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Indigenous People's Folklore and Copyright

Law
by Dieter Dambiec
(Tuesday September 27 2005)

"A system of protection should encourage indigenous peoples'

expectations of respect for their creative works, particularly from those
outside the indigenous culture. This means that folklore should be
protected from debasement, distortion and consequent loss of cultural
integrity due to inappropriate uses which would be offensive to the
community from which it originates or prejudicial to the artist's or
tribe's honour or reputation."

Definition and characteristics of folklore

Folklore expresses an assortment of traditions and customs that reflect
a people's culture [1]. It is expressed through music, dance, drama,
craft, sculpture, painting, literature [2] and other means of creativity
which generally require little dependence on high technology.
Folklore tends to be passed on from generation to generation within a
community from memory, by word of mouth, or visually. The particular
community to which the folklore is recognised as belonging is both its
conveyer and user and so works of folklore are easily absorbed into the
community's culture and social life. In this respect folklore is part of the
collective consciousness of a culture. It is not just a static replication of
the past.
Folklore is a dynamic and living entity which evolves with the culture.
Within indigenous societies the expressions of folklore, although often
transient in form, are nevertheless lasting in a social sense because
their richness plays an integral part in collective and individual life [3].
Folklore is part of the cultural heritage of indigenous societies such as
the Australian Aborigines, the Maori of New Zealand, Indian tribes in
the USA, and the Indians, Inuit (from the north) and Metis (from the
prairies) of Canada [4]. It derives its practical use and social value by
being crafted for particular ceremonies or other forms of group
participation or by being related to a continuum of events and
circumstances within the community [5].
For indigenous peoples, that continuum of events can go back a long,
long time. Their language, literature, traditional spiritual beliefs and
cultural customs [6] will often be intertwined with their folklore. The
age-old character of many works of folklore and long history of
indigenous cultures usually means that the creators of folklore are
anonymous [7]. This also highlights the communal ownership of
folklore.
Collective ownership of indigenous people' folklore
The close identification of indigenous folklore with community life has
as its corollary the notion of overriding community control of
intellectual and creative works so that to impart total control to the
individual creators of these works is seen as undermining part of the
foundations of that community [8]. This means that an individual's
creative work attains a place and is attributed with some meaning
within the indigenous culture when it is somehow co-extensive with the
performance of communal obligations and adherence to communal
requirements.
In consultation with others in the indigenous community, it is not
uncommon for individual creators to work with concepts, styles and
techniques handed down to them and be restricted in their creative and
aesthetic inclinations in order to advance the mode and manner of
collective traditions and practices [9]. As a result, the creative
expression of an individual or group of individuals is considered to be
an expression and product of the community as a whole. This is
particularly so where current works are derived from older works whose
original creation cannot be ascribed to any definite persons. This
situation gives rise to ownership rights within indigenous cultures
regarding works of folklore which are at odds with Western legal
concepts such as absolute individual ownership and freedom of
alienability of property [10].
The idea that folklore belongs to a living and changing group of people
means that Western concepts of individual creation and individual
ownership reflected in copyright law through such exclusive rights as
reproduction and adaptation, publishing and recording, performing, and
broadcasting rights [11] do not necessarily hold up for indigenous
peoples [12]. For indigenous peoples it is the aesthetic, social and
cultural elements within a work of folklore that are determinative of its
value which has to do with the sentiments and emotions attached to
the folklore and its use and enjoyment. This construct of value
represents a communal "moral right" or moral concern with the work of
folklore and surpasses whatever economic advantages can be gained
from the work by its sale or disposal to others [13]. A system of legal
protection for indigenous folklore has to recognise this fact if it is to be
effective.
It should, however, be acknowledged that within indigenous cultures
the value of things may, where occasion calls for it, also be expressed
in terms of a potential exchange value, although this is not the usual
standard for ascertaining value [14]. Nevertheless, with the availability
of contemporary and more efficient technology for making creative
works the potential for an exchange value does become an important
factor when considering how to legally protect the intellectual property
of indigenous peoples' folklore in the Western world.
Distribution of rights within indigenous cultures
A system of legal protection for folklore cannot ignore customary rights
of ownership of creative works by indigenous communities. How such
rights function within Australian Aboriginal society was discussed in
Yumbulul v Reserve Bank of Australia [15]. In that case the court noted
that rights are distributed within different groups [16] usually along the
lines that ownership of various works, designs or imagery is vested in a
clan and the right to use a design or image or to make and sell a work
or create a facet of a work for various purposes is vested in certain
members of that clan [17]. These rights can be inherited or gained by
reputation.
