Introduction
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“When a community’s cultural heritage is used to create private commercial value, who, in law, owns the culture?”
Consider a traditional folk song, an embroidery pattern, a form of dance, or a craft design that has been passed down within a community for generations. These expressions may carry the history, identity and beliefs of the people who created and preserved them. Yet, when the same expression is used by an individual, company, designer or performer for commercial purposes, a difficult legal question arises: can the community claim any legal right over it?
This question becomes particularly important in India, where cultural traditions are closely connected with communities and have developed over centuries. Traditional cultural expressions and folklore exist in many forms, including music, dance, stories, handicrafts, designs, rituals and artistic practices. Unlike a newly created literary or artistic work, however, these expressions often do not have a single identifiable “author”. They may be collectively created, transmitted orally and continuously modified by different generations.
Indian intellectual property law does provide some forms of protection that may apply to particular aspects of such expressions. The problem, therefore, is not simply that traditional cultural expressions are completely unprotected under Indian law. The deeper issue is whether existing laws, which are largely based on concepts such as individual “author”ship, originality, ownership and limited terms of protection, are capable of addressing cultural expressions that are collective, intergenerational and closely connected with community identity.
This article examines this legal gap and considers whether India needs a more suitable framework for protecting traditional cultural expressions and folklore while also preserving creativity and the public domain.
The Traditional Knowledge Digital Library (TKDL)
The Traditional Knowledge Digital Library (TKDL) is a database that helps in understanding the traditional knowledge already existing within the Indian Systems of Medicine and in identifying such knowledge as prior art during patent examination. It mainly contains codified knowledge relating to Ayurveda, Siddha, Unani and Yoga.
TKDL itself is not prior art. The actual prior art is contained in the original books in which the traditional knowledge relating to the Indian Systems of Medicine has been recorded. TKDL takes information from these original sources and presents it in an easily searchable and understandable format. It also contains scanned images of medicinal formulations as they appear in the original books.
TKDL contains more than 2 lakh formulations taken from texts relating to Ayurveda, Unani, Siddha and Yoga. However, this does not mean that TKDL contains all the traditional knowledge existing within the Indian Systems of Medicine. It is a dynamic database, meaning that information is continuously added and updated, including on the basis of inputs from users of the database.
TKDL presents traditional medicinal knowledge in a standardised format. For example, information relating to a medicinal formulation generally includes the name of the drug, the origin or source of the knowledge, the ingredients used in the drug along with their parts and quantities, the method of preparation and its use, and the relevant bibliographic details of the original source or book.
Another important function of TKDL is to connect terms used in traditional texts with modern scientific terminology. For example, where turmeric is mentioned in traditional literature, TKDL provides its modern scientific name, Curcuma longa. Similarly, traditional terms relating to diseases or processes are linked with their modern equivalents. This helps establish a connection between traditional knowledge and modern knowledge.
While documenting traditional knowledge, one of the difficulties was the absence of a proper system for classifying and organising it. To address this, India developed the Traditional Knowledge Resource Classification (TKRC). The system is based on the structure of the International Patent Classification (IPC) and is primarily used to classify traditional knowledge relating to Ayurveda, Siddha, Unani and Yoga.
TKRC systematically classifies traditional knowledge so that patent examiners can easily identify existing traditional knowledge and prevent the grant of patents over knowledge that is already part of the traditional knowledge base.
Limitations of the TKDL Framework
TKDL is not a comprehensive legal protection system for Traditional Cultural Expressions (TCEs). It does not, by itself, provide communities with ownership or exclusive rights over things such as; folk songs, traditional music, folk dances, traditional stories, oral traditions, traditional paintings, artistic expressions, embroidery, cultural motifs, rituals, ceremonies, traditional symbols and cultural designs and other forms of folklore and cultural expression.
More importantly, documentation is not the same as ownership or protection. Even if a cultural expression is documented, that alone does not necessarily give the community a legal right to control its commercial use, prevent culturally inappropriate use, demand attribution, or receive benefits from its exploitation.
International Frameworks for TCE Protection
The 1982 WIPO-UNESCO Model Provisions provide an early international framework for the protection of “expressions of folklore”.
Under Section 2 of the 1982 WIPO-UNESCO Model Provisions “”expressions of folklore”” refer to traditional artistic expressions that form part of the traditional art and cultural heritage of a community. These expressions may have been developed and maintained by the community over generations, or may be created by individuals in a manner that reflects the traditional artistic style and expectations of that community.
The provision broadly recognises four categories of expressions:
- Verbal expressions: Forms expressed through words, including traditional folk tales, poetry, oral stories, and riddles passed down within a community.
- Musical expressions: Folk songs and instrumental compositions performed through traditional community musical instruments.
