Protection of the Cultural Production of Indigenous and Traditional Groups - Essay Example

Part I: Protection of the cultural production of indigenous and traditional groups, contemporary or otherwise Intellectual property protection is generally seen as something positive. Certainly, if you are the inventor or creator of a piece of work that generates millions of dollars for you and your family or your community, you do not want to lose that opportunity to benefit from your creativity or ingenuity. When it comes to elements of cultural heritage, including the songs that everyone in a village can sing and which came down to them from their ancestors, the question arises: Should such works be copyrighted? And if so, for whose benefit? For the benefit of the village or community where the ideas or creations originated? And what if those in neighbouring villages or communities feel a similar sense of ownership for the creative works in common? For example, some folk songs are just as popular in Saudi Arabia as they are in Jordan even though the original creator or creators may have originated from Lebanon at a time when everyone in the Arab world had a sense of commonality with their fellow Arabs. Should Saudis not have a right to enjoy and use such works that they feel belong to a common and shared heritage? This essay analyses the justifications and protections afforded to cultural productions of indigenous and traditional groups and considers some mechanisms that are being considered in the face of challenges posed by commercialism and trade. In terms of the protection of expressions of folklore by Intellectual Property law, there have been very strong voices raised against such efforts from the use of terminology to the kind of rights that should be laid down for cultural creations. As Binkert (2005), notes: Intellectual Property is a concept that has been discussed and debated throughout history, and it has also been a topic of fierce contention. Some people agree with Thomas Jefferson that ideas cannot be a subject of property, while others do not. In a global world with a global economy, this debate has becme even more intense. As goods and ideas cross continents and borders, different perceptions of intellectual property clash and merge.1 Folklore, in the broad sense is not something that reflects the ingenuity of only one person. Often, it is either the spontaneous or the gradual reflection of the hopes, aspirations, struggles, and challenges of a people, expressed in poetry, song, dance, or other similar formats that are embraced by whole communities as an expression of their social or cultural identity. Even if some such element was started by one person the fact that it is so readily embraced by the community reflects the depth of that individual's connection to the group, making it impossible for the creator to assert only his or her own rights as against the community from which he or she must have taken inspiration for the creative work. Also, folklore, whether in the form of language, literature, dance, games, mythology, rituals, customs, handicrafts, architecture, or other, are not static but change as others add to, subtract, divide, or multiply certain elements within a framework that is still recognized as reflecting the cultural or social identity of the community. This raises the question as to why such a system of shared knowledge and experience, transmitted to successive generations and enjoyed freely, like a sea breeze that blows for the benefit of anyone who is within the range of its effects, should be protected so that only a few people can benefit from it. Throughout history, folklore has been freely shared, and even where it has made money for a few, it has generally not been to the extent that others are completely locked out of sharing in its benefits. For example, when a street performer recites a beautiful passage from the Rubaiyat of Omar Kayyam in Kuwait and is given food to eat by the listeners and another person does so in Cairo and receives a few shillings, no one has lost and everyone, including the performers and the listeners may feel like winners. The original creator of the poem, dead for many years, may not be overly worried about not making money from his creations and may actually be smiling in his grave for continuing to give so much pleasure to so many from a hand and mind that left this world so many years before. In recent years, however, new forces have come to bear in the form of aggressive "alien" entities that want to steal from groups not for the purpose of simply enjoying the folklore but firstly, to claim it for themselves and to distort it in a way that raises concern for what is the most authentic form of the folklore, secondly, the expropriation of physical objects including those of photographic records of traditional societies, and thirdly, the issue of cultural harm and compensation. The fourth relates to cultural health. The above points are intertwined and will be discussed in relation to current intellectual property regimes and some of the challenges raised by the unique character of folklore in this regard. Folklore, whether in the form of song, dance, or otherwise, is usually tied in or identified with a particular people from whom the elements of culture are transmited from generation to generation. The power of the identity formed by a group