Intellectual Property Rights and Folklore

Question: whether native people can protect their art, culture under existing intellectual property laws; whether IP law adequate

IP law emphasizes individual ownership, economic exploitation, dissemination of new expressions, ideas; driven by economies of free market, profit; objective to create limited monopoly right as incentive for individuals to produce, innovate, disseminate ideas
However indigenous art not something that can be owned individually, not commercially exploited, not freely disseminated, cannot be reinterpreted, adapted; sacred works unlike works anticipated by copyright
Fundamental objective of IP is to promote artistic evolution; therefore controls must be for limited time
Sui generis law: by overprotecting folklore public domain diminishes, fewer works to build on

Protecting Folklore of Indigenous People; Connecticut Law Review: Question: whether native people can protect their art, culture under existing intellectual property laws; whether IP law adequate

Conclusion: well-suit to protect groups who want to participate in, control marketing of arts, crafts; inadequate to protect groups to preclude use of imagery, IP deficient; logic of property law is to facilitate dissemination, fundamentally inappropriate to prevent sacred indigenous images from circulation, re-use
Lilpurrurru v Indofurn Pty Ld: D took sacred symbols of Aboriginal artwork, incorporating symbols into carpet designs; tagged each saying produced w/ consent of Aboriginal, they given royalties; signs critical to aboriginal culture, depicted creation story, only certain arts allowed to recreate images, view at special ceremonies; D turned into profit, altered signs making them less intricate, added Vietnamese craft; sold commercial; P succeeded; court declared Aboriginal artist must be compensated for unauthorized use
Question: will indigenous art find protection in CR, or regime inadequate; more issues arise; fitting in indigenous art into Western notions of authorship, property rights, and individual commodity further undermines work
“Aboriginal culture merely commodity” part of trend of globalization, capitalism – culture of mass production; focus needs to be on education public, raise public consciousness
Indigenous groups exploited: unauthorized reproductions, no royalties, lack of control means moral rights infringed work produced does not reflect integrity of original work
Proposals to develop sui generis rights to protect folklore
Folklore characteristics: (1) passes from generation to generation, (2) generally not attributable to one individual author, set of authors, (3) being continuously used, developed w/in indigenous community
Indigenous art play central role in community: pass knowledge, belief from generation to generation; serve as recorded history, spiritual teachings; visual memory of history; art central to religion, dance, music, song; b/c of significance reproduction needs to be controlled – struggle for design, struggle for cultural meaning – fundamental human rights (place of IP law)
Linkage b/w cultural theft, validity of indigenous populations, art fundamental to articulation of cultural identity
Two problems: (1) indigenous groups want to participate in licensing, controlling, authorizing use, benefit from royalties, ensuring integrity of reproductions; celebrate culture, use mass media to articulate community identify to outside world; realist group; (2) indigenous groups want to prevent cultural, psychological harm caused by unauthorized use of art; restrict dissemination, prevent altogether; worry exploitation, commercial causes loss of indigenous identity, way of life, significance traditional group
Whether IP law does, should protect indigenous art: CR logical choice b/c aim is to protect artistic works from unauthorized reproduction; barriers: duration of protection; originality requirement; fixation requirement; individual nature of rights; fair use exception; economic focus of remedies

Duration of rights: term of protection Berne Convention member states protect for life of author, 50 yrs after; problem of identifying authors whose life may be measured; indigenous rights people argue perpetual protection of expressions of folklore b/c not benefit individual, but community whose existence not limited in time; most art dates back to thousands of yrs – term of protection insignificant; mean that most folkloric work already in public domain

Law must be formulated so it is retroactive; protection perpetual
Problem of finding appropriate wording; against US constitution which require Congress to give artist protection for limited times – giving perpetual rights run risk of limiting free speech, inhibiting innovation (balancing act of folklore, monopolistic)

Originality: works must be original to be eligible for protection; CR Act protects only original works of authorship; work must originate from author; demonstrate sufficient skill, labor