Also in New Zealand, in Maori society the use of property including
cultural and creative works are managed on a differentiated basis so
that control and use is distributed over several levels [18]. This ranges
from a chief (ariki) who is considered as the guardian of tribal (iwi)
interests, followed by minor chiefs acting as "custodian trustees" within
sub-tribes (hapu) in relation to various subordinate and collective
affairs, and then extended family (whanau) and individual property
rights. Individual rights are qualified by an over-sight of the community
to use property to serve wider needs [19]. The defined bundle of
privileges and obligations that exists is similar to a process of delegated
authority [20].
The system holds together because of a tribe's close social bonding and
the imposition of supernatural restrictions (through concepts such as
"sacredness" or tapu prevalent in Maori society) which govern how
certain works or techniques can be used for different purposes or
ceremonial occasions [21]. While this may prohibit undue departure
from traditional usage, it also ensures the retention of recognised
standards and emotional attitudes towards the use of a work or its
adaptation. In this sense the tribe's moral concern with the work is
strengthened which in turn reinforces the communal ownership of the
work.
Limitations of copyright law - originality
In contrast, copyright law is based on the premise that works originate
from an author's own judgment, skill or labour [22]. Individually or
jointly vested rights (in proportionate shares) enable copyright owners
to license or assign their intellectual property to others and thereby
obtain some economic remuneration from the copyrighted work.
However with indigenous peoples customary claims to intellectual
property are in substance those of the tribal community (without any
tracing as to proportions).
A problem posed by the established assumptions of individual and
exclusive rights under copyright law is that it is possible for an
individual indigenous artist's work (made since the advent of English
and now Australian law [23]) to be protectible under section 35(1)
Copyright Act 1968 as that artist's own intellectual property even if
made in an indigenous setting. The artist is the author of the work and
all that is required from the artist to gain protection is a minimal
amount of originality [24]. However, the customary law is actually that
the intellectual property rights to the work are non-exclusive communal
property. In this respect western copyright law diverges substantially
from the customs and practices of indigenous cultures [25].
Conversely, it is possible that some works by an individual indigenous
artist, such as simple paintings or those drawn from or imitating pre-
existing traditions [26], might not be regarded as original works. For
example, the emblems and designs used may have existed in a tribe
for thousands of years and been handed down over the centuries. In
this respect the work of the artist is basically unoriginal and an
adaptation. However given the low degree of originality required to
obtain copyright protection, then so long as the work has some element
of distinctiveness that comes from the artist the copyright in it will
belong to the individual artist [27].
In such cases the customary interests of a tribe may come into conflict
with the copyright law [28]. This is especially so where there is a tribal
assertion that permission must be obtained by others to use a certain
idea or concept such as, say, a specific style of dot painting common to
Australian Aborigines. One of the reasons for such permission is to
ensure that the cultural integrity of similar already existing works is not
denigrated or misrepresented.
This approach is not easily compatible with that of individual creativity
and the free flow of ideas under copyright law [29]. This form of
customary regulation and entitlement implies that a licence is needed
from the tribe to use certain designs, imagery, concepts or ideas [30].
The general principle under copyright law is that there is no property in
ideas.
Limitations of copyright law - fixation in material form
An unsatisfactory situation which has arisen in Australia concerning the
cultural integrity of folklore is where copyright protection can be
obtained for prints on consumer items such as tea-towels, wall
hangings, postcards and other souveniers [31], but the prints are
merely adaptations of traditional and possibly sacred pieces of
Aboriginal artwork or other cultural imagery which do not fall within the
term of copyright protection because of lapse of time (eg ancient rock
art) or there is no identifiable creator [32]. Other works not in a
material form such as native dances, music and lyrics have also been
known to be performed in the wrong context without emphasis on their
inherent cultural or spiritual meaning, especially where the objective is
to rake in the tourist dollar under the demands of popular marketing.
Verbatim note taking of myths and legends is also a problem. Here the
notetaker should only be considered as a mere scribe who does not
own the copyright in those myths and legends [33]. The copyright
should belong to the person who recited the myths or legends as a
representative of their tribe.
Many works of folklore do not always have a fixed material or tangible
form [34] but are still capable of remaining relatively unchanged and
well-known through the ages. Within indigenous cultures a particular
work or expression often only exists for a performance or an occasion,
but even then it still has a transient type of structural arrangement or
formation which continues and can be revived for subsequent
performances or occasions in a way very similar to how it was
expressed previously. For example, it may be drawn, sung, created
musically, performed, danced or recited in a way it has been known
from time immemorial or adapted accordingly, and then effaced or
destroyed while not being permanently retained or captured by some
technological means of recording.
Therefore, the work of folklore has some known configuration, (even if
somewhat variable in expression) and does exist in the collective
consciousness of the community to which the folklore belongs. In this
sense it is stored in that collective consciousness. This concept of
"storage" or "fixation" is, of course, very different to that under
copyright law which, in accordance with section 22(1) Copyright Act,
requires that the work must be "made" in such a way that it is "reduced
to writing [35] or to some other material form [36]" in order to obtain
protection under the Act.
