Author: Divi Shrotriya

Abstract

In the modern globalized market, increasing movement of cultural symbols, motifs, designs, and practices across borders has revived interest in the ongoing discussion about the protection of Traditional Cultural Expressions (TCEs). This paper explores the conceptual gap between cultural appropriation and cultural appreciation, and how this gap fits within the larger context of IP law. It examines the scope of existing IP instruments, such as copyright, trademark, geographical indications, industrial designs, and the doctrines of unfair competition in protecting the interests of source communities and assesses the need for sui generis protection regimes specific to the collective, intergenerational, and sacred nature of TCEs. In the context of an Indian illustration on the Geographical Indications of Banarasi silk sarees, Kanchipuram silk sarees and Madhubani paintings, the paper advocates the use of IP as providing partial and partial protection, but is in a structurally weak position to protect the communal authorship and perpetual temporality of traditional knowledge. The paper then reflects upon the potential benefits and drawbacks of IP protection and suggests a multi-layered, community-based strategy that integrates traditional IP mechanisms with new sui generis legislative instruments and benefit-sharing mechanisms.

Keywords: Traditional Cultural Expressions (TCEs); Intellectual Property Rights; Fashion law; Cultural Appropriation; Cultural Appreciation; Sui generis Protection; Cultural misappropriation; Traditional Knowledge; Community rights.