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The Legal Protection of Folklore: Can Copyright Assist Or Is a Sui Generis Right Necessary?

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The Legal Protection of Folklore: Can Copyright Assist Or Is a Sui Generis Right Necessary? The Legal Protection of Folklore: Can Copyright Assist or is a Sui generis Right Necessary? by Alessandra Narciso Submitted in accordance with the requirements for the degree of the School of Law University of Leeds November 2007 The candidate confirms that the work submitted is her own and that appropriate credit has been given where reference has been made to the work of others. This copy has been supplied on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. -ii- Abstract Over the last few years, it became clear that copyright industries, amongst others, increasingly find their inspiration in and borrow material from folklore and other traditional sources, particularly from Indigenous and traditional communities in developing countries. A number of problems are associated with this phenomenon. The use of copyright is becoming instrumental to protect works of authorship based on traditional works. The Western copyright allows the exploitation of the original sources that provide the inspiration, the backbone and often much more for the new work. There is no reward or acknowledgements for the real creators and this can be easily defined as 'new colonialism'. There is an internationally recognised need to protect folkloric works and satisfy Indigenous peoples' demands in regulating access to their folkloric works and in benefiting from the commercial exploitation of these works. Copyright remains inapplicable to protect folklore due to some obstacles conceived in the nature of the right while some others lie in the dominant copyright doctrine. In response to this situation, the thesis questions the present boundaries of copyright and the proprietary doctrine inherent to the system. It proposes a new way of conceiving creation based on transactionable human relationships, instead of acquiring propriety over the creation. It thereby challenges the very foundations of copyright law. However, we argue that, at least theoretically, copyright could become a far more adaptable instrument. Admittedly, it is unrealistic to expect a change in the political setting. Historically, copyright is proven to depend on the dominant political regime and the current trend is towards an inflexible application of copyright categories. At the international level efforts are focused towards suitable means of protection which go far beyond the copyright applicability. However, the difficulty in protecting folklore lies in the fact that there are no precise boundaries to define a phenomenon which has a dynamic and communal nature. Therefore, multiple solutions should be explored: from enhancing values as cultural diversity to implementing customary laws and empowering Indigenous peoples to allow them to participate in decision making processes. Overall, it is a matter of balancing rights, of regulating and sharing access. It is a cultural clash which needs to be set: the Western ideology of culture with its material creation versus the Indigenous world, bearing a complexity of very different values and principles. - III - Contents Abstract ...................................................................................................................... ii Contents .................................................................................................................... iii Chapter 1 The Legal Protection of Folklore: Can Copyright Assist or Is a Sui Generis Right Necessary? .......................................................................... 2 1.1. The Scope of the Thesis .............................................................................. 2 1.2. Towards a Uniform Definition ................................................................... 4 1.2.1. Folklore: Defining a Human CommunallMuItiple Right. .............. 7 1.2.2. Copyright or Sui generis: Individualism versus Communal Creations ........................................................................................ 10 1.2.2.1. The Copyright Cup: Half Empty rather than Half Full and Indigenous Creativity ..................................................... 12 1.3. Copyright: An Economic Appraisal .......................................................... 18 1.4. The National and Supranational/Continental Dimension ........................ 22 Chapter 2 The Protection of Folklore at the International Level: Defining Indigenous Peoples' Traditional Cultural Expressions .............................. 28 2.1. Introduction .............................................................................................. 28 2.2. The Definition of Folklore ....................................................................... 28 2.2.1. Folklore and Traditional Knowledge ........................................... 29 2.3. Folklore as Community Heritage and the Object Of Protection .............. 32 2.3.1. Who is the Owner of Folklore? Traditional Communities, Indigenous and Tribal Groups ........................................................ 35 2.4. Is Folklore the Expression of a New Right? ............................................ 37 2.4.1. Folklore and Oral Transmission ................................................... 37 2.4.2. 'Public Domain': a Threat or a Help for TCEs? ......................... ~. 42 2.4.3. Intellectual Property and the Meaning of 'Protection' ................. 46 2.4.4. Mainstreaming Cultural Diversity for a Better World .................. 48 2.5. Conclusion ............................................................................................... 51 Introduction to Part II ............................................................................................ 54 Chapter 3 Protection of Folklore under Copyright Law. The United States: Do the Existing Copyright Provisions Help? .................................. 57 3.1. Introduction .............................................................................................. 57 - iv- 3.2. Folklore and Copyright Laws ................................................................... 61 3.3. United States Copyright Law and Folklore Protection ............................ 65 3.3.1. A Constitutionally Guaranteed Right ........................................... 65 3.3.1.1. The United States Copyright Act ..................................... 67 3.3.2. Folklore: '[B]eyond the Borders of Originality' .......................... 68 3.3.3. Folklore as a Derivative Work ..................................................... 69 3.3.4. The 'Creative Input' in the Reproduction: Folklore as a Transforrnative Work ..................................................................... 71 3.3.5. The Fixation Requirement. ........................................................... 72 3.3.5.1. Protection for the 'Fixer' .................................................. 73 3.3.6. Copyright Parameters ................................................................... 75 3.3.6.1. The Duration of the Right ................................................ 75 3.3.6.2 Folklore: A Perpetual Right .............................................. 76 3.3.7. Group Rights CC;0llective Rights) ................................................. 78 3.3.7.1. Joint Works ...................................................................... 80 3.3.7.2. Transfer of Rights ............................................................ 81 3.3.7.3. Works for Hire ................................................................. 81 3.3.8. Fair Use ........................................................................................ 82 3.4. Alternatives to Copyright ......................................................................... 84 3.4.1. Trademark Protection ................................................................... 84 3.4.1.1. The Provisions under the Lanham Act ............................. 84 3.4.1.2. The IACA Provisions: a Sui generis Legislation for the Protection of Traditional Knowledge .............................. 85 3.4.2. Trade Secret Law ......................................................................... 87 3.4.3. Public Domain .............................................................................. 88 3.5. Conclusion ............................................................................................... 90 3.5.1. National Copyright Laws are Unsuitable to Protect Folklore ...... 90 3.5.2. Could Other Intellectual Property Routes be Considered as Valid Alternatives to Protect Indigenous Peoples' Folklore? ........ 91 3.5.3. Could Indigenous Communities Participate in the Free Market Economy without Giving up their Values? ....................... 91 -v- Chapter 4 The Influence of the Courts in Addressing the Necessity of a New Intellectual Property Regime for the Protection of Folklore. The Australian Experience ............................................................................ 94 4.1. Introduction .............................................................................................. 94 4.2. The Australian Way ................................................................................. 97 4.2.1. The 'Dreaming' and the Land: Basic Elements of Aboriginal Life ................................................................................................. 97 4.2.2. The Australian Courts Overcome the Lack of Legislative Measures Through the Introduction of Non-Intellectual Property Mechanisms ..................................................................... 99
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