Every culture of the world has its own folkloric elements as well as its own expressions of these elements. Also known as traditional cultural expressions (TCEs), expressions of folklore identify and portray the traditions and values of the cultures they represent. They are the products of social and communal creative processes which have taken place for centuries within a specific culture.
The relationship between expressions of folklore and intellectual property is close, yet complex. One of the forms of intellectual property which is most closely linked to expressions of folklore is the copyright. Although many might not assume such to be possible, a significant number of people have sought copyright protection from intellectual property authorities for expressions of folklore in recent years.
Expressions of Folklore Defined
The World Intellectual Property Organization (WIPO) defines expressions of folklore as productions which consist of characteristic elements of a particular culture’s traditional artistic heritage. These productions must have also been developed and maintained by a community of individuals from that culture or by individuals who reflect that culture’s traditional artistic expectations.
Expressions of folklore may be verbal, musical, physical, or tangible in nature. The first three categories of expressions of folklore can be collectively defined as intangible expressions of folklore. The most common folkloric expressions are those which combine intangible and tangible elements. As WIPO defines expressions of folklore to be artistic, these expressions can often be linked to copyrights in the same manner as many other artistic outputs.
Copyright Laws and Expressions of Folklore
The copyright laws of many countries may already be related to expressions of folklore. This is because most copyright regulations guard literary and artistic works. Since many expressions of folklore are literary or artistic productions, they might already be protected by prevailing copyright laws in force. Contemporary adaptations or arrangements of folkloric expressions may sometimes also receive copyright protection.
To help provide purveyors of expressions of folklore with further avenues for protection, WIPO introduced the Tunis Model Law on Copyright for Developing Countries in 1976. This international law includes unique protections for expressions of folklore. According to the Tunis Model Law, copies of expressions of folklore which are produced without the explicit authorization of the relevant authorities are neither permitted to be imported nor distributed.
Copyrights and the Public Domain in Relation to Expressions of Folklore
Copyrights related to expressions of folklore cannot be holistically viewed unless the concept of the public domain is also analyzed. Broadly speaking, the public domain refers to all intellectual property elements which are ineligible for private ownership. Any member of the public may use such elements. Some claim that the concept of the public domain is a construction of the intellectual property system and therefore should not be relevant towards the legal protection of expressions of folklore.
There is an ongoing debate about copyrights, the public domain, and expressions of folklore. Some claim that even if expressions of folklore are in the public domain, the development of these expressions will not be adversely affected. On the other hand, there are also others who believe that by providing people within a culture the opportunity to protect their cultural heritage with copyrights, the people of that culture will become more motivated to preserve their cultural heritage and pass it along to future generations.
The Importance of Copyright Laws for Expressions of Folklore
The primary reason why there must be copyright laws for expressions of folklore is the preservation of cultural heritage and diversity. Copyright laws ensure that expressions of folklore will not be misused by others in a way of which members of the original community would disapprove. Copyright laws for expressions of folklore can also serve as an indirect source of revenue. This is the case when people from the culture in question reproduce these folkloric expressions for the legitimate commercial exploitation of folklore-themed innovations and creations.
National copyright laws which protect expressions of folklore ought to be part of a country’s overarching policy towards cultural heritage. When part of such a policy, these laws promote respect for cultural rights, advocate for cultural exchange and artistic development, promote sustainable economic development through tradition-based innovation and creativity, and prevent the making of false claims of cultural authenticity.
This article is brought to you by Exy Intellectual Property Malaysia and Singapore.