Protecting Indigenous Peoples Folklore Through Copyright Law

8/14/2019 Protecting Indigenous Peoples Folklore Through Copyright Law

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PROTECTING INDIGENOUS PEOPLES' FOLKLORE THROUGH COPYRIGHT LAW

By Dieter Dambiec

While written in 1994 (with some legal changes since - albeitinsignificant for the substance of the discussion), this essaycontinues to point out the need for radical reform in this area.

Folklore reflects a people's culture. It is expressed through music,dance, drama, craft, sculpture, painting, literature and other means ofcreativity which generally require little dependence on hightechnology. It tends to be passed on from generation to generationwithin a community from memory, by word of mouth, or visually. Theparticular community to which the folklore is recognized as belongingis both its conveyer and user and so works of folklore are easilyabsorbed into the community's culture and social life. In this respectfolklore is part of the collective consciousness of a culture. It isnot just a static replication of the past - but rather a dynamic andliving entity which evolves with the culture.

If the cultural dynamism of that collective consciousness is destroyedthen the whole community's backbone and collective sentiment is alsoshattered. Also, forces outside the community may denigrate thepractical use and social value of its folklore which has beenintimately crafted for particular ceremonies or other forms of groupparticipation and which is related to a continuum of events andcircumstances within the community.

This onslaught has already happened in varying degrees to manyindigenous cultures around the world. The onslaught of pseudo-cultureor materialistic 'cultural' values through colonization and nowglobalization of 'culture' by mass advertising of materialistic valuesand products without considering the effect on community cohesiveness,

ecological systems or mental and spiritual expansion of the peopletestifies to this. Indeed, as part of this global pseudo-culture andpsycho-economic exploitation many works of folklore are seen ascollector's items and as forms of material wealth rather thanexpressions of indigenous people's aspirations and communal heritage.

Misappropriation of works of folklore

However, it is not only physical things that have been or are takenaway as collector's items from the cultural heritage of indigenoussocieties such as the Australian Aborigines, the Maori of New Zealandand Indian tribes in the USA and Canada. Many expressions of folklore,which are transient in form or difficult to obtain because they are

considered sacred, but nevertheless are lasting in a social sensebecause of their integral richness and importance in collective andindividual life, are also under attack through commercialization andcheap imitations.

Examples of this include printing sacred or traditional designs onT-shirts without the indigenous culture's permission, popularizingsongs or dances for tourist attraction and re-enacting ceremonies outof context in the name of tourism. Even if some of these may notnecessarily be considered wrong, nevertheless, proper consideration


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should be given to the 'owners' of the culture from which the creativeworks have sprung. And to go one step further, control of the use ofthose cultural works may need to be legally vested in the tribe orother indigenous unit from which they derive in order to ensure thatthe sanctity and moral rights attached to the works remain intact. Thiswould also help considerably in preserving the language, literature andspiritual aspirations of the people which are often so intertwined withtheir folklore.

In nearly all countries of the world today, creative expressions orworks are protected by some form of copyright laws. However, moderncopyright laws still do not give sufficient scope for the protection ofworks of folklore from exploitation - particularly indigenous folklore.The reasons for this are primarily that the age-old character of manyworks of folklore and long history of indigenous cultures usually meansthat the creators of folklore are anonymous and this is also linked tothe communal ownership of folklore compared to individual ownership.Further, the usual length of copyright protection is the lifetime ofthe author or creator plus 50 to 60 years thereafter. The challenge forprogressive minded legislators is to provide a legal regime that gives

the required form of protection for indigenous peoples folklore. Thiscannot be done without taking into account the community ownership ofworks of folklore.

Collective ownership of indigenous peoples' folklore

The close identification of indigenous folklore with community life hasas its corollary the notion of community control of intellectual andcreative works so that to impart total control to the individualcreators of these works is seen as undermining part of the foundationsof that community. This means that an individual's creative workattains a place and is attributed with some meaning within theindigenous culture when it is somehow co-extensive with the performance

of communal obligations and adherence to communal requirements.

As a result, the creative expression of an individual or group ofindividuals is considered to be an expression and product of and forthe community as a whole. This is particularly so where current worksare derived from older works whose original creation cannot be ascribedto any definite persons. For newly created or recent creative worksthis situation gives rise to ownership rights within indigenouscultures which are at odds with Western legal concepts such as absoluteindividual ownership and freedom of alienability of property. Westernconcepts of individual creation and individual ownership reflected incopyright law through such exclusive rights as reproduction andadaptation, publishing and recording, performing, and broadcasting

rights do not necessarily hold up for indigenous peoples.

