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.
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Notes
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].
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].
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].
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].
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].
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.
This practice was particularly common in some ancient African communities [42].
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].
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].
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].
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].
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].
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].
As pointed out by Karpeles and Baké, folk music, like traditional music, “has been submitted through the course of many generations to the process of oral transmission” [25].
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].
From the 19th century, folk music materials were used by many composers, as it is particularly evident in the piano literature. For instance, Béla Bartóck, 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 Albéniz incorporated folk tunes in their piano works, while in Russia was common to arrange folk music songs and dances for solo piano.
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)).
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.
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).
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).
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].
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].
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).
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.
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].
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 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].
Feist Publications. Inc. v. Rural Telephone Service Company, Inc., 499 US 340 (1991) [23].
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.
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).
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).
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).
Art. 4, Pacific Model Law.
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].
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].
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).
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].
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 Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Forms of Prejudicial Action, 1985, at 4).
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.
Hezhe Ethnic Minority Township Government v. Song Guo, 2002.
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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Carugno, G. How to Protect Traditional Folk Music? Some Reflections upon Traditional Knowledge and Copyright Law. Int J Semiot Law 31, 261–274 (2018). https://doi.org/10.1007/s11196-017-9536-7
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DOI: https://doi.org/10.1007/s11196-017-9536-7