Journal of Intellectual Property Rights

Vol 29, July 2024, pp 314-324

DOI: 10.56042/jipr.v29i4.3405

Remake of Folk Songs in India: Cultural Appropriations,

Traditional Expressions and Copyright Dilemma
Anuttama Ghose1, Abhijeet Dhere1 and SM Aamir Ali2†
1
School of Law, Dr. Vishwanath Karad MIT World Peace University, Pune — 411038, India
2
Symbiosis Law School, Pune, Symbiosis International (Deemed) University, Pune — 411 014, India

Received: 27th February 2023; revised: 4th July 2023

India's indigenous communities have long been aesthetically vibrant, as seen by their complex handicrafts, rich literature,
and traditional folk melodies. The Indian music industry is also susceptible to the effects of this indigenous culture's
influence. In traditional music, there is also the issue of the constant reworking or recombination of accessible material
within the traditional musical system. In order to accurately estimate the significance of intellectual property protection for
folklore, the authors have studied the constitutive elements of Copyright laws and discussed them in the light ofthe
preservation of Traditional Cultural Expressions, specifically folk songs, by interviewing a few experts who are associated
with the Indian Music Industry. The study also emphasizes the necessity of defining, identifying, conserving, preserving,
disseminating, and safeguarding folklore, which has been a dynamic cultural heritage of immense economic, social, and
political relevance since ancient times.

Keywords: Folk Songs, Traditional Cultural Expression, Cultural Heritage, Music Industry, Copyright

The issues of multiculturalism, including cultural of commodification that characterise a capitalist

diversity, in particular in societies that have both economic system.
indigenous communities and immigrant communities, However, there are two essential ways in which
necessitate cultural regulations to maintain a traditional culture, including traditional music & song
balance between the conservation and preservation of in particular, clash with this theoretical paradigm.
cultural expressions, whether traditional or otherwise, First, in the everyday use of these cultural
and the free exchange of cultural experiences. This is expressions, tunes or songs are viewed as the
especially important in countries that have both consensus of practises, with an emphasis on
indigenous communities and immigrant communities. processes, variation, and individual contributions over
Recognizing the richness, breadth, and, most time, as well as the recognition of the work of creative
importantly the social aspect of traditional music and persons in adding to a corpus of communally
transmission; and providing a fair, accurate, and practised and distributed repertory.2 Second, unlike
proportionate portrayal of the music and its cultural the concepts of the Market Economy, private
context is of the utmost importance in the court of property, commodification, and copyright, the idea of
law. If this isn't done, it's an insult to the music and to Community Economy, a system of reciprocal
the people who make it what it is, and it could exchange, is essential to understanding the
end up killing out music as a participatory transmission in traditional musical expression and the
phenomenon altogether. Since the Statute of Anne continuation of these forms at the amateur and
was enacted in 1709, a narrow, text-based concept community level.3
of the "literary or artistic work" has emerged, with Traditional cultures encounter a challenge as a
specific philosophical premises on authorship, result of this conceptual and practical disparity.
creativity, originality, individualism, and intellectual Unaware that they are operating within two
property at its core.1 The principles of copyright, fundamentally opposed, if not paradoxical,
which come from this development of the concept of worldviews, many musicians from traditional cultures
the work, are consistent with the mechanisms are benefiting from a growing music industry that
—————— perceives traditional forms of music as marketable
†
Corresponding author: Email: smaamiraliofficial@gmail.com commodities on the "World Music" scene. Because of
 GHOSE et al.: REMAKE OF FOLK SONGS IN INDIA: CULTURAL APPROPRIATIONS, TRADITIONAL 315
EXPRESSIONS AND COPYRIGHT DILEMMA

