Introduction

Traditional cultural expressions created and kept alive by communities face a tricky situation in regular intellectual property law. This is because copyright was made for identifiable individual creators, with set ownership times and a focus on making money. These rules don’t fit well with traditional art, oral stories, ritual symbols, indigenous knowledge, and inherited craft skills. These forms of expression grow and change over time through the efforts of many people and represent important aspects like identity, dignity, and cultural memory that go beyond economic value.[i]

The problem has become more serious as these cultural expressions increasingly find their way into global markets through fashion, branding, tourism, digital media, and trade—often without the acknowledgment or permission of the communities they come from. Since standard copyright laws cannot completely cover collective ownership that spans generations, we need a special approach called “sui generis”. This approach understands that protecting traditional cultural identity should focus on community management, shared rights, and long-lasting preservation instead of just individual authorship.[ii]

Copyright Law And Its Structural Limitations

Copyright law safeguards original creations like books, music, art, and performances by giving creators exclusive rights to reproduce, adapt, and publish their work.[iii] In India, this protection depends on originality, fixation, and clear authorship, making it suitable for works such as novels, films, software, and recorded music where the creator is easily identifiable.

On the other hand, traditional cultural expressions like folk songs, ritual designs, oral stories, and weaving patterns usually do not come from a single identifiable creator; instead, they develop together over many generations. This leads to a problem because copyright law needs clear authorship and has a limited duration for protection. In contrast, traditional culture is based on community involvement and holds cultural importance forever, which makes regular copyright laws insufficient for protecting it.

Cultural Identity as a Living Legal Interest

Cultural identity shows how communities keep their history, values, and sense of belonging alive through art, storytelling, ceremonies, crafts, and traditional knowledge. Unlike modern creations that are mostly made for selling, traditional cultural expressions also help remember the past, share values, and showcase community identity. When these are used without permission, it can harm the culture even if there isn't an immediate financial loss.

Take Madhubani painting and Warli painting as examples. These art forms have become popular in fabrics, branding, and design, but this often removes them from their original cultural meaning. As a result, while these traditional expressions create market value, the communities that maintain them often do not receive the proper legal recognition they deserve.

Why Sui Generis Protection Is Jurisprudentially Necessary

Sui generis protection is a legal approach designed for things that aren’t well-protected by current laws. When it comes to cultural identity, this system would be different from copyright in a few key ways: 

- Ownership would belong to the community instead of individuals 

- The protection could last forever 

- Communities would need to give consent 

- It would protect both the integrity and the economic rights of the culture 

- Sharing benefits would happen when commercial use occurs 

This model is important because it understands that traditional heritage isn’t just old stuff that can be taken freely. It’s often an active set of rules passed down through generations.

Why Misappropriation of Traditional Culture Creates Legal Difficulty

Misappropriation happens when cultural expressions are copied, changed, sold, or claimed without giving proper credit, getting permission, or sharing benefits. This situation leads to several legal issues:

1. Lack of Original Ownership Records

Traditional communities often share their knowledge by word of mouth instead of writing it down. This makes it harder to prove ownership when outside businesses use traditional expressions.

2. Public Domain Assumption

Many traditional works are old and are seen as part of the public domain. However, just because they are publicly available doesn’t mean that communities don’t care about protecting their cultural identity.

3. Cultural Harm Beyond Economic Loss

Using cultural elements without permission can cause emotional damage even if there’s no direct financial loss. Sacred symbols and important designs may be used in ways that disrespect their original meaning.

4. Fragmented Legal Remedies

Communities have to use various legal methods like copyright, geographical indications (GI), passing off, unfair competition laws, and administrative actions, but none of these fully protect against harm to collective culture.

This shows that traditional copyright law is not enough to provide complete protection for cultural expressions.

