The Devil Claims Jhumkas, And India Cannot Defend It! Why Traditional Cultural Expressions Need Serious Legal Attention

The Devil no longer wears Prada, the Devil now wears Jhumkas, Bandhini printed skirts, styled with kohlapuri chappals and rebrands it as its own invention, something 'never seen before'.

The Devil in question, that the author here refers to, is not Miranda Priestly, but something way more dangerous - the Global multimillion-dollar, high-end luxury brands, who have lately been attracting much online backlash for stealing India's lived identity and culture in the name of fashion.

Be it Ralph Lauren's latest stint at calling jhumkas 'authentic vintage accessories', or selling the cotton wrapped skirt in Bandhani design as a 'Bandhani-inspired' skirt for over 44,000 Rs (yes, for one skirt alone) to Western Fashion Labels rebranding a basic dupatta as the 'Scandinavian Scarf', the examples are unlimited.

While some may argue that online criticism has pressured big brands like Prada to make a U-turn and acknowledge India's rich culture, as in the case of the Kohlapuri Chappals, Indian craftsmen, cultural traders and industries cannot be put in a continuous state of unprotected territory for easy exploitation by the West.

To Protect Your Roots, You Gotta Go To The Root (Of The Problem)

Although the Indian IP Jurisprudence champions itself in winning battles against biopiracy across the globe, it only addresses the tip of the iceberg.

So far, India has been able to protect traditional turmeric, neem and basmati, but what about the lived cultures?

In the turmeric case, a patent by the USPTO was granted to the University of Mississippi for turmeric's wound healing properties, which was successfully revoked after challenge by the Council of Scientific and Industrial Research (CSIR) of India. In WR Grace and Company's attempt to patent the derivatives of neem (extraction of neem), India won the battle by demonstrating prior use, or rather prior traditional use. Similarly, claims by RiceTec Inc over basmati rice were successfully contested by India to shoot down attempts to monopolise a part of India's cultural-agricultural identity.

The commonality in all these cases was, yes, a victory, but a 'defensive' victory. Here, India did not establish absolute ownership of turmeric, neem, or basmati; it only ensured that other entities could not claim novelty in these subjects. These victories were possible because India strategically relied on the doctrinal core of Prior Art.

Notably, the doctrine of Prior Art requires that a patent claim could be invalidated if it is established that the invention is not novel and already exists in public use/ knowledge. Using this doctrine, India could prove that all the above subjects as ' traditional knowledge' (TK)by showing prior documentation, cataloguing which could be presented as evidence within the existing patent framework.

These case studies expose a deeper fault line, unlike turmeric, basmati or neem, the Jhumkas are not classified as 'knowledge' in the scientific sense. The WIPO defines TK as “ knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”

The Patents Act 1970, S.3(p) refers to TK as something which cannot be claimed as an invention. However it does not define TK. It merely states :

“ an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.”

While bio-piracy could be fought with long-standing evidence of documentation, the same argument for the jhumka is not entirely simple. Unlike the turmeric or basmati, jhumkas cannot be considered as 'knowledge' in the scientific science. The jhumkas, to every Indian woman's delight, are rather a lived experience, a living part of our Indian culture, ancient identity, with strong presence in modern fashion too.

So, can the jhumkas really be protected from the West's cultural preying?

Traditional Cultural Expressions - The Legal 'Run-away'?

India's creation of the Traditional Knowledge Digital Library stands as a solid defence for patent claims against Indian Systems of Medicine such as Ayurveda, Unani, Siddha and Sowa Rigpa.

As discussed in the previous segment, Indian TK does not encompass 'lived cultures/ traditions' and limits itself to protecting India's ancient, long-preserved scientific knowledge. In a way, the framework is also a reflection of a typical Indian parent mindset- value the stream of science over the humanities! (or 'Arts' as relatives traditionally call it)

But, WIPO officially recognises non-scientific knowledge as ' Traditional Cultural Expressions' (TCE). The TCE “ may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.”

Notably, the TCE is an umbrella term, covering both tangible and intangible expressions. Intangible forms would be folklore, cultural music, and theatre or traditional dance forms. Eg : Ramleela, Indian ragas, Kathakali, Bharatnatyam,

While tangible forms would be culturally specific textiles, handicrafts, instruments, symbols, visual arts- sand paintings, body art, rock paintings, etc., and even architectural styles. Eg: Benarasi saree, tabla, madhubani paintings, Persian rugs, igloos etc and….Jhumkas!

The global definition of TCE covers art and design in the broader sense, without providing exceptions to the terms. However, the Indian definition of TK is silent on whether it includes lived cultures and 'knowledge' within its fold.

Even if we assume it does, on the practical plane, the TKDL expressly limits its preservation to scientific inventions. The consequence is painfully stark, where turmeric could be protected under the TKDL, jhumkas, punjabi turbans, bandhani textile of western India cannot be stopped from being exploited on the runways.

Some may wonder why the Copyright Act 1957 or the Geographical Indications of Goods Act 1999 (GI Act) would not be adequate in protecting TCEs, the answer is two-fold:

1. Collective Ownership- the TCEs do not belong to a sole individual, like in the case of the author of a copyrighted work. A jhumka or bandhani textile was not innovated by a single person, but was rather passed down through generations within a specific community which lived the art rather than documenting it. So the TCEs cannot be covered under the Copyrights Act holistically, because it becomes a challenge to pin down ownership of a cultural expression to a singular creator.
2. Geographically-fluid Cultural Expressions- the GI Act also has its setbacks, when it comes to those TCEs which are found in more than one region/state. The GI Act intends to protect geographically specific indicators like laddoos specialised in Tirupati, or sarees woven and crafted in Benaras. While the GI Act may help recognise region-specific TCEs like Punjabi turbans- the turban-wearing style specific to the Punjabi culture, cultural expressions like 'jhumkas' or even something as intangible as Ramleela lack a specific geographical specificity. Both are deeply rooted in the Indian culture, both have different forms but the core of the art remains the same.

See it this way, Ramleela is presented in a variety of forms, with variations in music/ language across every state of India, the ownership of Ramleela cannot be claimed by a single play director, or playwright, its not only a collective ownership but also geographically diverse in expression.

A third problem is the international paralysis of WIPO member states in deciding upon a common legislative framework to regulate the TCEs. While the WIPO does have the Model Provisions for National Laws on the Protection of Expressions Of Folklore, 1985 , the document remains in a draft form and only intends to protect folklore and not TCE entirely.

WIPO's Intergovernmental Committee (IGC) has been conducting ongoing negotiations and deliberations on TCE policy. In its 66th series of meetings, it aims to make a necessary decision on the ongoing TCE negotiations by July 2027. However, IGC seems to be only lip service in practice, given the delayed, slow policy work done so far on the subject.

The Show Stopper: Questions For The IP Field To Brainstorm

1. Should the legislature consider a parallel policy to preserve the TCEs in India, similar to the creation of the TKDL?
2. In the absence of any legislation exclusively protecting the TCEs, what is India's official stand and strategy to defend its lived cultures from capitalistic exploitation?
3. How is India planning to balance between preservation of TCEs and foreign investment by International High-End Fashion Brands?
4. Do the present Copyright Act and the GI Act require an expanded definition of 'ownership' when it comes to TCEs? Should a proviso clause be made for benefitting the TCEs?
5. Most importantly, in the absence of any International Treaty or Law recognising the protection of TCEs, how will Indian TCEs claim damages over cultural misappropriation by global brands?

The Author is a lawyer, artist and entrepreneur and can be reached out at anmolkaur28@gmail.com

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