Coopted and Erased: Copyright and Marginalised Communities in Today’s Digital Age.

Introduction

The explosion of digital content in India can be credited to one significant enabler, the Digital India initiative. Launched by Prime Minister Narendra Modi, this transformative policy has democratized access to the internet, ensuring that content creation is no longer limited to metropolitan cities but extends to the remotest villages. Digital creativity refers to the way people express, create, and share original ideas or cultural content using digital tools like smartphones, cameras, and apps (such as social media platforms like Instagram, YouTube, or Facebook) and design software like Canva, Adobe Illustrator, or Capcut. But does everyone, in reality, have access to it ? Studies highlight a stark, systemic disparity in digital access and literacy.

A 2021 study using national survey data shows the digital divide can be broadly categorized into three levels (Ragnedda & Kreitem, 2018; Scheerder et al., 2017). The first-level digital divide refers to the divide that is measured through access to ICTs (i.e., having a computer and access to the Internet) and is expressed as a binary outcome. The second-level digital divide refers to the gap in digital skills required to use a computer and the Internet. The third-level digital divide measures “inequalities in economic, educational, and employment.Oxfam India’s latest ‘India Inequality Report 2022: Digital Divide’ report said on Monday that the reach of digital technologies remains limited to largely male, urban, upper-caste, and upper-class households and individuals. “Eight per cent of the General caste have a computer or a laptop, whereas less than 1 per cent of the Scheduled Tribes (ST) and 2 per cent of the Scheduled Castes (SC) have it. As per the Mobile Gender Gap report by GSMA, women are less likely to use mobile internet by 33 per cent when compared to men in 2021,” it said

However, despite systemic marginalization, grassroots innovation persists. Bultoo Radio, an Adivasi-run initiative in Chhattisgarh, shares local news and cultural stories via Bluetooth and mobile devices, even without internet access. This approach preserves local knowledge and asserts media autonomy. Similarly, Aadiwasi Janjagruti in Madhya Pradesh uses mobile phones and social media to document human rights issues, cultural traditions, and daily life in tribal communities. These efforts show creativity thriving in marginalized spaces, often outside the mainstream digital economy, without institutional support or copyright protection. These initiatives, alongside studies on the digital divide, underscore the need to rethink whose creativity is recognized, valued, and protected in India’s digital landscape.

Despite the growing digital creativity in India, not everyone gets a fair shot. However, even with such initiatives, Dalits, Adivasis, and Bahujan communities, rich with talent in storytelling, performance, and traditional crafts, are often left out. It’s not because they lack skill or passion, but because they don’t always have access to smartphones, reliable internet, or the know-how to navigate digital spaces. Their vibrant art forms, passed down through generations, rarely make it online, leaving them vulnerable to being overlooked or even stolen by those with better tech access. Social media tends to favour polished videos, viral trends, and content in dominant languages, which can drown out raw, authentic voices. Even when the creators from backward communities manage to share their work, they often face harsh online trolling or abuse, making it harder for them to keep going. In today’s world, where digital platforms drive visibility, a lack of access doesn’t just hold back creativity; it erases it. This isn’t just a tech gap; it’s a loss of stories, cultures, and voices that deserve to be heard.

Copyright Law: Barriers for Marginalised Creators.

Copyright is a protection that covers published and unpublished literary, scientific, and artistic works, whatever the form of expression, provided such works are fixed in a tangible or material form. This means that if you can see it, hear it, and/or touch it, it may be protected. If it is an essay, if it is a play, if it is a song, if it is a funky original dance move, if it is a photograph, HTML coding or a computer graphic that can be set on paper, recorded on tape or saved to a hard drive, it may be protected. Copyright laws grant the creator the exclusive right to reproduce, prepare derivative works, distribute, perform, and display the work publicly. Exclusive means only the creator of such work, not anybody who has access to it and decides to grab it— James Boyle (1996:34). But what happens to the creativity that can’t be touched, saved, or signed? Does it mean that copyright only protects what can be “fixed”? Yes, and that’s the problem. Copyright law was designed in a Euro-American context where authorship is individual, and creativity is a commodity; copyright law favours fixation and therefore excludes collective forms.

