Int J Semiot Law https://doi.org/10.1007/s11196-017-9536-7
How to Protect Traditional Folk Music? Some Reflections upon Traditional Knowledge and Copyright Law Giovanna Carugno1
Springer Science+Business Media B.V., part of Springer Nature 2017
Abstract Traditional folk music refers to customary songs and tunes played since time immemorial in a specific area. As an expression of culture and identity, this kind of music can be deemed as the heritage of the local community in its entirety, and derives from musical practices transmitted orally and repeated over a long period of time by a group of people, who, in so doing, keep their traditions alive. From this point of view, the owner of traditional folk music is not a specific composer, but all the members of a local community. But this clashes with the efforts to copyright traditional folk music expressions, since often copyright acts do not recognize forms of collective ownership on folklore and traditional knowledge. This paper aims to discuss possible solutions to tackle the issues related to the protection of traditional folk music, by considering not only the literature in the field of intellectual property, but also the outcomes of the legal formants and the comparative methodology, taking into consideration the studies of the social sciences involved in this topic, in particular anthropology and ethnomusicology. The final task is to find a place for traditional folk music within the framework of copyright law and verify its level of protection. Keywords Comparative law Copyright Ethnomusicology Folk music Traditional knowledge
& Giovanna Carugno
[email protected] 1
University of Campania Luigi Vanvitelli, Caserta, Italy
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1 Towards a Definition of ‘‘Traditional Folk Music’’ The famous poet Henry Wadsworth Longfellow wrote that ‘‘music is the universal language of mankind’’ [27]. This language takes countless genres, expressions and guises. They are, on one hand, the result of a Western-oriented past history,1 on the other hand, the outcome of cultural practices, whose survival is due to the efforts and the shelter given by a community or a group of people. In this perspective, music reflects the cultural identity of the group (ethnic, linguistic, or others2) [12, 43, 45], that creates and performs it. Therefore, music is also an element which qualifies and differentiates a specific group from another one.3 But, if the link between music and the identity of a community—as its ‘‘creator’’4—is immediately intelligible for the ethnomusicologist, this cannot be said for the legal interpreter. Some questions are in the backstage and regard the ways to safeguard the musical expressions of a group of people/communities, their copyrightability and the identity of their author.
1
The reference is to the ‘‘classical’’, ‘‘art’’ or ‘‘cultured’’ music, considered for long time superior than the ‘‘primitive’’ one composed in the non-Western Countries, as written and ‘‘structurally more complex, […] more expressive, conveys a greater range of human cognition and emotion, […] thus more profound and more meaningful’’ [7]. This hierarchical idea was maintained also by the well-known musicologist Theodor W. Adorno, who deemed higher classical musical than others, such as the popular one [1], and led to the ‘‘dominant tendency of music institutions and publics to assume the synonymy of music with Western European art music’’ [20]. The superiority of the cultured music was, in part, hindered through the further developments of the ethnomusicology and the importance acquired by the so-called ‘‘ethnic’’ or ‘‘world music’’ in the entertainment industry [17]. Bohlman, for example, underlines that ‘‘Western art music functions not unlike styles and repertories most commonly accepted as the ethnomusicologists field, namely folk and non-Western music’’ [11], while the anthropologist and ethnomusicologist John Blacking states that it is absolute non-sense to differentiate traditional music and cultured music because all the music belongs to the people, so ‘‘all music is folk music’’ [9]. This conclusion recalls the thoughts of Lyold, who observes: ‘‘Deep at the root, there is not essential difference between folk music and art music, they are varied blossoms from the same stock, from to serve a similar purpose, if destined for different tables. Originally, they spring from the same area of man’s mind, their divergence is a matter of history, of social and cultural stratification’’ [29]. 2
Bohlman states critically that, in defining these groups, ‘‘sometimes we call them ethnic groups or communities, sometimes national cultures, and sometimes we label by coupling place with abstraction, for example in ‘Viennese classicism’. All these acts of labelling suggest the process of standing outside a group and looking into see what sort of music is to be found’’ [11].
