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Ethnomusicology
COPYRIGHT AND FOLKLORE
Author:
City
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Baku
Country :
Azerbaijan
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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 productions of folk art, in particular, draw ings, paintings, carvings, sculptures, pottery, terra
cotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, cos tumes;
musical instruments;
architectural forms.
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