For indigenous peoples it is the aesthetic, social and culturalelements within a creative work that are determinative of its valuewhich has to do with the sentiments and emotions attached to the workand its use and enjoyment. The emphasis is on a spiritual synthesiswith the community rather than materialistic privatization of rights.This construct of value represents a communal 'moral right' or moralconcern with the work and surpasses whatever economic advantages can begained from the work by its sale or disposal to others. A system of


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legal protection for indigenous folklore has to recognize this fact ifit is to be effective.

This, however, should not deny that within indigenous cultures thevalue of things may, where occasion calls for it, also be expressed interms of a potential exchange value. With the availability ofcontemporary and more efficient technology for making creative worksthe potential for an exchange value does become an important factorwhen considering how to legally protect the intellectual property ofindigenous peoples.

Distribution of rights within indigenous cultures

It would be useless to develop or impose a legal or protective regimewhich has nothing to do with customary rights of ownership of creativeworks by indigenous communities. The best system of protection shouldbe based on one that already has some inherent recognition. WithinAustralian Aboriginal society, for example, rights of ownership ofcreative works are distributed within different groups usually alongthe lines that ownership of various works, designs or imagery is vested

in a clan and the right to use a design or image or to make and sell awork or create a facet of a work for various purposes is vested incertain members of that clan. These rights can be inherited or gainedby reputation.

Also in New Zealand, in Maori society the use of property includingcultural and creative works has traditionally been managed on adifferentiated basis so that control and use is distributed overseveral levels. This ranges from a chief (ariki) who is considered asthe guardian of tribal (iwi) interests, followed by minor chiefs actingas 'custodian trustees' within sub-tribes (hapu) in relation to varioussubordinate and collective affairs, and then extended family (whanau)and individual property rights. Individual rights do exist but are

qualified by an over-sight of the community to use property to servewider needs. The defined bundle of privileges and obligations thatexists represents a form of socialisation of wealth. The system holdstogether because of community social bonding and the imposition ofrestrictions (eg through concepts such as 'sacredness' or tapuprevalent in Maori society) which govern how certain works can be usedfor different purposes or ceremonial occasions and maintain thesanctity of the works.

Limitations of copyright law - originality and time limits

In contrast, today's copyright law is based on the premise that worksoriginate from an author's own judgment, skill or labour. Individually

or jointly vested rights (in proportionate shares) enable copyrightowners to license or assign their intellectual property to others andthereby obtain some economic remuneration from the copyrighted work.This is different to indigenous peoples customary claims tointellectual property which are in substance those of the tribalcommunity (without any tracing as to proportions). The modern copyrightdoes, however, provide an incentive for creators to produce furtherworks.

But a problem posed by the established assumptions of individual and


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exclusive rights under copyright law is that it is possible for anindividual indigenous artist's work to be protectible under copyrightlegislation as that artist's own intellectual property even if made inan indigenous setting. The artist is the author of the work and allthat is required from the artist to gain protection under copyrightlaws is a minimal amount of originality. However, the customary law isthat the intellectual property rights to the work are non-exclusivecommunal property. In this respect conventional copyright law divergessubstantially from the customs and practices of indigenous cultures.

Conversely, it is possible that some works by an individual indigenousartist, such as simple paintings or those drawn from or imitatingpre-existing traditions, might not be regarded as original works undercopyright law. For example, the emblems and designs used may haveexisted in a tribe for thousands of years and been handed down over thecenturies. In this respect the work may have no copyright for theartist which also means that there is no legal protection for thetribe.

In such cases the customary interests of a tribe may come into conflict

with the copyright law. This is especially so where there is a tribalassertion that permission must be obtained by others to use a certaindesign, imagery or concept such as, say, a specific style of dotpainting common to Australian Aborigines. One of the reasons for suchpermission is to ensure that the cultural integrity of similar alreadyexisting works is not denigrated or misrepresented. This approach isnot easily compatible with that of individual creativity and the freeflow of ideas under copyright law.

