By Dieter Dambiec

The age-old character of many works of folklore and long history of indigenous cultures usually means that the creators of folklore are anonymous. Progressive minded legislators must provide a legal regime that will protect indigenous peoples’ folklore.

Folklore reflects a people’s culture. It is expressed through music, dance, drama, craft, sculpture, painting, literature and other means of creativity which generally require little dependence on high technology. It tends to be passed on from generation to generation within a community from memory, by word of mouth, or visually.

If the cultural dynamism of a community is destroyed then its backbone and collective sentiment are also shattered. Forces outside the community may denigrate the practical use and social value of its folklore. Colonisation, and now globalisation of culture by mass advertising, has brought an onslaught of materialistic values and products.

This materialistic culture fails to consider community cohesiveness, ecological systems or the mental and spiritual expansion of the people affected. As part of this global pseudo-culture many works of folklore are seen solely as collector’s items and as forms of material wealth, rather than as expressions of indigenous peoples’ aspirations and communal heritage.

Misappropriation

Many expressions of folklore are transient in form or difficult to obtain because they are considered sacred. They are nevertheless lasting in a social sense because of their integral richness and importance in collective and individual life. The transient and the sacred are also under attack through commercialisation and cheap imitations.

Examples of this include printing sacred or traditional designs on t-shirts without the indigenous culture’s permission, popularising songs or dances for tourist attraction, and re-enacting ceremonies out of context in the name of tourism. Even if some of these are not considered wrong, proper consideration should be given to the owners of the culture from which the creative works have sprung.

And, to go one step further, control of the use of those cultural works may need to be legally vested in the tribe or other indigenous unit from which they derive in order to ensure that the sanctity and moral rights attached to the works remain intact. This would help considerably in preserving the language, literature and spiritual aspirations of the people, which are often so intertwined with their folklore.

Copyright

Nearly all countries today protect creative expressions by some form of copyright law. However, modern copyright laws still do not give sufficient scope for the protection of works of folklore from exploitation - particularly indigenous folklore. The reasons for this are primarily that the age-old character of many works of folklore and long history of indigenous cultures usually means that the creators of folklore are anonymous. Thus, without verifiable individual ownership of folklore, the reasoning goes, there cannot be communal ownership. Further, the usual length of copyright protection is the lifetime of the creator plus 50 to 60 years thereafter; it is not indefinite.

The challenge for progressive minded legislators is to provide a legal regime that will protect indigenous peoples’ folklore. This cannot be done without taking into account the community ownership of works of folklore.

Collective ownership of indigenous peoples’ folklore

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 do not necessarily hold up for indigenous peoples.

For indigenous peoples it is the aesthetic, social and cultural elements within a creative work that determine its value. The emphasis is on a spiritual synthesis with the community rather than a materia-listic privatisation of rights. This construct of value represents a communal moral right and moral concern with the work and surpasses whatever economic advantages can be gained from the work by its sale or disposal to others. A system of legal protection for indigenous folklore has to recognise this fact if it is to be effective.

This, however, should not deny that within indigenous cultures the value of things may, where occasion calls for it, also be expressed in terms of money. With today’s technology the potential for creative works to have monetary value does become important when considering how to legally protect the intellectual property of indigenous peoples.

Distribution of rights within indigenous cultures

The best system of protection should be based on one that already has some inherent recognition. Within Australian Aboriginal society, for example, rights of ownership of creative works are distributed within different groups. Ownership of various works, designs or imagery is usually vested in a clan, and the right to use a design or image for sale or otherwise is vested in certain members of that clan. These rights can be inherited or gained by reputation.

In New Zealand Maori society, the use and control of property, including cultural and creative works, has traditionally been distributed over several levels. These range 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 do exist but are qualified by community oversight so that property is used to serve wider needs. The privileges and obligations that exist represent a form of socialisation of wealth. The system holds together because of community social bonding and the imposition of restrictions (e.g., through concepts such as sacredness - tapu - prevalent in Maori society) which govern how certain works can be used.

Originality

In contrast, today’s copyright law is based on the premise that works originate from an author’s own judgment, skill or labour. Simple paintings or those drawn from pre-existing traditions might not be regarded as original works under copyright law. 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 may have no copyright for the artist - which also means, however, that there is no legal protection for the tribe.

In such cases customary tribal interests may conflict with copyright law. This is especially so where there is a tribal assertion that permission must be obtained by others to use a certain design, imagery 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.

