by Dr Lauri Honko, Kalevala Institute
Paper read at the National Seminar on Copyright Law and Matters,
Mangalore University, Mangalore, Karnataka, India, on February 9, 2001
Oral traditions constitute a powerful cultural force and an inexhaustible spiritual resource in the history of mankind. Many a venerated literary work has its origins in the songs and narratives of anonymous oral singers and storytellers. In India, for example, the early classical epics Mahaabhaarata and Raamaaya·na are attributed to the great poets Vyaasa and Vaalmiiki, respectively, even though the historical knowledge about the creation processes in question is scanty. The scholarly understanding is, however, that the poetic materials of both epics largely existed in oral forms before the idea of a truly long and well-integrated superstory was conceived by some individual sage or poet and before the narrative was codified into a written form.
Orality never fully conceded its role to literacy and literature. Performance traditions are a case in point: they have remained oral in a variety of ways. The story of Raama has been recited, sung, danced and orally enacted in dozens of languages in about 20 South and Southeast Asian countries over the centuries. The result is that we have today hundreds of Raamaaya·nas which show so few common features that it is doubtful whether these narratives stem from a common root. Some scholars see here only parallel traditions, not derivations from one and the same story. To complicate the matter further, there are hundreds of anti-Raamaaya·nas or local oral epics which reflect popular interpretations of some themes of the classical epic and shape their meaning to suit mainly local, social and communal ends.
In other words, orality and literacy, deesi and maargi, folk literature and classical literature have been in a constant dialogue in the past and that dialogue still continues today. In the face of such cultural variety, which seems to question the true identity of the Raama story, it may appear futile to ask questions of copyright. Who is the rightful owner of the Raama story, if it exists? The quick way out of this dilemma seems to be offered by the age of most tellings and retellings of the Raama stories. They have passed the limit of, say, 70 years, and consequently they belong to the public domain. Unfortunately, the matter is not quite that simple.
I am a folklorist and humanist, not a copyright lawyer. Yet I was invited in 1982 and the following years to participate in several meetings organised by WIPO (World Intellectual Property Organization) and Unesco in Geneva and Paris. One product of these meetings was the “Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions”, formulated in 1983 but never formally adopted by Unesco. Another document pertaining to the application of copyright on folklore and produced by several Intergovernmental Expert Committees, in which I had the privilege of participating during 1982-89, was the “Recommendation on the Safeguarding of Traditional Culture and Folklore”, adopted by Unesco’s General Assembly in November 1989. I wrote two working documents for the latter process and presided over the meeting in Paris in May 1987 which finalised the Recommendation text. About 80 Member States of Unesco were represented and dozens of Non-Governmental Organizations sent their observers to the meetings. Let me briefly sketch the relevance of these two authoritative statements as regards copyright and folklore.
First a few words about how it all began. The idea that folklore could be copyrighted was obviously in the air in the early 1970s, since it emerged independently in two contexts at least. In 1973, the Government of Bolivia submitted to the Director-General of Unesco the request that Unesco begin to examine the state of folklore and make a proposal for an addition to the Universal Copyright Convention. The background to this action may be illustrated by an anecdote which may or may not be true. It was at about that time that the pop singer Paul Simon published his song “El Condor Pasa”, which was soon identified as a Bolivian folk song. Since the record brought the “author” considerable revenue, it was felt that at least some of it should be channelled back to Bolivia.
At any rate, the initiative to copyright folklore reflects the more widely felt need in the developing countries to draw new intellectual strength from the country’s own unique, freely developed folk tradition once the country becomes freed from its colonial ties. The term “traditional culture” was preferred to “folklore”, because the latter carried disparaging Western overtones. Concern was expressed not only over the economic exploitation of folklore but also over the exportation of traditional culture and presentation outside its original contexts in a way that offended against the communities producing and preserving this tradition. Misonstrued performances belittled their cultural identity and values.
