Post by blackcrowheart on Oct 3, 2005 12:29:04 GMT -5
Linked to this is the question of duration of copyright. As folklore
enhances the whole community's cultural heritage for the benefit of all
it is argued that there should be no time limitations both forwards and
backwards in relation to its protection. The Tunis Model Law on
Copyright for Developing Countries produced by UNESCO and the World
Intellectual Property Organisation ("WIPO") in 1976, and which is the
basis of copyright laws in countries such as Sri Lanka and Zaire,
provides for economic and moral rights for folklore without 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 the culture from which the
folklore stems so long as that culture also recognises the wider public
interest.
The limitations of the Copyright Act in relation to protection of
Australian Aboriginal folklore has been recognised by the Australian
Federal government in 2 reports. These are the 1981 Report of the
Working Party on the Protection of Aboriginal Folklore [40] and a report
entitled The Aboriginal Arts and Crafts Industry [41] published in 1989.
These limitations have also been judicially recognised in Yumbulul v
Reserve Bank of Australia [42]. In many respects these limitations exist
and persist because of the law's difficulty in dealing with communal
ownership and aboriginal rights which involve questions of equity,
fairness and reasonableness [43].
The equitable interface between customary law and copyright law
Established equitable principles should be capable of being applied to
copyright law [44] and asserted by indigenous groups or tribes to enable
them to gain some effective control over creative works which they
consider to be communally owned even though the work's tangible creation
is by individual authors or artists.
Where, as under Australian Aboriginal customary law, an artist is
permitted by the tribe to depict certain designs for a particular
purpose it is commonly recognised that the tribe is the custodial owner
of the rights in the design [45] and the finished product. However, the
tribe does not have an actual legal interest in the copyright of the
work produced by the artist. This can only arise pursuant to a written
assignment of copyright from the individual owner to the tribal "owners"
in accordance with section 196 Copyright Act which, at present, seldom
happens.
Nevertheless, if the tribal "owners" have an equitable interest (whether
personal or proprietary) vested in the members of the tribe in the
copyright of the work, then they have a right to permit or restrain the
further reproduction, adaptation or other redepiction of the work [46].
The law appears to be capable of recognising that equitable interests
between tribal members and property could arise out of the obligations,
rights, rules, representations, entitlements and dealings applied as
customary law within a tribe and which govern the interrelationship of
an artist to an indigenous group. This is so, provided that what is
demanded in equity does not simply consist of some idiosyncratic notions
of justice or fairness [47].
Even though under section 8 of the Copyright Act copyright, as a legal
interest in intangible property, does not subsist otherwise than by
virtue of the Act, this cannot bar or deny the existence or assertion of
any equitable rights or interests. It is feasible that equity could
protect the interests of the members of a tribe in a creative work, just
as it can protect the interests of members of an unincorporated
association or mutual association of persons [48]. Given the
circumstances of tribal ownership this protection could extend to a work
produced by another member.
Thus if there is an unauthorised reproduction of an individual's work
without the permission or licence of the tribe, equitable relief by way
of an interlocutory injunction may be claimed in the name of the members
or representatives [49] of the tribe to restrain an infringement of
copyright because the members have an equitable interest [50] in the
work. This principle is no different than in the case of unincorporated
or mutual associations [51].
Where a permanent injunction is sought the tribal equitable owners will
have to join the individual artist as legal owner of the copyright [52].
The reason for this is to preclude a defendant after having defeated the
claim of an equitable claimant to again have to defend similar
proceedings by the legal owner. This means that a licensor of Aboriginal
works should have regard to any tribal rights and the licence should be
entered into with the licensee recognising both the legal rights of the
copyright owner and the equitable interests of the tribe [53]. This
procedure would more closely reflect how things are done under
Aboriginal customary law.
Where sacred or secret ideas, motifs and traditions are conveyed by a
tribe to another person, then equity can also intervene through the law
of breach of confidence [54] provided that the information has not
already fallen into the public domain. Thus in Foster v Mountford [55]
an injunction was granted to restrain the sale of a book revealing
tribal secrets of deep religious and cultural significance to Aboriginal
persons on the basis that their revelation could give rise to serious
damage in the form of disruption of aboriginal culture and society.
