stability of artisans but also expose their cultural creations to easy commercial exploitation.
Comparative judicial experiences further reinforce this concern. In Milpurrurru v Indofurn Pty Ltd,[12] the Australian Federal Court recognised that the unauthorized use of Indigenous artworks results not only in financial harm but also in cultural injury to the community. Similarly, in Bulun Bulun v R & T Textiles Pty Ltd, [13]the court acknowledged the collective character of Indigenous cultural ownership and indicated a fiduciary like responsibility resting on custodians to protect such works. In Foster v Mountford (1976), [14]the court intervened to prevent disclosure of sacred Aboriginal knowledge, emphasizing the importance of safeguarding cultural secrecy and sensitivity. Likewise, in Navajo Nation v Urban Outfitters, [15]the commercial use of Indigenous names and designs in the fashion industry highlighted the growing global concern of cultural appropriation in modern markets.
In the Indian context as well, although traditional crafts have received formal recognition under the Geographical Indications (GI) framework, art forms such as Madhubani continue to face weak enforcement, limited awareness among artisans, and ongoing exploitation by intermediaries. When these realities are viewed together, they reveal a clear and persistent gap between legal recognition and effective protection on the ground. More importantly, they highlight a deeper structural limitation: existing Intellectual Property Rights systems, which are largely built around individual authorship and commercial innovation, are not fully equipped to protect collective, community-based, and intergenerational cultural expressions.
OBJECTIVES OF THE STUDY
- This study seeks to examine the commercialization of Traditional Cultural Expressions (TCEs) within contemporary market-driven and globalized economic systems, where cultural value is often converted into economic gain.
- It aims to assess the adequacy and limitations of existing intellectual property laws in addressing issues of collective ownership and intergenerational cultural knowledge.
- The study further analyzes patterns of misappropriation and unauthorized use of traditional cultural elements across sectors such as fashion, tourism, and digital platforms.
- It also investigates the gap between de jure protection (legal recognition under formal frameworks) and de facto implementation (actual enforcement in practice), with a view to suggesting a balanced approach to cultural protection and commercialization.
RESEARCH METHODOLOGY
The present study adopts a doctrinal and analytical research methodology, focusing on the interpretation and evaluation of legal texts. Primary sources include statutory provisions such as the Copyright Act, 1957 and the Geographical Indications Act, 1999, along with relevant constitutional principles. Judicial decisions are examined to understand the evolving legal position on issues of originality, ownership, and cultural rights. The study also engages with secondary sources, including academic writings, policy reports, and international materials, to provide conceptual clarity. Illustrative references to contemporary practices are incorporated to connect legal analysis with practical realities. This methodological framework enables a comprehensive understanding of both the legal structure and its practical implications.
SCOPE OF THE STUDY
The study is primarily situated within the Indian legal context, while also drawing selective comparative insights from international developments. It covers various forms of Traditional Cultural Expressions, including art, crafts, textiles, music, and other forms of traditional knowledge. The research examines the interaction between these expressions and commercial sectors such as fashion, tourism, and digital media. It includes an analysis of statutory provisions, judicial interpretations, and policy measures relating to cultural protection. Relevant international frameworks are considered to provide a broader perspective. However, the study is confined to legal and policy analysis and does not extend to empirical or field-based research.
LIMITATIONS OF THE STUDY
- The study is doctrinal in nature and is based primarily on legal texts, judicial decisions, and secondary sources. It does not include empirical fieldwork or direct engagement with artisan communities, and therefore relies on documented material for contextual understanding.
- The diversity and evolving nature of Traditional Cultural Expressions make it difficult to arrive at conclusions that are universally applicable.
- Certain international frameworks discussed are non-binding, which may limit their direct application in domestic legal systems.
- The absence of a universally accepted definition of TCEs may lead to variations in interpretation. As legal frameworks and market practices continue to evolve, the findings of this study represent the position at a particular point in time.
