Copyright in Traditional and Folk Art Forms Under Indian Law

India carries within its borders one of the most extraordinary concentrations of living folk and traditional artistic heritage on earth. Madhubani painting from Bihar, Warli art from Maharashtra’s tribal communities, Pattachitra scroll painting from Odisha, Baul music from the rural riverbanks of Bengal and Bangladesh, Gond art from Madhya Pradesh, Bharatanatyam and Kuchipuri and Odissi and Kathak and Manipuri these are not museum artefacts. They are living, practised, commercially valuable and continuously evolving art forms, each sustained by communities of practitioners whose livelihoods depend on the recognition and protection of what they create. And they are, in India’s current legal framework, almost entirely without statutory protection as a category. The Copyright Act, 1957, was designed for an author a named, identifiable individual who creates an original work and holds rights in it for a fixed term. It was not designed for a community, for a tradition or for the anonymous, multigenerational, collectively evolved creative expression that characterises India’s folk and traditional arts. This mismatch between the structure of copyright law and the nature of traditional and folk creativity is the central problem that this article addresses.

The article proceeds in several layers. It examines first what copyright can and does protect where a traditional or folk art form is concerned and where the protection runs out. It analyses the doctrine of originality as understood in Indian courts from the Supreme Court’s classic formulation in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, through its application to folk and traditional works and what happens when that doctrine meets subject matter that belongs to no single author and has evolved over generations. It engages with the handful of decided Indian cases that have directly or indirectly addressed folk and traditional art copyright, including the Supreme Court’s consequential ruling in Academy of General Education, Manipal & Anr. v. B. Malini Mallya, (2009) 4 SCC 256, concerning Yakshagana and the Delhi High Court’s landmark judgment in Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 Del, on the moral rights of visual artists. It examines the international instruments the UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage, 2003, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) and the proposed WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge that have sought to fill the gap that copyright leaves. And it concludes with a frank assessment of where India’s law stands, what it fails to do and what legislative reform would need to accomplish to bring India’s extraordinary traditional and folk artistic heritage within the reach of genuine legal protection.

The Foundational Problem What Copyright Protects and What It Does Not

The Copyright Act, 1957, protects original literary, dramatic, musical and artistic works under Section 13(1)(a), together with cinematograph films and sound recordings under Section 13(1)(b) and (c). The word “original” does the most important work in this framework. Under the test articulated by the Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, following the Canadian Supreme Court’s adoption of a similar standard in CCH Canadian Ltd. v. Law Society of Upper Canada, originality in India requires that the work be the product of the exercise of skill and judgment by its author not merely the product of labour and capital. The work must reflect some intellectual input, some creative or mental effort that goes beyond mechanical reproduction of pre-existing material, but it need not be novel or inventive in the patent law sense.

Applied to traditional and folk art, this test immediately surfaces the central legal difficulty. A Madhubani painting executed by a rural artisan in Bihar today is original in the sense that this particular artisan made specific choices about composition, colour, line weight and the arrangement of the traditional motifs she was trained by her mother to use. It is her creation and it is copyrightable as an artistic work under Section 13(1)(a), assuming the Act’s other requirements are met. Copyright in that specific painting vests in that artisan from the moment of creation under Section 17 of the Act, without any requirement of registration and endures for the period of her lifetime plus sixty years under Section 22. If someone photographs that painting, reproduces it on fabric or uses it in advertising without her permission, she can sue for infringement under Sections 51 and 55 of the Act.

So far, so good. The problem arises one step back. The Madhubani painting tradition itself its characteristic vocabulary of motifs (bamboo groves, fish, sun and moon, lotus flowers, human figures with large stylised eyes), its compositional conventions, its techniques, its aesthetic sensibility belongs to no single artist. It evolved over centuries within the Mithila region of Bihar and beyond, passed down through generations of women artists within communities, refined and varied but never authored by anyone in particular. The tradition itself is in the public domain and any individual artisan or indeed any corporation or foreign fashion house, is legally free to use Madhubani motifs in their own work without seeking anyone’s permission, because there is no identifiable rights-holder for the tradition as a whole. The community that developed and sustained that tradition has no collective copyright in it. The state of Bihar has no copyright in it. The Government of India has no copyright in it. It belongs, under existing copyright law, to everyone which in practice means it belongs to whoever is commercially sophisticated enough to exploit it.