Aboriginal cultural rights
To further strengthen indigenous claims to folklore the concept of
aboriginal rights requires serious consideration. Included within
aboriginal rights are not only rights in relation to land based on
native title, but also pre-existing rights or privileges that were
practiced long before settlement by Europeans, and rights to an
indigenous people's cultural survival [56]. In the Canadian case of R v
Sparrow [57] the Supreme Court stated that the protection of aboriginal
rights extended to those practices which were "an integral part of their
distinctive culture" [58].
In New Zealand, Article the Second of the Treaty of Waitangi of 1840
recognises Maori customary rights. The English version of Article the
Second states that the Crown confirms and guarantees to the Maori "full
exclusive and undisturbed possession of their Lands and Estates Forests
Fisheries and other properties which they may collectively and
individually possess". In the Maori text of the Treaty of Waitangi the
word "taonga" is used in substitution for the words "other properties".
Taonga when translated means "treasures".
While Maori people have available to them the rights and privileges
under laws made by the Crown [59] (including laws in relation to
intellectual property), this does not disturb the possession and
retention of Maori cultural "treasures" and customs. Under the Treaty of
Waitangi Maori language is one such treasure that requires protection.
This has recently been confirmed by the Privy Council in New Zealand
Maori Council v Attorney General of New Zealand [60]. Obviously if
language is a cultural treasure worthy of protection in the
"partnership" [61] between Maori and the Crown, then other creative
treasures including folklore must also be protected under the treaty in
favour of the indigenous people [62].
A legislative regime for folklore recognising aboriginal rights
The legal conceptions of indigenous peoples, though differently
developed, are not necessarily any less precise than those of the common
law [63]. It is possible to surmise from the High Court's decision in
Mabo v The State of Queensland [No.2] [64] that upon the Crown gaining
sovereignty over Australia through annexation it still respected the
pre-existing rights and interests of the indigenous Aboriginals in their
creative and intellectual works [65] even if they were of a kind unknown
to the common law. These customary rights have not been expressly
extinguished by the Crown under the Copyright Act or similar
legislation. In line with the evolving nature of folklore, it also makes
sense that the ongoing observance of customary rights can be in a
modernised form [66].
It is possible that both indigenous and western conceptions in relation
to intellectual property can be utilised to frame an effective
legislative regime for the protection of folklore. This can be achieved
by recognising those aboriginal rights which are integral to the
indigenous culture [67], rational or not contrary to the Australian
common law, and which were continually observed up until settlement or
have been modernised since then [68]. Such rights should be capable of
being asserted outside the indigenous community, even though not
alienable outside the indigenous system [69].
To achieve this a discretion can be vested in the indigenous culture as
to how it, through various tribal structures, wishes to reasonably
control the dissemination, reproduction or public disclosure of its own
folklore (particularly its sacred aspects) [70]. Where the use is for
education or as an aid in creating other original literary, dramatic,
musical or artistic works this should be regarded as a fair dealing
which should not be unreasonably denied.
Protection of indigenous folklore therefore requires a consideration of
the concept of community ownership [71] of works and the management of
rights associated with those works in accordance with the customs of the
particular indigenous culture. This would enable greater indigenous
control of folklore and ensure that its commercialisation does not take
place in the wrong context so as to result in indigenous knowledge and
creativity being seen merely as a commodity [72] with the folklore
loosing its primary role of strengthening the indigenous culture. Only
when indigenous folklore is strengthened so that it is no longer, as in
some countries, in a state of "extreme fragility" [73] can its secondary
commercial or entrepreneurial potential be appropriately utilised [74]
or fairly disseminated within its true cultural parameters.
Protection by droit moral
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 [75] which would be offensive to the community from
which it originates or prejudicial to the artist's or tribe's honour or
reputation.
Copyright law, if considered to be a purely economic instrument, would
not be a sensitive enough tool to deal effectively with the management
of many works of folklore considered to be spiritually significant [76].
In order for indigenous peoples not to loose their power to protect
their cultural heritage [77] and their ability to supervise the
commercial by-products of their culture it is necessary to have a
mechanism which helps retain the integrity of original works of
folklore. If there is no such legal protection, then folklore traditions
run the risk of becoming fixed in society's memory devoid of their
original context. This would inhibit the creative evolution of that
folklore [78].