Fixation in material form

At present, many works of folklore do not always have a fixed material form (such as prints on consumer items such as tea-towels, wall hangings, postcards and other souvenirs) 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 structure which continues and can be revived for subsequent occasions in a way similar to the original. For example, it may be drawn, sung, performed musically, danced or recited in a way it has been known from time immemorial, or adapted and then destroyed instead of being captured technologically.

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 and the finished product. However, the tribe does not have an actual legal interest in the resulting copyright of the work produced by the individual artist. This can only arise following a written assignment of copyright from the individual owner to the tribal owners in accordance with copyright legislation. This, at present, seldom happens. Nevertheless, Australian courts have begun to recognise that tribal owners can have an equitable interest in the copyright of a work and that this equitable interest is vested in the members of the tribe. This will give the tribe a right to permit or restrain by injunction the further reproduction or adaptation of the work.

Where sacred or secret ideas, motifs and traditions are conveyed in confidence by a tribe to another person, Australian courts have also intervened through the law of breach of confidence to prevent that person putting them in the public domain. This restrains the publisher from selling a book revealing tribal secrets of deep spiritual significance to Aboriginals on the basis that their revelation could give rise to serious damage in the form of disruption of Aboriginal culture and society. Such rights or privileges vested in the tribe are essential to stop any debasement of a work for commercial gain.

Similarly, in New Zealand, Article the Second of the Treaty of Waitangi of 1840 recognises Maori customary rights. The English version of this Article 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. New Zealand courts have been willing to assert that Maori language is one such treasure that requires protection. If language is a cultural treasure worthy of protection, other creative treasures including folklore must also be protected under the Treaty in favour of the indigenous people.

A legislative regime for folklore

These court decisions also show that the legal conceptions of indigenous peoples need not be considered as any less precise than those of the English common law so widely adopted by many countries. In line with the evolving nature of folklore, it makes sense that the ongoing observance of customary rights can also be framed in a modernised form. It is possible that both indigenous and Western conceptions of intellectual property can be utilised to frame an effective legislative regime for the protection of folklore. This can be achieved by recognising those rights which are integral to the indigenous culture, those which are rational and based on human welfare, and those which have been continually observed before and after settlement of indigenous lands by Europeans. Such rights should be capable of being asserted outside the indigenous community, even if not for sale outside the indigenous system.

To achieve this, discretion can be vested, within reason, in tribal structures as to how the tribe wishes to 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 fair dealing which should not be unreasonably denied.

Protection of indigenous folklore therefore requires consideration of the concept of community ownership of works and 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. Indigenous knowledge and creativity will not be seen merely as a commodity, with folklore losing 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.

Moral rights

The law in this context should encourage indigenous peoples’ expectations of respect for their creative works, particularly respect from those outside the indigenous culture. Accordingly, folklore should be legally protected from debasement, distortion and consequent loss of cultural integrity due to inappropriate uses. ‘Inappropriate’ means that which would be offensive to the community from which the folklore originates or prejudicial to the artist’s or tribe’s honour or reputation.

Copyright law in its economic sense would not be a sensitive enough tool to deal effectively with many works of folklore considered to be spiritually significant. In order for indigenous peoples not to lose the power to protect their cultural heritage 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 folklore works. If there is no legal protection, folklore traditions run the risk of becoming fixed in society’s memory devoid of their original context. This would inhibit the creative folklore evolution and the spiritual sentiment it can give to society.

Moral rights (droit moral) legally ensure that the integrity of a work is maintained. In the Western context, moral rights originated in Europe and are associated with the author’s moral concern for his/her work. They recognise the personal connection a creator has with the work.

Progressive legislation would extend this concept to the tribal connection that members of an indigenous community have to a work. The creation of moral rights attaching to a tribe can then sit alongside the individual copyright and moral rights of an artist.

Moral rights generally comprise three types of rights which would be useful in protecting folklore. These rights are 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.

To ensure that sufficient control of folklore remains with its indigenous custodians, a communal moral rights mechanism would have to extend indefinitely. Such rights would apply when a work is displayed, reproduced, performed, used or even transferred, and would vest permanently with the tribe and could not be transferred. This would give the work an enduring legal protection from the onslaughts of pseudo-culture and protect its inner meaning from exploitation.

Other methods of protection

An extension of economic rights called domaine publique payant is also suitable for the protection and promotion of folklore. This would require commercial users of folklore or unprotected materials that are not subject to copyright to pay for their use.

Another extension of economic rights called droit de suite 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. 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.

The collection of part of any windfall gain derived from the sale or resale of works of folklore so that such moneys are used for the benefit of indigenous communities or promotion of their folklore would have interesting consequences. The imposition of such a social tax could, for example, reduce speculation in the arts.

Copyright The author 1999