- Expressions by action: Folk dances, plays, rituals, and ceremonies. These expressions do not require fixation in a material form and qualify even when transmitted purely orally or through performative tradition.
- Tangible expressions: Material cultural products, including drawings, paintings, carvings, sculptures, terracotta, pottery, woodwork, metalwork, jewellery, basket weaving, embroidery, textiles, and costumes.
Traditional Cultural Expressions and Intellectual Property Law
For many communities, TCEs, Traditional Knowledge and genetic resources form part of a broader cultural heritage. However, TCEs raise certain distinct legal issues, which is why they are considered separately in the context of intellectual property law.
The existing intellectual property system is not completely irrelevant to the protection of TCEs, but the protection it provides is largely dependent on the particular form in which the cultural expression is used. Copyright may protect a modern adaptation, a trademark may protect a cultural name or symbol, a geographical indication may protect a traditional product associated with a particular geographical area, and related rights may protect a particular performance. However, the underlying traditional cultural expression, as a collective and intergenerational form of cultural heritage, may not receive comprehensive protection under these existing mechanisms.
At the international level, the legal protection of TCEs is still developing. The World Intellectual Property Organization’s Intergovernmental Committee (IGC) is engaged in negotiations concerning an international legal framework for the protection of traditional cultural expressions.
Sui Generis Framework Under WIPO-UNESCO Model Provisions
Section 13 of the 1982 WIPO-UNESCO Model Provisions refers sui generis protection of “expressions of folklore” is that such protection should not prevent the community from using or developing its own cultural traditions. The community by which and within which a particular expression of folklore has developed and been maintained over generations should remain free to use and develop its traditional artistic heritage, as recognised under Section 2, without being required to obtain the “author”isation contemplated under Section 3 of the 1982 WIPO–UNESCO Model Provisions.
The same principle applies where the community modifies or adapts its traditional cultural expressions to reflect contemporary circumstances. Such use should not be regarded as a distortion of the expression merely because it differs from its traditional form. Where the community itself accepts and identifies with the present-day use or modification of an expression of folklore, such changes should not be treated as harmful distortion under the protection framework.
India’s Legal Gap: Communal Heritage vs. Individual Ownership
India is a highly diverse country where traditional cultural expressions (TCEs) and folklore form an important part of the cultural identity of various communities. Folk songs, traditional dances, tribal paintings, embroidery, handicrafts, motifs, stories, rituals, symbols, and traditional performances are among the many forms of cultural expression that have been transmitted and preserved by communities across generations. The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, 2003 recognises intangible cultural heritage as including practices, representations, expressions, knowledge, and skills that communities recognise as part of their cultural heritage and that are transmitted from generation to generation.
Copyright Law and the Problem of Individual Authorship
Under Indian copyright law, the Copyright Act, 1957 appears to be the most obvious legal mechanism for protecting traditional cultural expressions.
Section 13(1)(a) recognises copyright in original literary, dramatic, musical and artistic works, while Section 14 confers specified exclusive rights on the copyright owner. Sections 2(c), 2(o), 2(p) and 2(q) further recognise artistic works, literary works, musical works and performances respectively.
Traditional cultural expressions, however, are generally collective and intergenerational in nature. They are often developed, preserved and transmitted by communities over several generations, making it difficult to identify a single individual as their “author”. Copyright law, by contrast, is fundamentally based on “author”ship and ownership associated with an identifiable creator. Section 17 also generally vests the first ownership of copyright in the “author”.
This raises an important question, where a traditional tribal motif, folk song or traditional dance has been transmitted within a community for centuries, who can be regarded as its “”author”” for the purposes of copyright law?
The decision of the Supreme Court in Academy of General Education, Manipal v. B. Malini Mallya is particularly relevant in understanding this issue. The case concerned copyright in the context of Yakshagana, a traditional performance form of Karnataka. The decision illustrates that a new and original creative contribution based on a traditional cultural form may qualify for copyright protection. However, such protection does not, by itself, establish a copyright owned by the community in the underlying traditional form.
Copyright law can therefore play an important role in protecting contemporary adaptations, original arrangements, recordings and other new creative contributions based on traditional cultural forms. It does not, however, provide comprehensive protection to the underlying traditional expression as a collective form of community-held cultural heritage.
Anamika Sood vs Saregama India Pvt. Ltd on 18 April, 2026
In this case Court held that, although “”Ferrareee”” drew limited inspiration from the traditional folk melody, it contained sufficient original expression, allowing Sood to claim copyright in her original sound recording. However, the Court also made it clear that she could not claim exclusive copyright over the underlying traditional folk melody, as it was in the public domain. Since Saregama failed to establish infringement, Sood was also awarded damages of ₹5 lakh for the takedown.
The case of Anamika Sood v. Saregama India Ltd. demonstrates that Indian copyright law tends to protect new and original adaptations or manifestations of traditional cultural expressions rather than the underlying traditional expression itself.