3
For instance, the ethnomusicologist John Miller Chernoff points out that ‘‘most people in Africa do not conceive of music apart from its community setting and cultural context’’; in this sense, ‘‘African music is a cultural activity which reveals a group of people organizing and involving themselves with their own communal relationships’’ [14].
4
Historically, this link started to be delineated by the ethnomusicologists at the end of the Sixties: ‘‘The concept of identity played an important role during the 1960s and 1970s in problematizing the received definition of ethnomusicology as ‘the study of music in cultural context,’ a formulation which too often reduced the complexities of history, ecology, culture, and society to a generalized backdrop for the technical analysis of musical sound […] By the 1980s and 1990s the notion that one could explain particular musical practices and forms by specifying their role in expressing or enacting identity had become commonplace in the ethnomusicological literature’’ [50].
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To tackle these issues, it is necessary to analyze in depth the characteristics of the music which has to be protected, in order to understand whether it can fall within the schemes of copyright law. As a matter of categorization, the musical expressions of a group or community can be included into the categories of ‘‘traditional music’’ and ‘‘folk music’’, labels whose boundaries remain vague and whose definition is not unanimously understood.5 Therefore, in order to clarify the meaning and the extent of these categories, it can be useful to isolate the main features of traditional music and to compare them with the ones of folk music. 1.
2.
Inherited from the past The etymology of the term ‘‘tradition’’ derives from the latin lemma ‘‘traditum’’; it recalls the idea of something that is delivered and passed down from one person to another through a process of communication among the members of the group/community [4]. Legally speaking, tradition is the ‘‘handing down’’ or ‘‘transmission from generation to generation of statements, beliefs, legends and customs orally and by practice’’.6 Orally transferred Traditional music is transmitted from the members of the group/community without the use of a notational (conventional or not) system and without fixation in a tangible support. This element could lead to tie traditional music to indigenous people, even though orality is a vehicle to transmit musical knowledge also used in the Western Countries. Moreover, there are early evidences of the adoption by indigenous communities of symbols and figures to write down musical scores.7 Since ‘‘oral/aural qualities as well as approaches and techniques associated with writing, printing, or other kinds of mediation are usually to some degree simultaneously present in most societies, historically as well as today’’ [2], the lack of a written source for a musical piece is not ex se indicative of its traditional nature and, even more, of its ‘‘indigenous’’ origin.
Thereafter, substantiating the notion of ‘‘indigenous group’’ or ‘‘indigenous community’’ is a hard task, given the variety of definitions available, ranging from extreme narrow ones to the broader. Resorting to the legal literature, the many definitions of indigenous communities or people refer to different and large cluster of elements, such as ‘‘self-identification as indigenous; descent from the occupants 5
The problem in defining folk music is due to the fact that ‘‘its style, cultural function and relationship to other types of music have varied considerably during different periods […] Moreover, different cultures have their own ways of categorizing folk music: what is typical of folk music in Europe of America may be not typical of folk music in India or Japan’’ [34]. Regarding traditional music, it was underlined that ‘‘there is no iron-clad definition […] It is best understood as a broad-based system which accommodates a complex process of musical convergence, coalescence and innovation over time. It involves different types of singing, dancing and instrumental music developed […] over the course of several centuries’’ [36]. 6
This definition was given by the Federal Court of Australia in the case Members of the Yorta Yorta Aboriginal Community v. Victoria (2001) 110 FCR 244, at 256.
7
This practice was particularly common in some ancient African communities [42].
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of a territory prior to an act of conquest; possession of a common history, language, and culture regulated by customary laws that are distinct from national cultures; possession of a common land; exclusion or marginalization from political decisionmaking; and claims for collective and sovereign rights that are unrecognized by the dominating and governing group(s) of the state’’ [31].8 This list is the result of a compromise, which includes various groups in one category, but also confines the meaning of the adjective ‘‘indigenous’’ as it is used in the common language.9 As a matter of contextualization, the communities or groups associated with traditional music have been considered with reference to the ones that own some peculiar features (linguistic, ethnic, cultural, etc.) which make them distinguishable from other groups and, in particular, from the national ones. Often these communities are based in a specific geographical area, so they are defined as ‘‘local’’ since they ‘‘shar[e] a territory and [they are] involved in different but related aspects of livelihoods – such as managing natural resources, producing knowledge and culture’’ [13].10 3.
