Protecting traditional cultural products under the current intellectual property laws

Traditional Cultural Expressions (TCEs) refer to the practices and cultures exercised by a particular community and transmitted over generations orally. In a wider sense, TCEs include folk songs, folklore, stories, handicrafts, and dances etc of a particular community.

In Bangladesh, there are more than 50 indigenous communities and they each have different cultural products and expressions. Bhatiali songs, Lalon geeti, Jamdani saree, Nakshi Kantha, Bakorkhani of old Dhaka, etc are all prime examples of TCEs.

However, there are some classical challenges to protect such cultures as a form of intellectual property. Sometimes, the actual owner of a TCE is difficult to identify when it comes to copyright protection. As a result, it's common for TCEs to be copied or significantly changed by others without the permission of the rightful owner, proper credit, or payment.

Additionally, the invention made by traditional knowledge also is not entitled to get the patent protection since the knowledge is deemed to be existing in 'public domain'. 

Against this backdrop, this article aims to examine the current intellectual property regime to identify the way-outs of protecting such TCEs.

Bangladesh Patent Act 2023 has left scope for 'defensive protection' of TCEs. Section 6(1)(na) clearly excluded the traditional knowledge from patentability. So, no third parties can apply for patenting any invention that is related to any traditional knowledge or culture.

This provision is commendable as a way to protect TCEs, but it doesn't offer real protection. It's difficult to meet the requirements of 'novelty' or 'inventive step' for a specific invention based on traditional knowledge. As a result, the real inventor is deprived of economic benefits.

Therefore, real protection is required for inspiring the inventor through a compensatory award.

Our current patent regime doesn't address this challenge. In addition, the duration of patent protection is only for 20 years. After that period, it will automatically be in the 'public domain'. Everyone will be entitled to use, sell, import, or reproduce the invention without any licence of the patent holder.

So, in my view, defensive protection is the 'best choice' for protecting TCEs for indefinite periods from being exploited by third parties.

However, the recently enacted WIPO treaty on IP, genetic resources and traditional knowledge related to genetic resources 2024 leaves scope for some kind of positive protection.

Article 3 requires applicants to disclose the country of origin, indigenous communities, local communities, or the source of traditional knowledge in order to obtain patent protection of a traditional knowledge associated with genetic resources.

This way, the real owners or communities of inventions based on traditional knowledge can get patent protection and restrict other countries from patenting those.

Article 9 allows state-parties to take necessary measures to implement the treaty. Therefore, after  depositing the instruments of succession, Bangladesh may incorporate the provision in the domestic patent regime to give real protection to TCEs. 

Besides patents, the current copyright act can also protect TCEs, as it covers literary, artistic, musical, and dramatic works.

The Copyright Act-2000 didn't have clear indications to protect TCEs. 

'Originality' and 'fixation' are the main requirements for copyright protection. 'Fixation' requirement doesn't apply for TCEs since most of the songs and stories are transmitted orally, not fixed or expressed in any material form. 

However, following the enactment of the Copyright Act 2023, Bangladesh has entered into the copyright regime where the TCEs are protected through Copyright.

Combined reading of sections 2(1), 2(7), 34 transpires that the author(s), either real or pseudonymous, of 'folklore' or 'folk culture' can apply for protecting the TCEs. This Act extends the protection to the 'community or collective rights' of verbal, symbolic, melodic, tangible, etc expression of folk culture.

Section 34(2) categorically provides that the protection shall continue for as long as the society or community concerned continues to exist. It provides an 'indefinite duration' to the TCEs. This is indeed an appreciable step taken to protect TCEs in Bangladesh. 

Apart from these, protection of 'trademark' or 'service mark' may be an effective way of protecting TCEs.

The registered users of such TCEs may protect the name, signs, symbols, etc as 'collective mark'. A collective mark, defined in section 2(25) of the Trademarks Act 2009, can be used by all of the members of the concerned community.

Trademarks are eventually protected for an indefinite period through renewal after the first seven years. Besides, unregistered trademarks also can get protection through 'passing off' action as guaranteed under section 24(2) of the Act of 2009.

When a person uses another person's mark, the aggrieved person may file suit before a civil court for such passing off. So if any third party infringes any collective mark, sign, name, or symbol of a community, any person from the community can seek legal remedies under 'passing off' action even if such marks are not registered as a trademark.

Furthermore, if the qualities or goodwill of the creations or products of TCEs indicate a specific geographical origin, those can be protected through geographical indication under the GI Act of 2013. There are many products like 'Jamdani Saree', 'Nakshi Katha',  'Tangail Saree', etc in which traditional methods have been followed by the concerned community.

In some recent years, Bangladesh has experienced disputes with India regarding the GI claim of some traditional products including Tangail Saree. However, these GIs are not protected outside the country in the absence of registration taken by the interested parties of country of origin. So, Bangladesh should be more vigilant about registering all traditional products in Bangladesh. Only then, the right to application for cancellation of such registration in India will accrue.

The above discussion clarifies that there are scattered provisions in different IP legislations to protect TCEs in Bangladesh.

In this regard, Professor Dr Towhidul Islam contends in his article 'Protection of Traditional Knowledge: Finding an Appropriate Legal Framework for Bangladesh' that a sui generis system i.e an independent protection mechanism is required for proper protection of TCEs along with some non-IP protection system including access and benefit sharing (ABS) scheme and Traditional Knowledge Library (TKL).

Since no sui generis system has not evolved in Bangladesh till today, this author submits, in line with Islam's contention, that the current IP regime also can fill the vacuum of that independent system if the challenges identified above can effectively be addressed.

Abuzar Gifari is a Research Officer at the International Institute of Law and Diplomacy (IILD).

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.