This is not a theoretical problem. Indian traditional and folk art motifs appear on products manufactured and sold globally Warli painting on home furnishings, Madhubani designs on clothing, Pattachitra scroll imagery in international galleries frequently without any attribution to or benefit for the communities whose ancestors created and sustained these traditions and without any legal mechanism by which those communities could claim compensation, authorship credit or control over how their artistic heritage is used and presented. The same pattern repeats across folk music Baul music from Bengal has been sampled, remixed and incorporated into commercial recordings by artists who pay nothing to the Baul practitioners. Folk melodies that belong to specific tribal or regional communities are arranged, recorded and copyrighted by individual commercial musicians or production houses, with the result that the community’s own traditional music becomes the copyrighted property of someone else who contributed only a partial creative rearrangement.

What the Copyright Act, 1957, Does and Does Not Say About Folk Art

The Copyright Act, 1957, as amended by the Copyright (Amendment) Act, 2012, contains no provision specifically addressing traditional knowledge, folklore or folk artistic expressions as a distinct category of protected subject matter. This is not an oversight in the narrow sense Parliament has not simply failed to notice the problem. It reflects a deeper structural feature of the copyright system: it is a system designed for individual authorship and fixed-term protection, neither of which maps comfortably onto communal creation and perpetually evolving tradition.

Two provisions of the Act deserve specific attention in this context. Section 2(c) defines “artistic work” to include paintings, sculptures, drawings, engravings, photographs, works of architecture and works of artistic craftsmanship. The phrase “works of artistic craftsmanship” is potentially capacious it could, in principle, encompass handcrafted objects produced within traditional and folk art traditions, provided they meet the originality requirement. However, in practice, this term has not been judicially interpreted to confer any form of communal or tradition-level protection. Section 2(q) defines a “performance” in terms relevant to the performers’ rights provisions under Sections 38 to 39A. Folk performances music, dance, oral narrative would typically qualify as “performances” within this definition, entitling the individual performers to performers’ rights in their specific performances of traditional material. Again, though, this protects the performance, not the tradition. The Baul singer performing a traditional Baul song at a concert acquires performers’ rights in that performance, but the song itself remains unprotected as traditional material and anyone can record, modify or commercialise a separate performance of the same song without infringing those rights.

The 2012 amendments significantly strengthened performers’ rights, granting performers under Section 38A the economic rights of reproduction, broadcast, communication to the public and distribution in respect of their sound recordings and extending moral rights to performers under Section 38B the right to claim authorship of the performance and the right to restrain any distortion, mutilation or modification of the performance that would prejudice the performer’s reputation. These performer moral rights bring folk and traditional performers closer to the protection regime available to other authors, but they remain tied to the individual performance rather than the tradition and they endure for fifty years from the year of the performance under Section 38 after which even the protection of the specific performance evaporates, leaving the tradition as exposed as before.