Moral rights or droit moral give that legal ability to ensure that the
integrity of a work when it is used, performed or displayed is
maintained. In the western context moral rights originated in Europe and
are associated with a moral concern of the author with that author's
work. Moral rights recognise the personal connection a creator has with
the work. This should be capable of being extended to the tribal
connection that members of a tribe have to a work so that the concept is
adapted to suit the particular needs of each country or culture [79].
In the context of countries with indigenous cultures the law should give
recognition to the communal nature of works of folklore by allowing for
the enforcement of associated "communal moral rights". Therefore the
creation of moral rights attaching to a tribe could sit alongside the
individual copyright and moral rights of an artist.
Moral rights generally comprise 3 types of rights [80] which are useful
in protecting folklore. These rights being the power to control the
publication or dissemination of a work (including its alteration and
withdrawal from the public), the right to have the artist's (or tribe's)
name associated with the work, and the right to prevent misuse,
mutilation or distortion of a work. A moral rights mechanism extending
indefinitely beyond the usual copyright term seems to be appropriate in
order to ensure that sufficient control of works of folklore remains
with their indigenous custodians after the copyright expires or after
the works (or their copyright) have been transferred to others or when
the works are displayed, reproduced or used. Moral rights legislation is
also an appropriate way of recognising the communal nature of ownership
in works of folklore.
Moral rights in relation to folklore should be personal as well as
tribal in nature and should not be able to be transferred. This would
enable indigenous artists and tribes to ensure that the vital theme or
essence of a work is retained in the future. Moral rights are also
capable of taking into account different ideas of value or subjective
appreciation [81] associated with a creative work and which are
dependent upon differences in cultural wants so that these differences
are indirectly recognised in law. In addition moral rights can more
adequately deal with cases of false attribution under section 191
Copyright Act where, for example, an indigenous artist is held out as
being the author of an altered work similar to that which the artist
created [82].
Protection by domaine publique payant
An extension of economic rights called domaine publique payant [83] may
also be suitable for the protection and promotion of folklore [84]. This
requires commercial users of folklore or unprotected materials that are
not subject to copyright, because the work has either fallen outside the
copyright term of protection or not been reduced to writing or some
material form, to still pay for the use. The moneys collected are used
to further public rather than private interests by being distributed to
artists or organisations concerned with the arts. This can include
indigenous tribes and peoples. In this way money can be used for the
development of folklore especially if the system of distribution is in
accordance with regulations or schemes reflecting aboriginal rights,
customary entitlements and traditions.
The need for a domaine publique payant system for folklore also arises
because this material lends itself more easily to use and exchange
through the market place [85] if it is not subject to any authorisation
and the charging of private copyright royalties. The impact of charging
a public royalty for folklore is that the monetary charge is capable of
compensating a social or indigenous group connected with the work. It
also gives some control and guardianship over the exploitation or
distortion of the work. There should be no charge where the purpose is
for education or creating a new original work.
Promotion and protection by droit de suite
Another extension of economic rights called droit de suite can also be
used to promote folklore. This is a type of resale royalty giving the
creator of a work the right to share in the increased value of a work if
it is later resold or gives rise to a windfall gain [86]. Given the
increased interest in indigenous folklore and art, which can now fetch
high prices, it would seem inherently inequitable that creative works
and art from indigenous peoples can be acquired at a small cost to the
purchaser without proper recognition of the artist's or tribes' labour
and skill and later resold at a considerable profit.
Consideration should be given to the collection of part of any windfall
gain derived from the sale or resale of works of folklore to be used for
the benefit of indigenous communities or the promotion of their
folklore.
Joint WIPO and UNESCO Model Provisions
The Berne Convention does not contain a direct reference to folklore.
The closest it gets is Article 15(4)(a) which deals with unpublished
works by unknown authors believed to be nationals of a country. Article
15(4)(a) allows the country to designate a "competent authority" to
represent the author and protect and enforce any related rights. This
article could possibly be used in relation to folklore [87].