Survived mainly through practice Traditional music is kept alive by the community/group by means of practical activities, performing vocally and/or instrumentally, usually with the accompaniment of movements and gestures.
8
These elements are delineated by the most-known definition of indigenous people or communities, contained in the 1983 final report on the Problem of Discrimination Against Indigenous Population by the Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/1986/7/Add.4, par. 379). Differently, Art. 1 of ILO’s Convention n. 169 only refers to the colonization process, by defining indigenous people as the ones ‘‘descended from populations that inhabited a country at the time of conquest, colonization, or the establishment of present state boundaries, and who irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions’’; the same can be said for the United Nations Declaration on the Rights of Indigenous People, adopted by the General Assembly on 13 September 2007, which observes in one Recital that indigenous peoples ‘‘have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests’’. As hightlighted by the anthropologist Bodley, the idea of indigenous people as ‘‘the original habitants of a region [as] posed in opposition to the colonists, usurpers, and intruders who came later in search of new resources to exploit’’ reflects only a political perspective. Instead, the term ‘‘indigenous’’, as used by the communities and groups themselves, acquires a more complex meaning and ‘‘calls attention to both cultural uniqueness and the political oppression, or at least the disadvantage that indigenous people must often endure from the larger-scale cultures surrounding them’’ [10].
9
In the current use, ‘‘we say that the human species is indigenous to Africa (since that is where the species evolved) or that fishing peoples in Indonesia possess indigenous fishing skills or knowledge, or that the people of Japan are indigenous o their country […] We are talking about a number of quite different things’’ [6]. 10
In addition, local communities ‘‘possess a distinctive form of social organization, and their members share in varying degrees political, economic, social and cultural characteristics (in particular language, behavioral norms, values, aspirations and often also health and disease patterns). They also function, or have functioned in the past, as micro-political bodies with specific capacities and authority’’ [13].
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The members of the community share the music experience11 and are fully involve in it, in particular during the social occasions. The sharing process can be also extended to communities which are logistically and geographically close to each other. In this case, music would be saved ‘‘not [by] a single community, but [by] multiple communities with overlapping sense of identity’’ [46].12 Furthermore, as a matter fact, performance is an instrinsic element of music as a form of art; so, it could be concluded that it is not a specific marker of the traditional music. But, since it is rarely handed down by material sources, traditional music not only lives but, above all, survives through the ceaseless performance. In this sense, ‘‘composers and musicians […] are cultural ambassadors responsible for not only understanding the methods and rules for the music, but also interpreting it with their own cultural context and flavor’’ [38], to allow the musical tradition to be faithfully preserved and transmitted to the future generations; 4.
A marker of the community’s (or group’s) identity The domain of traditional music is fixed ‘‘by standards of playing, behavior, and opinion that mark its adherents as members of a distinct subgroup’’ [44]. This means that music is associated with the group or community not only as an artistic expression but, particularly, as an identity element, belonging to it as part of its collective memory. This is evident when music is performed during the ceremonies, for the most cases linked to social events for the life of the community, where each moment has its own musical expression, with the use of different melodic lines, harmonies, and rhythms.13
In synthesis, at a first glance, traditional music and folk music appear to share the same features. In fact, according to the definition given in 1954 by the International Folk Music Council (IFMC), folk music is orally transmitted,14 maintained, and developed through practice by a community/group [52]. But, a better understanding of the 11
In male-centered communities, women are banned to take part in performances or they are only allowed to sing or dance and not to play musical instruments. For example, considering the African communities, ‘‘participation of women in drumming is generally prohibited in both Akan and Ewe societies […] Meanwhile, women constitute the core of the chorus and dance in several ensembles for mixed groups while men lend a supporting hand as drummers in female ensembles’’ [3]. 12 In other words, traditional music is a ‘‘connector’’ between communities and ‘‘united [them through] a common aesthetic, a ‘feel’ for the interrelationships of players with their sources, audiences and their local history’’ [46]. 13 For instance, in Angola ‘‘songs are an integral part of social functions such as child namings, marriage cerimonies, installations of a chiefs, funeral rites, and village festivals. For such occasions, special songs are rendered and accompanied by prescribed instruments’’ [37]. Also in Uganda, ‘‘the role of traditional music […] depends on the social occasion or context. Thus, different occasions are marked by the use of specific music, dance, and instrument or ensemble’’ [35]. 14 As pointed out by Karpeles and Bake´, folk music, like traditional music, ‘‘has been submitted through the course of many generations to the process of oral transmission’’ [25].