Limitations of copyright law - fixation in material form

An unsatisfactory situation which has arisen in Australia concerningthe cultural integrity of folklore is where prints on consumer items

such as tea-towels, wall hangings, postcards and other souvenirs whichare merely adaptations of traditional and possibly sacred pieces ofAboriginal artwork or other cultural imagery are sold to the publicwithout permission and which do not fall within the term of copyrightprotection because of lapse of time (eg ancient rock art) or there isno identifiable creator. Other works not in a material form such asnative dances, music and lyrics have also been known to be performed inthe wrong context without emphasis on their inherent cultural orspiritual meaning, especially where the objective is to rake in thetourist dollar under the demands of popular marketing. Verbatim notetaking of myths and legends is also a problem in that the notetaker mayattempt to become the owner of the copyright in the myths and legendswhen it should be the person who recited the myths or legends as a

representative of their tribe.

Many works of folklore do not always have a fixed material or tangibleform but are still capable of remaining relatively unchanged andwell-known through the ages. Within indigenous cultures a particularwork or expression often only exists for a performance or an occasion,but even then it still has a transient type of structural arrangementor formation which continues and can be revived for subsequentperformances or occasions in a way very similar to how it was expressedpreviously. For example, it may be drawn, sung, created musically,


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performed, danced or recited in a way it has been known from timeimmemorial or adapted accordingly, and then effaced or destroyed whilenot being permanently retained or captured by some technological meansof recording.

Therefore, the work of folklore has some known configuration, (even ifsomewhat variable in expression) and does exist in the collectiveconsciousness of the community to which the folklore belongs. In thissense it is stored in that collective consciousness. This concept of'storage' or 'fixation' is very different to that under copyright lawwhich requires that the work must be made in such a way that it isreduced to writing or to some other material form in order to obtainlegal protection. So while a work of folklore may often not be in apermanent form it is clearly more than an idea. It is an actual artformhaving cultural significance or historical value worthy of bothtangible and intangible preservation.

A system of legal protection also has to recognise that the work maynot have been fixed in a material form simply because the particularculture places no predominant importance on such fixation. This does

not mean that the culture considers the work to be unimportant. Indeed,the work could be so important or sacred that it should not be fixed ina permanent form capable of easy material reproduction or publicviewing. The law of copyright should make provision for such worthwhiledifferences in cultural perceptions and practices and not allow forloss of protection in these situations. In sum, there should be scopefor works of folklore not fixed in a material form to be protected.

The equitable interface between customary law and copyright law

In many respects the limitations of copyright law in relation toindigenous peoples folklore exist and persist because of the law'sdifficulty in dealing with communal ownership. However, progressive

judicial minds have begun to recognise that established equitableprinciples should be capable of being applied to copyright law andasserted by indigenous groups to enable them to gain some effectivecontrol over creative works which they consider to be communally ownedeven though the work's tangible creation is by individual authors orartists.

Where, as under Australian Aboriginal customary law, an artist ispermitted by the tribe to depict certain designs for a particularpurpose it is commonly recognised that the tribe is the custodial ownerof the rights in the design and the finished product. However, thetribe does not have an actual legal interest in the resulting copyrightof the work produced by the individual artist. This can only arise

pursuant to a written assignment of copyright from the individual ownerto the tribal 'owners' in accordance with the copyright legislationwhich, at present, seldom happens. Nevertheless, Australian courts havebegun to recognise that the tribal 'owners' can have an 'equitableinterest' in the copyright of a work and that this equitable interestis vested in the members of the tribe(1). This will give the tribe aright to permit or restrain by injunction the further reproduction,adaptation or other redepiction of the work.

Where sacred or secret ideas, motifs and traditions are conveyed in


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confidence by a tribe to another person, Australian courts have alsointervened through the law of breach of confidence to prevent thatperson putting them in the public domain(2) and thereby restraining thepublisher from selling a book revealing tribal secrets of deepreligious and spiritual significance to Aboriginal persons on the basisthat their revelation could give rise to serious damage in the form ofdisruption of Aboriginal culture and society. Such rights or privilegesvested in the tribe are essential to stop any debasement of a work forcommercial gain.