the hegemonic disposition of the capitalistic ethos, its resources are located in locations where indigenous
innate capacity to dominate and permeate at all levels and local populations predominate. Many of these
of culture, and the inherent allure of a full-time career societies have practised sustained cultivation and use
in the music business for musicians who love what of biological variety for centuries. As a result of their
they do, traditional cultures' musical expressions are efforts, local biodiversity has increased and ecosystem
becoming more and more commodified and thus more health has been maintained via a number of their
accessible for commercial exploitation. Without activities. But beyond their function as natural
proper and systematic official protection for such resource managers, indigenous and local groups make
founding non-market community structure, the significant contributions to biodiversity protection and
commodification of traditional culture will continue sustainable usage. These experts' knowledge and
to advance, endangering the transmission process as a methods are invaluable to the global society, both as a
crucial scene of social cohesion and humanising source of data and as a template for biodiversity policy.
individual growth. The frame of reference from which Additionally, indigenous members and local
we are used to perceiving the spectrum of legal communities are the most actively engaged in
systems must be turned upside down in order to conservation and sustainable usage because they are on-
appropriately assess the necessity for the protection of site groups with significant knowledge of local habitats.5
intellectual property of folklore.
Traditional Cultural Expression (TCE)
Conceptual Framework In order to define the extent of protection, it is
Traditional Knowledge (TK) important to examine the types of works that might be
Traditional knowledge includes the knowledge, considered Traditional Cultural Expression. According
accomplishments and practises of indigenous and to the World Intellectual Property Organization's
local groups around the world. Traditional knowledge definition, Traditional Cultural Expressions are forms
is passed down orally from one generation to the next; of expression of traditional culture that are:
it is based on accumulated wisdom from the past and fundamental to the social and cultural identity and
reflects the specifics of the local culture and heritage of local communities; preserved and
environment. It tends to be collectively held and takes developed by the holders of such expressions; and
the shape of stories, songs, folklore, proverbs, cultural subject to ongoing change and evolution.5
values, beliefs, rituals, community regulations, local Traditional Cultural Expressions (TCEs) are in two
language, and agricultural techniques, including the forms, tangible and intangible:
development of plant species and animal breeds. It  Verbal expressions or symbols (stories, epics,
has been passed down orally through generations legends, tales, riddles, etc.)
through singing, dancing, painting, carving, chanting,  Musical expressions (songs, instrumental music)
and performance, earning it the label of "oral  Expressions by action (dance form, play, ritual,
tradition." Agriculture, fishing, health, horticulture, etc.)
forestry, and environmental management are just few  Tangible expressions (drawings, designs,
of the domains where traditional knowledge is paintings, body art, carvings, sculptures, pottery,
extremely useful. terracotta, warli painting, mosaic, woodwork,
These days, people are beginning to recognise the rockwork, metal work, jewellery, basket,
worth of ancient wisdom. Not only does this needlework, glassware, textiles, carpets, etc.)
information benefit the people who use it every day,  Intangible expressions reflecting traditional
but it also has applications in contemporary thought forms
manufacturing and farming. Medicinal and cosmetic  Architectural forms.”6
goods produced from plants, as well as other health That means songs and instrumental music, whether
and beauty aids, are all examples of the widespread or not they have been reduced to material form,
use of traditional knowledge. Agricultural and non- qualify as TCEs. The community, rather than an
wood forest goods and handicrafts are other valued individual, claims ownership of TCEs, and this claim
items that draw on traditional expertise.4 to ownership stems from longstanding precedent. The
Sustainable development may benefit greatly from originator of a TCE is often unknown, and the TCE
traditional wisdom. The bulk of the world's genetic has become 'Public Domain' via repeated use.
316 J INTELLEC PROP RIGHTS, JULY 2024

India is incredibly diversified and contains current manifestations of pre-existing materials,