As WIPO itself acknowledges in its 2003 discussion paper, traditional knowledge is usually a collective property of a society transmitted from generation to generation, and “it is difficult to isolate or archive traditional knowledge from traditional people”. This shows a deep structural mismatch between customary cultural expression and our copyright laws. Indigenous cultural knowledge has always been an open treasure box for the unfettered appropriation of items of value to Western civilization. While we assiduously protect rights to valuable knowledge among ourselves, indigenous people have never been accorded similar rights over their cultural knowledge. Existing Western intellectual property laws support, promote, and excuse the wholesale, uninvited appropriation of whatever indigenous item strikes our fancy or promises profit, with no obligation or expectation to allow the originators of the knowledge a say or a share in the proceeds.

In India, the exclusion of oral, communal creativity from the formal copyright systems disproportionately harms Dalit, Bahujan, and Adivasi creators as they don’t fit in the “fixation” requirement of copyright law. 

Examples are the communal essence of Warli and Phad painting traditions expose the limitations of current intellectual property (IP) laws in safeguarding indigenous creativity. Warli art, rooted in Maharashtra’s Adivasi villages, features minimalist geometric designs painted collectively on mud walls during festivals. the visual canvases capture their daily rhythms in life; the forces of nature they worship their simplistic belief system, their laughter, regret, victories, and tears. Yet, commercial entities, galleries, decor brands, and even Bata with its Warli-designed footwear exploit these designs without crediting or compensating the communities. In response, the Adivasi Yuva Seva Sangh (AYUSH) secured a Geographical Indication (GI) tag for Warli art in 2014 to ensure commercial benefits reach the creators, though costly enforcement leaves many violations unaddressed. Similarly, Phad painting, a vibrant Rajasthani scroll art passed down through Bhopa bard families, is appropriated for modern decor or museum displays without attribution or profit-sharing.Originating in the Bhilwara district of Rajasthan, India. It is a large painting on khadi or canvas. Phad or par is a storytelling tradition of Rajasthan, which is 400 years old. Phad is possibly derived from the Sanskrit word ‘Patt’. These paintings have a very specific style of representation filled with figures and pictorial incidents, and form a kind of dramatic backdrop to epic storytelling performances. Lacking a single, “fixable” author under copyright law, these oral traditions struggle for legal protection. These cases highlight how IP frameworks often fail to recognize collective indigenous contributions unless communities leverage tools like GI tags.

On March 31, 2014, Warli painting, a centuries-old tribal art form from Maharashtra, was awarded a Geographical Indication (GI) tag, a landmark achievement for the Adivasi community. The GI status, secured through an application filed by Adivasi Yuva Seva Sangh (AYUSH) on June 7, 2011, recognizes Warli painting as a distinctive handicraft, covering products like greeting cards, textiles, home décor, canvas goods, and apparel. Traditionally preserved through oral and ritual practices, the art has been safeguarded by Adivasi women, who played a pivotal role in the GI application process. In contrast, the vibrant cultural landscape of Rajasthan, Phad painting, a centuries-old scroll art form, continues to captivate with its vivid storytelling and intricate designs. Yet, unlike Warli painting, which secured a Geographical Indication (GI) tag in 2014, Phad remains without legal protection, leaving its traditional custodians, the Bhopa families, vulnerable to exploitation. This lack of recognition has allowed mass production of Phad motifs for decor and tourism, with profits often siphoned off by intermediaries rather than reaching the artisans who sustain this ancient craft. The absence of legal recognition not only undermines the Bhopas’ economic rights but also threatens the survival of their oral and artistic traditions. While Warli artisans have gained a measure of control over their craft’s commercial use, the Bhopa families face an uphill battle to reclaim their legacy. Advocates argue that securing a GI tag for Phad could empower these artisans, ensuring that the economic benefits of their art flow back to the community. For now, Phad painting remains a cherished yet unprotected gem, its future hinging on efforts to safeguard its cultural and economic value for the Bhopas who keep its stories alive. Despite India’s rich repository of traditional art forms, many art forms remain unrecognised or not protected under existing legal frameworks like Geographical Indications (GI) such as Garhwal paintings from Uttarakhand, the intricate craft of Kashmiri pashmina weaving, the culturally significant nath (nose ring) jewellery of Maharashtra, and the Toda embroidery of Tamil Nadu are just a few examples of heritage practices that either lack GI tags or suffer from poor enforcement and community control. Several factors contribute to this systemic neglect: the bureaucratic complexity and cost involved in GI registration; the absence of institutional support for community-led initiatives; and a deep-rooted bias that privileges more commercially viable or upper-caste-associated forms of creativity. For artisans from marginalized communities, often without legal literacy or access to government channels, these barriers result in invisibility and vulnerability to appropriation.

