Trading oral traditions for textbooks

The concept of folklore emerged in the nineteenth century at the same time as its antithesis: modern art created by the modern artist.Footnote ²¹ The idea of “the traditional” comes into being as soon as the idea of “modernity” is born, with folklore as a type of creativity belonging to the former and art as a type of creativity belonging to the latter. This also implies a distinction, in social class and colonial status, between the bourgeois creator and the rural performer. The modern concept of creativity did not just exclude rural communities and Indigenous peoples, but also and wholesale all of the world that did not fall within the scope of European mainstream society. Western literature, theater, and visual arts became subjects of their own disciplines within universities, while traditional culture was collected and studied by folklorists in the Global North and anthropologists in the Global South.Footnote ²²

Since then, folklore and copyright have had a troubled relationship. Bourgeois composers of the early twentieth century, like Béla Bartók, Igor Stravinsky, Richard Strauss, Pyotr Ilyich Tchaikovsky, and Daniel Alomía Robles, used traditional folk tunes as “raw material” for musical compositions that were supposed to express nationalistic ideals.Footnote ²³ At the same time, visual art and designs from Africa, Asia, South and Central America, Indigenous peoples, and rural communities in Europe provided an inspiration for modernist art, architecture, and fashion design. Examples include the Maori “koru,”Footnote ²⁴ American “primitives,”Footnote ²⁵ Swedish homecraft,Footnote ²⁶ and Native American handicraft.Footnote ²⁷ These often relied on the collecting, curating, and publishing work done by anthropologists, folklorists, and ethnomusicologists, so initially the main question regarding copyright revolved around the status of the collector, largely ignoring the person or persons who created the originals as anonymous “informants.”Footnote ²⁸ Folk music collectors, like John and Alan Lomax, supported by the International Folk Music Council, used the fixation principle of copyright law to justify their claim to copyright over orally performed music. Although they hadn’t created the music, having “captured the wild folk song,”Footnote ²⁹ they were the first to write it down and publish it using musical notation.Footnote ³⁰ With the growth of record production in the 1920s (for example, “hillbilly” and “race” records in the United States), the value of this copyright increased, and some of the first legal challenges over rights in traditional music took place (see, for example, the case of “The Wreck of the Old 97”Footnote ³¹).

The long-winded and often confusing nature of these early cases did not deter musicians from making use of traditional songs when the so-called folk music revival started in the United States in the 1940s. In some cases, they tried to reduce the risk of a legal challenge by making minor changes to decades-old folk tunes before registering them as their own creations (the Kingston Trio’s claim of copyright for the song “Tom Dooley” being a famous case in pointFootnote ³²). This often led to accusations of plagiarism from their peers. Several prominent participants in the revival, such as musicologist Charles Seeger; his son, folk musician Pete Seeger; and Sing Out! editor Irwin Silber, suggested that a fee should be paid into a fund for the commercial use of traditional music, a licensing scheme that is similar to the nineteenth-century domaine public payant. Footnote ³³ The confusion remained, however, and in court rulings often the formal registration of a song with a copyright office served to trump all other claims, even when these were substantiated by other sources (see, for example, the case of “Rum and Coca-Cola/L’Année Passée/King Ja Ja”Footnote ³⁴). This confusion created challenges and risks for the commercial use of traditional music, as the American artist Paul Simon had to acknowledge in 1970, in the case of “If I Could/El Condor Pasa,” extensively covered elsewhere.Footnote ³⁵

The ballad monger debate mentioned previously demonstrates how prominent the question of copyright in traditional music was in the music industry during the early 1960s, at a time when the American folk music revival took off globally, along with its corollary, world music.Footnote ³⁶ It was at this time that the international copyright status of folklore across national borders was first brought up within UNESCO and WIPO’s predecessor, BIRPI.Footnote ³⁷

The complex history of UNESCO and WIPO’s special interest in folklore for over half a century has been documented at length by for example Hafstein,Footnote ³⁸ Bendix,Footnote ³⁹ Geismar,Footnote ⁴⁰ Kuutma,Footnote ⁴¹ Hemmungs WirténFootnote ⁴² and Bortolotto.Footnote ⁴³ It began in the early 1960s with joint meetings of UNESCO and BIRPI with representatives of recently independent states in Africa about their eventual adherence to either of the two major international copyright conventions: the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), governed by BIRPI, and the Universal Copyright Convention, governed by UNESCO. One of the issues African experts had against joining these conventions was the strong control over translations that they gave to the original publishers. The recently independent nations needed to develop modern education systems in their native languages, and the costs of obtaining textbooks in translation were prohibitive. A solution was proposed at the meetings: Licensing the rich oral traditions of Africa could be used to counterbalance the expense of purchasing the rights to textbooks and translating them into African vernacular languages. Given the richness of African traditional oral culture, exclusive rights could serve as a bargaining chip when dealing with publishers from the Global North.Footnote ⁴⁴