may be so strong that its heritage need not relate only to what has come in the past but can also be extended to its legacy, that is, ...objects, knowledge and literary or artistic works which may be created in the future based upon its heritage. [It] includes all moveable cultural property as defined by the relevant conventions of UNESCO, all kinds of literary and artistic works such as music, dance, song, ceremonies, symbols and designs, narratives and poetry; all kinds of scientific, agricultural, technical and ecological knowledge, including cultigens, medicines and the rational use of flora and fauna; human remains; immoveable cultural property such as sacred sites, sites of historical significance, and burials; and documentation of indigenous peoples' heritage on film, photographs, videotape, or audio tape.2 Traditionally, people who may have generated the cultural artefacts may not have sought to profit materially from it, taking inspiration, pride, and a sense of identity from the folklore tied to their people. But in recent years, others from outside of the group may be profiting from a sale of images for which they have no connection at all. This also means that the pride and honor that might have gone into creating such artefacts may be missing, which is "For indigenous people the graver and more reprehensible consequence of the commercialisation of their heritage is the denigration of their cultures through the use of heritage in culturally inappropriate ways."3 In fact, it seems that copyright protection, underlined by efforts on the part of the more advanced countries like the United States to get uniform laws, have contributed to the "economic exploitation and erosion of indigenous peoples' cultures. This is because they are based on notions of property ownership which are alien and detrimental to indigenous peoples."4 It is worrisome that people who may have been tied closely with some elements of their heritage may come to lose it not because they were not enthusiastic about their culture but because some unscrupulous people were first to head to the copyright office with something that did not really belong to them. As Legman (1962) writes: Folklore is worth money. Not very much money, admittedly: just enough to raise the serious moral question involved in collecting the folksongs and folklore of largely unpaid informants and copyrighting this material in the collector's name" (Legman 1962). When Legman wrote this the financial bonanza accruing to those who were copyrighting traditional works may have been small but in the current globalized environment, the profits to such copyright owners and those who manufacture products without permission is anything but small. While in the Western world, copyright serves to promote creativity and encourage ingenuity among individuals, "In indigenous world-view...property rights are a means of maintaining and developing group identity rather than furthering individual economic pursuits, they are therefore communal in nature. Therefore any use or alienation of indigenous heritage must be sanctioned by the community as a whole or by its traditional custodians acting with the mandate of the community, and must be on such terms as imposed by the group."5 A key problem with copyright of folklore is that folklore is seldom owned by an individual and even if one person could be identified who is tied to a product, copyright laws are limited in duration which means that after a certain number of years, the person or persons to whom the copyright is granted loses that right. Another problem is that originality is considered a key element for copyright whereas, most folkloric works tend to be inspired by pre-existing traditions and successive patterns of imitation over time, it is arguable that the condition of originality is not satisfied. This factor is particularly relevant to sacred ancestral designs, which must be replicated exactly or to a high degree of accuracy. The World Intellectual Property Organisation (WIPO) has observed that,the very nature of many folkloric works is that they are repetitive; they rely on tradition and the scope for interpretation and individual expression is limited.6 In addition, copyright focuses not on a song or idea itself but on how it is expressed, in as in written form. Many elements of folklore are in the form of ideas that are expressed by the people in their communication and not necessarily always in a form that will satisfy the Western oriented requirement of material form. One suggestion that has come up is the doctrine of domain public payant which opens up the opportunity for people outside a culture to make use of its heritage and to make royalty payments to the group in question. This system can help sustain culture if those who use the images or emblems are honest enough to make such payments but it still does not address the issue of distortion of images in a way that may be hurtful to the pride of a group. Since many cultural groups fall within the ambit of a nation, there are suggestions that there should be a certification or authentication mark or national labelling system. But as the proposer of this idea, Marianna Annas concedes, "the label of authenticity is not intended to make up for the inadequacies of the Copyright Act. It is primarily a marketing device aimed at deterring passing off and misleading and