The Originality Threshold Where Traditional Art Meets Indian Copyright Doctrine

The most analytically interesting question in copyright and traditional art is where the originality threshold falls when an individual artist works within a tradition that constrains and shapes their creative choices. This question was addressed, indirectly but consequentially, by the Supreme Court of India in Academy of General Education, Manipal & Anr. v. B. Malini Mallya, (2009) 4 SCC 256. The dispute concerned the Yakshagana ballet tradition of coastal Karnataka a classical form of night-long theatrical performance combining dance, music, dialogue and elaborate costuming, rooted in centuries of tradition and practised primarily by specialist communities in the Tulu-speaking regions of Karnataka. Dr. Kota Shivarama Karanth, a Jnanapeeth awardee and polymath who served as Director of the Academy of General Education’s Yakshagana Kendra, had developed a new form of Yakshagana which he called “Yaksharanga,” described by himself as a “creative extension of traditional Yakshagana.” He composed seven prasangas verse narratives for Yaksharanga performance and introduced innovations in the raga, tala, scenic arrangement and costuming of the traditional form. He bequeathed copyright in his literary works to B. Malini Mallya through a registered Will executed in 1994. After his death in 1997, the Academy of General Education performed one of the seven prasangas in New Delhi without obtaining Mallya’s permission, prompting a copyright infringement suit.

The Supreme Court upheld the copyright in Dr. Karanth’s distinctive creative work, affirming the District Court and Karnataka High Court decisions below. The critical legal proposition that emerged from the case is this: that a derivative work built upon a traditional art form can attract copyright protection if and to the extent that the author has made substantial original creative additions or modifications to the traditional material. Dr. Karanth’s new prasangas, his innovations in raga and tala, his restructured scenic arrangements and costumed choreography all of these were held to fall within the “originality” required under Section 13(a) of the Copyright Act, 1957. The traditional Yakshagana form itself, as it existed before Dr. Karanth’s interventions, carried no copyright. But the specific creative contributions Dr. Karanth made to and upon that tradition were original enough to be protected, because they reflected the exercise of intellectual skill and judgment beyond mere reproduction of the traditional material.

This ruling illuminates the fundamental structure of copyright in traditional and folk art contexts: the tradition belongs to no one; the creative elaboration of the tradition by an identifiable individual belongs to that individual. The consequence for folk communities, however, is discomforting. It means that a commercially sophisticated outsider a fashion designer, a film composer, a digital artist who takes traditional Warli motifs, makes some creative modifications and produces a new commercial work, may thereby acquire copyright in that derivative work, while the Warli community that originated and sustained the underlying tradition acquires nothing. Dr. Karanth was himself deeply embedded in the Yakshagana tradition and his work was a labour of genuine cultural scholarship. The same legal framework would apply equally to a corporation with no connection to the tradition at all.

Moral Rights and the Cultural Heritage Dimension Amar Nath Sehgal

The intersection of copyright, cultural heritage and moral rights was addressed in a different but equally significant context by the Delhi High Court in Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 (Del), Suit No. 2074 of 1992, decided by Justice Pradeep Nandrajog. Sehgal, a sculptor of international repute and recipient of the Padma Bhushan and the Lalit Kala Academy Award, had been commissioned by the Government of India in 1957 to create a large bronze mural for Vigyan Bhawan, New Delhi’s principal international conference centre. The mural 140 feet in span and 40 feet in sweep was installed in 1962 and became what the court described as part of India’s art heritage, attracting patrons from across the world. In 1979, Vigyan Bhawan underwent renovation. Without any notice to or permission from Sehgal, the mural was pulled from the wall and consigned to a government storeroom, where it was damaged through mishandling. Sehgal spent years approaching government functionaries for its restoration or return and was ignored. He filed suit in 1992 under Section 57 of the Copyright Act, 1957.

Justice Nandrajog held that Sehgal’s moral rights under Section 57 were violated by the government’s conduct and held further that the moral rights of an author are independent of economic rights and cannot be waived or transferred even where the physical ownership and copyright in the work has passed to another. The court awarded Sehgal damages of Rs. 5 lakh and ordered that the remnants of the mural be returned to him permanently. In a passage of considerable doctrinal significance for traditional and cultural art, the court held that “the various declarations by the international community in the conventions noted above lift the moral rights in works of Art if the same acquire the status of cultural heritage of a nation,” and that where a work has attained the status of a modern national treasure, Section 57 should be interpreted broadly enough to include the right to protect the integrity of the work in relation to the cultural heritage of the nation as a whole. This represented a significant and creative extension of Section 57 beyond its textual scope the provision as amended by the Copyright (Amendment) Act, 1994, which brought it into alignment with Article 6bis of the Berne Convention, protects authorial moral rights in the work, but says nothing about a work’s status as national cultural heritage or its relationship to the community or nation from whose culture it emerged. Justice Nandrajog was reading into Section 57 a cultural heritage dimension that the statute itself does not explicitly contain, drawing on international declarations and conventions to justify that extended reading. For practitioners working in traditional and folk art contexts, this passage offers a potential but as yet largely unexplored legal avenue the argument that a work of traditional or folk art, even where no specific individual claims authorial rights, has attained the status of cultural heritage of the relevant community or nation in a sense that imposes legal obligations on those who deal with it commercially.