However a more comprehensive model set of rules dealing specifically
with folklore has been jointly developed by WIPO and UNESCO in 1985 in
the form of the Model Provisions for National Laws on the Protection of
Expressions of Folklore Against Illicit Exploitation and Other
Prejudicial Actions ("Model Provisions"). This aims to achieve a
compromise between the economic and moral rights surrounding folklore
and attain a balance between the protection of folklore against abuse
and encouragement of its further development and dissemination. It is up
to each country, if it so wishes to implement legislation in this area.
Section 3 of the Model Provisions provide for a system of prior
authorisation to be administered by a "competent authority" or the
"community concerned" in relation to the utilisation of expressions of
folklore "made both with gainful intent and outside their traditional or
customary context". If legislation based on this model was to be
introduced in Australia it could be necessary to obtain prior permission
from an indigenous community to publish, reproduce, distribute, recite,
perform, transmit or in any other way communicate to the public
expressions of folklore.
The Model Provisions are flexible enough to take into account the
differing situations in each country, so that recognition of aboriginal
rights could be part of any legislation in Australia. This may depend a
lot on the favourable "redefinition" of aboriginal land rights currently
taking place in western common law countries. The link between land
rights and cultural rights is difficult to separate [88] as both are
concerned with the Aboriginal spiritual worldview.
It should be noted that the Model Provisions do not deal adequately with
matters of collective ownership of works and here the importance of
communal moral rights may fill the gap. Section 12 also makes it clear
that the Model Provisions do not limit or prejudice any protection
available under other forms of law, so that tribal equitable interests
in works of folklore are viable.
Conclusion - wholistic position
The purpose of protecting an indigenous people's folklore is not to cut
it off from outside influences. It is not in society's best interests or
the intention of copyright laws to setback the policy of broadening
everyone's knowledge and increasing the free flow of information. There
is, however, a need to maintain the integrity of works of folklore and
to ensure that they are not distorted out of context.
The creation of a sui generis category of intellectual property rights
for folklore is a means of giving greater control to the community from
which the works derive and to strengthen its folklore. This is necessary
for the appropriate realisation of both the cultural and economic
potential of works of folklore for the benefit the indigenous culture.
This would involve recognising aboriginal and moral rights as well as
equitable interests in works of folklore. The appropriate combination of
these rights and interests is also a good way of acknowledging the
communal origins of folklore [89].
enhances the whole community's cultural heritage for the benefit of all
it is argued that there should be no time limitations both forwards and
backwards in relation to its protection. The Tunis Model Law on
Copyright for Developing Countries produced by UNESCO and the World
Intellectual Property Organisation ("WIPO") in 1976, and which is the
basis of copyright laws in countries such as Sri Lanka and Zaire,
provides for economic and moral rights for folklore without 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 the culture from which the
folklore stems so long as that culture also recognises the wider public
interest.
The limitations of the Copyright Act in relation to protection of
Australian Aboriginal folklore has been recognised by the Australian
Federal government in 2 reports. These are the 1981 Report of the
Working Party on the Protection of Aboriginal Folklore [40] and a report
entitled The Aboriginal Arts and Crafts Industry [41] published in 1989.
These limitations have also been judicially recognised in Yumbulul v
Reserve Bank of Australia [42]. In many respects these limitations exist
and persist because of the law's difficulty in dealing with communal
ownership and aboriginal rights which involve questions of equity,
fairness and reasonableness [43].
The equitable interface between customary law and copyright law
Established equitable principles should be capable of being applied to
copyright law [44] and asserted by indigenous groups or tribes to enable
them to gain some effective control over creative works which they
consider to be communally owned even though the work's tangible creation
is by individual authors or artists.
Where, as under Australian Aboriginal customary law, an artist is
permitted by the tribe to depict certain designs for a particular
purpose it is commonly recognised that the tribe is the custodial owner
of the rights in the design [45] and the finished product. However, the
tribe does not have an actual legal interest in the copyright of the
work produced by the artist. This can only arise pursuant to a written
assignment of copyright from the individual owner to the tribal "owners"
in accordance with section 196 Copyright Act which, at present, seldom
happens.
Nevertheless, if the tribal "owners" have an equitable interest (whether
personal or proprietary) vested in the members of the tribe in the
copyright of the work, then they have a right to permit or restrain the
further reproduction, adaptation or other redepiction of the work [46].