University of London Press v University Tutorial Press: to be original works must not be merely slavishly copied, must be product of original thought, skill, labor of artist; not original in terms of new, innovative, novel; as long as evidenced individual skill, labor of author; if based on pre-existing work, must demonstrate substantial, not merely trivial variation
Folklore often ancient, if new often derived entirely from pre-existing works; folklore product of slow process of creative development; not stagnant but evolves
Innovation Western notion, not what is valued in indigenous culture; faithful reproduction prized; notion of original authorship foreign; b/c art functions of historical, scared text innovation, deviation restricted; artists not free to express inspiration; must be reproduced faithfully, accurately, licensed must be minimized
While originality threshold low, many works would not satisfy b/c of similarity to pre-existing works; differ only trivially from pervious works; but some works will demonstrate sufficient independent skill to be protected
Problem: assumed original work in public domain, only additions, variations protected – thin CR; thus outsiders still could use underlining work; CR provides partial coverage, but really focus is on protecting unoriginal features, sacred symbols – inadequate
Originality must be extended to protect underlying work
Other issue: if in public domain, or even if underlying work protected, then non-indigenous artist can derive rights by making sufficient adaptations; regime would have to bar their rights (issue of justice, fairness, freedom of speech)
Critique: Milpurrurru 91 page opinion, two to issue of originality – US cased argue skill itself test of originality; aboriginal paintings painstaking in detail (claimants were highly respected artists)

Fixation: CR requires expression be fixed in tangible medium; folklore often never fixed; song, dance, literary traditions passed down orally thru memorization; never recorded in tangible form; folklore is antithesis of recorded culture

If foreigner fixes they may have claim; but in position of stenographer, not author; only CR in recorded version; US CR Act requires fixation “by, under authority of author” – unauthorized fixation not result in CR; nor will it prevent indigenous people thereafter fixing, copyrighting work
Might work to advantage of indigenous people: CR protection term runs from point of fixation, if not fixed time not run; but unfixed work not protected; outsiders may fix, protect work based on unfixed work, provided he demonstrates sufficient skill, labor in variation; problem of scope of rights persist, even if fixation taken out (outsiders still can reproduce)

Group rights: CR premised on individual rights; recognizes groups in limited circumstances; intended to reward individual authors for creation of intellectual property; indigenous art not owned by one person, owned by community, group, clan; passed down thru generations for enrichment of all

Milpurrurru: in order to reproduce work, one must seek authorization from clan, not from individual artist; most artwork actually executed by group; clan on whole who owns work, not individual artist; no individual own b/c no one individual created work (Western notion of individuality, individual ownership conflicts w/ indigenous culture, group ownership)
Yumbulul v Reserve Bank of Australia: indigenous artist Yumbulul sued bank claiming unauthorized use of his morning star design on Australian ten dollar bill; bank claimed he gave license to them to use image; he argued he had no authority to give license, authority must be conferred by community
Note in both cases: artists individualized from clan, instead of group protection, artists sought individual protection when they registered their work; tend to succeed when individualized claims; groups forced to translate into individualism, isolate, amplify one voice among many; may be destructive to traditional peoples
Can utilized (1) joint ownership; (2) transfer of rights; (3) work made for hire provision
To be joint authors, test narrow: both must collaborate in work’s preparation; must intend that work be merged into inseparable, interdependent parts of unitary whole – vest rights only in persons who actually make work; each authors work must be copyrightable, thus clan elder who dictates instructions not considered joint owner
Transfer of rights; can transfer rights to community; may alter relationship b/w artist, community; some artists may not want to transfer rights; might suggest dual system
Work for hire provision: corporate entities claim authorship when they are employers for whom work prepared; work prepared w/in scope of employment; but artists not though of as e; but clan elders almost always exercise control over execution of work – can support employment relationship

Fair use: monopoly on speech balanced by provision that authorizes unauthorized use where use is fair, for educational purposes, fair criticism, reporting; accord w/ freedom of speech provisions – might affront traditionalists who emphasize control, do not want work viewed commented on, criticized; realists however welcome public display in museum, schools to heighten public education about subject matter

Damages: some damages inadequate; injunctive relief, impounding, destruction of infringing goods helpful, not enough;

But might not be sufficient deterrent; small firm might take risk, knowing merely injunction; thus damages must be awarded; but requirement of proof of actual damages might pose problems – easier to asset for realist, profits of infringers, cost of licensing, royalties, etc; but difficult to quantify psychological, mental distress caused by theft of culture, such damages insurmountable; where work not put to economic use, may not be able to recover
Milpurrurru: commercial compensation, plus flagrant infringement
Problem in nature of remedies: purpose of CR is to protect economic rights and control, remedies financial; not meant to compensate where damages spiritual, cultural, non-economic – inadequate