The Court recognised Sood’s copyright in the original composition and sound recording of “”Ferrareee””, but did not recognise any exclusive copyright over the traditional Punjabi folk melody from which the song drew inspiration, as the melody was considered to be in the public domain.
The case therefore highlights an important gap in the existing legal framework. Although a traditional expression may form part of a community’s collective cultural heritage, Indian copyright law does not clearly recognise the community’s ownership or control over that underlying expression.
Geographical Indications: Useful but Incomplete
Geographical Indications as a Partial Mechanism
The Geographical Indications of Goods (Registration and Protection) Act, 1999 provides another important mechanism through which certain traditional products can receive protection.
Section 2(e) defines a geographical indication in relation to goods whose quality, reputation or other characteristics are essentially attributable to geographical origin.
Sections 8 and section 11 provide the statutory framework for registration, while Sections 17 and 20 provide mechanisms concerning “author”ised users and infringement.
GI protection is particularly relevant to India’s traditional handicrafts, textiles and regional products. However, GI protection has a specific focus on the relationship between goods and geographical origin.
TCEs are much broader, a cultural expression may be a folk song, a dance, a story, a ritual, a traditional symbol, a visual motif, a performance, or a traditional craft technique.
Not all of these are necessarily “goods” whose characteristics are attributable to a particular geographical origin. Therefore, GI protection may protect the commercial identity and geographical reputation of a traditional product, but it does not automatically provide a comprehensive right over the underlying cultural expression.
This demonstrates that GI protection is an important partial solution, but not a complete TCE protection mechanism.
Designs Act and the Novelty Problem
Traditional cultural expressions often include visual motifs, patterns, embroidery and decorative designs. The Designs Act, 2000 can therefore appear to provide another possible form of protection.
Section 2(d) broadly defines “design” in terms of features such as shape, configuration, pattern, ornament or composition of lines or colours applied to an article. However, Section 4 prevents registration of designs that, among other things, are not new or original or have already been disclosed to the public.
Therefore the Designs Act is designed primarily to protect novelty in industrial design, whereas TCE protection may need to protect cultural continuity and authenticity.
Constitutional Protection of Culture (Article 29)
Article 29(1) of the Constitution recognises the right of any section of citizens having a distinct language, script or culture of its own to preserve and protect it. This provision reflects the constitutional recognition of the importance of preserving the cultural identity and heritage of different communities in India.
Constitutional protection recognises the importance of preserving culture, but it does not create a comprehensive proprietary framework for controlling commercial use of traditional cultural expressions.
Conclusion
India’s traditional cultural expressions and folklore are not merely forms of artistic activity from the past. They form an important part of the identity, history, knowledge and cultural continuity of communities. Folk songs, dances, traditional crafts, paintings, designs, rituals, stories and other cultural expressions have been preserved, practised and developed by communities over generations. The protection of such expressions, therefore, is not merely an issue of intellectual property. It also raises broader concerns relating to cultural identity, dignity, community participation and the fair distribution of economic benefits arising from the use of cultural heritage.
The Government’s One District One Product (ODOP) initiative is a significant step towards promoting India’s traditional products and local industries. By supporting branding, skill development, market access and commercial promotion, ODOP creates greater economic opportunities for artisans and communities associated with traditional products. However, ODOP cannot be regarded as a substitute for legal protection of TCEs. The initiative primarily focuses on promoting and commercialising traditional products and supporting the artisan ecosystem; it does not, by itself, determine who holds rights over the underlying cultural expression, when community consent should be required, or how communities should benefit from its commercial use.
Ultimately, the challenge before India is not to convert traditional culture into private property, but to establish a legal balance that allows communities to freely preserve, practise, adapt and develop their cultural expressions while effectively addressing un”author”ised commercial exploitation, misappropriation and culturally harmful uses by outsiders. The objective, therefore, should not be to replace the existing intellectual property framework entirely, but to supplement it with a community-centred mechanism that takes into account the distinctive collective, intergenerational and evolving nature of traditional cultural expressions and folklore.
References
- Council of Scientific and Industrial Research (CSIR) & Ministry of Ayush, Traditional Knowledge Digital Library (TKDL) Portal.
- World Intellectual Property Organization (WIPO), Traditional Cultural Expressions Overview & IGC Mandate.
- WIPO & UNESCO, Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1982).
- Government of India, The Copyright Act, 1957 (Act No. 14 of 1957).
- Supreme Court of India, Academy of General Education, Manipal v. B. Malini Mallya, (2009) 4 SCC 256.
- Delhi High Court, Anamika Sood v. Saregama India Ltd., CS(COMM) 420/2021.
- Office of the CGPDTM, The Geographical Indications of Goods (Registration and Protection) Act, 1999 & The Designs Act, 2000.