So while a work of folklore may often not be in a permanent form it is
clearly more than an idea. It is an actual artform having cultural
significance or historical value worthy of both tangible and intangible
preservation.
It also has to be recognised that the work may not have been fixed in a
material form simply because the particular culture places no
predominant importance on such fixation. This does not mean that the
culture considers the work to be unimportant. Indeed in some
indigenous cultures, such as the Australian Aborigines, the work could
be so important or sacred that it should not be fixed in a permanent
form capable of easy material reproduction or public viewing [37]. The
law of copyright should make provision for such worthwhile differences
in cultural perceptions and practices and not allow for loss of copyright
protection in these situations. In some countries such as Germany,
works do not have to be fixed in a material form to be protected [38].
This should be readily extended to works of folklore.
The fixation requirements may actually present an obstacle to the
growth and development of folklore because they potentially allow for
works of folklore to be taken away from indigenous cultures by persons
who seize the initiative of fixing them in a material form [39] by, for
example, adding their own distinctive changes to the original, yet
unprotected, works. Once fixed by persons outside that culture, the
distinctive expressions in those fixed works may not again be able to be
used by the very culture from which they came, because to do so could
amount to copying or other infringement of intellectual property rights
in the fixed work. Protection for indigenous folklore to the effect that
this type of adaptation does not give rise to a separate copyright is
clearly required as it was not the intention of copyright law to decrease
the development of the arts of which folklore is a part.
Linked to this is the question of duration of copyright. As folklore
enhances the whole community's cultural heritage for the benefit of all
it is argued that there should be no time limitations both forwards and
backwards in relation to its protection. The Tunis Model Law on
Copyright for Developing Countries produced by UNESCO and the World
Intellectual Property Organisation ("WIPO") in 1976, and which is the
basis of copyright laws in countries such as Sri Lanka and Zaire,
provides for economic and moral rights for folklore without limitations
in time and for the control of folklore to be in a "competent authority"
of government for the duration of its protection. It would, however, be
preferable for that control to be with the culture from which the folklore
stems so long as that culture also recognises the wider public interest.
The limitations of the Copyright Act in relation to protection of
Australian Aboriginal folklore has been recognised by the Australian
Federal government in 2 reports. These are the 1981 Report of the
Working Party on the Protection of Aboriginal Folklore [40] and a report
entitled The Aboriginal Arts and Crafts Industry [41] published in 1989.
These limitations have also been judicially recognised in Yumbulul v
Reserve Bank of Australia [42]. In many respects these limitations exist
and persist because of the law's difficulty in dealing with communal
ownership and aboriginal rights which involve questions of equity,
fairness and reasonableness [43].
The equitable interface between customary law and copyright
law
Established equitable principles should be capable of being applied to
copyright law [44] and asserted by indigenous groups or tribes to
enable them to gain some effective control over creative works which
they consider to be communally owned even though the work's tangible
creation is by individual authors or artists.
Where, as under Australian Aboriginal customary law, an artist is
permitted by the tribe to depict certain designs for a particular purpose
it is commonly recognised that the tribe is the custodial owner of the
rights in the design [45] and the finished product. However, the tribe
does not have an actual legal interest in the copyright of the work
produced by the artist. This can only arise pursuant to a written
assignment of copyright from the individual owner to the tribal
"owners" in accordance with section 196 Copyright Act which, at
present, seldom happens.
Nevertheless, if the tribal "owners" have an equitable interest (whether
personal or proprietary) vested in the members of the tribe in the
copyright of the work, then they have a right to permit or restrain the
further reproduction, adaptation or other redepiction of the work [46].
The law appears to be capable of recognising that equitable interests
between tribal members and property could arise out of the obligations,
rights, rules, representations, entitlements and dealings applied as
customary law within a tribe and which govern the interrelationship of
an artist to an indigenous group. This is so, provided that what is
demanded in equity does not simply consist of some idiosyncratic
notions of justice or fairness [47].
Even though under section 8 of the Copyright Act copyright, as a legal
interest in intangible property, does not subsist otherwise than by
virtue of the Act, this cannot bar or deny the existence or assertion of
any equitable rights or interests. It is feasible that equity could protect
the interests of the members of a tribe in a creative work, just as it can
protect the interests of members of an unincorporated association or
mutual association of persons [48]. Given the circumstances of tribal
ownership this protection could extend to a work produced by another
member.
Thus if there is an unauthorised reproduction of an individual's work
without the permission or licence of the tribe, equitable relief by way of
an interlocutory injunction may be claimed in the name of the members
or representatives [49] of the tribe to restrain an infringement of
copyright because the members have an equitable interest [50] in the
work. This principle is no different than in the case of unincorporated or
mutual associations [51].
