Protection Of Traditional And Folk Music Under Intellectual Property

By Kunjal Yadav & Baani Pahwa

I. Introduction

Traditional and folk music represent one of the fundamental elements which make up the diverse cultural heritage of India. Various Indian communities maintain these oral traditions, which have been passed down through generations as an important part of their social and religious and cultural identities. Modern music differs from folk and traditional music, since it usually originates from identifiable individual authors who receive protection through standard intellectual property (“IP”) systems, whereas folk and traditional music belong to communities as their collective creations. Over time, these cultural expressions develop through environmental conditions as well as cultural elements, together with religious influences and communal experiences. The protection of cultural expressions through intellectual property rights (“IPR”) in India has gained importance because of rising commercialisation and globalisation together with worries about cultural appropriation and bio-piracy. The protection of cultural expressions requires obtaining community consent for use and guaranteeing benefits for heritage owners as part of the worldwide dialogue on traditional knowledge (“TK”) and traditional cultural expressions (“TCEs”).

II. Historical Background 

Traditional and folk music in India existed as communal assets which communities maintained through time without formal authorship or ownership. Their communal nature prevented these works from receiving protection through traditional IPR systems that focus on individual creator rights for specific timeframes. Traditional art forms have existed outside mainstream legal protection because of their historical exclusion from legal frameworks. British colonial authorities implemented laws that stemmed from British legal systems, which neglected to protect the traditional knowledge systems of India. The post-independence legal framework focused primarily on protecting personal intellectual achievements while providing minimal protection for community rights and non-western authorship concepts. However, India has begun aligning its legal system with international discussions about traditional knowledge protection because of the World Intellectual Property Organisation’s leadership on this subject.

III. Legal Framework 

The legal system of India regarding traditional and folk music protection through intellectual property rights consists of multiple complex and developing components which are influenced by domestic legislation and international agreements. The Copyright Act of 1957 (“the Act”) stands as the main legislation which governs intellectual property rights related to traditional and folk music in India. The  Act, protects original literary works together with dramatic works and musical works and artistic works are protected under it. The Act provides protection to “original musical works” under Section 13(1)(a) when they exist as recorded performances in physical media and have traceable authors or performers. However, the protection offered by the Act faces limitations because it demands originality and authorship which restricts its ability to protect anonymous community-owned musical traditions. Traditional musical works that have been documented or arranged by identifiable individuals may obtain copyright protection as derivative works according to Section 2(o) of the Act. Section 57 grants moral rights to authors for protecting their works from distortion and misrepresentation but this protection rarely extends to traditional cultural expressions in practical terms. In addition to copyright law, community-based rights may have limited protection through the Geographical Indications of Goods (Registration and Protection) Act, 1999. The Geographical Indication Act primarily protects goods that come specifically from a geographical location and are characterised such that the origin distinguishes them from other goods. Its applicability and use to musical traditions are doubtful, but the mention of community-based rights demonstrates a model where collective ownership may be emphasised. In addition, the Biological Diversity Act, 2002, which provides for the protection of biological resources and traditional knowledge associated with biological resources, and The Protection of Plant Varieties and Farmers’ Rights Act, 2001, are legislations that represent India’s implementation of the Convention on Biological Diversity and Nagoya Protocol. These laws indirectly protect traditional knowledge related to traditional practices, such as medicinal practice and agricultural varieties, and provide enough implications for collective rights and providing benefit-sharing structures.

The Traditional Knowledge Digital Library (TKDL) under Indian governance supports traditional and folk music preservation by recording indigenous knowledge in accessible formats. The TKDL mainly concentrates on medicinal knowledge, yet the development of repositories for traditional music remains in its early stages. The UNESCO Convention for the Safeguarding of Intangible Cultural Heritage together with other international agreements make it vital to protect intangible cultural expressions including folk music as India has signed these conventions. International conventions which lack direct legal force within IPR systems establish moral and diplomatic requirements for states to develop protective measures regarding cultural heritage.

IV. Limitations 

Traditional and folk music in India continue to face substantial obstacles when it comes to protection through current IPR regulations. The main obstacle emerges from the incompatible nature between western-directed IPR systems and the communal cultural expressions which the law seeks to protect. Traditional music does not conform to the standard copyright requirements because it normally lacks specific authors and fixed expressions and original qualities according to legal definitions. The standard 60-year copyright term established under Section 22 of the Act does not suit the eternal intergenerational nature which characterises folk traditions. The absence of legal protection creates a space where these works enter the public domain, while communities that maintain them lack any system to safeguard their rights. 

The problem of representation and consent stands as a major challenge for the protection of traditional cultural expressions. Legal protection mechanisms exist but the proper representation of concerned communities together with their informed consent for cultural expression use remains hard to achieve. The combination of complicated bureaucracy and[2]  low awareness levels and minimal legal literacy among traditional practitioners makes it challenging for them to defend their rights or stop unauthorised cultural exploitation. The absence of fully implemented benefit-sharing frameworks in academic and policy discussions results in communities missing out on commercial benefits from their cultural heritage. The enforcement component of the chain fails to provide adequate protection because unauthorised recordings and performances and commercial uses of folk tunes frequently remain unchallenged when resources and legal mechanisms are unavailable.

V. Possible Solutions

To effectively safeguard traditional and folk music in India- in our view, a comprehensive re-modelling, in essence, of the existing intellectual property framework is required. A foundational step would be the creation of sui generis legislation specifically tailored for Traditional Cultural Expressions (TCEs). So, unlike conventional IP laws which prioritise individual ownership and limited durations- these sui generis models can accommodate the collective, intergenerational, and often anonymous nature of traditional music.