Similarly, in New Zealand, Article the Second of the Treaty of Waitangiof 1840 recognises Maori customary rights. The English version of thisArticle states that the Crown confirms and guarantees to the Maori"full exclusive and undisturbed possession of their Lands and EstatesForests Fisheries and other properties which they may collectively andindividually possess". In the Maori text of the Treaty of Waitangi theword "taonga" is used in substitution for the words "other properties".Taonga when translated means 'treasures'. New Zealand courts have beenwilling to assert that Maori language is one such treasure thatrequires protection(3). Obviously if language is a cultural treasure

worthy of protection, then other creative treasures including folkloremust also be protected under the Treaty in favour of the indigenouspeople.

A legislative regime for folklore recognising indigenous rights

These developments also show that the legal conceptions of indigenouspeoples, though differently developed, should not be considered as anyless precise than those of the English common law so widely adopted bymany countries of the world. In line with the evolving nature offolklore, it makes sense that the ongoing observance of customaryrights can also be framed in a modernised form. In this regard, it ispossible that both indigenous and Western conceptions in relation to

intellectual property can be utilised to frame an effective legislativeregime for the protection of folklore. This can be achieved byrecognising those rights which are integral to the indigenous culture,rational and based on human welfare, and which have been continuallyobserved before and after settlement of indigenous lands by Europeans.Such rights should be capable of being asserted outside the indigenouscommunity, even if not alienable outside the indigenous system.

To achieve this a discretion can be vested in the indigenous culture,through various tribal structures, as to how it wishes to reasonablycontrol the dissemination, reproduction or public disclosure of its ownfolklore (particularly its sacred aspects). Where the use is foreducation or as an aid in creating other original literary, dramatic,

musical or artistic works this should be regarded as a fair dealingwhich should not be unreasonably denied.

Protection of indigenous folklore therefore requires a consideration ofthe concept of community ownership of works and the management ofrights associated with those works in accordance with the customs ofthe particular indigenous culture. This would enable greater indigenouscontrol of folklore and ensure that its commercialisation does not takeplace in the wrong context so as to result in indigenous knowledge andcreativity being seen merely as a commodity with the folklore loosing


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its primary role of strengthening the indigenous culture. Only whenindigenous folklore is strengthened so that it is no longer, as in somecountries, in a state of extreme fragility can its secondary commercialor entrepreneurial potential be appropriately utilized or fairlydisseminated within its true cultural parameters.

Moral rights - protection by droit moral

The basis of a system of legal protection is that it should encourageindigenous peoples' expectations of respect for their creative works,particularly from those outside the indigenous culture. Accordingly,folklore should be legally protected from debasement, distortion andconsequent loss of cultural integrity due to inappropriate uses whichwould be offensive to the community from which it originates orprejudicial to the artist's or tribe's honour or reputation.

Copyright law, if taken to be a purely economic instrument, would notbe a sensitive enough tool to deal effectively with the management ofmany works of folklore considered to be spiritually significant. Inorder for indigenous peoples not to loose their power to protect their

cultural heritage and their ability to supervise the commercialby-products of their culture it is necessary to have a mechanism whichhelps retain the integrity of original works of folklore. If there isno such legal protection, then folklore traditions run the risk ofbecoming fixed in society's memory devoid of their original context.This would inhibit the creative evolution of that folklore and thespiritual sentiment it can give to society.

Moral rights or droit moral give that legal ability to ensure that theintegrity of a work when it is used, performed or displayed ismaintained. In the Western context, moral rights originated in Europeand are associated with a moral concern of the author with thatauthor's work. Moral rights recognise the personal connection a creator

has with the work. Progressive legislators should extend this conceptto the tribal connection that members of an indigenous community haveto a work. In the context of countries with indigenous cultures the lawshould give recognition to the communal nature of works of folklore byallowing for the enforcement of associated 'communal moral rights'. Thecreation of moral rights attaching to a tribe can then sit alongsidethe individual copyright and moral rights of an artist.

Moral rights generally comprise 3 types of rights which are useful inprotecting folklore. These rights being the power to control thepublication or dissemination of a work (including its alteration andwithdrawal from the public), the right to have the artist's or tribe'sname associated with the work, and the right to prevent misuse,

mutilation or distortion of a work. A communal moral rights mechanismextending indefinitely would be appropriate in order to ensure thatsufficient control of works of folklore remain with their indigenouscustodians and such rights would apply when a work is displayed,reproduced, performed, used or even transferred. Such moral rightswould vest permanently with the tribe and cannot be transferred. Thiswould give the work legal protection from the onslaughts ofpseudo-culture and protect its inner meaning from exploitation.