From the beginning, then, there were two main concerns, the economic and the ethical. The debate was launched in the industrialised countries, too, first in the Nordic countries in 1974, obviously without any connection to the Bolivian initiative at Unesco. At the time I was serving as the director of the Nordic Institute of Folklore and ordered an investigation on the relations between folklore and copyright from a Finnish lawyer. Her report was published in Swedish in 1975. It pondered, among other things, on the concept of folk artist and the question whether folklore could be protected through neighbouring rights, i.e. through the protection given to artists concerning the copyright of their products and performances. Since folklore is observable only in performance, this alternative would comprehensively cover expressions of folklore. An individual ownership of folklore, however, was problematic in view of the dominant role of the tradition community in the interpretation and maintenance of folklore.
The Bolivian initiative started a process which led to the formulation of a model law to be adopted by those countries which wanted to go ahead with copyrighting folklore. A few countries, such as Tunisia, already had national laws regulating commerce in folk handicrafts and other areas of traditional culture. In summer 1982, WIPO and Unesco convened an intergovernmental meeting of experts in Geneva which approved a document known as the “Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions”. It is a toothless tiger in the sense that the Treaty was never signed by anyone, yet its thinking made an impact on the copyright and folklore debate carried on in other fora, too.
How to define the object of protection
One of the key problems for the copyright experts meeting in Geneva was the definition of folklore. The lawyers wanted to know just what should be protected and what could be copyrighted. As a folklorist I was asked to clarify whether there was any folkloric “work” comparable to the works of art in high culture. My answer was twofold. First, since variation is the life substance of folklore, there is no master copy of a product of folklore from which all its variants could be derived. Second, I pointed out the tradition community as the prime holder of rights and ownership, not the individual performer who never claims to have invented the folkloric piece he performs. I referred to the definition of folklore which I had helped to formulate at the meeting of intergovernmental experts on safeguarding folklore held in Paris a few months earlier.
Thus we read the following in the first article of the Draft Treaty:
For the purposes of this Treaty, “expressions of folklore” mean productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community, or by individuals reflecting the traditional artistic expectations of their community, in particular,
(i) verbal expressions, such as folk tales, folk poetry and riddles;
(ii) musical expressions, such as folk songs and instrumental music;
(iii) expressions by action, such as folk dances, plays and artistic forms of rituals, whether or not reduced to a material form; and
(iv) tangible expressions, such as
(a) productions of folk art, in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes;
(b) musical instruments;
(c) architectural forms.
The Committee of Experts leaned heavily on the word “artistic” in an attempt to identify in the folk artist a case comparable to the artist of written high culture. If successful, the definition would provide protection of copyright through neighbouring rights to the performer of folklore. In the definition of folklore presented in the more comprehensive Unesco Recommendation on the Safeguarding of Traditional Culture and Folklore formally adopted in 1989 but already available in 1982, the word “artistic” does not appear at all. It says:
Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.
Here the keywords are “tradition” and “cultural identity”, not “artistic”, for obvious reasons. First, limiting the protection to artistic forms would create a skewed profile of the object of protection and leave important domains of folklore outside regulation. Second, whose aesthetics are we going to apply? The word “artistic” carries with it Western connotations not applicable to all cultures. It may be impossible to assess what is art and what is not art in cases where the actual owner of folklore, the traditional community, does not apply such a concept but rather sees the matter in terms of sacred values, world views and group identity.
The secondary use of tradition must be authorised
The Draft Treaty represents a compromise as regards the ownership of folklore insofar as it leans on the concept of “artistic” visualising a talented individual yet accepting simultaneously the traditional community as the holder of ownership. Protecting an individual as a performer, if not the creator, of folkloric expressions is much easier than locating the rightful representative for a traditional community. The community may belong to the past or, if still alive, it may lack the infrastructure able to handle claims of copyright or unethical infringement in the use of its traditions. In order to circumvent this difficulty the Draft Treaty leaves it to the “Contracting State” to designate one or more “competent authorities” to administer and enforce the Treaty within national legislation.