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meaning of folk music leads to a different conclusion: folk music cannot be used as a synonym of traditional music, but rather as a sub-category of it. Indeed, since folk music can be traditional, it would be more accurate to speak of ‘‘traditional folk music’’ to differentiate this kind of music from others called ‘‘folk’’, that have no connection with the ‘‘tradition’’ in its strict meaning. For instance, folk music is not traditional only because it is composed, performed and learned by non-professional musicians, often in an informal way. Similarly, it is hard to acknowledge a traditional essence to contemporary musical pieces written in a ‘‘folk style’’—mainly characterized by the use of a strophic structure of the text, a metric character, and simple variations of the melody—and/or performed with the so-called ‘‘folk musical instruments’’, usually built with raw materials (e.g., a wood flute) or carried from non-European musical cultures (banjo, xylophone, etc.) [33]. Therefore, the relevant issue is to determine when folk music becomes traditional. In accordance with the guidelines provided by the IFMC, ‘‘the factors that shape the tradition [in folk music] are: (1) continuity which links the present with the past; (2) variation which springs from the creative impulse of the individual or the group; and (3) selection by the community, which determines the form or forms in which the music survives’’ [52]. These elements, combined with the ones indicated for traditional music, suggest how could be shaped traditional folk music. That is to say, it: (a) (b) (c) (d)
(e)
is orally transmitted within a community or a group; comes from the past and memories of the ancestors; survives by practicing and performing according to the designated forms; plays a social function, since it is performed ‘‘to accompany activities or to help in accomplishing some nonmusical purpose,’’ as in the case of ‘‘rituals in the life’s and year’s cycles […] birth, puberty, weddings, and funerals, as well as for solstice, equinox, planting, and harvest’’ [32]; reflects the identity of the community which aids and abets its development by performing and enriching it through variation and selection processes.
However, this kind of music is not always ascribed to the community in its entirety; in fact, even though rarely, it could have been composed by a known member of the community, and, once again as a matter of legacy, transmitted to the community, becoming part of its own cultural heritage.15 It is also common that a composer re-elaborates traditional folk songs, which belong to a local community16; of course, this is a different case with delicate 15 So, we call ‘‘traditional folk music’’ both the one which ‘‘has been evolved from rudimentary beginnings by a community uninfluenced by popular and art music and [the one] which has originated with an individual composer and has subsequently been absorbed into the unwritten living tradition of a community’’ [52]. 16 From the 19th century, folk music materials were used by many composers, as it is particularly evident in the piano literature. For instance, Be´la Barto´ck, Franz Lizst, and Johannes Brahms are only some of the musicians which wrote musical pieces inspired by the Hungarian folk repertoire; the Spanish composers Manuel De Falla and Isaac Albe´niz incorporated folk tunes in their piano works, while in Russia was common to arrange folk music songs and dances for solo piano.
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copyright nodus, since it is extremely intricate sunder and distinguish the originality of the contribution of the author from what is excerpted from the heritage of the community. Giving these premises, the copyrightability of traditional folk music deserves deeper analysis, in light of the opportunity to protect musical expressions as ‘‘traditional knowledge’’ and through the survey of the emerging case-law on the conflicts between the ownership of the composer and the one of the community.
