Post by blackcrowheart on Oct 3, 2005 12:28:07 GMT -5
Indigenous People's Folklore and Copyright Law
by Dieter Dambiec
(Tuesday September 27 2005)
"A system of protection should encourage indigenous peoples'
expectations of respect for their creative works, particularly from
those outside the indigenous culture. This means that folklore should be
protected from debasement, distortion and consequent loss of cultural
integrity due to inappropriate uses which would be offensive to the
community from which it originates or prejudicial to the artist's or
tribe's honour or reputation."
Definition and characteristics of folklore
Folklore expresses an assortment of traditions and customs that reflect
a people's culture [1]. It is expressed through music, dance, drama,
craft, sculpture, painting, literature [2] and other means of creativity
which generally require little dependence on high technology.
Folklore tends to be passed on from generation to generation within a
community from memory, by word of mouth, or visually. The particular
community to which the folklore is recognised as belonging is both its
conveyer and user and so works of folklore are easily absorbed into the
community's culture and social life. In this respect folklore is part of
the collective consciousness of a culture. It is not just a static
replication of the past.
Folklore is a dynamic and living entity which evolves with the culture.
Within indigenous societies the expressions of folklore, although often
transient in form, are nevertheless lasting in a social sense because
their richness plays an integral part in collective and individual life
[3]. Folklore is part of the cultural heritage of indigenous societies
such as the Australian Aborigines, the Maori of New Zealand, Indian
tribes in the USA, and the Indians, Inuit (from the north) and Metis
(from the prairies) of Canada [4]. It derives its practical use and
social value by being crafted for particular ceremonies or other forms
of group participation or by being related to a continuum of events and
circumstances within the community [5].
For indigenous peoples, that continuum of events can go back a long,
long time. Their language, literature, traditional spiritual beliefs and
cultural customs [6] will often be intertwined with their folklore. The
age-old character of many works of folklore and long history of
indigenous cultures usually means that the creators of folklore are
anonymous [7]. This also highlights the communal ownership of folklore.
Collective ownership of indigenous people' folklore
The close identification of indigenous folklore with community life has
as its corollary the notion of overriding community control of
intellectual and creative works so that to impart total control to the
individual creators of these works is seen as undermining part of the
foundations of that community [8]. This means that an individual's
creative work attains a place and is attributed with some meaning within
the indigenous culture when it is somehow co-extensive with the
performance of communal obligations and adherence to communal
requirements.
In consultation with others in the indigenous community, it is not
uncommon for individual creators to work with concepts, styles and
techniques handed down to them and be restricted in their creative and
aesthetic inclinations in order to advance the mode and manner of
collective traditions and practices [9]. As a result, the creative
expression of an individual or group of individuals is considered to be
an expression and product of the community as a whole. This is
particularly so where current works are derived from older works whose
original creation cannot be ascribed to any definite persons. This
situation gives rise to ownership rights within indigenous cultures
regarding works of folklore which are at odds with Western legal
concepts such as absolute individual ownership and freedom of
alienability of property [10].
The idea that folklore belongs to a living and changing group of people
means that Western concepts of individual creation and individual
ownership reflected in copyright law through such exclusive rights as
reproduction and adaptation, publishing and recording, performing, and
broadcasting rights [11] do not necessarily hold up for indigenous
peoples [12]. For indigenous peoples it is the aesthetic, social and
cultural elements within a work of folklore that are determinative of
its value which has to do with the sentiments and emotions attached to
the folklore and its use and enjoyment. This construct of value
represents a communal "moral right" or moral concern with the work of
folklore and surpasses whatever economic advantages can be gained from
the work by its sale or disposal to others [13]. A system of legal
protection for indigenous folklore has to recognise this fact if it is
to be effective.
It should, however, be acknowledged that within indigenous cultures the
value of things may, where occasion calls for it, also be expressed in
terms of a potential exchange value, although this is not the usual
standard for ascertaining value [14]. Nevertheless, with the
availability of contemporary and more efficient technology for making
creative works the potential for an exchange value does become an
important factor when considering how to legally protect the
intellectual property of indigenous peoples' folklore in the Western
world.
Distribution of rights within indigenous cultures
A system of legal protection for folklore cannot ignore customary rights
of ownership of creative works by indigenous communities. How such
rights function within Australian Aboriginal society was discussed in
Yumbulul v Reserve Bank of Australia [15]. In that case the court noted
that rights are distributed within different groups [16] usually along
the 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 a
work or create a facet of a work for various purposes is vested in
certain members of that clan [17]. These rights can be inherited or
gained by reputation.