International reforms

CR emphasis on individualism, innovation, economic value might be inadequate; protect some, but reforms should focus on developing sue generis legislation
UN Declaration on Rights of Indigenous People emphasis on collective rights; “indigenous people have right to special measure of protection, as intellectual property, of their traditional cultural manifestations”
Following documents provide for sue generis rights for indigenous people:
Berne Convention: A15(4) anonymous works – folklore, although term not used; member states may designate representatives to enforce anonymous works; to qualify as folklore works must be (1) unpublished, (2) author unknown; (3) author presumed to be national of country – requirement for unpublished prevent many works of folklore for enjoying protection; would it protect works not created by anonymous authors but by community; additional hurdle: member states must enact legislation; for this reason, convention deficient
Tunis Midel Law on CR: specifically mentions folklore “b/c in developing countries national folklore constitutes appreciable part of cultural heritage, susceptible to economic exploitation
S6(2) works of folklore protected by all means w/o limitation in time; perpetual under act
No mention of retroactivity of protection
Fixation overcome: exception for fixation for folklore; works of folklore cannot possibly be subjected to fixation, work form part of cultural heritage of people; very nature lies in being handed down from generation to generation orally
Protects derivative works or original works, “works derived from national folklore (outsider may have CR)
Authorization to use indigenous works not made by groups but by competent authorities, presumably designated by state; very problematic, infringes group’s right to authorize, control
Model Provision (UNESCO WIPO): enable collective ownership, control of folklore, grant perpetual protection, do not require fixation; folklore subject to authorization by competent authority when made w/ gainful intent, outside traditional, customary context
Three criteria for unauthorized use (1) if intent gainful; (2) if use made by members, non members; (3) if use outside traditional context
Question: will urban aboriginal artists be infringers when they use work w/o authorization – not considered members of community; they are members of ethnic group, but estranged from community; may not be allowed by elders to use art forms, may not be considered part of community
Problem: competent authority, no indigenous people make these decisions
Derivative work are allowed, where original, even if by outsiders
Mataabua Declaration: 15 countries in New Zealand make declaration existing IP regimes inadequate to protect needs of indigenous people, called for new regimes for collective ownership, retroactive coverage for historical works, protection against debasement of culturally significant work, multigenerational coverage span
Encourages indigenous people to develop code of ethics that outsiders must observe
Not binding, more of call to action; guidance for governance rather than agreement to act
Looking beyond CR Law: another method is to look to other regimes to protect indigenous works; may combine CR w/ & rights
Moral rights: consist of rights of divulgation, paternity, integrity; inalienable, allow artists to protect from denigration
Indigenous artists can be protected from this doctrine: (1) not to have work published w/o authorization; (2) right to attribution; (3) quality assurance, integrity rights; (4) not to be used inappropriately
Protect against distortions of indigenous work; assure work accurate, authentic
However, rights directed to individuals not collectives; inhere in, protect personality of author; P must show distortion causes damage to his reputation; may not address harm to community
Term of protection: moral rights may extinguish at death of author, after certain time, not perpetually
Public domain statutes: legislation intending to protect public domain works; not to prejudice authenticity, identity; may be used as base for derivative works as long as essence, cultural value, reputation not corrupted
May have same problem of originality, fixation; authority vests in state agency; may pose problem for state to control folklore especially where state agency no representative of indigenous group
Public payant: fee for use of work in public domain; pay royalty to state, funds used to benefit arts, culture
Law of unfair competition: indigenous art faced competition from cheaper knockoffs Indian Crafts Act US protects against this unfair competition; act allows for issuance of certification marks to authenticate works (not successful)
General unfair competition law meant to protect consumers, competitors from misrepresentation of products
However, must qualify as commercial good, service; must folklore, sacred art, dance, music no qualify
Trade Secrets: may protect sacred indigenous that has element of special secrets, rituals, revealed only to few
B/c usually protect corporations would include trade secrets; to qualify works must be secret, must have economic value, thus guarded works, rituals may receive protection, however public works may not; might be problem w/ satisfying economic value test