Where a permanent injunction is sought the tribal equitable owners will
have to join the individual artist as legal owner of the copyright [52].
The reason for this is to preclude a defendant after having defeated the
claim of an equitable claimant to again have to defend similar
proceedings by the legal owner. This means that a licensor of
Aboriginal works should have regard to any tribal rights and the licence
should be entered into with the licensee recognising both the legal
rights of the copyright owner and the equitable interests of the tribe
[53]. This procedure would more closely reflect how things are done
under Aboriginal customary law.
Where sacred or secret ideas, motifs and traditions are conveyed by a
tribe to another person, then equity can also intervene through the law
of breach of confidence [54] provided that the information has not
already fallen into the public domain. Thus in Foster v Mountford [55]
an injunction was granted to restrain the sale of a book revealing tribal
secrets of deep religious and cultural significance to Aboriginal persons
on the basis that their revelation could give rise to serious damage in
the form of disruption of aboriginal culture and society.
Aboriginal cultural rights
To further strengthen indigenous claims to folklore the concept of
aboriginal rights requires serious consideration. Included within
aboriginal rights are not only rights in relation to land based on native
title, but also pre-existing rights or privileges that were practiced long
before settlement by Europeans, and rights to an indigenous people's
cultural survival [56]. In the Canadian case of R v Sparrow [57] the
Supreme Court stated that the protection of aboriginal rights extended
to those practices which were "an integral part of their distinctive
culture" [58].
In New Zealand, Article the Second of the Treaty of Waitangi of 1840
recognises Maori customary rights. The English version of Article the
Second states that the Crown confirms and guarantees to the Maori
"full exclusive and undisturbed possession of their Lands and Estates
Forests Fisheries and other properties which they may collectively and
individually possess". In the Maori text of the Treaty of Waitangi the
word "taonga" is used in substitution for the words "other properties".
Taonga when translated means "treasures".
While Maori people have available to them the rights and privileges
under laws made by the Crown [59] (including laws in relation to
intellectual property), this does not disturb the possession and
retention of Maori cultural "treasures" and customs. Under the Treaty
of Waitangi Maori language is one such treasure that requires
protection. This has recently been confirmed by the Privy Council in
New Zealand Maori Council v Attorney General of New Zealand [60].
Obviously if language is a cultural treasure worthy of protection in the
"partnership" [61] between Maori and the Crown, then other creative
treasures including folklore must also be protected under the treaty in
favour of the indigenous people [62].
A legislative regime for folklore recognising aboriginal rights
The legal conceptions of indigenous peoples, though differently
developed, are not necessarily any less precise than those of the
common law [63]. It is possible to surmise from the High Court's
decision in Mabo v The State of Queensland [No.2] [64] that upon the
Crown gaining sovereignty over Australia through annexation it still
respected the pre-existing rights and interests of the indigenous
Aboriginals in their creative and intellectual works [65] even if they
were of a kind unknown to the common law. These customary rights
have not been expressly extinguished by the Crown under the
Copyright Act or similar legislation. In line with the evolving nature of
folklore, it also makes sense that the ongoing observance of customary
rights can be in a modernised form [66].
It is possible that both indigenous and western conceptions in relation
to intellectual property can be utilised to frame an effective legislative
regime for the protection of folklore. This can be achieved by
recognising those aboriginal rights which are integral to the indigenous
culture [67], rational or not contrary to the Australian common law,
and which were continually observed up until settlement or have been
modernised since then [68]. Such rights should be capable of being
asserted outside the indigenous community, even though not alienable
outside the indigenous system [69].
To achieve this a discretion can be vested in the indigenous culture as
to how it, through various tribal structures, wishes to reasonably
control the dissemination, reproduction or public disclosure of its own
folklore (particularly its sacred aspects) [70]. Where the use is for
education or as an aid in creating other original literary, dramatic,
musical or artistic works this should be regarded as a fair dealing which
should not be unreasonably denied.
Protection of indigenous folklore therefore requires a consideration of
the concept of community ownership [71] of works and the
management of rights associated with those works in accordance with
the customs of the particular indigenous culture. This would enable
greater indigenous control of folklore and ensure that its
commercialisation does not take place in the wrong context so as to
result in indigenous knowledge and creativity being seen merely as a
commodity [72] with the folklore loosing its primary role of
strengthening the indigenous culture. Only when indigenous folklore is
strengthened so that it is no longer, as in some countries, in a state of
"extreme fragility" [73] can its secondary commercial or
entrepreneurial potential be appropriately utilised [74] or fairly
disseminated within its true cultural parameters.
Protection by droit moral
A system of protection should encourage indigenous peoples'
expectations of respect for their creative works, particularly from those
outside the indigenous culture. This means that folklore should be
protected from debasement, distortion and consequent loss of cultural
integrity due to inappropriate uses [75] which would be offensive to the
community from which it originates or prejudicial to the artist's or
tribe's honour or reputation.