different indigenous communities as well as cultural including adaptations, imitations, revitalizations, and
identities, all distinct in cuisine, clothes, language, more. One must be a "defining feature of a tradition"
and even social structure. The musical styles of and have survived as a "living tradition within a
different communities are reflections of their own community" in order to be considered a TCE. Many
cultures. In recent years, with the free availability of indigenous people have hoped for this kind of legal
material through social media and various OTT safeguard so that they might profit from passing down
platforms, folk songs and musical instruments their knowledge from generation to generation and so
acquired appeal amongst the public. Thus, when folk that nobody can use it without proper permission.
songs and genres received widespread patronage and In contrast, traditional communities' Traditional
support from audiences, more and more Indian Knowledge (TK) encompasses their cultural
contemporary performers and music producers began traditions, customs, and the expertise behind these
borrowing indigenous music traditions. As a result, things. Traditional knowledge is not confined to the
indigenous musical instruments and genres became realm of the arts alone; it also includes such areas as
more common within mainstream Indian music scene, agriculture, science, technology, ecology,
including pop albums and songs in movies. biodiversity, and medicine. According to the WIPO
Draft Article on TK, such accumulated knowledge
Intangible Cultural Heritage- Is this same? must be passed down through at least five generations
What constitutes a people's cultural legacy is the before it can be considered a TK.7
sum total of their accumulated expertise in a certain Many have argued that everyone should have equal
field, as well as their continued use of that expertise in access to cultural heritage since its benefits extend far
their daily lives and their deliberate, public beyond national boundaries. In contrast, the idea of
demonstration of that expertise via fixed symbols. intellectual property (IP) is inherently territorial.9
UNESCO’s Convention for Safeguarding of the Therefore, providing some with monopolistic IPRs
Intangible Cultural Heritage, 2003, defines may prevent others from gaining access to the exact
“intangible cultural heritage”7 as “the practices, knowledge and legacy.10 Cultural heritage, in contrast
representations, expressions, knowledge, skills – as to TK or TCE, has no expiration date, and is thus
well as the instruments, objects, artifacts, and immune to legal temporal limits on the enjoyment of
cultural spaces associated there with that the corresponding right. Even if the rights to
communities, groups and, in some cases, individuals Leonardo da Vinci's Monalisa painting have long
recognize as part of their cultural heritage.”7 So, since expired, the picture itself is still a priceless
cultural heritage may take the form of both material cultural treasure that belongs to all people.11
objects and immaterial experiences. Historical texts,
objects, structures, and the like are examples of Remake of Folk Songs: Test of Cultural (Mis)
tangible heritage; folktales, songs, musical Appropriation
compositions, and cultural practises are examples of There are many ways in which music has
intangible heritage. contributed to the development of people,
Economic property rights and copyright-derived communities, and cultures.12 Folk music, of all the
rights are the two most significant types of IP rights. types of music in the world, has to be the most
Considering their intellectual origins, they cannot be significant to a culture and civilization. Folk music, as
physically touched or held. Patents, industrial designs, its name implies, is music that celebrates and
and trademarks go within the purview of industrial celebrates the people via its lyrics and rhythms. It
property rights, whereas works of original creative serves as a link to the past, preserving the people's
production such as books, sculptures, films, poetry, cultural and historical identity.13
etc. fall under the purview of copyright. Traditional Due to its use of two regional classics—Nach
Knowledge (TK) & Traditional Cultural Expression Punjaban by Pakistani artist Abrar-ul-Haq and
(TCE) are two common perspectives through which Dupatta Tera Sat Rang Da by late Punjabi singer
we examine cultural heritage through the lens of Surjit Bindrakhia—the recent big release from
intellectual property (IP). The problem is that there is Dharma Productions, Jugg Jugg Jeeyo, has lately
no unified definition of TK or TCE on a global scale.8 provoked controversy on Twitter.14 These instances
TCE encompasses a wide range of historical and are typical of a much longer trend in which regional
 GHOSE et al.: REMAKE OF FOLK SONGS IN INDIA: CULTURAL APPROPRIATIONS, TRADITIONAL 317
EXPRESSIONS AND COPYRIGHT DILEMMA

