The protection of folklore. An ”old subject-matter”, with intriguing new legal questions

25 Dec, 2016 Articles

During the largest part of the 19th century, the study of folklore and the eventual discussion of its protection belonged traditionally to anthropology. At the time, folklore was studied as part of the traditions of “peasants”, part of what was considered to be the life and history of “savages” or “primitive populations”.

Civilization and development pre-supposed abandoning folkloric expressions. In fact, evolutionary theories considered the loss of folklore as a necessary step towards modernisation and civilisation. Based on this perception, the presiding view called for the eradication of folklore as a whole, and concluded that there is an inherent opposition between folklore and education and development. The World Fairs of the late 19th century until World War I where modern technological achievements were presented, included a presentation of traditional and folkloric elements (American Indian, Philippines) mostly in order to demonstrate the gap of development and to underline even more the importance of the technological advancements.

The cultural inferiority of populations linked to folkloric expressions functioned as an ideological ground even for political subordination. These populations were not represented when their national and political fates were decided, and the fact that they were considered to have minimal creative capacity led to the assumption that works of folklore were not to be protected by means of the upcoming Intellectual Property regime.

The extensive propertization of culture and the political and international relations changes that occurred during the 20th century, have naturally also influenced the discussion relating to the protection of culture and folklore. The commercialization of intangibles and the financial considerations this brings, reached even the field of folkloric expressions. A new term was introduced, namely that of “cultural heritage”, that was to include anything that is of cultural importance, whether it be art, literature, music, archaeological sites, sacred artefacts etc.

The protection of cultural heritage and folklore was for obvious reasons to gradually expand from the pure protection of commercial interests to also include a regulation concerning who is to have access to the knowledge, traditions and practices and under which circumstances these are to be used. Gradually, folklore just as traditional knowledge at an earlier point went through a process of sacralisation.

The first international initiatives for the protection of folklore were presented already in the 1970s under the initiative of International Organizations.

Both UNESCO and the World Intellectual Property Organisation (WIPO) have been very active in their contributions to the international debate on the protection of folklore. Some of the most notable initiatives include the 1976 Tunis Model Law on Copyright for Developing Countries and the 1985 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions. Both these documents are results of the concern of developing countries for the appropriation and exploitation of their national cultural heritage. They start by recognizing the shortcomings of traditional copyright law and the need to provide for the protection of such subject-matter that traditionally falls outside its scope. In the Tunis Model Law we find an attempt to widen the scope of copyright law to accommodate the special features of folklore. In particular, it provides for three main forms of protection not available in the copyright system: a) no time limitation for protection b) exemption of folkloric works from the requirement of fixation and c) introduction of moral rights to prevent the destruction and desecration of folkloric works.  The Tunis Model Law starting point is that folklore as a subject-matter poses special problems for standard copyright laws, related for instance to its strong visual and oral character.

The Model Provisions have opted for solutions outside the scope of the copyright system. Major pillars in the proposed sui generis right are:

-the prohibition of the unauthorised use of expressions of folklore

-prohibition of misrepresentation of the source of expressions of folklore

-a prohibition of the wilful distortion of folklore in a way prejudicial to the interests of the relevant community

- a provision for the international extension of protection based on reciprocity. 

Another initiative originating from the indigenous peoples themselves is the 1993 First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples held in Aotearoa, New Zealand. The major outcome of the conference was the Maatatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, which emphasised the right of indigenous peoples to self-determination and their status as "exclusive owners of their cultural and intellectual property”.  

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has had lengthy negotiations on the protection of folklore (covered at this forum under the term Traditional Cultural Expressions, TCEs). Although the mandate of the IGC, included even the negotiation of an international convention on the protection of TCEs, there is no legally binding documents provided for to this day. However, the IGC has produced a great number of handbooks, guidelines and information brochures related to the folklore and TCEs, how these might be used and exploited by museums and other private initiatives. The information and guidelines provide also considerable help to States wishing to develop their own national legislation in the field. For the time being, the negotiations concerning TCEs have been paused.

During the past few decades, the question on the appropriate protection of folklore and its relation to the copyright system, has been one of the subjects that has attracted the attention of the international community. The protection of folklore and whether this will be possible under the scope of the copyright system or subject to the introduction of a sui generis right, will only be efficient if it is provided for on the international level. The cultural industry is an international industry and cultural heritage considerations are dealt with on an international level. Thus the protection of folkloric expressions may not be subject solely to national legislation.

Although the link of the protection of folkloric expressions to Intellectual Property Rights is rather obvious in particular in certain jurisdictions (i.e. Australia), there is a need to complete the exclusive rights that might be awarded to artists using folklore as an artistic basis by means of the copyright law, with a complementary sui generis system of protection that might cover a broader basis of folklore.

The negotiations taking place under the framework of the IGC, seemed to be very close to the adoption of an international instrument providing for such an international solution combining copyright and sui generis rights. Although this has not been possible to this date, the IGC has contributed with an important fundamental discussion as to the objectives and principles relating to the protection of TCEs. In fact, discussions s as to the objectives and principles of TCE protection lasted from November 2004 to May 2010. These timely negotiations are an important starting point for the next step, the drafting of a legal instrument for the protection of TCEs, however how close and unproblematic this next step is will largely depend on the will of member states.

 

Frantzeska Papadopoulou, Jur. Dr., LL.M, Associate Professor at the Law Faculty of Stockholm University, Senior Lecturer in Linneaus University, Sweden

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