Protection by domaine publique payant


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An extension of economic rights called domaine publique payant is alsosuitable for the protection and promotion of folklore. This wouldrequire commercial users of folklore or unprotected materials that arenot subject to copyright, because the work has not been reduced towriting or some other material form, to still pay for the use. Themoneys collected should be used to further public rather than privateinterests by being distributed to artists or organisations concernedwith the arts. This can include indigenous tribes and peoples. In thisway money can be used for the development of folklore especially if thesystem of distribution is in accordance with regulations or schemesreflecting tribal or aboriginal rights, customary entitlements andtraditions.

The need for a domaine publique payant system for folklore arisesbecause this material lends itself more easily to use and exchangethrough the market place as it is not subject to any authorisation andthe charging of private copyright royalties. The impact of charging apublic royalty for folklore is that the monetary charge is capable ofcompensating a social or indigenous group connected with the work. It

also gives further control and guardianship over the exploitation ordistortion of a work. However, there should be no charge where thepurpose is for education or creating a new original work.

Protection by droit de suite

Another extension of economic rights called droit de suite can also beused to protect folklore. This is a type of resale royalty giving thecreator of a work the right to share in the increased value of a workif it is later resold or gives rise to a windfall gain. Given theincreased interest in indigenous folklore and art, which can now fetchhigh prices, it would seem inherently inequitable that creative worksand art from indigenous peoples can be acquired at a small cost to the

purchaser without proper recognition of the artist's or tribes' labourand skill and later resold at a considerable profit.

The collection of part of any windfall gain derived from the sale orresale of works of folklore so that such moneys are used for thebenefit of indigenous communities or the promotion of their folklorewould also mean that the imposition of such a social tax should reducespeculation in the arts.

Joint WIPO and UNESCO models

As folklore enhances the whole community's cultural heritage for thebenefit of all it is argued that there should be no time limitations

both forwards and backwards in relation to its copyright protection.The Tunis Model Law on Copyright for Developing Countries produced byUNESCO and the World Intellectual Property Organisation ("WIPO") in1976, and which is the basis of copyright laws in countries such as SriLanka and Zaire, provides for economic and moral rights for folklorewithout limitations in time and for the control of folklore to be in a"competent authority" of government for the duration of its protection.It would, however, be preferable for that control to be with theculture from which the folklore stems so long as that culture alsorecognises the wider public interest.


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The Berne Convention, an international treaty on which nearly allcopyright laws are based, does not contain a direct reference tofolklore. A more comprehensive model set of rules dealing specificallywith folklore was jointly developed by WIPO and UNESCO in 1985 in theform of the Model Provisions for National Laws on the Protection ofExpressions of Folklore Against Illicit Exploitation and OtherPrejudicial Actions ("Model Provisions"). This also aims to achieve acompromise between the economic and moral rights surrounding folkloreand attain a balance between the protection of folklore against abuseand encouragement of its further development and dissemination.However, the use of the Model Provisions have not been promoted to helpachieve these ends.

The Model Provisions also do not deal adequately with matters ofcollective ownership of works. It does however, recognise in section 3that a system of prior authorisation of utilisation of folklore "madeboth with gainful intent and outside their traditional or customarycontext" can be administered by a "competent authority" or the"community concerned". Although the importance of communal moral rights

and tribal equitable interests would better fill the gap. Thiscombination would ensure that there is no exploitation for profitablegain for pseudo-cultural purposes.

Conclusion - wholistic position

The purpose of protecting an indigenous peoples folklore is not to cutit off from outside influences. It is not in society's best interestsor the intention of copyright laws to setback the policy of broadeningeveryone's knowledge and increasing the free flow of information. Thereis, however, a need to maintain the integrity of works of folklore andto ensure that they are not distorted out of context.

To this end the creation of a sui generis category of intellectualproperty rights for folklore is a means of giving greater control tothe community from which the works derive and to strengthen itsfolklore. This is necessary for the appropriate realisation of both thecultural and economic potential of works of folklore for the benefit ofthe indigenous culture and for the spiritual advancement of allsociety. An appropriate combination of rights and interests as outlinedwould have a significant impact in elevating cultural expression anddefeating the impact of pseudo-culture. Both are important in creatingspiritual sentiment so important in any cultural and social revolution.

Protecting Indigenous Peoples Folklore Through Copyright Law

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