The Protection of the Expression of Folklore and Copyright Law
The expressions of folklore means the production of inter-generational and fluid social and communal creative processes, reflect and identify a community’s history, cultural and social identity, and values[1], in particular: verbal expressions, such as folk tales, folk poetry and riddles, signs, words, symbols and indications; musical expressions, such as folk songs and instrumental music; expressions by actions, such as folk dances, plays and artistic forms or rituals; tangible expressions, such as: productions of folk art and many more.
Folklore has some particular characteristics. It is expressed through means of creativity which generally require little dependence on high technology; tends to be passed on from generation to generation within a community from memory, by word of mouth, or visually; reflects a community’s cultural and social identity; consists of characteristic elements of a community’s heritage; is made by ‘authors unknown’ and/or by communities and/or by individuals communally recognised as having the right, responsibility or permission to do so; is often not created for commercial purposes, but as vehicles for religious and cultural expression; and is constantly evolving, developing and being recreated within the community.[2]
The protection of the expressions of folklore
Then the protection of the folklore also constitutes particular issues. The protection of the expressions of folklore has been created and developing both in international and national level. In international mechanism, WIPO in cooperation with UNESCO has created the Model Provisions for National Laws on the Protection of Expressions of Folklore in 1982, which have been improving and updating to present. Furthermore, the creation of the Model Provisions 1982 has influenced national law on protection of the expressions of folklore in several countries.[3]
Intellectual property (IP) is typically protected by laws that establish private property rights in creations and innovations in order to grant control over their exploitation, particularly commercial exploitation, and to provide incentives for further creativity. Hence, IP can play a role by providing legal protection for tradition-based creativity, particularly copyright protection.
Copyright, which is one of the IP protections, protects the products of creativity, in the form of original literary and artistic works, against certain uses such as reproduction, adaptation, public performance, broadcasting and other forms of communication to the public. Moreover, many countries use the copyright protection as an important mechanism for protecting their expressions of folklore. [4] Conversely, some scholar debates show that copyright law is not a sufficient protection for folklore.
I. Copyright law as a sufficient protection for folklore
The copyright protection should be the sufficient protection of expressions of folklore according to the following reasons:
Conventional intellectual property systems confer copyright to the owner, who is generally presumed to be the author of the work. In the same way, folklore had been produced, and then should not treat differently. The creative expression of an individual or group of individuals is considered to be an expression and product of the community as a whole. Then legal concepts on copyright such as absolute individual ownership and freedom of alienability of property should be applied on the current folklore works, which are derived from older works whose original creation cannot be ascribed to any definite persons.
Folklore could never have evolved in the first place. However, the creators of current folklore works, which are derived from older works, should receive copyright protection; the author will be protecting against for profit uses of folklore. The author can publish and copyright a processed version of folklore. Since those books bring in money, the law could stipulate that some royalties go back to the folklore creators.
Although, most folklore is very old and copyright protection would have expired by now anyway. However, there is folklore that is not so old and musty; current folklore works, which are derived from older works and evolved frequently and changes rapidly. This contemporary folklore and new versions on folklore’s productions should be protected under copyright law within the same duration as other producers.
A related issue to that of ownership is the control of works derived from indigenous folkloric works such as traditional designs. The traditional owners of folklore’s works are not necessarily its legal owners and they do not have legal control over its reproduction or use as well as over any unauthorised reproductions or adaptations of the works. As a result, these indigenous works may be used in inappropriate ways. Copyright law recognises derivative works as original creations in themselves maybe a suitable method for those protections.
Copyright is an incentive for future production, which may be much more than today's world. Then if folklore be protected particularly by copyright law, the number of folklore’s productions will increase sharply in the near future.
II. Copyright law as an insufficient protection for folklore
Many folklore expressions were born much time before copyright emerged, and they went through a long-long chain of imitations combined with step-by-step minor changes. Then copyright protection should not be the sufficient protection of expressions of folklore according to the following reasons:
Folklore is collectively produced, ownership is hard to assign, and there are no relevant corporate entities in most cases. An expression of folklore is the result of an impersonal, continuous and slow process of creation. The creator is a community and the creative contributions are from consecutive generations, such as the folk tales, folk music, folk dances, folk designs or patterns, may often not fit into the notion of literacy and artistic works. Then the author in the case of folklore is absent. Then copyright law does not fit well in this context.
Copyright law is based on the premise that works originate from an author's own judgment, skill or labour. But originality in the context of folklore is not appropriate. The generational nature of most folklore encourages that new generations copy prior creative works. Then copyright law requires a work to be original but the very nature of many folkloric works is that they are repetitive.
A key concept of copyright law is the idea/expression dichotomy where the expressions of ideas, as opposed to the ideas themselves, are protected.[5] Therefore, fixation or reduction to material form is a condition precedent to the protection of works. Many works of folklore do not always have a fixed material or tangible form but are still capable of remaining relatively unchanged and well-known through the ages. The practical consequence of this requirement is that ideas, themes, styles and techniques embodied in a work are not protectable.
The limited duration of copyright offers inadequate protection as it conflicts with longevity of indigenous folkloric works.[6] Term of protection requires a copyright term of a minimum of fifty years after the death of the author the intergenerational nature of folklore, no finite term would be adequate for their protection.
Generally, a work that is in the public domain is a work that is not conferring to any copyright protection. This means that any entity can use the work in any way it chooses, including for commercial purposes, without permission of the author. For folklore, while copyright protection could be construed as too confining for their public nature, the public domain is too free because the types of uses for which the expressions of folklore are not offensive is prescribed, depending on the Indigenous culture and the folklore involved. Then copyright protection on the ground of public domain character of folklore interrupt and hamper its development.
[1] World Intellectual Property Organization (WIPO), Intellectual Property and Traditional Cultural Expressions/Folklore, a series of Booklets dealing with intellectual property and genetic resources, traditional knowledge and traditional cultural expressions/folklore Booklet nº1, p. 5.
[2] Ibid., p. 3
[3] Ibid., p.4
[4] the International Bureau of WIPO, The Protection of Expressions of Folklore: The Attempts at International Level http://itt.nissat.tripod.com/itt9903/folklore.htm
[5] Puri, Kamal, "Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action" (1995) Intellectual Property Journal, 293, at 315
[6] UNESCO & WIPO, Model Provisions for National Laws on the Protection of Expressions of Folklore Again2st Illicit Exploitation and Other Actions, (1985), at 5.
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