The World Intellectual Property Organization (WIPO) has also, acknowledged that conventional IP systems inadequately address the needs of communities whose cultural heritage cannot be traced to a single author or fixed expression. Alongside legal reform, institutional mechanisms - such as community registers should be developed - these registers would document musical traditions with the active participation and control of the communities that are concerned- which would ultimately prevent unauthorised public domain entry while allowing communities to assert custodial rights. Further, while the TKDL presently focuses on Ayurveda and other traditional systems of medicine, its structural model could be replicated to build a digital library of traditional music governed by access protocols and prior informed consent perhaps.

Further, drawing from the Nagoya Protocol and India’s own Biological Diversity Act, the introduction of mandatory benefit- sharing frameworks is essential and rather pertinent. When traditional music is used commercially,- either in the entertainment industry or academic research,- the communities that sustain this heritage must receive royalties, recognition, and development support. Most traditional artists and community custodians are unaware of their rights and legal remedies. Hence, state sponsored awareness campaigns and legal aid initiatives should perhaps, be implemented to empower these groups to protect their music and resist cultural exploitation.

VI. Comparative Analysis 

Several countries facing similar dilemmas in protecting traditional music have implemented innovative approaches that India can, in our view, learn from. Panama, for instance, enacted Law No. 20 (2000) to establish a legal regime of sorts,- for the protection of the collective rights of Indigenous people over their cultural expressions, including music. Thus, the aforesaid So, this law not only creates a registry for cultural elements but also mandates prior authorisation before any commercial use, offering a model for safeguarding community interests.

Similarly, Peru’s Law No. 27811 (2002) provides a protective framework for the collective knowledge of Indigenous people, especially  and particularly- concerning biodiversity. Further, in New Zealand, the Waitangi Tribunal’s 2011 report also recognises the cultural rights of the Māori people, including over their traditional songs and dances (waiata and haka). While the country lacks formal sui generis legislation, Māori customs are increasingly respected through ethical protocols and consultation frameworks.

These international practices indicate a growing global consensus that protection of intangible heritage must go beyond standard IP tools and embrace culturally appropriate models that combine legal, ethical, and administrative safeguards. India’s legal system, while partially responsive, remains heavily reliant on Eurocentric IP standards and must pivot towards a hybrid regime grounded in community agency and cultural specificity.

VII. Conclusion

India’s traditional and folk music represents a vast and diverse cultural reservoir that cannot be fully protected by the current intellectual property regime rooted in Western legal traditions. The foundational principles of copyright law- do not align with the communal, oral, and intergenerational nature of India's folk heritage. While mechanisms like the Copyright Act, the Geographical Indications Act, and Biological Diversity Act offer partial remedies, they often rather fail to provide comprehensive protection to community-based musical expressions. As a result, many of these cultural forms fall into the public domain, allowing unrestricted exploitation without recognition or benefit to the originating communities.

In an age of rapid globalisation and cultural commodification, the absence of legally enforceable rights over traditional music puts communities at risk of cultural erasure or nullification of sorts as well as economic marginalisation. We suggest reforms be anchored in the principles of the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (2003) and the Nagoya Protocol, which emphasise the importance of community participation, consent, and benefit-sharing in protecting intangible heritage. By bridging the gap between law and lived culture, India can not only preserve its rich musical traditions but also honour the rights and identities of the communities that have nurtured them across generations.

References:

1. World Intellectual Property Organization, Intellectual Property and Traditional Cultural Expressions/Folklore, WIPO Pub. No. 913(E) (2003), https://www.wipo.int/publications/en/details.jsp?id=370.

2. Madhavi Sunder, The Invention of Traditional Knowledge, 70 Law; Contemp. Probs. 97, 101–02 (2007).

3. Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

4. Biological Diversity Act, 2003, No. 18, Acts of Parliament, 2003 (India).

5. Protection of Plant Varieties and Farmers’ Rights Act, 2001, No. 53, Acts of Parliament, 2003 (India).

6. Traditional Knowledge Digital Library (TKDL), CSIR India, https://www.csir.res.in/tkdl.

7. Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, UNESCO Doc. MISC/2003/CLT/CH/14 Rev.

8. Rina Ramdev & Anjali Monteiro, Intellectual Property Rights and Folk Music: Challenges and Opportunities, 7 J. World Intell. Prop. 665 (2004).

9. World Intellectual Property Organization, Intellectual Property and Traditional Cultural Expressions/Folklore, WIPO Pub. No. 913(E), at 21 (2003). 

10. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, opened for signature Feb. 2, 2011, 1760 U.N.T.S. 79 (entered into force Oct. 12, 2014).

11. Ley No. 20 de 26 de junio de 2000, Gaceta Oficial, 24,014 (Panama), available at https://www.wipo.int/edocs/lexdocs/laws/es/pa/pa022es.pdf. 

12. Law No. 27811, Law Introducing a Protection Regime for the Collective Knowledge of Indigenous Peoples Derived from Biological Resources, Peru, Aug. 10, 2002.

13. Waitangi Tribunal, Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity, WAI 262 (2011).

14. African Regional Intellectual Property Organization (ARIPO), Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, , Aug. 9, 2010.

15. UNESCO, Convention for the Safeguarding of Intangible Cultural Heritage, adopted Oct. 17, 2003, UNESCO Doc. MISC/2003/CLT/CH/14.