FAILURE OF INDIAN INTELLECTUAL PROPERTY LAWS IN SAFEGUARDING TRADITIONAL CULTURAL EXPRESSION (TCES)
THE GEOGRAPHICAL INDICATION OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999
The Geographical Indications of Goods (Registration and Protection) Act, 1999 in India protects goods associated with a specific geographical origin. Section 2(1)(e) defines a GI as an indication identifying goods whose quality or reputation is linked to a place, but it focuses mainly on products rather than cultural practices. Section 8 restricts protection to a defined geographical territory, which may exclude artisans who migrate but continue traditional methods. Under Section 11, applications are made by associations, often limiting direct participation of actual producers. Section 17 requires producers to register as authorized users, creating procedural barriers for small artisans. Section 18 provides protection for ten years with renewal requirements, imposing administrative burdens. Sections 20 and 21 deal with infringement and legal protection but do not ensure fair benefit-sharing. Thus, while the Act offers structured protection, it remains limited in addressing cultural and community concerns.
THE COPYRIGHT ACT, 1957
The Copyright Act, 1957 in India provides legal protection to original literary, artistic, musical, and dramatic works. Under Section 13, protection is granted only to original works, which creates difficulty for Traditional Cultural Expressions (TCEs) that evolve collectively over time. Section 17 establishes that ownership vests in the individual author, ignoring the collective nature of traditional knowledge. Further, Section 22 limits the duration of protection to the lifetime of the author plus sixty years, which does not align with the perpetual nature of cultural heritage. Section 57 grants moral rights, but only to individual creators, not communities. Additionally, Section 52 provides exceptions such as fair use, which may be misused for commercial purposes. As a result, despite offering strong protection for individual creativity, the Act fails to adequately safeguard community-based cultural expressions.
CONSTITUTIONAL FRAMEWORK AND ECONOMIC RECOGNITION OF CULTURAL EXPRESSIONS
The Constitution under Article 29(1) and Article 51A(f) mainly focuses on protecting and preserving culture, but it does not fully address the commercial realities of Traditional Cultural Expressions (TCEs). Article 29(1) gives communities the right to safeguard their culture, while Article 51A(f) makes it a duty to preserve it; however, neither provision deals with economic rights, control over cultural use, or fair benefit-sharing. This creates a situation where communities are seen mainly as protectors of culture rather than as stakeholders in its economic value. As a result, there is a clear gap between constitutional ideals and market realities. The absence of enforceable rights, coupled with the individualistic bias of existing IPR regimes, institutional vacuum, intra-community contestations, and low legal awareness, collectively renders constitutional protection largely symbolic in the marketplace. A more coherent response requires a doctrinal and institutional recalibration. Through purposive interpretation, courts can expand Article 29(1) to include a derivative right of commercial control and benefit-sharing, while Article 51A(f) can serve as a normative foundation for legislative intervention. Parliament should operationalise this shift by enacting a sui generis framework establishing a statutory cultural interface authority with delegated community representation. Implementation would necessitate clear definitional standards, time bound regulatory processes, and safeguards against elite capture. While challenges such as administrative inertia and representational legitimacy are inevitable, they can be mitigated through participatory governance models and capacity-building initiatives. Only such a layered approach can transform constitutional preservation into effective cultural-economic governance.
CASE STUDIES ON COMMERCIALIZATION OF TRADITIONAL CULTURAL EXPRESSIONS (TCES) UNDER IPR
1. TURMERIC PATENT CASE (INDIA VS. USPTO)
The Council of Scientific and Industrial Research challenged a patent granted by the United States Patent and Trademark Office for turmeric’s wound-healing use. It was revoked after proving prior traditional knowledge.
Significance: Shows biopiracy and misuse of indigenous knowledge.
2. NEEM PATENT CASE (INDIA VS. EPO)
A patent on neem’s pesticidal properties was cancelled by the European Patent Office after evidence of traditional use.
Significance: Highlights exploitation without benefit-sharing.
3. BASMATI RICE DISPUTE (INDIA VS. RICETEC)
RiceTec’s claims over “Basmati-type” rice were opposed by India, leading to withdrawal
of key claims.
Significance: Prevents cultural misappropriation and monopoly.
OVERALL INSIGHT
These cases reveal gaps in IPR systems and stress the need for sui generis protection and fair benefitsharing mechanisms.