Further Examples of Cultural Co-Optation and Erasure.

• Kalbelia Dance: A Cultural Legacy Exploited

The Kalbelia dance, a vibrant expression of Rajasthan’s Dalit nomadic women, embodies generational knowledge inspired by serpentine movements and folk rhythms. Recognised as an Intangible Cultural Heritage by UNESCO in 2010, this art form has long been a means of cultural survival for this community. Kalbelia’s sensuous aesthetics have been absorbed into mainstream tourism, stage performances, and Bollywood item numbers, often performed by upper-caste or urban artists who replicate this style without acknowledging its origins. The Kalbelia women, who remain on the margins of society, watch their ancestral art become a symbol of “exotic India”. At the same time, they are excluded from the commercial circuits profiting from their culture without being credited for it.

• Lambani Embroidery: Stolen Stitches in a Global Market 

In Karnataka, Maharashtra, and Andhra Pradesh, the Lambani (or Banjara) women create stunning embroidery, weaving vibrant mirrorwork and bold patterns that reflect their nomadic heritage. These intricate designs, crafted over weeks, are deeply rooted in their community’s history and culture. However, Lambani motifs are now widely replicated by fashion designers, fast-fashion brands, and home decor industries, repackaged as “boho tribal” or “ethnic chic” for global consumers. Sold on digital platforms and in international markets, these designs often bear no trace of their background. The Lambani women, lacking legal awareness or access to copyright enforcement, are left vulnerable as their cultural creations are mass-produced and profited from without their consent.

• Chhau Masks: Sacred Craft Reduced to Decor

In West Bengal and Odisha, Chhau masks are handcrafted for ritualistic dance performances that narrate stories from epics like the Ramayana and Mahabharata. These masks carry profound spiritual and artistic significance, yet they are increasingly sold as decorative wall art in urban craft fairs, tourist markets, and online platforms. Stripped of their ritual context, the masks become mere aesthetic objects, with middlemen and platforms reaping the profits.

Recent Legal Reforms and Their Impacts.

India has seen several legal reforms in the field of intellectual property and cultural coverage, but their impact on marginalized creators remains limited and uneven. The Copyright (Amendment) Act, 2012, was introduced to improve royalty sharing and provide more inclusive provisions for creators, particularly in areas of music and publishing. One of the key highlights of the Copyright (Amendment) Act 2012 was its effort to expand public access to copyrighted material and strengthen fair use provisions. The Act broadened statutory and compulsory licensing frameworks and introduced Section 31D, which allows broadcasting organisations to air previously published literary, musical works, and sound recordings simply by providing prior notice to the copyright owner and paying a royalty fixed by the Copyright Board. This provision does not require consent from the copyright owner, effectively granting broadcasters a near-automatic right. Unsurprisingly, major music labels challenged the constitutionality of this clause in cases such as Venus Worldwide Entertainment Pvt. Ltd. v. Union of India and Super Cassettes Industries v. Union of India.

The 2012 amendments also introduced critical reforms for accessibility, particularly for people with disabilities. Section 52(1)(zb) permits individuals or non-profit organisations to convert any copyrighted work into accessible formats without prior approval, as long as the copies are not sold commercially and used for personal, educational, or research purposes. This change removed bureaucratic hurdles and prioritised inclusion. India further advanced this commitment by becoming the first country to ratify the Marrakesh Treaty (2013), facilitating cross-border access to accessible-format books for the visually impaired and print-disabled, and enabling assistive technologies like text-to-speech and Braille. Similarly, the Geographical Indications of Goods (Registration and Protection) Act, 1999, was introduced to safeguard region-specific traditional products by granting communities legal recognition over goods linked to their geographic origin. It has achieved success in certain cases, such as Warli art, Madhubani painting, and Kanjeevaram silk, by enabling legal claims over authenticity and reputation. However, the process of applying for a GI tag remains bureaucratic, expensive, and inaccessible for many indigenous communities lacking legal literacy or institutional support. Moreover, enforcement mechanisms are weak; even after registration, protecting a GI product from unauthorised use