The law appears to be capable of recognising that equitable interests
between tribal members and property could arise out of the obligations,
rights, rules, representations, entitlements and dealings applied as
customary law within a tribe and which govern the interrelationship of
an artist to an indigenous group. This is so, provided that what is
demanded in equity does not simply consist of some idiosyncratic notions
of justice or fairness [47].
Even though under section 8 of the Copyright Act copyright, as a legal
interest in intangible property, does not subsist otherwise than by
virtue of the Act, this cannot bar or deny the existence or assertion of
any equitable rights or interests. It is feasible that equity could
protect the interests of the members of a tribe in a creative work, just
as it can protect the interests of members of an unincorporated
association or mutual association of persons [48]. Given the
circumstances of tribal ownership this protection could extend to a work
produced by another member.
Thus if there is an unauthorised reproduction of an individual's work
without the permission or licence of the tribe, equitable relief by way
of an interlocutory injunction may be claimed in the name of the members
or representatives [49] of the tribe to restrain an infringement of
copyright because the members have an equitable interest [50] in the
work. This principle is no different than in the case of unincorporated
or mutual associations [51].
Where a permanent injunction is sought the tribal equitable owners will
have to join the individual artist as legal owner of the copyright [52].
The reason for this is to preclude a defendant after having defeated the
claim of an equitable claimant to again have to defend similar
proceedings by the legal owner. This means that a licensor of Aboriginal
works should have regard to any tribal rights and the licence should be
entered into with the licensee recognising both the legal rights of the
copyright owner and the equitable interests of the tribe [53]. This
procedure would more closely reflect how things are done under
Aboriginal customary law.
Where sacred or secret ideas, motifs and traditions are conveyed by a
tribe to another person, then equity can also intervene through the law
of breach of confidence [54] provided that the information has not
already fallen into the public domain. Thus in Foster v Mountford [55]
an injunction was granted to restrain the sale of a book revealing
tribal secrets of deep religious and cultural significance to Aboriginal
persons on the basis that their revelation could give rise to serious
damage in the form of disruption of aboriginal culture and society.
Aboriginal cultural rights
To further strengthen indigenous claims to folklore the concept of
aboriginal rights requires serious consideration. Included within
aboriginal rights are not only rights in relation to land based on
native title, but also pre-existing rights or privileges that were
practiced long before settlement by Europeans, and rights to an
indigenous people's cultural survival [56]. In the Canadian case of R v
Sparrow [57] the Supreme Court stated that the protection of aboriginal
rights extended to those practices which were "an integral part of their
distinctive culture" [58].
In New Zealand, Article the Second of the Treaty of Waitangi of 1840
recognises Maori customary rights. The English version of Article the
Second states that the Crown confirms and guarantees to the Maori "full
exclusive and undisturbed possession of their Lands and Estates Forests
Fisheries and other properties which they may collectively and
individually possess". In the Maori text of the Treaty of Waitangi the
word "taonga" is used in substitution for the words "other properties".
Taonga when translated means "treasures".
While Maori people have available to them the rights and privileges
under laws made by the Crown [59] (including laws in relation to
intellectual property), this does not disturb the possession and
retention of Maori cultural "treasures" and customs. Under the Treaty of
Waitangi Maori language is one such treasure that requires protection.
This has recently been confirmed by the Privy Council in New Zealand
Maori Council v Attorney General of New Zealand [60]. Obviously if
language is a cultural treasure worthy of protection in the
"partnership" [61] between Maori and the Crown, then other creative
treasures including folklore must also be protected under the treaty in
favour of the indigenous people [62].
A legislative regime for folklore recognising aboriginal rights
The legal conceptions of indigenous peoples, though differently
developed, are not necessarily any less precise than those of the common
law [63]. It is possible to surmise from the High Court's decision in
Mabo v The State of Queensland [No.2] [64] that upon the Crown gaining
sovereignty over Australia through annexation it still respected the
pre-existing rights and interests of the indigenous Aboriginals in their
creative and intellectual works [65] even if they were of a kind unknown
to the common law. These customary rights have not been expressly
extinguished by the Crown under the Copyright Act or similar
legislation. In line with the evolving nature of folklore, it also makes
sense that the ongoing observance of customary rights can be in a
modernised form [66].