Sui Generis System: A Community-Centred Legal Framework for Protecting Traditional Cultural Expressions
A sui generis system is a specially designed legal framework created to protect Traditional Cultural Expressions (TCEs) in a more effective and culturally sensitive way than conventional intellectual property models. It replaces the idea of individual ownership with community stewardship, recognizing that cultural heritage is collectively created, preserved, and passed through generations. Under this system, communities are given real control over the use of their cultural expressions through prior informed consent, regulated access, and fair benefit-sharing, ensuring that cultural elements are not misappropriated or commercially exploited without permission. Guided by international institutions such as the World Intellectual Property Organization, this framework encourages countries like New Zealand and Panama[16] to strengthen community rights and cultural protection through structured legal mechanisms. It also promotes multi-level governance involving central, regional, and local authorities to ensure effective implementation. Overall, the sui generis system offers a balanced, inclusive, and humane solution that preserves cultural identity while allowing responsible and equitable use of traditional knowledge in the modern world.
SUGGESTIONS
- Epistemic justice should be legally embedded so indigenous communities are recognised as primary decision-makers over their cultural knowledge.
- A perpetual protection regime must be created to prevent time-limited expiry of TCE rights.
- Governments should develop a global cultural DNA database for authentic identification and misuse tracking.
- A mandatory prior-consent (reverse licensing) system should regulate all commercial cultural use.
- A cultural royalty subscription model can ensure continuous economic returns to source communities.
- Corporate cultural accountability should be measured through a standardized cultural credit scoring system.
- TCEs must be recognised as living, evolving heritage under community sovereignty and control
CONCLUSION
The commercialization of Traditional Cultural Expressions under Intellectual Property Rights exposes a quiet struggle between living heritage and legal definition. What communities preserve over generations through memory, practice, and identity is often translated by law into fixed and commercial terms. In doing so, the law gains structure, but culture risks losing its fluid spirit. This gap shows that protection cannot be achieved only through ownership models, because culture is not a single creation but a continuous dialogue between past and present. True protection, therefore, lies not in enclosing culture within strict legal boundaries, but in respecting its collective essence. A just approach must ensure recognition without reduction, and benefit without exploitation.
[1] Lifestyle Desk. “Ralph Lauren’s Bandhani-inspired skirt row.” The Indian Express, April 20, 2026. https://indianexpress.com/article/lifestyle/fashion/ralph-lauren-bandhani-skirt-row-10646054/ .
[2] Eastern Book Company & Ors v. D.B. Modak & Anr, AIR 2008 SC 809, Supreme Court of India.
[3] Tea Board of India v. ITC Ltd, 2011 (46) PTC 23 (Calcutta High Court.
[4] The Constitution of India, art.29(1) and 51A(f).
[5] Berne Convention for the Protection of Literary and Artistic Work, 1886 (Paris Act, 1979), art. 15(4), available at United Nations Industrial development Organization (UNIDO).
[6] UNESCO, Model Provisions for National laws on the Protection of Expression of Folklore Against Illicit Exploitation and Other Forms of Prejudicial Action (1982). https://unesdoc.unesco.org/ark:/48223/pf0000220160 .
[7] World Intellectual Property Organisation (WIPO), “Traditional Cultural Expression”, available at https://www.wipo.int/en/web/traditional-knowledge/traditional-cultural-expressions/index .
[8] UNESCO, Kalbelia Folk Songs and Dances of Rajasthan (Representative List of the Intangible Cultural Heritage of Humanity), available at https://ich.unesco.org/en/RL/kalbelia-folk-songs-and-dances-of-rajasthan-00340 .
[9] Elizabeth March, “Harry Potter and the IP Bonanza,” WIPO Magazine, 24 September 2007, World Intellectual Property Organisation (WIPO), available at https://www.wipo.int/en/web/wipo-magazine/articles/harry-potter-and-the-ip-bonanza-35915 .
[10] Mohit Sharma, “Authenticity in Question: Why Madhubani Art Deserve Better Protection,” Down To Earth (27 November 2025),
[11] Abhradip Banerjee & Biswanath Malakar, Commercialization of a Craft Tradition: A Study on Dokra Artisans Living in Dariapur Region in West Bengal, 73 The Eastern Anthropologist 587-613 (2020).
[12] Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240.
[13] John Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244.
[14] Foster v Mountford & Rigby Ltd (1976) 29 FLR 233.
[15] Navajo Nation v Urban Outfitters, Inc, 935 F Supp 2d 1147 (DNM 2013).
[16] Law No. 20 of 26 June 2000 (Panama), WIPO Lex, available at,
https://www.wipo.int/wipolex/en/legislation/details/3400 .