2 Traditional Folk Music as Traditional Knowledge Traditional folk music is deemed worthy of protection as part of the ‘‘traditional knowledge’’ (hereinafter, TK) of a community, since it perfectly complies with the constitutive elements of this legal category. The concept of TK was developed by the international community at the end of the twentieth century, with the original aim to safeguard the practices adopted by local communities to preserve, use, and exploit their natural resources, such as medical plants.17 Then, this model was extended to other kinds of knowledge pertaining to a community or a group, deriving ‘‘from experience gained over the centuries and adapted to the local culture and environment’’ and ‘‘transmitted orally from generation to generation’’.18 The elements of TK—orality, transmission through generations, central role of the practice, sharing process between the members of the community/group— precisely coincide with the ones of traditional folk music.19 Looking at the categories of TK elaborated by the World Intellectual Property Organization (WIPO), traditional folk music can fit in the ‘‘expressions of folklore’’, namely the ‘‘intangible cultural heritage’’ and the ‘‘indigenous cultural and intellectual property’’.20 17 This approach underpins the United Nations Convention on Biological Diversity (CBD), signed in Rio de Janeiro in 1992 and entered into force in December 1993, in view to ‘‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices’’ (Art. 8, let. (j)) and ‘‘protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements’’ (Art. 10, lett. (c)). 18 United Nations Inter-Agency Support Group (IASG) on Indigenous Issues, The Knowledge of Indigenous People and Policies for Sustainable Development: Updates and Trends in the Second Decade of the World’s Indigenous People, 2014, at 3. 19 This conclusion is supported by the fact that, according to the Executive Secretariat of the Convention on Biological Diversity, TK covers also traditional ‘‘songs’’ as musical expressions (Executive Secretariat of the Convention on Biological Diversity, Development of best-practice guidelines for the repatriation of traditional knowledge relevant to the conservation and sustainable use of biological diversity, UNEP/ CBD/WG8 J/8/5, 2013, at 2). 20 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Report of the Third Session Geneva, June 13 to 21, 2002, at 8 (WIPO/GRTKF/IC/3/9).
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1.
The first category reflects the idea of a common knowledge of ‘‘the people’’, as suggested by the etymology of the term ‘‘folklore’’.21 According to the UNESCO, folklore 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 by other means’’.22
In the broad notion of folklore are included also the so-called ‘‘traditional cultural expressions’’ (hereinafter, TCEs), like music or, more specifically, ‘‘musical or sound expressions’’23; 2.
Traditional folk music is protected under the umbrella of the UNESCO also as a component of the intangible cultural heritage of a community, safeguarding by the 2003 Paris Convention, whose scope comprises ‘‘practices, representations, expressions, knowledge, skills […] that communities, groups and, in some cases, individuals recognize as part of their cultural heritage’’, ‘‘transmitted from generation to generation, […] constantly recreated by communities and groups in response to their environment, their interaction with nature and their history’’ (Art. 1 par. 1).
Music is not expressly mentioned by the Convention, but it could be covered, for its intrinsic characteristics as ‘‘folk’’ and ‘‘traditional’’, by the protected domains of ‘‘oral traditions and expressions’’ and ‘‘performing arts’’ (Art. 2 par. 2, let. (a) and (b)); 3.
Being traditional folk music encompassed in the general notion of TK, intellectual property assumes that songs and musical expressions would be copyrightable—as creations belonging to all the members of the community.