The Authenticity Problem Fake Handicrafts and the Enforcement Vacuum

The commercial exploitation of traditional art forms in India is compounded by a specific and practically devastating problem: the widespread manufacture and sale of imitation or counterfeit traditional handicrafts by mass production operations that have no connection with the originating communities. Machine-made textiles designed to mimic handloom Kanchipuram silk, factory-printed products bearing Warli or Madhubani motifs, machine-embroidered imitations of Kashmiri hand-embroidery these compete directly with the genuine products of traditional artisans, undercutting both the livelihoods of individual craftspersons and the distinctiveness of the tradition itself. Copyright law offers essentially no protection against this practice in relation to the folk motifs and designs themselves, since those motifs are in the public domain. Geographical Indication law, administered under the Geographical Indications of Goods (Registration and Protection) Act, 1999, offers partial relief several traditional Indian handicrafts including Kanchipuram Silk, Darjeeling Tea, Banaras Brocades and Sarees and Mysore Silk have obtained GI registration, which prevents producers outside the designated geographical region from marketing their products using those GI-protected names. But GI protection covers the name and geographical origin, not the underlying artistic motifs or techniques and it does not vest any rights in individual artisans within the GI-protected region they remain free to use the GI, but the GI does not generate royalties, licensing revenue or any individual financial entitlement for the community members who produce the authentic goods.

The International Framework WIPO IGC and Expressions of Folklore

The gap in copyright protection for traditional and folk art is not India’s problem alone it is a structural limitation of international copyright law as embodied in the Berne Convention, which the World Intellectual Property Organization has been attempting to address through its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) since 2001. The IGC has spent over two decades negotiating a possible treaty or sui generis framework for the protection of traditional knowledge and traditional cultural expressions (TCEs), including folk art, folk music and other forms of intangible cultural heritage. As of the current date, negotiations for a WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge continue within the broader diplomatic framework, but no binding international instrument specifically governing TCEs has yet been concluded. WIPO’s non-binding provisions on protection of traditional cultural expressions offer a framework for domestic legislation they recommend that countries adopt measures ensuring that communities can benefit from and control the commercial use of their expressions of folklore but they impose no legally binding obligations.

India has been an active participant in WIPO IGC negotiations and has consistently advocated for strong protection of traditional knowledge and traditional cultural expressions, particularly in the context of preventing biopiracy and appropriation of traditional Indian knowledge by foreign commercial interests. India was instrumental in the establishment of the Traditional Knowledge Digital Library (TKDL), a collaborative project between the CGPDTM and the Council of Scientific and Industrial Research, which has successfully prevented the grant of patents based on traditional Indian medicinal knowledge by providing patent offices worldwide with documented prior art in the form of traditional knowledge. However, the TKDL is a defensive mechanism it prevents others from patenting traditional knowledge but does not itself vest any positive rights in traditional communities.