Judicial and Statutory Responses in India

Indian courts have acknowledged that creative works carry significance related to dignity and identity, going beyond just economic ownership. In the case of Amar Nath Sehgal v Union of India, the court decided that destroying a piece of art infringed on the author's moral rights, highlighting how creative expression is tied to one’s identity and integrity. While this case focused on individual authorship, its reasoning supports greater protection for cultural expressions as a whole.[iv]

In another case, Tea Board of India v ITC Limited, it was shown that geographical indications can help protect the link between products and their origins, but they fall short when it comes to broader cultural meanings.[v] The Turmeric Patent Revocation Case also illustrated India's commitment to protecting traditional knowledge by stopping the misuse of long-held community wisdom. Together, these instances show that while current legal measures offer some protection, they do not completely safeguard traditional cultural identities.[vi]

Indian and Global Examples of Cultural Misappropriation

Madhubani and Reproduction Markets –

Madhubani designs are widely printed on clothing, stationery, and decorative items. However, local artists often find themselves in a tough financial situation due to the commercial system, even though these designs hold significant cultural importance from their community traditions.

Warli and Corporate Visual Language -

Warli figures often show up in logos, hotel interiors, and tourism marketing. These uses usually happen without any formal agreement or licensing with the communities that created this visual style.

Recent Example: Prada and Kolhapuri chappals Controversy

In 2025, Prada received backlash for featuring sandals in its menswear line that looked a lot like Kolhapuri chappals, without first recognizing their Indian cultural roots. This issue was important because Kolhapuri chappals symbolize traditional craftsmanship, local heritage, and community identity. They are protected under the Geographical Indications of Goods (Registration and Protection) Act of 1999 with GI recognition. The situation showed that copyright laws do not fully safeguard these traditional designs since they are part of a shared heritage rather than belonging to a single creator. It also highlighted the need for a unique system to acknowledge community ownership, give credit to artisans, share benefits fairly, and avoid cultural appropriation in commercial markets.[vii]

The Prada–Kolhapuri controversy demonstrates that although traditional designs may hold deep cultural and regional identity, existing intellectual property systems often fail to ensure attribution and equitable benefit for the communities that preserve them.

International Legal Developments

The World Intellectual Property Organization (WIPO) has stressed the need for better protection of Traditional Cultural Expressions and Traditional Knowledge for indigenous and traditional communities. The main issue in international talks is that regular intellectual property systems often benefit those who profit from cultural forms instead of those who work to keep them alive.

As a result, WIPO's proposed guidelines aim to:

- stop unauthorized commercial use

- ensure proper credit by needing community approval and limiting harmful or misleading uses

These changes show that the world is beginning to understand that cultural heritage can't be managed just by standard private-right rules.

India’s Legal Position on Traditional Cultural Heritage

India lacks a single, all-encompassing law to protect traditional knowledge (TK) and traditional cultural expressions (TCEs). Instead, protection is spread across various legal frameworks. The Copyright Act of 1957 offers limited protection for artistic, literary, and musical works but requires clear authorship and has time limits, which makes it unsuitable for ancient cultural heritage that is owned collectively.[viii]

The Geographical Indications of Goods (Registration and Protection) Act of 1999 safeguards traditional products specific to certain regions, but it does not address broader cultural practices or folklore. [ix]The Biological Diversity Act of 2002 promotes sharing benefits from biological resources but mainly focuses on knowledge related to medicine and biodiversity. Similarly, the Traditional Knowledge Digital Library aims to prevent foreign patent claims by recording traditional medicinal knowledge; however, it does not grant ownership rights to communities. Overall, these measures offer only partial and incomplete protection for traditional heritage.[x]

Need for a Sui Generis Framework in India

Existing IP laws are fragmented and inadequate for protecting traditional heritage. A sui generis system (a unique legal framework) which is necessary to address the distinctive nature of community-based knowledge. Reasons for a New Framework -

(1) Collective Ownership

Traditional knowledge belongs to communities rather than individuals.

(2) Perpetual Protection

Cultural heritage should receive continuous protection, not limited to a few decades.

(3) Prevention of Cultural Misappropriation

Global commercialization often leads to unauthorized use of tribal art, folklore, and medicinal knowledge.

(4) Economic Justice

Communities should receive fair compensation and benefit-sharing from commercial use.

(5) Cultural Preservation

Traditional practices represent identity, spirituality, and heritage, not merely economic products.

Conclusion

Copyright law, designed around individual authorship and limited ownership, does not adequately protect traditional cultural identity, which is collective, intergenerational, and community-based. Traditional cultural expressions carry cultural memory and dignity, yet often remain vulnerable when commercially exploited without consent. A sui generis framework is therefore necessary because it recognizes collective rights, perpetual protection, and fair benefit-sharing, offering a more suitable legal response for preserving cultural identity and community justice.