music is reworked and plagiarised for broad Traditional melodies and musical instruments have
audiences. For decades, the industry has been seen a resurgence in popularity in recent years, thanks
recreating popular songs and folk tunes from all in large part to the proliferation of free material made
across India, including Tamil Nadu, Punjab, and available via social media and over-the-top (OTT)
Telangana.14 platforms. As a direct result of this, an increasing
Badshah, a popular musician and rapper, has number of Indian pop performers and music
recently been accused of plagiarism for his song producers began incorporating indigenous music
Genda Phool.15 The song is alleged to have been forms into their work as a response to the growing
inspired by Ratan Kahar, the actual singer and writer popularity of Indian folk songs and styles among
of the song Boroloker Biti Lo. Genda Phool, which consumers. As a consequence of this, the use of native
depicts the celebration of Durga Puja and uses songs musical instruments and techniques has become a
and music from Bangla popular culture. In reaction to prevalent phenomenon in the commercial Indian
the charges, Badshah said that his team had looked music industry, including on pop albums and in the
into the song thoroughly and found that no previous songs included in movies.16
iterations of the song had attributed the lines to Ratan This resulted in the melodic depth of traditional
Kahar.15 Indian music being brought to light, and it also
The original aim and aesthetic worth of music is produced a large number of well-known artists and
frequently lost when a song that is prominent within a musicians who were subsequently successful in
region is remade without the approval of the original breaking into the mainstream music business.
author and without regard for the cultural relevance it Another illustration of this may be seen in Tamil
carries. It seems that the original artist or people of folk music, namely the kind of music known as
that area community weren't consulted when the song gaana, which was made famous by Tamil movies.
was adapted when the remakes modernised it to the Gaana is the city folk music that originates directly
point where it's almost unrecognisable. It's from the heart of Chennai, more specifically from
unjustifiable because it erases our history and the hearts of the marginalised people. Most of the
marginalises us from the cultural fabric of the nation singers in gaana come from communities of
as a whole. It doesn't work elsewhere because of fishermen or slum dwellers, and they use upbeat and
cultural differences. fast-paced beats to sing about their daily lives and
Folk music, for example, is regarded to be the challenges they face. It is a kind of music that is
"collectively owned" and hence cannot be so entwined with the lives of the people that it can
safeguarded by copyright laws owing to the hardly be separated from their lives. These musical
difficulties in establishing its origins. There are a few techniques have been sampled and copied by music
notable exceptions to this rule, though. When it is not producers, who have then blended them into musical
known who for the first time sung a certain folk song, compositions that belong to an entirely new genre.
it is difficult to preserve the song using copyright As a result, the quality of the original work of art is
laws. Folk songs may so often be reproduced or diminished.16
reinterpreted in Bollywood in the absence a formal In this scenario, classic music forms are broken
purchase of the copyright to the original song down and reinterpreted in such a way that they reach
themselves. This is because Bollywood does not a point where they are no longer recognised and are
recognise folk music as a genre. However, ownership often frowned upon. The music business does not take
of the rights to original music may be held by a single folk performers seriously, and they are often
entity or shared among many different parties.16 disregarded. The same thing can be said of Rajasthani
as well as Punjabi folk music, both of which are
Threats to Traditional Communities frequently reworked and integrated into Bollywood
India is home to a large number of indigenous tunes. Coke Studio and the song producer and lyricist
groups and cultural identities, each of which has its of a Sambalpuri folk song called Rangabati got into a
own cuisine, clothes, language, and even social disagreement because the song was mislabelled as a
organisation. India's population is incredibly remix of an Odia number, despite the fact that it had
diversified. The musical style of a community is a been written as a Sambalpuri song in the first place.17
reflection of its cultural heritage and traditions. This was the primary cause of the disagreement.
318 J INTELLEC PROP RIGHTS, JULY 2024