Also in New Zealand, in Maori society the use of property including
cultural and creative works are managed on a differentiated basis so
that control and use is distributed over several levels [18]. This
ranges from a chief (ariki) who is considered as the guardian of tribal
(iwi) interests, followed by minor chiefs acting as "custodian trustees"
within sub-tribes (hapu) in relation to various subordinate and
collective affairs, and then extended family (whanau) and individual
property rights. Individual rights are qualified by an over-sight of the
community to use property to serve wider needs [19]. The defined bundle
of privileges and obligations that exists is similar to a process of
delegated authority [20].
The system holds together because of a tribe's close social bonding and
the imposition of supernatural restrictions (through concepts such as
"sacredness" or tapu prevalent in Maori society) which govern how
certain works or techniques can be used for different purposes or
ceremonial occasions [21]. While this may prohibit undue departure from
traditional usage, it also ensures the retention of recognised standards
and emotional attitudes towards the use of a work or its adaptation. In
this sense the tribe's moral concern with the work is strengthened which
in turn reinforces the communal ownership of the work.
Limitations of copyright law - originality
In contrast, copyright law is based on the premise that works originate
from an author's own judgment, skill or labour [22]. Individually or
jointly vested rights (in proportionate shares) enable copyright owners
to license or assign their intellectual property to others and thereby
obtain some economic remuneration from the copyrighted work. However
with indigenous peoples customary claims to intellectual property are in
substance those of the tribal community (without any tracing as to
proportions).
A problem posed by the established assumptions of individual and
exclusive rights under copyright law is that it is possible for an
individual indigenous artist's work (made since the advent of English
and now Australian law [23]) to be protectible under section 35(1)
Copyright Act 1968 as that artist's own intellectual property even if
made in an indigenous setting. The artist is the author of the work and
all that is required from the artist to gain protection is a minimal
amount of originality [24]. However, the customary law is actually that
the intellectual property rights to the work are non-exclusive communal
property. In this respect western copyright law diverges substantially
from the customs and practices of indigenous cultures [25].
Conversely, it is possible that some works by an individual indigenous
artist, such as simple paintings or those drawn from or imitating
pre-existing traditions [26], might not be regarded as original works.
For example, the emblems and designs used may have existed in a tribe
for thousands of years and been handed down over the centuries. In this
respect the work of the artist is basically unoriginal and an
adaptation. However given the low degree of originality required to
obtain copyright protection, then so long as the work has some element
of distinctiveness that comes from the artist the copyright in it will
belong to the individual artist [27].
In such cases the customary interests of a tribe may come into conflict
with the copyright law [28]. This is especially so where there is a
tribal assertion that permission must be obtained by others to use a
certain idea or concept such as, say, a specific style of dot painting
common to Australian Aborigines. One of the reasons for such permission
is to ensure that the cultural integrity of similar already existing
works is not denigrated or misrepresented.
This approach is not easily compatible with that of individual
creativity and the free flow of ideas under copyright law [29]. This
form of customary regulation and entitlement implies that a licence is
needed from the tribe to use certain designs, imagery, concepts or ideas
[30]. The general principle under copyright law is that there is no
property in ideas.
Limitations of copyright law - fixation in material form
An unsatisfactory situation which has arisen in Australia concerning the
cultural integrity of folklore is where copyright protection can be
obtained for prints on consumer items such as tea-towels, wall hangings,
postcards and other souveniers [31], but the prints are merely
adaptations of traditional and possibly sacred pieces of Aboriginal
artwork or other cultural imagery which do not fall within the term of
copyright protection because of lapse of time (eg ancient rock art) or
there is no identifiable creator [32]. Other works not in a material
form such as native dances, music and lyrics have also been known to be
performed in the wrong context without emphasis on their inherent
cultural or spiritual meaning, especially where the objective is to rake
in the tourist dollar under the demands of popular marketing.
Verbatim note taking of myths and legends is also a problem. Here the
notetaker should only be considered as a mere scribe who does not own
the copyright in those myths and legends [33]. The copyright should
belong to 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 tangible
form [34] but are still capable of remaining relatively unchanged and
well-known through the ages. Within indigenous cultures a particular
work or expression often only exists for a performance or an occasion,
but even then it still has a transient type of structural arrangement or
formation which continues and can be revived for subsequent performances
or occasions in a way very similar to how it was expressed previously.