deceptive conduct relating to indigenous art and ensuring the proper remuneration of indigenous people involved in the creation of such art."7 One international effort to deal with the inadequacy of copyright law to protect folklore arose from the so-called Tunis Model Law, which attempts to expand the ambit of current copyright laws by abandoning the time limit clause, excluding works of folklore from the requirement of fixation and introducing a moral rights clause aimed at the prevention of the destruction or desecration of works of folklore.8 National governments, under the UNESCO provisions of the Tunis Model Law will take charge of protecting the works and expressions of their indigenous people. This is unfortunate because many governments do not have the best relations with their indigenous people and may stand accused themselves of having exploited the indigenous people or their folklore at one point or another. In 1993, the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples held in Aotearoa, New Zealand, emphasized the need for such groups to be considered as the "exclusive owners of their cultural and intellectual property".9 Githaiga suggests among other things including the refusal of copyright offices to register copyright applications submitted by groups that are not connected with a particular indigenous group. But even within an indigenous group, if a few people attempt to register something that belongs to the whole group, this ought not to be acceptable. It would seem that if nations are serious about protecting the particularly unique elements of folklore national governments, perhaps through the Ministry of Culture, should be expanded to take a lead in working with local groups and with international regimes to come to some agreements so that neither people within a community nor those outside can take possession of something that is not exclusively theirs. Perhaps, a moral dimension, including education and awareness may be much more appropriate than copyright. In other words, while people should not have the opportunity to copyright folklore for the very reason that it belongs to the community, their use should not be restricted unduly either, because every culture benefits from spreading its wings outside and inspiring others. When people are thus inspired and make money from appropriating works from other cultures, they should be encouraged to contribute to the benefit of the groups from which they had benefited. This is because while some groups may not have the spirit of enterprise to benefit from something within their culture, this should not preclude others who have such a spirit from sharing something they admire with others. For example, it would be ridiculous to say that unless a person is an African-American youth from the inner city, that person should not be able to sing rap music! Rather, the spread of rap music around the world may have helped, in some ways, to enhance the status of the group that gave birth to this art form. The difficulty of copyrighting folklore is captured in what Seeger (1962) writes, that "The only really true text of a song is the sound track on a phonographic record or magnetic tape."10 This leaves out millions of people for whom the reality of the culture is the voices that blend in the evening and that may never be recorded on a CD or phonograph but is no less real or true. The seriousness of the issue of copyright protection became crystal clear in the case of a Western pharmaceutical company that tried to seek patent protection for a tree whose medicinal benefits had been known to Indians for centuries. In theory, if the company had succeeded in obtaining the patent it could have prevented Indians and other communities that have such traditional knowledge from instituting rights that they have considered customary and cultural and that open to the whole community, not for the benefit of particular individuals or companies, as the intellectual property law is designed to do. W.R. Grace and Company filed patent applications not only in the US but also in Europe and New Zealand to use an extract of the neem tree for the production of an insecticide and fungicide. “The chemical called Azadirachtin was identified as the active substance. A process to stabilize this chemical in water was patented, as was the stabilized form of the chemical. The company did not apply for an Indian patent because the law at the time did not grant patents for agricultural products. The foreign patents therefore drew a rapid response from India.”11 The patent was rejected by the European Patent Office because the company could not prove that it had invented the ingredient in question. “Article 52(1) of the Munich Convention states that patents are granted on the basis of novelty, inventive step, and suitability of industrial application. Novelty is determined in relation to the state of the art, which according to Article 54(2) of the Munich convention means.”12 Even though the European Union did not consider Traditional Knowledge or the issue of folklore, it seems clear that traditional societies and even countries with substantial oral traditions cannot remain passive. They should use every means to fight the legal expropriation of their communal wealth while at the same time leaving the room for all people of good will to share in the richness that folklore adds to