This turned out to be more difficult than anticipated. After several rounds of meetings during the 1960s, the matter came to a head during a major revision of the Berne Convention in Stockholm (where BIRPI changed its name to WIPO) in 1967.Footnote ⁴⁵ The new arrivals lobbied for two things: compulsory licensing for translations (which was granted temporarilyFootnote ⁴⁶) and the inclusion of folklore (seen as meaning “oral cultures of Africa”) in the list of protected subject matter. Along with other postwar arrivals on the scene of international relations, like India and Indonesia, African delegates championed adding a clause granting exclusive rights for the use of folklore.Footnote ⁴⁷ Gustave Mulenda, a Congolese diplomat from the permanent mission in Berne, described the matter thus:

The result of the meeting in Stockholm in 1967, however, was a separate clause in the convention protecting a somewhat puzzling figure: the unknown author of an unpublished workFootnote ⁴⁹ in lieu of “folklore,” a term which the diplomats and legal experts at the meeting found “extremely difficult to define.”Footnote ⁵⁰ This was the result of a compromise reached between those who wanted to add folklore to the list of works protected in one of the initial clauses of the treaty, like Sher Singh of the Indian delegation, and those who advocated a sui generis solution, with a special treaty dedicated to folklore instead of changing the Berne Convention itself, like Australian delegate Lindsay Curtis.Footnote ⁵¹ The text stipulated that states should designate a “competent authority” to represent this unknown author and communicate this to WIPO.Footnote ⁵²

As the years passed from the ratification of the revised convention, however, it became clear that states in the Global North were not interested in implementing the measures needed for reciprocal recognition of intellectual property in folklore. The clause protecting the “unknown author” proved to be unsatisfactory, as it did not lead to the creation of a new globally recognized exclusive right for the use of African oral culture or folklore from other parts of the world.Footnote ⁵³

Licensing property or safeguarding heritage

In the early 1970s, several important developments took place in the Culture Sector of UNESCO. After years of debates, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Cultural Property Convention) was adopted in 1970, with a compromise reached between the delegations of “source nations” (like Mexico and Peru) and the delegation of the United States on the final text.Footnote ⁵⁴ The convention allowed states parties to restrict international trade in objects of cultural importance because of their historical, archaeological, ethnological, or artistic significance, which was to be defined by each state to a certain degree.Footnote ⁵⁵ The convention called for inventories and registers as strategic tools for trade restrictions and legal resolution mechanisms.

Another document of major significance was the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention). These two conventions, on cultural property and cultural heritage, respectively, were firmly based on the idea of heritage or cultural property being tangible objects or sites,Footnote ⁵⁶ originating in, or being tied to, a certain geographical location that fell under the jurisdiction of a sovereign state. They assumed that their subject matter could be (and should be) administered by a state or through the cooperation of neighboring states.

In 1973, a letter was sent to UNESCO from the Minister of Foreign Affairs and Religion of the Republic of Bolivia.Footnote ⁵⁷ The letter condemned “the most intensive clandestine commercialization and export, in a process of commercially oriented transculturation destructive of the traditional cultures.” To prevent this, the letter suggested that “folk art forms [be] removed from the public domain and reclassified as property of the concerned states” by adding “cultural expressions of collective or anonymous origin” to the subject matter protected by UNESCO’s Universal Copyright Convention.Footnote ⁵⁸

The letter contained a memorandum written by Bolivian folklorist, archaeologist, and well-known cultural activist Julia Elena Fortún.Footnote ⁵⁹ Fortún was a prolific folklore researcher and administrator who founded more than 30 organizations, including the Department of Folklore in the Bolivian Ministry of Culture, which later became the Department of Archaeology, Ethnography and Folklore.Footnote ⁶⁰ The main point of both letter and memorandum is that folklore should be dealt with in essentially the same manner as tangible cultural property, using the territorial principle enshrined in the Cultural Property Convention of 1970. This would mean that each state became the owner of folklore traditionally performed in its territory. The letter also called for further study of legal resolution mechanisms where the origin of certain cultural properties might be disputed, and it called for a globally recognized “Register of Folkloristic Cultural Property.”Footnote ⁶¹