For example, it may be drawn, sung, created musically, performed, danced
or recited in a way it has been known from time immemorial or adapted
accordingly, and then effaced or destroyed while not being permanently
retained or captured by some technological means of recording.
Therefore, the work of folklore has some known configuration, (even if
somewhat variable in expression) and does exist in the collective
consciousness of the community to which the folklore belongs. In this
sense it is stored in that collective consciousness. This concept of
"storage" or "fixation" is, of course, very different to that under
copyright law which, in accordance with section 22(1) Copyright Act,
requires that the work must be "made" in such a way that it is "reduced
to writing [35] or to some other material form [36]" in order to obtain
protection under the Act.
So while a work of folklore may often not be in a permanent form it is
clearly more than an idea. It is an actual artform having cultural
significance or historical value worthy of both tangible and intangible
preservation.
It also has to be recognised that the work may not have been fixed in a
material form simply because the particular culture places no
predominant importance on such fixation. This does not mean that the
culture considers the work to be unimportant. Indeed in some indigenous
cultures, such as the Australian Aborigines, the work could be so
important or sacred that it should not be fixed in a permanent form
capable of easy material reproduction or public viewing [37]. The law of
copyright should make provision for such worthwhile differences in
cultural perceptions and practices and not allow for loss of copyright
protection in these situations. In some countries such as Germany, works
do not have to be fixed in a material form to be protected [38]. This
should be readily extended to works of folklore.
The fixation requirements may actually present an obstacle to the growth
and development of folklore because they potentially allow for works of
folklore to be taken away from indigenous cultures by persons who seize
the initiative of fixing them in a material form [39] by, for example,
adding their own distinctive changes to the original, yet unprotected,
works. Once fixed by persons outside that culture, the distinctive
expressions in those fixed works may not again be able to be used by the
very culture from which they came, because to do so could amount to
copying or other infringement of intellectual property rights in the
fixed work. Protection for indigenous folklore to the effect that this
type of adaptation does not give rise to a separate copyright is clearly
required as it was not the intention of copyright law to decrease the
development of the arts of which folklore is a part.
by Dieter Dambiec
(Tuesday September 27 2005)
"A system of protection should encourage indigenous peoples'
expectations of respect for their creative works, particularly from
those outside the indigenous culture. This means that folklore should be
protected from debasement, distortion and consequent loss of cultural
integrity due to inappropriate uses which would be offensive to the
community from which it originates or prejudicial to the artist's or
tribe's honour or reputation."
Definition and characteristics of folklore
Folklore expresses an assortment of traditions and customs that reflect
a people's culture [1]. It is expressed through music, dance, drama,
craft, sculpture, painting, literature [2] and other means of creativity
which generally require little dependence on high technology.
Folklore tends to be passed on from generation to generation within a
community from memory, by word of mouth, or visually. The particular
community to which the folklore is recognised as belonging is both its
conveyer and user and so works of folklore are easily absorbed into the
community's culture and social life. In this respect folklore is part of
the collective consciousness of a culture. It is not just a static
replication of the past.
Folklore is a dynamic and living entity which evolves with the culture.
Within indigenous societies the expressions of folklore, although often
transient in form, are nevertheless lasting in a social sense because
their richness plays an integral part in collective and individual life
[3]. Folklore is part of the cultural heritage of indigenous societies
such as the Australian Aborigines, the Maori of New Zealand, Indian
tribes in the USA, and the Indians, Inuit (from the north) and Metis
(from the prairies) of Canada [4]. It derives its practical use and
social value by being crafted for particular ceremonies or other forms
of group participation or by being related to a continuum of events and
circumstances within the community [5].
For indigenous peoples, that continuum of events can go back a long,
long time. Their language, literature, traditional spiritual beliefs and
cultural customs [6] will often be intertwined with their folklore. The
age-old character of many works of folklore and long history of
indigenous cultures usually means that the creators of folklore are
anonymous [7]. This also highlights the communal ownership of folklore.
Collective ownership of indigenous people' folklore
The close identification of indigenous folklore with community life has
as its corollary the notion of overriding community control of
intellectual and creative works so that to impart total control to the
individual creators of these works is seen as undermining part of the
foundations of that community [8]. This means that an individual's
creative work attains a place and is attributed with some meaning within
the indigenous culture when it is somehow co-extensive with the
performance of communal obligations and adherence to communal
requirements.