Copyright law, if considered to be a purely economic instrument, would
not be a sensitive enough tool to deal effectively with the management
of many works of folklore considered to be spiritually significant [76].
In order for indigenous peoples not to loose their power to protect their
cultural heritage [77] and their ability to supervise the commercial by-
products of their culture it is necessary to have a mechanism which
helps retain the integrity of original works of folklore. If there is no
such legal protection, then folklore traditions run the risk of becoming
fixed in society's memory devoid of their original context. This would
inhibit the creative evolution of that folklore [78].
Moral rights or droit moral give that legal ability to ensure that the
integrity of a work when it is used, performed or displayed is
maintained. In the western context moral rights originated in Europe
and are associated with a moral concern of the author with that
author's work. Moral rights recognise the personal connection a creator
has with the work. This should be capable of being extended to the
tribal connection that members of a tribe have to a work so that the
concept is adapted to suit the particular needs of each country or
culture [79].
In the context of countries with indigenous cultures the law should give
recognition to the communal nature of works of folklore by allowing for
the enforcement of associated "communal moral rights". Therefore the
creation of moral rights attaching to a tribe could sit alongside the
individual copyright and moral rights of an artist.
Moral rights generally comprise 3 types of rights [80] which are useful
in protecting folklore. These rights being the power to control the
publication or dissemination of a work (including its alteration and
withdrawal from the public), the right to have the artist's (or tribe's)
name associated with the work, and the right to prevent misuse,
mutilation or distortion of a work. A moral rights mechanism extending
indefinitely beyond the usual copyright term seems to be appropriate in
order to ensure that sufficient control of works of folklore remains with
their indigenous custodians after the copyright expires or after the
works (or their copyright) have been transferred to others or when the
works are displayed, reproduced or used. Moral rights legislation is also
an appropriate way of recognising the communal nature of ownership in
works of folklore.
Moral rights in relation to folklore should be personal as well as tribal in
nature and should not be able to be transferred. This would enable
indigenous artists and tribes to ensure that the vital theme or essence
of a work is retained in the future. Moral rights are also capable of
taking into account different ideas of value or subjective appreciation
[81] associated with a creative work and which are dependent upon
differences in cultural wants so that these differences are indirectly
recognised in law. In addition moral rights can more adequately deal
with cases of false attribution under section 191 Copyright Act where,
for example, an indigenous artist is held out as being the author of an
altered work similar to that which the artist created [82].
Protection by domaine publique payant
An extension of economic rights called domaine publique payant [83]
may also be suitable for the protection and promotion of folklore [84].
This requires commercial users of folklore or unprotected materials that
are not subject to copyright, because the work has either fallen outside
the copyright term of protection or not been reduced to writing or some
material form, to still pay for the use. The moneys collected are used to
further public rather than private interests by being distributed to
artists or organisations concerned with the arts. This can include
indigenous tribes and peoples. In this way money can be used for the
development of folklore especially if the system of distribution is in
accordance with regulations or schemes reflecting aboriginal rights,
customary entitlements and traditions.
The need for a domaine publique payant system for folklore also arises
because this material lends itself more easily to use and exchange
through the market place [85] if it is not subject to any authorisation
and the charging of private copyright royalties. The impact of charging
a public royalty for folklore is that the monetary charge is capable of
compensating a social or indigenous group connected with the work. It
also gives some control and guardianship over the exploitation or
distortion of the work. There should be no charge where the purpose is
for education or creating a new original work.
Promotion and protection by droit de suite
Another extension of economic rights called droit de suite can also be
used to promote folklore. This is a type of resale royalty giving the
creator of a work the right to share in the increased value of a work if it
is later resold or gives rise to a windfall gain [86]. Given the increased
interest in indigenous folklore and art, which can now fetch high prices,
it would seem inherently inequitable that creative works and art from
indigenous peoples can be acquired at a small cost to the purchaser
without proper recognition of the artist's or tribes' labour and skill and
later resold at a considerable profit.
Consideration should be given to the collection of part of any windfall
gain derived from the sale or resale of works of folklore to be used for
the benefit of indigenous communities or the promotion of their
folklore.
Joint WIPO and UNESCO Model Provisions
The Berne Convention does not contain a direct reference to folklore.
The closest it gets is Article 15(4)(a) which deals with unpublished
works by unknown authors believed to be nationals of a country. Article
15(4)(a) allows the country to designate a "competent authority" to
represent the author and protect and enforce any related rights. This
article could possibly be used in relation to folklore [87].