It is possible that both indigenous and western conceptions in relation
to intellectual property can be utilised to frame an effective
legislative regime for the protection of folklore. This can be achieved
by recognising those aboriginal rights which are integral to the
indigenous culture [67], rational or not contrary to the Australian
common law, and which were continually observed up until settlement or
have been modernised since then [68]. Such rights should be capable of
being asserted outside the indigenous community, even though not
alienable outside the indigenous system [69].
To achieve this a discretion can be vested in the indigenous culture as
to how it, through various tribal structures, wishes to reasonably
control the dissemination, reproduction or public disclosure of its own
folklore (particularly its sacred aspects) [70]. Where the use is for
education or as an aid in creating other original literary, dramatic,
musical or artistic works this should be regarded as a fair dealing
which should not be unreasonably denied.
Protection of indigenous folklore therefore requires a consideration of
the concept of community ownership [71] of works and the management of
rights associated with those works in accordance with the customs of the
particular indigenous culture. This would enable greater indigenous
control of folklore and ensure that its commercialisation does not take
place in the wrong context so as to result in indigenous knowledge and
creativity being seen merely as a commodity [72] with the folklore
loosing its primary role of strengthening the indigenous culture. Only
when indigenous folklore is strengthened so that it is no longer, as in
some countries, in a state of "extreme fragility" [73] can its secondary
commercial or entrepreneurial potential be appropriately utilised [74]
or fairly disseminated within its true cultural parameters.
Protection by droit moral
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 [75] which would be offensive to the community from
which it originates or prejudicial to the artist's or tribe's honour or
reputation.
Copyright law, if considered to be a purely economic instrument, would
not be a sensitive enough tool to deal effectively with the management
of many works of folklore considered to be spiritually significant [76].
In order for indigenous peoples not to loose their power to protect
their cultural heritage [77] and their ability to supervise the
commercial by-products of their culture it is necessary to have a
mechanism which helps retain the integrity of original works of
folklore. If there is no such legal protection, then folklore traditions
run the risk of becoming fixed in society's memory devoid of their
original context. This would inhibit the creative evolution of that
folklore [78].
Moral rights or droit moral give that legal ability to ensure that the
integrity of a work when it is used, performed or displayed is
maintained. In the western context moral rights originated in Europe and
are associated with a moral concern of the author with that author's
work. Moral rights recognise the personal connection a creator has with
the work. This should be capable of being extended to the tribal
connection that members of a tribe have to a work so that the concept is
adapted to suit the particular needs of each country or culture [79].
In the context of countries with indigenous cultures the law should give
recognition to the communal nature of works of folklore by allowing for
the enforcement of associated "communal moral rights". Therefore the
creation of moral rights attaching to a tribe could sit alongside the
individual copyright and moral rights of an artist.
Moral rights generally comprise 3 types of rights [80] which are useful
in protecting folklore. These rights being the power to control the
publication or dissemination of a work (including its alteration and
withdrawal from the public), the right to have the artist's (or tribe's)
name associated with the work, and the right to prevent misuse,
mutilation or distortion of a work. A moral rights mechanism extending
indefinitely beyond the usual copyright term seems to be appropriate in
order to ensure that sufficient control of works of folklore remains
with their indigenous custodians after the copyright expires or after
the works (or their copyright) have been transferred to others or when
the works are displayed, reproduced or used. Moral rights legislation is
also an appropriate way of recognising the communal nature of ownership
in works of folklore.
Moral rights in relation to folklore should be personal as well as
tribal in nature and should not be able to be transferred. This would
enable indigenous artists and tribes to ensure that the vital theme or
essence of a work is retained in the future. Moral rights are also
capable of taking into account different ideas of value or subjective
appreciation [81] associated with a creative work and which are
dependent upon differences in cultural wants so that these differences
are indirectly recognised in law. In addition moral rights can more
adequately deal with cases of false attribution under section 191
Copyright Act where, for example, an indigenous artist is held out as
being the author of an altered work similar to that which the artist
created [82].