The Bolivian letter, as it was colloquially known, soon became a standard point of reference for UNESCO’s activities involving folklore. It also became a part of the origin story recounted within the organization to explain its mandate in the field of traditional culture.Footnote ⁶² However, it was itself rather the result of previous work in this field than its instigation. Earlier in 1973, UNESCO and WIPO were working on a revised draft for a “Model Law on Copyright for Developing Countries in Africa” (Tunis Model Law) which included a section on “Works of Folklore” (WIPO, 1973), following a suggestion from the Organisation africaine et malgache de la propriété intellectuelle (OAMPI).Footnote ⁶³ This later became the “Tunis Model Law on Copyright for Developing Countries” adopted by the committee of governmental experts convened by UNESCO and WIPO in 1976. The letter, however, succinctly described the issues that had to be remedied and served to focus the discussion and debate. It also highlighted the inadequacy of the two international copyright conventions in addressing these issues.

After discussing the letter at UNESCO’s General Conference in 1974, the newly appointed Director-General, Senegalese geographer Amadou-Mahtar M’Bow, was authorized to conduct further studies of the feasibility of protecting folklore in the context of intellectual property law. As UNESCO’s Intergovernmental Committee Governing the Universal Copyright Convention felt that a definition of the subject matter went beyond its sphere of competence, it entrusted the UNESCO secretariat with the task of compiling a report.Footnote ⁶⁴ The secretariat requested the assistance of French notary and flamenco expert Alain Gobin, and the Paris-based Laboratoire africaine de coordination de recherche et d’études interdisciplinaires led by Togolese sociologist François N’Sougan Agblemagnon. Together they compiled a report to flesh out the terms of the debate based on their expert knowledge of law and ethnomusicology, and African oral cultures, respectively.

In their report, Gobin and Agblemagnon define folklore as essentially a fringe cultural activity, mainly found in rural and African settings. Responding to the challenge put forth in the Bolivian letter, the authors offer a menu of strategies for protecting folklore. These include adding folklore as protected subject matter to current copyright conventions, creating a special kind of intellectual property through a new convention dedicated to folklore (the sui generis approach mentioned previously), creating an international inventory of globally recognized folklore (as suggested in the Bolivian letter), promoting and supporting practitioners of traditional culture, and legally protecting the neighboring rights of performers of traditional arts.Footnote ⁶⁵

Meetings of governmental experts on the proposed model law were organized in Tunis in 1976 and 1977. The legal text adopted at the first meeting dedicates a whole section (6) to “works of national folklore,” with the obligation to obtain a license from the “competent authority” as stipulated in the revised Berne Convention. The term “folklore” is defined in section 18 of the text as “literary, artistic and scientific works created on national territory by authors presumed to be nationals of said countries or by ethnic communities, passed from generation to generation and constituting one of the basic elements of the traditional cultural heritage.”Footnote ⁶⁶ Compared to Article 15 (4) of the Berne Convention,Footnote ⁶⁷ this definition added a reference to communities, to intergenerational exchange, and cultural heritage. The focus on cultural heritage is hardly surprising, given UNESCO’s ever-increasing emphasis on the heritage sector at the time; but otherwise, the definition of folklore is quite broad and inclusive. The vision of folklore as a fringe cultural practice, presented in the report by Gobin and Agblemagnon, did not find its way into the model law. To the governmental experts of the Tunis meeting in 1976, a definition of what constituted “works of national folklore” was best left to national administrations to figure out. This delegation of meaning reflects the same logic as that which made the term so difficult to accept in Stockholm in 1967 that it was left out of the text altogether in favor of an “unknown author.”Footnote ⁶⁸ But the model law took a different tack, arguing that the list of protected works should be open and flexible to some extent and should take into account the specific characteristics of national cultures where the law was implemented.

Alain Gobin wrote a second report on folklore protection for the follow-up meeting in Tunis in 1977.Footnote ⁶⁹ In this later report he gives an overview of the historical-geographic and comparative methods in folklore research and outlines the classification of genres. Most importantly, he identifies two distinct meanings of the concept of “folklore protection”: on the one hand taking steps to ensure the integrity and survival of cultural expressions in a changing world, and on the other providing the means for licensing and sharing the benefits derived from their commercial exploitation.Footnote ⁷⁰ In the first definition we see how the concept of “safeguarding” already looms on the horizon. This would later take center stage in the ICH Convention of 2003.