The rationale of the Draft Treaty contains two main points: first, the use of folklore, be it performance or publication, must be authorised and, if the use will bring economic gain, part of it should go to the source. Secondly, if the use is unauthorised or ethically damaging to the source, the act is criminal and must be punished. Otherwise the Draft Treaty contains customary technical guidelines for its scope and enforcement. Much responsibility is left to the hypothetical “competent authority”.
Whose rights are at stake
The Unesco Recommendation just mentioned deals with the broader issues of safeguarding folklore. Yet it contains a paragraph on the intellectual property aspects of folklore which complements the rationale of the Draft Treaty in an important way by listing more rights to be protected. The Recommendation formulates the recipients of protection by stating that we should
(i) protect the informant as the transmitter of tradition (protection of privacy and confidentiality);
(ii) protect the interest of the collector by ensuring that the materials gathered are conserved in the archives in good condition and in a methodical manner;
(iii) adopt the necessary measures to safeguard the materials gathered against misuse, whether intentional or otherwise;
(iv) recognize the responsibility of archives to monitor the use made of the materials gathered.
Thus the informant, the collector, the folklore document itself and the folklore archive holding the document should be protected and supported in order to guarantee the responsible use of folklore. Here the focus of protection shifts in fact to tangible objects, the documents containing folklore, be they written, audial or visual. This opens up a pragmatic vista on copyright and folklore, because the works to be protected are not immaterial spiritual phenomena in the minds of people but tangible objects conserving human ideas and expressions. The folklore archive may be said to assume the role of “competent authority” discussed above. The authorisation of use must be sought at the source of folklore performance, the informant, as well as at the source of its documentation, the collector. Both have individual rights concerning particular materials. The folklore archive should monitor their rights and the forms of folklore dissemination in general.
This last constellation of protection is in harmony with the existing infrastructures of folklore work. It need not remain hypothetical but can be written into archival codes and research contracts even regardless of whether certain international treaties have been ratified or not. In many cases the performer of folklore passes for an artist and may receive recognition as an author, not of folklore as such, but of his unique interpretation and performance of it. Without the collector, however, that performance would have disappeared without trace. So he may be respected as a co-author of folklore.
The folklore document thus created will lead a life of its own which is secondary compared to the original folklore process from which it was derived. Yet it lends the indispensable possibility of reviewing culture to future generations. Thus it must be protected as the container of inexhaustible cultural values. The folklore archive, in turn, lends institutional authority to folklore documents and provides for technical competence and judicial arbitration in matters of folklore protection and use. If there is any kind of royalty generated by folklore materials, it is the folklore archive which should be able to channel the funds to the rightful source, be it the performer, the traditional community, the collector or some institution, including the folklore archive itself.
The “competent authority”
Let me conclude with an anecdote. A scholar wrote to me recently saying that he had worked for several years on a database of 11,000 regional folk tales now ready to be displayed on the Internet. He had consulted lawyers about the copyright concerning the individual tales. The answer was that “every narrator is the owner of his or her recorded performance” and that the publisher should acquire permission for each tale from its narrator, if he is still alive, and if not, from the next of kin if less than 70 years have passed since his death. The scholar, envisioning the difficulties involved, was uncertain whether he could realise his plan of putting his database on the World Wide Web at all.
Here again, the folklore archive holding the materials and acting as the “competent authority” could take the responsibility of granting permission after judging the rights of not only the storytellers but the collectors and other shareholders of folklore ownership as well. In other words, a well-functioning and clearly coded infrastructure represents the best guarantee for the enforcement of copyright and other rights actualised through the secondary use of expressions of folklore.
Read more in NIF Newsletter 1-2/1982:1-5; 1/1983:1-7; 3/1984:1-3, 5-31; 1-2/1985:3-13; 4/1986:8-25; 1/1987:4-21; 3/1987:3-9; 4/1987:15-18; 2-3/1989:3-12; 1/1990:3-7.
(FFN 21, March 2001: 8-10)