However a more comprehensive model set of rules dealing specifically
with folklore has been jointly developed by WIPO and UNESCO in 1985
in the form of the Model Provisions for National Laws on the Protection
of Expressions of Folklore Against Illicit Exploitation and Other
Prejudicial Actions ("Model Provisions"). This aims to achieve a
compromise between the economic and moral rights surrounding
folklore and attain a balance between the protection of folklore against
abuse and encouragement of its further development and
dissemination. It is up to each country, if it so wishes to implement
legislation in this area.
Section 3 of the Model Provisions provide for a system of prior
authorisation to be administered by a "competent authority" or the
"community concerned" in relation to the utilisation of expressions of
folklore "made both with gainful intent and outside their traditional or
customary context". If legislation based on this model was to be
introduced in Australia it could be necessary to obtain prior permission
from an indigenous community to publish, reproduce, distribute, recite,
perform, transmit or in any other way communicate to the public
expressions of folklore.
The Model Provisions are flexible enough to take into account the
differing situations in each country, so that recognition of aboriginal
rights could be part of any legislation in Australia. This may depend a
lot on the favourable "redefinition" of aboriginal land rights currently
taking place in western common law countries. The link between land
rights and cultural rights is difficult to separate [88] as both are
concerned with the Aboriginal spiritual worldview.
It should be noted that the Model Provisions do not deal adequately
with matters of collective ownership of works and here the importance
of communal moral rights may fill the gap. Section 12 also makes it
clear that the Model Provisions do not limit or prejudice any protection
available under other forms of law, so that tribal equitable interests in
works of folklore are viable.
Conclusion - wholistic position
The purpose of protecting an indigenous people's folklore is not to cut it
off from outside influences. It is not in society's best interests or the
intention of copyright laws to setback the policy of broadening
everyone's knowledge and increasing the free flow of information.
There is, however, a need to maintain the integrity of works of folklore
and to ensure that they are not distorted out of context.
The creation of a sui generis category of intellectual property rights for
folklore is a means of giving greater control to the community from
which the works derive and to strengthen its folklore. This is necessary
for the appropriate realisation of both the cultural and economic
potential of works of folklore for the benefit the indigenous culture.
This would involve recognising aboriginal and moral rights as well as
equitable interests in works of folklore. The appropriate combination of
these rights and interests is also a good way of acknowledging the
communal origins of folklore [89].
Footnotes:
[1]. See K. Puri, "Australian Aboriginal People and their Folklore",
(1992) Ngulaig, Monograph No.9, Aboriginal and Torres Strait Islander
Studies Unit, The University of Queensland, Brisbane, at 1.
[2]. Department of Home Affairs and the Environment, (1981) Report
of the Working Party on the Protection of Aboriginal Folklore, Canberra,
at para.1201.
[3]. J.G. Weiner, "Protection of Folklore: A Political and Legal
Challenge", (1987) IIC (International Review of Industrial Property and
Copyright Law), Vol.18, No.1, pp.56-92 at 58.
[4]. Refer to section 35(2) Constitution Act 1982 (Canada) which lists
the indigenous cultures of Canada.
[5]. J.G. Weiner, op. cit., at 61.
[6]. K. Puri, "Australian Aboriginal People and Their Folklore", op. cit.,
at 10-11. See also Mandla v Dowell Lee [1983] 2 AC 548 at 562 per
Lord Fraser (HL) and King-Ansell v Police [1979] 2 NZLR 531 at 543 per
Richardson J (NZCA) for a list of similar characteristics used in
determining an ethnic group.
[7]. J.G. Weiner, op. cit., at 59.
[8]. P. Tennant, (1985), "Aboriginal Rights and the Penner Report", in
The Quest for Justice: Aboriginal Peoples and Aboriginal Rights", ed. by
Menno Boldt and J. Anthony Long, University of Toronto Press, Toronto,
pp.321-332 at 324.
[9]. Report of the Working Party on the Protection of Aboriginal
Folklore, op. cit., at 8.
[10]. J.G. Weiner, op. cit., at 64.
[11]. Refer to section 31(1) Copyright Act 1968 (Cth).
[12]. See Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481 at
490.
[13]. R. Firth, (1959), Economics of the New Zealand Maori, 2nd ed.,
A.R. Shearer Government Printer, Wellington, at 398.
[14]. Ibid.
[15]. (1991) 21 IPR 481 at 482-484.
[16]. Ibid.; See also K. Maddock, "Copyright and Traditional Designs -
An Aboriginal Dilemma", (1988) Aboriginal Law Bulletin, Vol.2, No.34,
pp.8-9.
[17]. K. Puri, "Australian Aboriginal People and their Folklore", op. cit.,
at 14.
[18]. R. Firth, op. cit., at 356.
[19]. Ibid.
[20]. R. Firth, op. cit., at 366; Australian Copyright Council, "Aboriginal
Arts and Copyright", (1992) Bulletin No.75, at 11.