Cultural identities are threatened when indigenous on the concept of original authorship. Traditional
populations are subjected to acts of cultural cultural expressions have this issue since they are
appropriation and unlawful remixing. Although it is often performed by a whole community, and their
essential to the creative process to make new creator is often unknown. The argument over the
interpretations and variations, we must also appreciate Sambalpuri song was unusual in that its composers
that folk music is a valuable resource that originally were identified; this is not the case with other
belonged to the community that protects it. This traditional tunes. In addition, copyright is for a limited
would also be consistent with one of the fundamental time, after which the work would enter the public
principles of intellectual property law, which is the domain; however, in the case of folklore and TCEs,
pursuit of a fair balance between the inventor and the the copyright conferred should be everlasting. These
public. More importantly, India currently lacks TCE- issues are not anticipated by the current copyright
specific sui generis rules for protecting intellectual laws. The protection of TCEs is not explicitly
property.17 addressed in the Copyright Act. The Act may provide
some measure of indirect protection for the rights of
Recent Developments in Indian Law TCE owners, although its provisions are most relevant
The Indian Permanent Mission to the United to the protection of modern TCEs.19
Nations presented a document in 2001 that examined Traditional cultural expressions is a term that the
the current IPR law's protection of TKs, TCEs, and World Intellectual Property Organization (WIPO) has
Genetic Resources (GRs), as well as the potential for specifically defined to mean "expressions of folklore."
drafting new laws wherever such protections fell It has come to describe works that include and
short. However, the Inter-Governmental Committee preserve the distinctive aspects of a community's
(IGC) is currently working on building a universal long-standing creative history. Some examples of this
instrument that all states can agree with; therefore a include folk stories spoken orally and songs as well as
legislative system like this has not yet come to instrumental music played by hand. To them,
fruition. This Union Intellectual Property Rights traditional means, not "ancient" but rather an
Policy was adopted by the Union Cabinet in May expression having roots in or ties to an indigenous or
2016. In three separate passages, the Policy makes traditional civilization (whether defined by geography
passing reference to TCEs. Misappropriation of TK, or shared values) and that is carried out in the
GR, and TCE in foreign nations should be rigorously customary manner of that group.20 It states:
pursued, as stated in clause 6.7 of the Union “2.273: Pre-existing traditional culture is generally
Intellectual Property Rights Policy, 2016. However, trans-generational (that is, old), collectively owned by
this is where the policy ends, and no means are one or more groups or communities and is likely to be
provided for detecting or pursuing misappropriation. of anonymous origin, to the extent that the notion of
This hazy and unclear Policy clause does little to authorship is relevant at all. Pre-existing traditional
solve the pressing issues pertaining to TCEs.18 culture as such and particular expressions thereof are
There is currently no legislation in place that generally not protected by current copyright laws and
formally protects intangible TCEs. A lack of are treated, from the perspective of the intellectual
legislation safeguarding TCEs means that property system, as part of the public domain. This is
communities responsible for maintaining and the approach followed in the national laws of States
perpetuating these traditions are under no legal such as Australia, Belgium, Canada, Colombia, the
mandate to receive recognition or financial Czech Republic, Honduras, Italy, the Netherlands,
compensation for their efforts. Japan, Kyrgyzstan, the Republic of Korea, the
Russian Federation and Vietnam.”19
Legal Challenges for Protecting Folklore and However, what has been protected is a particular
Traditional Cultural Expression: A Copyright manifestation of the cultural work in question that
Dilemma demonstrates originality, or at least is an adaptation
Despite India's growing recognition of the need to that incorporates unique parts and demonstrates the
safeguard its folktales and traditional cultural application of skill and judgement.20
expressions (TCEs), actual legislative protection for “2.274: On the other hand, a contemporary
TCEs remains elusive. India's copyright law is based literary and artistic production based upon, derived
 GHOSE et al.: REMAKE OF FOLK SONGS IN INDIA: CULTURAL APPROPRIATIONS, TRADITIONAL 319
EXPRESSIONS AND COPYRIGHT DILEMMA