In consultation with others in the indigenous community, it is not
uncommon for individual creators to work with concepts, styles and
techniques handed down to them and be restricted in their creative and
aesthetic inclinations in order to advance the mode and manner of
collective traditions and practices [9]. As a result, the creative
expression of an individual or group of individuals is considered to be
an expression and product of the community as a whole. This is
particularly so where current works are derived from older works whose
original creation cannot be ascribed to any definite persons. This
situation gives rise to ownership rights within indigenous cultures
regarding works of folklore which are at odds with Western legal
concepts such as absolute individual ownership and freedom of
alienability of property [10].
The idea that folklore belongs to a living and changing group of people
means that Western concepts of individual creation and individual
ownership reflected in copyright law through such exclusive rights as
reproduction and adaptation, publishing and recording, performing, and
broadcasting rights [11] do not necessarily hold up for indigenous
peoples [12]. For indigenous peoples it is the aesthetic, social and
cultural elements within a work of folklore that are determinative of
its value which has to do with the sentiments and emotions attached to
the folklore and its use and enjoyment. This construct of value
represents a communal "moral right" or moral concern with the work of
folklore and surpasses whatever economic advantages can be gained from
the work by its sale or disposal to others [13]. A system of legal
protection for indigenous folklore has to recognise this fact if it is
to be effective.
It should, however, be acknowledged that within indigenous cultures the
value of things may, where occasion calls for it, also be expressed in
terms of a potential exchange value, although this is not the usual
standard for ascertaining value [14]. Nevertheless, with the
availability of contemporary and more efficient technology for making
creative works the potential for an exchange value does become an
important factor when considering how to legally protect the
intellectual property of indigenous peoples' folklore in the Western
world.
Distribution of rights within indigenous cultures
A system of legal protection for folklore cannot ignore customary rights
of ownership of creative works by indigenous communities. How such
rights function within Australian Aboriginal society was discussed in
Yumbulul v Reserve Bank of Australia [15]. In that case the court noted
that rights are distributed within different groups [16] usually along
the 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 a
work or create a facet of a work for various purposes is vested in
certain members of that clan [17]. These rights can be inherited or
gained by reputation.
Also in New Zealand, in Maori society the use of property including
cultural and creative works are managed on a differentiated basis so
that control and use is distributed over several levels [18]. This
ranges from a chief (ariki) who is considered as the guardian of tribal
(iwi) interests, followed by minor chiefs acting as "custodian trustees"
within sub-tribes (hapu) in relation to various subordinate and
collective affairs, and then extended family (whanau) and individual
property rights. Individual rights are qualified by an over-sight of the
community to use property to serve wider needs [19]. The defined bundle
of privileges and obligations that exists is similar to a process of
delegated authority [20].
The system holds together because of a tribe's close social bonding and
the imposition of supernatural restrictions (through concepts such as
"sacredness" or tapu prevalent in Maori society) which govern how
certain works or techniques can be used for different purposes or
ceremonial occasions [21]. While this may prohibit undue departure from
traditional usage, it also ensures the retention of recognised standards
and emotional attitudes towards the use of a work or its adaptation. In
this sense the tribe's moral concern with the work is strengthened which
in turn reinforces the communal ownership of the work.
Limitations of copyright law - originality
In contrast, copyright law is based on the premise that works originate
from an author's own judgment, skill or labour [22]. Individually or
jointly vested rights (in proportionate shares) enable copyright owners
to license or assign their intellectual property to others and thereby
obtain some economic remuneration from the copyrighted work. However
with indigenous peoples customary claims to intellectual property are in
substance those of the tribal community (without any tracing as to
proportions).
A problem posed by the established assumptions of individual and
exclusive rights under copyright law is that it is possible for an
individual indigenous artist's work (made since the advent of English
and now Australian law [23]) to be protectible under section 35(1)
Copyright Act 1968 as that artist's own intellectual property even if
made in an indigenous setting. The artist is the author of the work and
all that is required from the artist to gain protection is a minimal
amount of originality [24]. However, the customary law is actually that
the intellectual property rights to the work are non-exclusive communal
property. In this respect western copyright law diverges substantially
from the customs and practices of indigenous cultures [25].