[21]. K. Puri, "Copyright Protection of Folklore: A New Zealand
Perspective", (1988) Copyright Bulletin, Vol.XXII, No.3, pp.18-27 at 21.
[22]. See Walter v Lane [1900] AC 539 (HL).
[23]. See Australia Act 1986 (Cth).
[24]. See University of London Press Ltd v University Tutorial Press Ltd
[1916] 2 Ch 601.
[25]. Report of the Working Party on the Protection of Aboriginal
Folklore, op. cit., at para.705.
[26]. J.G. Weiner, op. cit., at 70.
[27]. C. Golvan, "Aboriginal Art and Copyright: The Case for Johnny
Bulun Bulun", [1989] 10 EIPR 346 at 349.
[28]. S. Gray, "Aboriginal Designs and Copyright: Can the Australian
Common Law Expand to Meet Aboriginal Demands?", (1992) Copyright
Reporter, Vol.9, No.4, pp.8-20 at 14-16.
[29]. See A. Pask, "Cultural Appropriation and the Law: An Analysis of
the Legal Regimes Concerning Culture", [1993] IPJ 57 at 73-77.
[30]. Australian Copyright Council, op. cit., at 11.
[31]. See V. Johnson, "A Whiter Shade of Paleolithic: Aboriginal Art and
Appropriation", (1988) Aboriginal Law Bulletin, Vol.2, No.34, pp.4-6.
[32]. Attorney-General's Department, (1994), Proposed Moral Rights
Legislation for Copyright Creators. Discussion Paper, Attorney-General's
Legal Practice, Canberra, at 24.
[33]. See Donoghue v Allied Newspapers [1938] 1 Ch 106.
[34]. K. Puri, "Copyright Protection of Folklore: A New Zealand
Perspective", op. cit., at 24.
[35]. As defined in section 10(1) Copyright Act 1968 (Cth).
[36]. As defined in section 10(1) Copyright Act 1968 (Cth).
[37]. See for example Foster v Mountford [1977] 29 FLR 233.
[38]. K. Puri, "Australian Aboriginal People and their Folklore", op. cit.,
at 32; J.G. Weiner, op. cit., at 74-75.
[39]. Ibid.
[40]. (1981), Department of Home Affairs and the Environment,
Canberra.
[41]. Report of the Review Committee, (1989), Department of
Aboriginal Affairs, Canberra.
[42]. (1991) 21 IPR 481 at 490.
[43]. Mabo v The State of Queensland [No.2] (1992) 66 ALJR 408 at
416-417 per Brennan J; see also Te Runanganui o Te Ika Whenua Inc
Society v Attorney-General [1994] 2 NZLR 20 at 24 (CA).
[44]. Massine v de Basil [1936-45] Mac CC 223; John Richardson
Computer Ltd v Flanders (1993) 26 IPR 367.
[45]. P.K. Hennessy, (1982) Aboriginal Customary Law: Traditional and
Modern Distributions of Property, Research Paper No. 5, Australian Law
Reform Commission, Sydney, at 27-28.
[46]. C. Golvan, "Tribal Ownership of Aboriginal Art", (1992) Arts and
Entertainment Law Review, No.3, pp.15-17 at 15.
[47]. Legione v Hately (1983) 152 CLR 406 at 431 per Mason and
Deane JJ; Muchinsky v Dodds (1985) 160 CLR 583 at 615 per Deane J.
[48]. See Murray v Johnstone (1896) 23 SC 981; K.L. Fletcher, (1986),
The Law Relating to Non-Profit Associations in Australia and New
Zealand, Law Book Company, Sydney, at 46-50.
[49]. Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 36-39 per
Gibbs CJ.
[50]. See Sweet v Shaw (1839) 8 LJ Ch 216; Ward Lock & Co v Long
[1906] 2 Ch 550.
[51]. Lloyd v Loaring (1802) 31 ER 302; Clark v University of
Melbourne [1978] VR 457. See generally K.L. Fletcher, op. cit., at 190-
194.
[52]. Performing Right Society Ltd v London Theatre of Varieties Ltd
[1924] AC 1.
[53]. C. Golvan, "Tribal Ownership of Aboriginal Art", op. cit., at 15-16.
[54]. Coco v A.N. Clark (Engineers) Ltd (1969) RPC 41.
[55]. [1977] 29 FLR 233.
[56]. D. Ahenakew, (1985), "Aboriginal Title and Aboriginal Rights: The
Impossible and Unnecessary Task of Identification and Definition", in
The Quest for Justice: Aboriginal Peoples and Aboriginal Rights, ed. by
Menno Boldt and J. Anthony Long, University of Toronto Press, Toronto,
pp.24-30 at 25; T. Flanagan, (1985), "Metis Aboriginal Rights: Some
Historical and Contemporary Problems", in The Quest for Justice:
Aboriginal Peoples and Aboriginal Rights, ed. by Menno Boldt and J.