from or inspired by traditional culture that it was decided that basic dance moves and social
incorporates new elements or expression is a new routines cannot be copyrighted since they are
work in respect of which there is generally a living considered to be aspects that are common to all
and identifiable creator or creators. Such a cultures. Nevertheless, in the event that a particular
contemporary production may include a new and selected compilation that includes those
interpretation, arrangement, adaptation or collection individual general stages has been submitted, a
of pre-existing cultural heritage and expressions in copyright claim may be upheld. This compilation, on
the public domain, or even their re-packaging in the the other hand, cannot be purely a mechanical
form of digital enhancement, colorization and the like. exercise; rather, it must include some selection and
Contemporary, tradition-based expressions and the application of judgement in order to be
representations of traditional cultures are generally protectable, in accordance with the standards of
protected by existing copyright for which they are originality that are relevant.26
sufficiently original. The law makes no distinction Therefore, the court that is hearing this case has to
based on authenticity or the identity of the author – do an analysis of the work to which copyright is being
that is, the originality requirement of copyright could asserted in order to determine whether or not the work
be met by an author who is not a member of the contains components that transcend being
relevant cultural community in which the tradition conventional or generic and meet the requirements
originated.”20 necessary to be considered original. A claim of
Copyright is centred on the author, but it has been intellectual property rights on the expression of a
acknowledged that in the case of traditional traditional song that is just lyrically composed should
expressions or ones carried out in a traditional not, under normal circumstances, be admissible, and
manner, there is no author at least in the sense that the there should be no violation of the law.
term "author" is used in the area of copyright. However, a copyright may exist in renditions of the
Therefore, such traditional aspects of expression folk song that display significant originality and call
become a generic notion that cannot be monopolised for a high degree of artistic and/or intellectual
for the reasons of continuing use and a place in discernment. A Rajasthani folk song like "Kesariya
cultural history. Keep in mind that since traditional Balam" is probably not copyrightable in and of itself,
song lyrics are part of the cultural fabric and not an but a new arrangement of the same song that has
original work of art, no copyright or exclusive right to significant differences in the way it was originally
exploitation may be asserted over any such lyrics that composed might be. Therefore, copyright
have been published. Copyright may be asserted over infringement might be claimed if a new rendition of
certain collections or expressions of the same if they the classic song is recorded and distributed without
show sufficient evidence of originality. There is a permission.27 However, a claim based only on the
strong case for protecting novel adaptations and lyrics, which are general and conventional in
derivative works.21 character, would be unenforceable in court. Section
Despite the fact that generic parts are not 22 of the Copyright Act of India states that once a
copyrightable in and of themselves, an original work is published, the author's copyright continues to
compilation is nonetheless copyrightable after exist for an additional 60 years after his or her death.28
analysing the landmark case rules on the idea of Therefore, copyright should nevertheless continue for
originality in India and the recognised norm that term if the creator of a traditional song is
elsewhere. The case of Eastern Book Company v recognised (which is really rather antithetical to the
D.B.Modak22, following the Canadian case of CCH notion of traditional).
Canadian v Law Society of Upper Canada23 had made The name "Traditional" alludes to the existence of
it perfectly clear that "Skill and Judgment" will serve a communal economy, within which authorship is
as India's "originality threshold" for copyright most definitely not of paramount importance. For
protection. The copyright applies to the compilation both freshly written works and the musical history
as a whole, rather than to its constituent parts.24 that has been handed down through the years, the idea
The facts of the case heard by the Delhi High Court of public domain, in the sense of limitless access to
may be compared to a similar situationin Institute of those who desire to engage in the community
Inner Studies v Charlotte Anderson and Ors25, where economy, is such a given that its usage as a phrase
320 J INTELLEC PROP RIGHTS, JULY 2024

would appear needless. Composers in traditional researchers have reviewed the existing available
societies sometimes consent to their work being resources, and as far as empirical research is
absorbed by the exact participatory procedures that concerned, the researchers have used tool of interview
inspired them in the first place. Due to the transient techniques of experts working in the field of folk
nature of musical practice throughout multi-tiered music.
societies, securing ownership of musical works and
establishing fair compensation for creators is Overview of Background and Area of Expertise of
challenging.29 the Interviewees
The researchers have interviewed 10 experts who
Empirical Enquiry of Practice of Remake of Folk are working in the Indian Music Industry to conduct
Songs in India: Legitimate Inspiration v this study using the deductive method of interview
Inappropriate Adaptation and Copying technique. 60% of these interviewees, i.e., 6 of them,
In most cases, the original creator of a work has are working for more than 10 years in this field, while
exclusive authority over any modifications that are 20% i.e., 2 of them have experience of 6-10 years and
made from that work. Examples include any sort of the rest 2 interviewees, i.e., 20% is associated with
rewriting, translation, or adaptation of the original this field for 5 years and less (Fig. 1). These experts
text. It's common to group them together under the were contacted based on their association with folk
umbrella term "derivative works." If they're different music and experience in the music industry. The
enough from the original work, derivative works additional data is collected through focused group
could also be eligible for copyright protection. Since a discussions and informal interactions through
new interpretation, arrangement, adaptation, or telephonic conversations with the experts.
gathering of public domain information might result The majority, i.e., 80% of all the 10 experts who
in a new different expression that is sufficiently are interviewed as a part of the research, have
'original,' even works produced from such elements working experience as Music Composers and the rest
can be granted copyright protection. The have experience as Music Arranger (20%), Singer
incorporation of new components into a literary or (30%), Instrument Player (30%), and Music
creative output that draws from or is influenced by Producer/Distributors (10%) (Fig. 2). Further, as
traditional culture helps to explain why such a reflected in Fig. 3, the area of work of the
creation may be recognized as a unique and original Interviewees and their association with the Music
work deserving of protection. In order to understand Industry. 60% of them have worked for commercial
this practice from a practical point of view, the music for films and television series, experimental
authors have conducted interviews with 10 experts
who are working in the Music Industry and are
associated with the creation of folk music and folk
songs. The survey was disseminated to professionals
in order to assess the severity of the matter and gauge
the level of knowledge within the Music Industry
regarding the safeguarding of Traditional Cultural
Expression, the ramifications of copyright legislation,
and the acknowledgement of cultural legacy.
Fig. 1 — Total experience working in the Indian music industry
Since this study called for professionals actively
engaged in the subject of folk music and acquainted
with its intricacies, a purposive random sampling
method was used. Experts working in film and theatre
projects in Pune and Mumbai were contacted. Experts
were also contacted using the recommendations
provided by the members previously questioned.The
methodology employed for the present research
combines doctrinal and empirical methods with an
exploratory and analytical approach. In doctrinal Fig. 2 — Field of work of the interviewees
 GHOSE et al.: REMAKE OF FOLK SONGS IN INDIA: CULTURAL APPROPRIATIONS, TRADITIONAL 321
EXPRESSIONS AND COPYRIGHT DILEMMA