21 In this sense, folklore is ‘‘not just any knowledge but a particular knowledge that has proved to be valuable within a community because it has passed the test of time, a lore that people have found to contain important representations of themselves as a group’’ [40]. 22 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, par. A, 15 November 1989. UNESCO plays a relevant role in the protection of folk music, in cooperation with other international actors, first and foremost the IFMC. Few years after its establishment, this United Nations specialized agency promoted the creation of a catalogue of recorded music, including a specific series on ethnographical and folk music, and financially supported the publication of the International Folklore Bibliography, edited by John Meier and Eduard Hoffmann-Krayer and then completed by Paul Geiger. Alongside its institutional activities, UNESCO also founded the World Forum of Folklore in cooperation with WIPO (1996) and, until now, has organized a lot of meetings on the protection of folk music and, in general, on the expressions of folklore [18]. A successful example of the awareness-raising initiatives launched by UNESCO on the importance to preserve traditional folk music is the radio episode ‘‘The Birth of Music: a UNESCO Presentation of Folk Music’’ [51]. 23
Art. 1, The protection of traditional cultural expressions/expressions of folklore: revised objectives and principles, report compiled by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Seventeenth Session, Geneva, December 6 to 10, 2010 (WIPO/GRTKF/IC/17/4).
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The same kind of problems arises when this genre of music is equated to a form of TCE or folklore, which is internationally considered not only part of the intangible cultural heritage of a community, but also within the intellectual property system; this creates some heuristics overlapping due to the existence of various bodies of rules, which bring with them different results and regulations.24
3 The Copyrightability of Traditional Folk Music The copyrightability of traditional folk music is a controversial issue. The main obstacle lies in the fact that this kind of music must comply with the requirements contemplated by copyright law. In particular, to satisfy this regulation is necessary: (a) (b)
(c)
to identify the creator or creators of the musical work, that would enjoy economic and moral rights; if required by the national legislation, to have a tangible evidence of the musical work, generally a recording or a musical sheet, as a material support in which the sounds can be fixed; for the musical work, to be ‘‘original’’.
As far as the first element is concerned, traditional folk music is developed by the members of the community through practice often repeated from time immemorial. The author of the initial musical work remains in most cases unknown and unidentifiable,25 due also to the fact that the work continues to be variated and enriched by the participation of the members of the community.26 Any individual 24 Art. 31, par. 1, of the United Nations Declaration on the Rights of Indigenous Peoples, recognizes to local communities ‘‘the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions’’ and ‘‘the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions’’. From the side of intangible cultural heritage, the UNESCO legal framework within the 2003 Paris Convention set up the implementation of programmes, projects and activities to enhance the safeguarding of this heritage and the establishment of national inventories of the manifestations of intangible cultural heritage, as well as two specific lists (the Representative List of the Intangible Cultural Heritage of Humanity and the List of Intangible Cultural Heritage in Need of Urgent Safeguarding). In these lists are included also musical expressions: e.g., in the first list the music of the merengue from the Dominican Republic, the Bhojpuri folk songs from Mauritius, the lyrical folk song ‘‘arirang’’ of the Republic of Korea, the Portuguese fado; in the second one, the Ma’di bowl traditional lyre music and the gourd trumpet music of the Busoga Kingdom of Uganda, the traditional music of the Tsuur in Mongolia, the traditional Vallenato music of the Greater Magdalena Region in Colombia. 25
In this case, the Berne Convention for the Protection of Literary and Artistic Works (1886) at Art. 15 par. 4 establishes: ‘‘[if] there is every ground to presume that [the author] is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union’’. This provision has not been acted upon within the national copyright acts, with the exception of India [48]. 26 It was observed that ‘‘folk music, like all other music, is in the first instance the work of some one person, but since it is accepted by – and becomes the property of – the community, and since it is passed
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effort is faded and merged into the musical work, becoming an integral part of it, impossible to be autonomously isolated. This has relevant consequences. First of all, it is impossible to assess the originality of the musical work, since, in accordance with settled case-law, to be original a work must be ‘‘independently created by the author’’. In addition, the work must possess ‘‘at least some minimal degree of creativity’’,27 which mainly coincides with the idea that it has to be the expression of the personality of its author.28 In fact, ‘‘originality is concerned with the relationship between an author or creator and the work […] More specifically, in determining whether a work is original, copyright law focuses on the input that the author contributed to the resulting work’’ [8]. This input is difficulty ascertained since, in this very case, the musical work is the outcome of a creative effort made by a community or a group. Furthermore, it was underlined that ‘‘traditional creativity is often marked by fluid social and communal creative influences […] While not attributable to any known individual and not yet taking on an identifiable and distinctive form, [TCEs] are nonetheless marked culturally and have a communal character’’.29 But, if hypothetically a musical work could be ascribed to the intellectual creativity contribution of the community, existing copyright laws are not suitable to regulate this kind of ownership. An efficient solution, according to this author, would be the recognition of the whole community as the holder of the moral and economic rights on the traditional folk musical work. Such kind of ownership is in force in several national legal systems as a sort of sui generis protection, specifically introduced to regulate the property rights of local communities on their TK and TCEs. This solution was developed in many States (inter alia: Panama, Philippine, Costa Rica, Thailand, Venezuela and Peru), implementing the guidelines provided within the framework of WIPO and UNESCO, firstly in 1976 (Tunis Model Law on Copyright for Developing Countries), then, in 1982 (Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions) and, lastly, in 2002 (Model Law for Pacific Community).
