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Ethnomusicology
COPYRIGHT AND FOLKLORE
Author:
City
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Baku
Country :
Azerbaijan
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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 tradi tional 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;
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