music, while 40% have exposure of working in the Inspiration and Appropriation for Composing a Folk Song
field of theatre music and stage show performances. It's hard to overstate the importance of folk music
Responses and experiences shared by them are to society and culture. To put it simply, folk
discussed in detail in the coming segments of the melodies honor and praises the common people
paper. through their rhythms and lyrics. It helps keep the
people's history and culture alive by acting as a bridge
Association and Experience in the field of Folk Music to the past. Thus, in order to understand the process of
All 10 interviewees are associated with the creation and re-creation of folk song, the interviewees
composition, creation and distribution of folk were asked for subjective responses on their
melodies (Fig. 4). Further, to understand the area of “experience on choosing the tunes for composing a
folk music, the interviewees have specified that all of folk song” and “elaborate reference of earlier work in
them have worked in the field of traditional folk their new creation, if any”.
music, while 60% of them have worked in the field of In response, the interviewees explained about
devotional folk songs, and 10% have worked in other various factors that they keep in mind while
fields of folk melodies, and accordingly have shared composing a folk song, such as “the script of the
their experiences and insights related to challenges project”, “emotional association with the lyrical
pertaining to remake and creation of folklore (Fig. 5). context”, “synopsis of the background work” etc.
Some of them has also stated that they often take
“ideas and inspiration from various folk songs from
the public domain” and re-create them as per their
project requirements. Preference for “preserving
traditional tunes, especially uncommon ones” and
changing the lyrics by various composers is another
method that has been discussed in the interview.
These responses pertaining to the creation of songs
reflect the argument previously discussed in this paper
Fig. 3 — Specifications pertaining to the field of work of the that copyright may, however, exist in interpretations
interviewees of the folk song that show substantial originality and
require a high level of aesthetic and/or intellectual
judgement. As a standalone work, a Rajasthani folk
song like "Kesariya Balam" is definitely not
copyrightable, but a new arrangement of the same
song that significantly deviates from the way it was
originally produced may be.
Assertion of Recognition and Remuneration of Folk Artists
Fig. 4 — Experience of working in the field of folklore According to Section 38 of the Indian Copyright
Act, any performer has a performer right related to the
performance, and this is deemed to mean and include
indigenous artists. This right stays in effect for 25
years, and anyone who violates this provision by
making an audiovisual recording and exploiting it
commercially infringes the performer's right, except
in cases where he uses it for educational or reporting
purposes. In view of such provisions, the researchers
asked the music experts their opinion and practices
regarding recognition and payment of remuneration to
the folk singers related to their compositions. The
subjective questions that were put forward were,
whether they contact the folk artists related to songs
Fig. 5 — Experiences pertaining to forms of folklore they are composing; whether they enter into any
322 J INTELLEC PROP RIGHTS, JULY 2024

