WIPO on Folklore not moving too fast

Subject: WIPO on Folklore not moving too fast
From: DJDambiec (dambiec@ozemail.com.au)
Date: su 07 kesä   1998 - 05:55:11 EEST

One of the May 98 WIPO papers states:

Preparation of new international norms, or at least offering guidance, on
those issues, as well as on two further issues identified during
preparatory work on the treaties - namely,
the rights of broadcasting organizations and of distributors of
cable-originated programs and the intellectual
property protection of folklore - has been left, initially, for the
1998-99 biennium.

I presume this means nothings is happening and this issue has been around for
some 20 years at least. I would suggest that such protection is possible and
that is so even with fair use/dealing.

There may be 2 distinctions drawn at least, ie

indigenous folklore of a living culture,

social and cultural folklore that is more than confined to one culture, eg
Hindu songs, etc which have no real tribal claimant and folklore that are
folksongs etc

There appears to be no reason to separate out religious practices, either. The
question of sacred and religious matters may arise in relation to any
protective regime.

That is definitions are tricky.

Regarding indigenous folklore, I offer the following points.

dieter dambiec

Indigenous cultural rights

To strengthen indigenous claims to folklore the concept of aboriginal rights
requires 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. In the Canadian case of R v
Sparrow the Supreme Court stated that the protection of aboriginal rights
extended to those practices which were "an integral part of their distinctive

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 (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. Obviously if
language is a cultural treasure worthy of protection in the "partnership"
between Maori and the Crown, then other creative treasures including folklore
must also be protected under the treaty in favour of the indigenous people.

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. It is possible
to surmise from the High Court's decision in Mabo v The State of Queensland
[No.2] 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 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.

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, rational or not
contrary to the Australian common law, and which were continually observed up
until settlement or have been modernised since then. Such rights should be
capable of being asserted outside the indigenous community, even though not
alienable outside the indigenous system.

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). 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 use/dealing which should not be unreasonably

Protection of indigenous folklore therefore requires a consideration of the
concept of community ownership 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
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" can its
secondary commercial or entrepreneurial potential be appropriately utilised or
fairly disseminated within its true cultural parameters.

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