all who come into contact with it. Part II. Saudi Arabia and Protection of Folklore Saudi Arabia, as the legatee of a rich source of folklore, has been very much interested in issues pertaining to copyright protection and how countries like it can ensure that elements of culture that have long been considered a shared resource can be protected from exploitation or even expropriation. In the meeting of the UNESCO inspired committee for the protection of folklore, Saudi Arabia joined with regional experts from Latin America, Africa, and Asia. “The purpose of the meeting was to consider the text of the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, adopted by the Committee of Governmental Experts convened by the Directors General of Unesco and WIPO in Geneva from June 28 to July 2, 1982, and to make suggestions on the means of implementation of the said text in the Arab States.”13 At this meeting, Saudi Arabia and the other participants enjoined UNESCO to present provisions that might be considered for international adoption.14 This suggests that even though these countries, including Saudi Arabia, might attempt to pass laws at home, they were keenly aware that for any such law to have the necessary power it must not be limited to only one jurisdiction. This is obvious considering that much of the threat to indigenous culture in the form of expropriation may be coming from outside Saudi Arabia. Saudi Arabia has much that might need to be protected. Poetry has long been a part of the cultural heritage of Saudi Arabia and has been considered one of the highest art form. For the Bedouins that traditionally lived a Spartan existence on the Saudi desert, the skilful use of language was highly prized and those who were particularly talented ended up as the spokespersons for their population group or trive. As Colyer Ross notes, The poet was often a warrior himself and he would strive to express in his work the ideals of manliness – gallantry, bravery, loyalty, independence of spirit and generosity. Arabian oral folklore comprises proverbs and stories. The narratives of professional storytellers, whose recitations are particularly in demand during the Muslim month of Ramadan, are very popular in both town and country. These stories provide and perpetuate a wealth of pious, earthy, or epic oral tales that have been passed on for generation.15 Music, both vocal and oral, have a pride of place in Saudi Arabia. Music and the associated instruments such as one that looks like a coffee grinding mortar and pestle, add to the allure of the Arabian folklore. As Colyer Ross continues, “The most famous musical instrument is the oud, which si similar to a guitar. It is the standard Arabic musical instrument belonging to the family of short lutes and is primarily for solo instrumental music or to accompany a singer. The oud is sometimes part of a group at a concert in a semi-settled area. The one-stringed fiddle, rabaaba, is also popular and it is commonly accompanied by a flute, nay, a fiddle, jozay, a zither-like ganoun, a long lute, buzuk, a tambourine, daff, and a goblet shaped drum, darubukkah.”16 Saudi Arabia was accused for many years of not being serious about copyright protection for foreign works including music and software. As the country has come to realize that it has rich resources in the form of folklore that can be stolen and misappropriated, it seems that the country has come around to appreciating the grievances of foreign governments and copyright holders. Saudi Arabia’s copyright laws, therefore, mirror those of such countries as the UK and the United States in affording protection to authors, whether as individuals or in collaboration with others. The country has also taken a very sensible approach to the issue of the protection of folklore, which is a collective heritage and is best served through national representation. As the Saudi Arabia copyright law states under Article 7: 1. Folklore shall be the property of the state, and the Ministry shall exercise the copyright pertaining thereto. 2. The import or distribution of copies of folklore works, copies of their translations or others which are produced outside the Kingdom without a license from the Ministry shall be prohibited.17 This encompasses music, song, poetry, instruments, jewellery and the whole raft of folklore. Bibliography Binkert, Brigitte. (2005). Why the Current Global Intellectual Property Framework Under TRIPS is not working. Intellectual Property Law Bulletin, vol. 10, p. 143. Ross, Heather Colyer. (1981). The Art of Bedouin Jewellery. Taylor & Francis. Executive Committee of the International Union for the Protection of Literary and Artistic Works. April 30, 1985. 24th Session. Paris. http://unesco.org [Retrieved May 25, 2009] Githaiga, Joseph. Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge. (1998). Murdoch University Electronic Journal of Law. Vol 5 no. 2. http://www.murdoch.edu.au/elaw/issues/v5n2/githaiga52_body.html [Retrieved May 24, 2009] Legman, G. 1962. Who Owns Folklore? Western Folklore, vol. 21 no. 1. Murray Lee Eiland . (Jan 2007). Patenting Traditional Medicine. Journal of the Patent and Trademark Office Society, vol. 89, p. 45. Saudi Arabia Copyright Law. August 30, 2003. Royal Decree No: M/41 2nd Rajab 1424 H. Seeger, Charles. (Apr 1962). Who Owns Folklore: A rejoinder. Western Folklore, Vol. 21 no 2. Read More