contract or agreement with the folk artists for the The majority of them, i.e., 80% of the experts,
same; whether they pay or agree to pay any amount to stated that the right of ownership of intellectual
the folk artists and whether they give credit to the property must belong to the Music Composer/Singer
original folk music composer or singer for using their who is publishing it, while only 20% of them believe
tune (Fig. 6). that the same must be given to the Community or
As reflected in the responses of the interviewees, Public (Fig. 7). Further, through a subjective question,
they often get in touch with folk artists (40% of they also expressed that there is lack of awareness
them), while some are hesitant to associate with them among the folk artists about their rights, and
as well (50% of them), and the rest 10%, they decided initiatives must be made so that they can get aware of
according to the requirement of the ongoing project. their legal rights in order to avoid any future conflicts.
We have to always keep in mind that these folk artists Article 29 of the Indian Constitution guarantees the
are keeping the folklore alive in our culture and right to maintain one's cultural identity, and the
society but often lacks the opportunity of government must provide the means for the
commercializing their talents. Further, this assertion indigenous groups to do so. Although, it is difficult to
can be understood from the next questions regarding detect and prevent the theft of intangible TCEs,
entering into a formal contract with these traditional formal protection must be established in order to deter
folk artists. The majority (70%) of the interviewees infringers and, more importantly, to safeguard the
answered negatively regarding their intention to enter community that has been preserving the art from
into an official contract with folk artists and formally extinction, acknowledge their rights, and
recognize their work, while only 10% agreed and the economically empower them. Furthermore, it would
rest 20% stated that only if the artist demands, then prioritise development and research in this sector,
they can proceed for the same. both of which are urgently required. It is necessary
The trend of response pertaining to agreement of
payments shows that 20% of them are willing to
support the artists monetarily for their initial ideas and
inspiration, while 50% deny doing so and 30% shall
proceed according to the demands and requirements
of the project. The reflection of responses for giving
credit to original folk singers are as follows, 20%
responded positively, 70% responded negatively, and
10% were undecided on this. The further
substantiation that was given by these interviewees is
that when they re-create a traditional folk song, they
also incorporate their own ideas and creativity into the
existing art, and hence are of the opinion of not giving
credit or monetary recognition to the original folk
Fig. 6 — Recognition and remuneration of folk artists
composer or singer. Further, the majority of them also
raised a common point, i.e., regarding reaching out to
this traditional artist. They stated that it becomes very
difficult to trace these local rightful people from an
entire community, as a result of which they often
get discouraged from finding them and sharing
credits.
Revisiting the Relationship between Folk Melodies and
Intellectual Property Rights
While there is rising awareness in India of the need
of protecting its folktales and traditional cultural
expressions (TCEs), legislative guidelines for TCEs
are still limited. The principle of original authorship is Fig. 7 — Ownership of intellectual property rights over folk
fundamental to India's copyright legislation. music
 GHOSE et al.: REMAKE OF FOLK SONGS IN INDIA: CULTURAL APPROPRIATIONS, TRADITIONAL 323
EXPRESSIONS AND COPYRIGHT DILEMMA

first to identify TCEs and folklorein order to provide created them view intellectual property to be
protection for them. TCEs and folk music should be ineffective since it does not preserve their community
published in an online library and classed with the production. Others may be unsatisfied with present IP
region or communities that practise and conserve it, protection because they believe it obstructs the free
much like the "Traditional Knowledge Digital flow of knowledge and slows down human
Library," a digitalized library comprising roughly advancement, as stated by most of these people who
3,30,044 traditional pharmaceutical formulas. This are closely associated with the music industry. This
calls for deep research of the TCEs and the societies highlights the critical need for fundamental changes in the
that surround them. Recognizing the TCE and its areas of folklore, intellectual property, and copyright. In
users via such a register will provide some kind of fact, the sui-generis legal framework for folklore will
defensive protection. This was also recommended by make it easier for people to have access to reliable
the interviewees because, most of the time they find information by archiving it digitally and making it more
reaching out to traditional artists very difficult, and difficult for authorities to censor it. Plus, it will help save
such initiatives shall retain the authenticity of cultural many folktales from being lost forever. In addition,
identities. benefit-sharing emerging from such commercial use will
Giving communities economic and moral rights provide justification for the use, creating a quid pro quo
over their folklore and folk music is the primary relationship between the commercial users of folklores
motivation for protecting TCEs. This implies that and their legitimate proprietors.
communities should have the right to be credited as
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