requires significant legal effort and funding that most artisan groups cannot afford, as GI registration of a product and the attendant rights of authorised users are valid for 10 years. The registration may be renewed through an application to the Registrar and the payment of prescribed fees, for another 10 years from the date of expiration or the last renewal of registration, as the case may be; all these expenses can’t be afforded by the indigenous community. Similarly, while state-led initiatives like the Traditional Knowledge Digital Library (TKDL) were developed to prevent biopiracy and foreign patenting of indigenous medicinal knowledge, their scope remains limited primarily to systems like Ayurveda, Unani, and Siddha, offering little protection to folk arts, oral traditions, and performative cultural expressions.

Moreover, these reforms still operate within a framework that favours individual authorship and tangible, fixed works. India has not yet introduced a sui generis law specifically for protecting Traditional Cultural Expressions (TCEs), nor has it translated its international advocacy at WIPO into domestic legislation. As a result, collective, oral, and evolving cultural forms, particularly those practised by Dalit, Bahujan, and Adivasi communities, remain structurally excluded from the legal protections they deserve.

Toward a Future of Inclusive Cultural Rights.

Inclusive reform of India’s copyright framework must shift from rigid, individual‐centric paradigms to models that acknowledge collective creativity and cultural stewardship. Firstly, Parliament should introduce a sui generis regime specifically for traditional cultural expressions, oral histories, folk music, crafts, and rituals, granting communities both legal standing and the right to prior informed consent before any commercial exploitation of their heritage. Additionally, the definition of “fair dealing” in Section 52 should be broadened to cover transformative and educational uses, non-commercial remixing, and accessible‐format conversions, ensuring creators and learners alike can build upon existing works without fear of infringement. Such an expansion would mirror emerging global practices that protect user-generated creativity while safeguarding original authorship.

To complement substantive changes, India must also overhaul the governance of collecting societies such as IPRS and PPL by mandating transparent, decentralized decision-making (one member, one vote) and real-time disclosure of royalty distributions. Adopting standardized licensing platforms, modeled on systems like ASCAP in the United States, would streamline permissions and accelerate payments, particularly benefiting artists from rural and underrepresented communities. Finally, Parliament should carve out clear exceptions for disability access, permitting lawful circumvention of digital locks for readers with print disabilities and aligning domestic law with forthcoming WIPO treaties on accessibility and cultural heritage. By embedding equity, transparency, and flexibility into both the letter and practice of copyright law, India can help ensure that its diverse creators not only survive but also thrive in the digital age.

Referances 

R. Vaidehi, Bheemeshwar Reddy, and Sudatta Banerjee, Explaining Caste-Based Digital Divide in India: A Preprint, arXiv (June 2021), https://arxiv.org/abs/2106.15917v1.

Bultoo Radio: https://www.videovolunteers.org/bultoo-radio/.

WIPO, Intellectual Property and Traditional Knowledge, WIPO Report No. WIPO/GRTKF/IC/5/INF/2 (2003), https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_5/wipo_grtkf_ic_5_inf_2.pdf.

Rebecca Tsosie, “Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous Peoples Fit Within Civil Society?” University of Colorado Law Review 71 (1996): 1357.

 Adivasi Yuva Seva Sangh’s efforts culminated in the GI tag for Warli painting in 2014, registered under India’s Geographical Indications of Goods (Registration and Protection) Act, 1999

 Shireen Kachwala, How Adivasi Women Reclaimed Warli Art & Took it to the World with GI Tag & Murals, The Better India (Dec. 9, 2022), https://www.thebetterindia.com/296974/how-adivasi-women-reclaim-warli-art-for-international-recognition-with-murals-gi-tags. 

 Value Chain for Phad Painting – FlowChart of Rajasthan, Handicrafts and Handlooms Export Corporation, Rajasthan Skills and Livelihoods Development Corporation (RSLDC), 2019. https://textilevaluechain.in/in-depth-analysis/articles/traditional-textiles/phadpainting-a-folk-art-of-rajasthanvv.