Codes, Codes, Codes

by Charlotte Waelde The idea of using ‘codes’ to help the Patachitra, Chau and BaulFakiri communities when engaging with cultural organisations – such as film makers, distributors and gallery owners – emerged during the HIPAMS process in 2019.  Two main issues underpinned the view that these could be a useful tool.  The first, which concerns intellectual property (IP) protection (particularly copyright) for outputs incorporating intangible heritage skills, has a number of sub-strands: (a) the lack of IP protection for traditional outputs incorporating heritage skills; (b) the practicalities of enforcing rights where IP protection does exist; (c) the inability or difficulty of exercising existing IP rights. The second main issue relates to matters which go beyond IP law and move into the realm of human rights law more generally, such as the right to respect and to inclusion. Intellectual Property It is trite to say that traditional crafts made using intangible heritage skills are not protectable by intellectual property.  As we have pointed out, WIPO has for many years sought to address the absence of IP protection for these artefacts at international level. As yet, and for the foreseeable future, it would seem that international protection will prove to be elusive. This means that many of the artefacts and performances produced by the communities will not be protectible, such as the patachitra scrolls depicting traditional stories; the traditional masks made by the mask makers; the traditional songs sung by the BaulFakiri community.  Contemporary renditions of these traditional objects made using traditional skills could well have copyright protection, albeit that protection may be ‘thin’.  An example here may be the Chau masks bought by Diego during out visit to Charida, or the paintings I bought while visiting Naya Village.  Thin protection of these artefacts would mean that it may be possible to protect against almost exact copies – but not more.  Other outputs also rooted in traditional skills may well reach the originality standard to have ‘full’ copyright protection and so give protection against broader acts of copying.  During our meetings with the communities in September, the idea emerged that works might be developed based on the project.  For the Patachitra artists this may take the form of a scroll depicting the HIPAMS process; for the Chau dancers, a new choreography addressing Bollywood influences; for the BaulFakiri community new words for a song addressing challenges they have faced. If these are developed (and recorded) then ‘full’ copyright would subsist in the outputs as they would likely have the required level of originality. But even where copyright does subsist, enforcement may be challenging, if not practically impossible.  Raising a court case is time consuming and costly, and requires specialist advice.  Cases can languish for years in the justice system with the ultimate outcome uncertain at best.  Self-help may be an option in response to the most egregious infringements, seeking to name and shame infringers and galvanise public opinion.  But mostly that requires an in depth knowledge of social media and how to attract audiences – or a lucky break. Even where rights do exist, such as the right of attribution (the right to be acknowledged as the author of a work, or of a performer to be attributed as the performer) asserting these rights against large corporations – such as film companies – can be daunting.  We spoke to one young female Chau dancer who had appeared in full costume in a well-known Bollywood film, but has not been attributed in the credits of the film for her performance.  Human Rights IP, as can be seen, does have its limitations. An appeal to human rights more broadly could help to plug those gaps and add to the overall framing of the context in which communities interact with cultural organisations. While human rights obligations are generally placed on States and thus not enforceable directly by individuals or communities, an appeal to human rights norms could be powerful.  This project, for example, is financed by the British Academy through the Sustainable Development programme which is rooted in the sustainable development goals (SDG).  These goals have at their core the notions of empowerment, inclusion and equality while seeking to ‘realize the human rights of all’.   The SDGs include economic growth, and gender equality – impacts which are a central part of this project. More broadly the human rights framework includes such principles as the right of an author to protection of the moral and material rights arising from a literary or artistic production, and the rights, broadly, to cultural identity and diversity.  These general human rights principles found in a number of international treaties and conventions have been used by UNESCO as the basis for its Ethical Principles for Safeguarding Intangible Cultural Heritage 2015.  For example principle 4 states All interactions with the communities, groups and, where applicable, individuals who create, safeguard, maintain and transmit intangible cultural heritage should be characterized by transparent collaboration, dialogue, negotiation and consultation … while principle 11 states Cultural diversity and the identities of communities, groups and individuals should be fully respected. In the respect of values recognized by communities, groups and individuals and sensitivity to cultural norms, specific attention to gender equality, youth involvement and respect for ethnic identities should be included in the design and implementation of safeguarding measures. UNESCOs Ethical Principles is a codes of ethics which can be distinguished in practice from a code of conduct.  Codes of ethics generally contain values to guide decision making, while codes of conduct govern actions.HIPAMS, as will be seen below, has drawn on both in developing ideas for a ‘code strategy’ for the Patachitra, Chau and BaulFakiricommunities. HIPAMS and codes After consultation with the communities and a meeting with NGOs in Kolkata in September 2019, the idea of codes addressing the challenges outlined above emerged to general curiosity and an openness as to what they might be able to achievefor the communities and what gaps they could plug.  In thinking about ways in which the codes could be framed several questions emerged: should there be one ‘big’ code for all communities?  Or should there be individual codes for each different community?  If the latter, how could it be ensured that the codes would have some form of overarching link, avoiding a scattergun approach?  Who were the audiences for the codes, and how detailed should the codes be? Should standards promulgated by international organisations be used as a baseline, or should these reference standards developed by the communities? Some well-known codesused in the area of ICH are those that have been developed for indigenous communities in Australia and Canada.  Examples include the ‘Code of Practice for galleries and retailers of indigenous art’ endorsed by the Mayor of Melbourne[1]; the protocols prepared by Jane Anderson for the Australian Institute of Aboriginal and Torres Strait Islander Studies 2006;[2]and the Ethics in First Nations research (Assembly of First Nations, 2009).[3] Taking into account the desires of the communities as expressed during our field work; Banglanatak(dot) com’s deep knowledge of the communities; the existing use of codes by communities elsewhere; and what these codes were designed to achieve; - a number of principles for the development of the codes for this project were agreed:
  1. Individual codes would be developed for each community rather than trying to develop an overarching approach.
  2. The codes would be framed around statements made by the communities of what they wanted (within the parameters of the project) but what was not possible or enforceable within the existing (legal) environment for the reasons outlined above.
  3. Ethical principles would be drawn from the 2015 UNESCO initiative, taking and where appropriate adapting those that best suit the needs of the communities. These principles would be used across all of the codes for the communities and be the means through which the codes can be seen as part of the same initiative.
  4. Each individual code will have a detailed section going in detail as to how the principles in the code can be implemented in practice
In this way, each code is designed to be in part a code of ethics, and in part a code of conduct: a document that is designed to be accessible and informative, and to guide the relationships between the communities and cultural organisations with whom they increasingly deal. At present Banglanatak(dot) com are discussing the proposed approach and parts 1, 2 and 3 of the codes with the communities as they carry out training activities.  Once community feedback has been received, and adjustments made accordingly, part 4 will be developed.  Discussions will take place in March 2020 with NGOs to gather their responses to the codes, and follow up evaluation carried out in September 2020. We will make copies of the codes available once they have been agreed, and report on progress later in 2020.     [1]http://www.melbourne.vic.gov.au/arts-and-culture/aboriginal-torres-strait-islander-arts/Pages/aboriginal-art-code-of-practice.aspx [2]https://static1.squarespace.com/static/55cfbe2de4b02774e51fac68/t/55d0efade4b01a825f2123bd/1439756205253/Framework+for+Protocols_Final+.pdf; and the broader standard setting document [3]https://www.afn.ca/uploads/files/rp-research_ethics_final.pdf  

This research project, Heritage Sensitive Intellectual Property and Marketing strategies: India (HIPAMS - INDIA), is funded by the British Academy's Sustainable Development Programme, supported under the UK Government's Global Challenges Research Fund 2018-2021.