Anthony Long, University of Toronto Press, Toronto, pp.230-245 at
238-239.
[57]. (1990) 70 DLR (4th) 385 at 402 per Dickson CJC and La Forest J.
[58]. See also Delgamuukw v The Queen in right of British Columbia
(1993) 104 DLR (4th) 470 at 572 per Wallace JA (BCCA).
[59]. Refer to Article the Third of the Treaty of Waitangi.
[60]. [1994] 1 All ER 623 at 629.
[61]. See Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2
NZLR 641 (CA); Te Runanga o Wharekauri Rekohu Inc v Attorney-
General [1993] 2 NZLR 301.
[62]. See W.C. Canby, (1988), American Indian Law in a Nutshell, 2nd
ed., West Publishing, St Paul, Minnesota, at 84-85.
[63]. See Re Southern Rhodesia [1918] AC 219 (PC).
[64]. (1992) 66 ALJR 408. The Mabo case has recently been accepted
and applied by the New Zealand Court of Appeal in Te Runanganui o Te
Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 at 24.
[65]. See K. Puri, (1993), "Copyright Protection for Australian
Aborigines in the Light of Mabo", in Mabo: A Judicial Revolution. The
Aboriginal Land Rights Decision and Its Impact on Australian Law, ed.
by M.A. Stephenson and Suri Ratnapala, University of Queensland
Press, Brisbane, pp.132-164 at 157.
[66]. Delgamuukw v The Queen in right of British Columbia, op. cit., at
494 per Macfarlane JA.
[67]. Ibid., at 492-494 per Macfarlane JA.
[68]. P. Tennant, op. cit., at 324.
[69]. See Mabo v The State of Queensland [No.2], op. cit.;
Delgamuukw v The Queen in right of British Columbia, op. cit., at 494-
496 per Macfarlane JA. See also K. Puri, (1992) "Mabo - A Legal
Revolution?", in Mabo - A Critical Review, Annual Symposium, The
University of Queensland, T C Biernie School of Law, Brisbane, at 15-
40.
[70]. Proposed Moral Rights Legislation for Copyright Creators, op. cit.,
at 24.
[71]. P.K. Hennessy, op. cit., at 28.
[72]. G.H. Smith, "Maori Culture for Sale", (1993) Polemic, Vol.4, No.3,
pp.149-153 at 149.
[73]. UNESCO, "Recommendation on the Safeguarding of Traditional
Culture and Folklore: Adopted by the General Conference of Unesco at
its twenty-fifth session", (1990) Copyright Bulletin, Vol.XXIV, No.1,
pp.8-12 at 8.
[74]. G.H. Smith, op. cit., at 153.
[75]. Report of the Working Party on the Protection of Aboriginal
Folklore, op. cit., at para.1110.
[76]. Proposed Moral Rights Legislation for Copyright Creators, op. cit.,
at 24.
[77]. R.A.I. Bell, "Protection of Folklore: The Australian Experience",
(1985) Copyright Bulletin, Vol.XIX, No.2, pp.4-14 at 11.
[78]. A. Jabbour, "Folklore Protection and National Patrimony:
Developments and Dilemmas in the Legal Protection of Folklore",
(1983) Copyright Bulletin, Vol.XVII, No.1, pp.10-14 at 12.
[79]. Proposed Moral Rights Legislation for Copyright Creators, op. cit.,
at 24.
[80]. S.P. Ladas, (1938), International Protection of Literary and
Artistic Property, Macmillan, New York, at 576.
[81]. R. Firth, op. cit., at 393.
[82]. See Crocker v Papunya Tula Artists (1985) 5 IPR 426.
[83]. See A. Dietz, "A Modern Concept for the Right of the Community
of Authors (domaine public payant)", (1990) Copyright Bulletin,
Vol.XXIV, No.4, pp.13-24.
[84]. See section 17 Tunis Model Law on Copyright for Developing
Countries.
[85]. See UNESCO, "Safeguarding of Works in the Public Domain",
(1989) Copyright Bulletin, Vol.XXIII, No.2, pp.25-26.
[86]. See A. Dietz, op. cit., at 19-20.
[87]. R. Bell, "Protection of Aboriginal Folklore: Or Do They Dust
Reports", (1985) Aboriginal Law Bulletin, No. 17.
[88]. S. Gray, "Wheeling, Dealing and Deconstruction: Aboriginal Art
and the Land Post-Mabo", (1993) Arts and Entertainment Law Review,
No.6, pp.5-11 at 7.
[89]. C. Golvan, "Aboriginal Art and Copyright: The Case for Johnny
Bulun Bulun", op. cit., at 353.
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Source:

by courtesy & © 2005 Dieter Dambiec