Footnote 26 continued on from generation to generation, so that it no longer possesses any features which would link it with particular […] composers, we speak of it as anonymous’’ [5]. 27
Feist Publications. Inc. v. Rural Telephone Service Company, Inc., 499 US 340 (1991) [23].
28
The reference to the ‘‘stamp of personality’’ as a marker of a creative work is a common trend in the case-law of some European Countries, such as France and Germany. Differently, in the UK originality ‘‘means that the work is the result of one’s independent skill, labour and judgement and does not derive from elsewhere. Whether the work also shows any (artistic) originality, novelty or creativity, is irrelevant’’ [39]. Looking at art. 1 of the Italian Copyright Act, as interpreted by the legal scholars, it requires an original work to be novel and provided of a minimum degree of creativity. For a comparative overview see [24, 30, 41, 47, 49]. 29 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Report of the Sixth Session, Geneva, March 15–19, 2004, at 14, point 36 (WIPO/GRTKF/ IC/6/3).
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This sui generis regulation has been established within an existing copyright statute30 or by enacting a different and separate legislative act,31 pursuing the aim to protect works or creative expressions, like traditional folk music (as TK, TCE or folklore), that do not found their collocation in the copyright ordinary taxonomy. Under this kind of regulation: the owner of TK, TCE or folklore can be an individual or the community or group ‘‘in whom the custody or protection of the traditional knowledge or expression of culture are entrusted in accordance with the customary law and practices of that group, clan or community’’.32 In the case ‘‘that where no ‘traditional owners’ […] or there is no agreement as to ownership, the Cultural Authority [a body appointed at a national level] can be determined to be the traditional owner’’,33 otherwise, the work could be considered as fallen into the public domain, and, so, freely accessible and available to everyone.34 The owner of TK, TCE or folklore can enjoy the usual rights granted by the copyright legislation, namely (1) exclusive economic rights, (2) moral rights (id est, the right of paternity or attribution and the right of integrity35), and (3) remuneration rights, in case of exploitation of its knowledge by a third party.36 This set of norms contemplates specific rules to prevent the risks of any act of misappropriation of the creative work, so far that the owner has the right to provide a free, prior and informed consent (PIC) for granting access to the work. This instrument ensures a ‘‘defensive protection’’, necessary to avoid ‘‘that third parties do […] gain illegitimate or unfounded IP rights over traditional knowledge/traditional cultural expression subject matter’’.37 30 For instance, the Copyright and Related Rights Act of the Republic of Vanuatu (Act n. 42/2000) safeguards the ‘‘expression of indigenous culture’’, including also ‘‘songs in oral narratives’’ (Art. 1). 31
Such as the case of Panama, that adopted a specific law on the Special System for the Collective Intellectual Property Rights of Indigenous Peoples for the Protection and Defense of their Cultural Identity and their Traditional Knowledge (Law n. 20/2000). 32
Art. 4, Pacific Model Law.