The Digital Challenge Traditional Art in the Age of AI and Online Appropriation

The digital environment has dramatically accelerated the pace and scale at which traditional and folk art forms are commercially exploited without benefit to originating communities. High-resolution digital photographs of museum collections containing traditional art objects, available freely online, have made it trivially easy for commercial operators to use traditional motifs in digital design, print-on-demand merchandise and NFT-based digital art with no connection to the communities from which those motifs originated. Generative artificial intelligence trained on datasets containing traditional Indian art Madhubani, Warli, Pattachitra, Gond can now produce unlimited quantities of AI-generated images in the style of these traditions, at zero marginal cost, entirely without any payment, attribution or legal obligation toward the communities whose artistic heritage constitutes the training data and the creative source. Under current Indian copyright law, these AI-generated traditional-style images are unprotected by copyright in India (given the unresolved status of AI-generated works under the Copyright Act, 1957, which requires a human author), but crucially they also do not infringe any copyright held by the traditional communities because those communities hold no copyright in their traditions. The digital exploitation of traditional Indian art is therefore simultaneously ungovernable under existing copyright doctrine and entirely uncompensated as regards the communities whose heritage is being commercially mined.

Fair Dealing and Cultural Use Section 52 and Its Limits

Section 52 of the Copyright Act, 1957, as amended by the 2012 amendments, provides a range of fair dealing and other permitted uses that are not infringement. Section 52(1)(a) permits fair dealing with any work for the purposes of private or personal use including research and Section 52(1)(b) permits fair dealing for criticism or review. These provisions, like the broader fair dealing framework, are directed at use of copyrighted works and say nothing about traditional or folk material that exists outside copyright. More pertinent, though of limited scope, is the position of performances of traditional and folk works in the context of Section 52(1)(za), which was added by the 2012 amendment and permits the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience. This provision was at issue, in a parallel way, in the Yakshagana dispute the Academy argued that its performance of Dr. Karanth’s prasangas fell within Section 52 because no fees were charged. The Supreme Court declined to accept this characterisation, holding that the fair dealing provisions of Section 52 do not extinguish the copyright holder’s right to control unauthorised performances, even non-commercial ones, in circumstances where the performance is not genuinely amateur and where it causes prejudice to the copyright holder’s interests. This is useful authority for individual authors of works that draw on traditional forms, but it does nothing for the tradition itself.

The Judicial Response to Cultural Misappropriation Emerging Trends

Indian courts have not directly confronted the question of community copyright in traditional folk art there is no Indian judgment in which a tribal community or a folk artistic community as such has successfully claimed and enforced copyright in a traditional artistic tradition. The decisions that come closest to engaging with these questions Yakshagana, the Sehgal mural address individual copyright holders working within or upon traditional forms and protect the individual’s original creative contribution rather than the tradition itself. However, several trends in recent judicial thinking point toward a potential future expansion of protection. The Sehgal court’s extension of Section 57 to encompass a work’s status as national cultural heritage and its explicit invocation of India’s international convention obligations, suggests that courts are receptive to arguments grounded in cultural rights and heritage protection even where the Copyright Act does not explicitly provide for them. The increasing willingness of the Delhi High Court to grant broad injunctive relief in intellectual property cases, including John Doe orders against anonymous digital infringers, provides a procedural mechanism that could in principle be available to an association or cooperative of traditional artisans that could establish standing as a collective rights holder in a given form of artistic expression though no such suit has yet been brought and litigated to a final judgment.

The Policy Gap and the Reform Agenda

The legislative response to the structural inadequacy of copyright law in protecting traditional and folk art has been partial, fragmented and inadequate. The National IPR Policy, 2016, issued by the Department for Promotion of Industry and Internal Trade (DPIIT), acknowledges the importance of traditional knowledge and traditional cultural expressions and commits India to exploring sui generis protection mechanisms, but has not resulted in any specific legislative proposal for a traditional cultural expressions protection statute. The Protection of Plant Varieties and Farmers’ Rights Act, 2001 and the Biological Diversity Act, 2002, provide partial models for community-based sui generis intellectual property regimes in related domains, demonstrating that the Indian legislative tradition is not hostile to such frameworks in principle. What is missing specifically for traditional and folk art is a statute that addresses the core problems: defining who constitutes the rights-holding community for a given tradition, what rights that community holds and against whom they are enforceable, what benefit-sharing obligations commercial users of traditional artistic expressions should bear, what mechanisms exist for collective licensing and royalty distribution and what term or perpetual nature such protection should have.