Conversely, it is possible that some works by an individual indigenous
artist, such as simple paintings or those drawn from or imitating
pre-existing traditions [26], might not be regarded as original works.
For example, the emblems and designs used may have existed in a tribe
for thousands of years and been handed down over the centuries. In this
respect the work of the artist is basically unoriginal and an
adaptation. However given the low degree of originality required to
obtain copyright protection, then so long as the work has some element
of distinctiveness that comes from the artist the copyright in it will
belong to the individual artist [27].
In such cases the customary interests of a tribe may come into conflict
with the copyright law [28]. This is especially so where there is a
tribal assertion that permission must be obtained by others to use a
certain idea or concept such as, say, a specific style of dot painting
common to Australian Aborigines. One of the reasons for such permission
is to ensure that the cultural integrity of similar already existing
works is not denigrated or misrepresented.
This approach is not easily compatible with that of individual
creativity and the free flow of ideas under copyright law [29]. This
form of customary regulation and entitlement implies that a licence is
needed from the tribe to use certain designs, imagery, concepts or ideas
[30]. The general principle under copyright law is that there is no
property in ideas.
Limitations of copyright law - fixation in material form
An unsatisfactory situation which has arisen in Australia concerning the
cultural integrity of folklore is where copyright protection can be
obtained for prints on consumer items such as tea-towels, wall hangings,
postcards and other souveniers [31], but the prints are merely
adaptations of traditional and possibly sacred pieces of Aboriginal
artwork or other cultural imagery which do not fall within the term of
copyright protection because of lapse of time (eg ancient rock art) or
there is no identifiable creator [32]. Other works not in a material
form such as native dances, music and lyrics have also been known to be
performed in the wrong context without emphasis on their inherent
cultural or spiritual meaning, especially where the objective is to rake
in the tourist dollar under the demands of popular marketing.
Verbatim note taking of myths and legends is also a problem. Here the
notetaker should only be considered as a mere scribe who does not own
the copyright in those myths and legends [33]. The copyright should
belong to 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 tangible
form [34] but are still capable of remaining relatively unchanged and
well-known through the ages. Within indigenous cultures a particular
work or expression often only exists for a performance or an occasion,
but even then it still has a transient type of structural arrangement or
formation which continues and can be revived for subsequent performances
or occasions in a way very similar to how it was expressed previously.
For example, it may be drawn, sung, created musically, performed, danced
or recited in a way it has been known from time immemorial or adapted
accordingly, and then effaced or destroyed while not being permanently
retained or captured by some technological means of recording.
Therefore, the work of folklore has some known configuration, (even if
somewhat variable in expression) and does exist in the collective
consciousness of the community to which the folklore belongs. In this
sense it is stored in that collective consciousness. This concept of
"storage" or "fixation" is, of course, very different to that under
copyright law which, in accordance with section 22(1) Copyright Act,
requires that the work must be "made" in such a way that it is "reduced
to writing [35] or to some other material form [36]" in order to obtain
protection under the Act.
So while a work of folklore may often not be in a permanent form it is
clearly more than an idea. It is an actual artform having cultural
significance or historical value worthy of both tangible and intangible
preservation.
It also has to be recognised that the work may not have been fixed in a
material form simply because the particular culture places no
predominant importance on such fixation. This does not mean that the
culture considers the work to be unimportant. Indeed in some indigenous
cultures, such as the Australian Aborigines, the work could be so
important or sacred that it should not be fixed in a permanent form
capable of easy material reproduction or public viewing [37]. The law of
copyright should make provision for such worthwhile differences in
cultural perceptions and practices and not allow for loss of copyright
protection in these situations. In some countries such as Germany, works
do not have to be fixed in a material form to be protected [38]. This
should be readily extended to works of folklore.
The fixation requirements may actually present an obstacle to the growth
and development of folklore because they potentially allow for works of
folklore to be taken away from indigenous cultures by persons who seize
the initiative of fixing them in a material form [39] by, for example,
adding their own distinctive changes to the original, yet unprotected,
works. Once fixed by persons outside that culture, the distinctive
expressions in those fixed works may not again be able to be used by the
very culture from which they came, because to do so could amount to
copying or other infringement of intellectual property rights in the
fixed work. Protection for indigenous folklore to the effect that this
type of adaptation does not give rise to a separate copyright is clearly
required as it was not the intention of copyright law to decrease the
development of the arts of which folklore is a part.