33
Id. ‘‘The Cultural Authority is essentially the administrator and enforcer of the Model Law. The Model Law provides that each country may either create a new Cultural Authority or designate an existing body to take on the new responsibilities’’ [22]. 34 Indeed, some national laws explicitly exclude any ownership on folklore and TCEs. For instance, the Law of the Republic of Azerbaijan on Copyright and Related Rights states that ‘‘folklore expressions (traditional cultural expressions) and Azerbaijani traditional knowledge shall be included in public domain’’ (Art. 27) and they ‘‘shall not be objects of copyright’’ (Art. 7). The case of Ghana is worth mentioning; in this Country, the owner of folklore is the Republic, in the person of the President, who acts ‘‘on behalf of and in trust for the people of the Republic’’ and both citizens and foreigners who want to exploit national folklore for a commercial purpose have to obtain a permission from the Folklore Board and pay the so-called ‘‘folklore tax’’ (Copyright Act n. 690/2005) [15, 16, 28]. 35 These rights are specified by the Pacific Model Law as the ‘‘right against false attribution and the right against derogatory treatment in respect of traditional knowledge and expressions of culture’’ (Part III, Pacific Model Law). 36 Such a remuneration is not always enough to compensate the deprivation caused to the community. In fact, the local communities often ‘‘want to ensure that the public gets an accurate account of [their] culture and that the investment in that culture goes back to [the] communities’’ [19]. 37
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Glossary of Key Terms Related to Intellectual Property and Genetic Resources, 10 January 2011, at 6 (WIPO/GRTKF/IC/17/INF/13). As an example, ‘‘the Law of Senegal requires prior authorization also for public performance of folklore with gainful intent’’ (Model Provisions for National
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To be operative the PIC requires the registration or the notification of the work in a public register.38 If the registration or notification is missing, the owner retains the moral rights, but it cannot prevent the use of the work by third parties. This is particularly important for traditional folk music because, even if not registered, it has to be recognized as a creative invention of its owner. In a landmark case,39 the Beijing Higher People’s Court stated that a composer who adapted traditional folk tunes which belong to a local minority group, ‘‘must [make] reference to the original sources’’ of his work to abide the right of authorship of the community [26]. In addition, the community was entitled to receive a remuneration, since the adaptation of traditional folk tunes represents a ‘‘derivative work’’, which cannot exist in absence of the underlying musical one. Concerning, then, the element of fixation, as incorporation of the TK, TCE or folklore in a material medium, this is not eligible for the works of traditional folk derivation, because ‘‘such works form part of the cultural heritage of peoples and their very nature lies in their being handed on from generation to generation orally […] the fixation requirement might, therefore, destroy the protection of folklore’’.40 In conclusion, the typical traits of traditional folk music make it a unique cultural manifestation, which cannot be adequately protected as a mere ‘‘copyrightable work’’. A mixed approach, which combines the taxonomy of copyright with new elements provided within a sui generis system—such as the PIC—would be the suitable solution to ensure the rights of the holder (for the most part, local communities and groups), balancing them with the rights of potential authors and performers, such as composers and musicians, interested in producing a derivative work based on traditional folk music tunes. In this way, traditional folk music will be safeguarded as a part of the TK or folklore of the community, without depriving or restricting the interests of third parties to re-create and update this cultural expression in a different and original manner, always in accordance with the community’s standard and wishes. Through this perspective, traditional folk music will be ‘‘held in perpetuity from generation to generation’’, but it will be also recognized as ‘‘incremental, informal and subject to change over time’’ [22], as a sort of continue creation renewing its life time after time.
Footnote 37 continued Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Forms of Prejudicial Action, 1985, at 4). 38 A possible solution to facilitate the registration of TCEs can be the establishment of local collecting societies to manage the rights of the holders that are part of a specific group or community or are groups or communities themselves. 39
Hezhe Ethnic Minority Township Government v. Song Guo, 2002.
40
Tunis Model Law on Copyright, par. 1, point 5. This solution was also confirmed under Art. 5-bis of the First Section of the Model Law, stating that ‘‘with the exception of folklore, a literary, artistic or scientific work shall not be protected unless the work has been fixed in some material form’’.
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