Protection by domaine publique payant
An extension of economic rights called domaine publique payant [83] may
also be suitable for the protection and promotion of folklore [84]. This
requires commercial users of folklore or unprotected materials that are
not subject to copyright, because the work has either fallen outside the
copyright term of protection or not been reduced to writing or some
material form, to still pay for the use. The moneys collected are used
to further public rather than private interests by being distributed to
artists or organisations concerned with the arts. This can include
indigenous tribes and peoples. In this way money can be used for the
development of folklore especially if the system of distribution is in
accordance with regulations or schemes reflecting aboriginal rights,
customary entitlements and traditions.
The need for a domaine publique payant system for folklore also arises
because this material lends itself more easily to use and exchange
through the market place [85] if it is not subject to any authorisation
and the charging of private copyright royalties. The impact of charging
a public royalty for folklore is that the monetary charge is capable of
compensating a social or indigenous group connected with the work. It
also gives some control and guardianship over the exploitation or
distortion of the work. There should be no charge where the purpose is
for education or creating a new original work.
Promotion and protection by droit de suite
Another extension of economic rights called droit de suite can also be
used to promote folklore. This is a type of resale royalty giving the
creator of a work the right to share in the increased value of a work if
it is later resold or gives rise to a windfall gain [86]. Given the
increased interest in indigenous folklore and art, which can now fetch
high prices, it would seem inherently inequitable that creative works
and art from indigenous peoples can be acquired at a small cost to the
purchaser without proper recognition of the artist's or tribes' labour
and skill and later resold at a considerable profit.
Consideration should be given to the collection of part of any windfall
gain derived from the sale or resale of works of folklore to be used for
the benefit of indigenous communities or the promotion of their
folklore.
Joint WIPO and UNESCO Model Provisions
The Berne Convention does not contain a direct reference to folklore.
The closest it gets is Article 15(4)(a) which deals with unpublished
works by unknown authors believed to be nationals of a country. Article
15(4)(a) allows the country to designate a "competent authority" to
represent the author and protect and enforce any related rights. This
article could possibly be used in relation to folklore [87].
However a more comprehensive model set of rules dealing specifically
with folklore has been jointly developed by WIPO and UNESCO in 1985 in
the form of the Model Provisions for National Laws on the Protection of
Expressions of Folklore Against Illicit Exploitation and Other
Prejudicial Actions ("Model Provisions"). This aims to achieve a
compromise between the economic and moral rights surrounding folklore
and attain a balance between the protection of folklore against abuse
and encouragement of its further development and dissemination. It is up
to each country, if it so wishes to implement legislation in this area.
Section 3 of the Model Provisions provide for a system of prior
authorisation to be administered by a "competent authority" or the
"community concerned" in relation to the utilisation of expressions of
folklore "made both with gainful intent and outside their traditional or
customary context". If legislation based on this model was to be
introduced in Australia it could be necessary to obtain prior permission
from an indigenous community to publish, reproduce, distribute, recite,
perform, transmit or in any other way communicate to the public
expressions of folklore.
The Model Provisions are flexible enough to take into account the
differing situations in each country, so that recognition of aboriginal
rights could be part of any legislation in Australia. This may depend a
lot on the favourable "redefinition" of aboriginal land rights currently
taking place in western common law countries. The link between land
rights and cultural rights is difficult to separate [88] as both are
concerned with the Aboriginal spiritual worldview.
It should be noted that the Model Provisions do not deal adequately with
matters of collective ownership of works and here the importance of
communal moral rights may fill the gap. Section 12 also makes it clear
that the Model Provisions do not limit or prejudice any protection
available under other forms of law, so that tribal equitable interests
in works of folklore are viable.
Conclusion - wholistic position
The purpose of protecting an indigenous people's folklore is not to cut
it off from outside influences. It is not in society's best interests or
the intention of copyright laws to setback the policy of broadening
everyone's knowledge and increasing the free flow of information. There
is, however, a need to maintain the integrity of works of folklore and
to ensure that they are not distorted out of context.
The creation of a sui generis category of intellectual property rights
for folklore is a means of giving greater control to the community from
which the works derive and to strengthen its folklore. This is necessary
for the appropriate realisation of both the cultural and economic
potential of works of folklore for the benefit the indigenous culture.
This would involve recognising aboriginal and moral rights as well as
equitable interests in works of folklore. The appropriate combination of
these rights and interests is also a good way of acknowledging the
communal origins of folklore [89].