Several models have been proposed in academic commentary and in comparative international experience. Some jurisdictions, including certain Pacific Island nations and South Africa, have enacted sui generis legislation specifically protecting traditional cultural expressions. New Zealand’s Māori cultural framework provides for community-controlled licensing of traditional Māori designs and expressions. The UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage, 2003, to which India is a party, calls on states to adopt measures for the safeguarding of intangible cultural heritage, including folk art and traditional performing arts, though it does not by itself create intellectual property rights. None of these models translates directly to India’s conditions the sheer diversity of India’s traditional art traditions, the multiplicity of communities and regional contexts and the complexity of determining community membership and governance structures for rights-holding purposes would make any Indian sui generis law one of the most challenging legislative drafting exercises in the IP domain. These difficulties, however, are arguments for careful design and meaningful consultation with traditional communities, not arguments for continued legislative inaction.

Conclusion

Copyright law in India protects individual creative expression. It does not and in its current form cannot without fundamental reform, protect the collective, communally evolved, multigenerational creative heritage that constitutes India’s living tradition of folk and traditional art. This is not a minor gap in the margins of copyright doctrine it is a structural failure at the precise point where copyright law intersects with India’s most distinctive and commercially valuable cultural resources. Individual artisans working within traditional forms can protect their specific original contributions. The Sehgal ruling offers a potential moral-rights-based avenue for resisting the degradation of works that have attained cultural heritage status. The Yakshagana ruling confirms that derivative works building creatively upon traditional forms attract their own copyright protection. But the traditions themselves the Madhubani vocabulary, the Warli motifs, the Baul musical idiom, the Pattachitra narrative conventions remain, in India’s current legal framework, free for anyone to take and commercialise without restriction or compensation.

The trajectory of international norm-setting at WIPO, the increasing political visibility of biopiracy and cultural appropriation as public policy concerns and the accelerating threat of AI-driven mass exploitation of traditional art imagery all converge to make legislative action on this question both overdue and urgent. A dedicated traditional cultural expressions protection statute calibrated to India’s extraordinary diversity of traditions, grounded in community rights rather than individual authorship and complemented by effective collective licensing and benefit-sharing mechanisms would not merely correct a gap in India’s intellectual property framework. It would represent a recognition, long delayed, that the custodians of India’s living folk and traditional art deserve the same protection from the law that copyright gives to every individual author in the country.

References

1. Copyright Act, 1957 (as amended by Copyright Amendment Act, 2012) – https://copyright.gov.in/Documents/CopyrightRules1958.pdf
2. Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 – https://main.sci.gov.in/judgment/judis/29615.pdf
3. Academy of General Education, Manipal & Anr. v. B. Malini Mallya, (2009) 4 SCC 256 – https://indiankanoon.org/doc/184940/
4. Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 Del – https://indiankanoon.org/doc/1990275/
5. Geographical Indications of Goods (Registration and Protection) Act, 1999 – https://ipindia.gov.in/writereaddata/Portal/IPOAct/1_32_1_gi-act-1999.pdf
6. UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage, 2003 – https://ich.unesco.org/en/convention
7. WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore – https://www.wipo.int/tk/en/igc/
8. National IPR Policy, 2016 DPIIT – https://dpiit.gov.in/sites/default/files/National_IPR_Policy_English.pdf
9. Traditional Knowledge Digital Library CGPDTM – https://www.tkdl.res.in
10. Berne Convention for the Protection of Literary and Artistic Works Article 6bis – https://www.wipo.int/treaties/en/ip/berne/
11. Biological Diversity Act, 2002 – https://legislative.gov.in/sites/default/files/A2003-18.pdf
12. Delhi High Court Copyright judgments portal – https://delhihighcourt.nic.in

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