Creating a special model law for countries in the Global South only met their demands halfway, however. It was all well and good to declare that the use of national folklore ought to be authorized by a competent national authority in national laws (as many of them did), but without an international convention to support such claims in other countries (notably countries in the Global North) its provisions were not much use for the ultimate goal of striking a balance within the global intellectual property system. Therefore, following the review meeting in Tunis in 1977, UNESCO and WIPO pressed forward in an attempt to create an international convention for safeguarding folklore by defining it as the national property of states. As a result, a draft treaty where folklore is treated as a special kind (sui generis) of intellectual property was proposed in the early 1980s.

It was at this point that several folklorists and traditional practitioners were summoned to participate in the meetings of what was called a “working group of governmental experts.” In hindsight, this may have reflected the fact that has since become all too apparent, that states in the Global North were determined to avoid any fundamental changes to the existing intellectual property system. By calling upon folklorists and anthropologists to lead the discussion, they were already of the mind that the first type of protection, as identified by Alain Gobin, was to be preferred over the second. This characterized later work by UNESCO in this field, which led first to the “Recommendation for the Safeguarding of Traditional Culture and Folklore” in 1989, and eventually to the ICH Convention in 2003. Significantly, both legal instruments left intellectual property rights outside their purview, focusing instead on cultural safeguarding. Despite best efforts during over half a century, the fundamental imbalance of the global intellectual property system identified by African lawyers and intellectuals in the early 1960s is still there.

During the meetings that took place in the 1970s, a few things stood out: Although several states in the Global South had adopted the domaine public payant licensing scheme promoted by UNESCO, many of the experts and delegates at these meetings did not think that such an approach was appropriate or desirable. This was also highlighted by the lack of implementation in many of the countries that adopted it. What emerged instead was a focus on safeguarding and promotion, while in the legal camp a sui generis or special solution was gradually seen as a more feasible way forward than changes to existing copyright legislation.

In that spirit the International Bureau of WIPO proposed another text, the “Model Provisions for National Laws on the Protection of Creations of Folklore” (Model Provisions), in 1979.Footnote ⁷¹ While essentially reproducing the idea that the use of folklore for commercial purposes should require authorization, these model provisions set forth the idea that the “competent authority” in this case should only administer such rights on behalf of Indigenous groups. It further suggested that this authority could be an artists’ category association or a national museum rather than a copyright office. To facilitate administration the model provisions suggested that such competent authorities publish and maintain a “national inventory of creations of folklore.” Rather than requiring the rehabilitation of copyright lawyers, then, these provisions would have provided lots of jobs for folklorists, had they been implemented.

The Failed Folklore Treaty

In the wake of the Tunis meetings there followed a flurry of activities exploring legal strategies to address the “protection of folklore” in both the sense of safeguarding its integrity and protecting it as intellectual property. The possibilities for adding folklore as a protected subject to national copyright legislation seemed to have been exhausted. Instead, the attention of WIPO and UNESCO turned to the possibility of sui generis legislation devoted exclusively to folklore. Because hitherto the “legal protection of folklore by copyright laws and treaties does not appear to have been particularly effective or expedient,”Footnote ⁷² they now focused on how the domaine public payant licensing scheme could be applied to folklore around the world. To this end, in January 1980, the secretariat of UNESCO and the International Bureau of WIPO summoned a working group of 16 experts to study the intellectual property aspects specifically.Footnote ⁷³ The experts were mostly lawyers, but three notable exceptions were Alan Jabbour from the American Folklife Center; Brigitte Bachmann-Geiser, ethnomusicologist from the Swiss Society for Popular Traditions; and Philippine historian Serafin D. Quiason Jr., then director of the National Library in Manila. The working group was handed a draft of the Model Provisions previously prepared by the bureau.

While the working group suggested many revisions to the draft text, it agreed that the endeavor to influence national legislation by means of model provisions was in principle desirable and would pave the way for the protection of folklore at the international level as well. After several more meetings, the Model Provisions were finally adopted by the working group in Paris in 1982 with many revisions and extensive commentary.Footnote ⁷⁴

The Model Provisions implicitly raised the issue of how representation and cultural brokerage should be implemented. The text suggests that a state copyright office might not be the best candidate for the “competent authority” stipulated in the revised Berne Convention and later texts. It also identifies the owners of folklore as “indigenous groups” (in a sense that seems to be synonymous with “local communities” rather than “Indigenous peoples”), suggesting that these might be distinct from the nation of a state as a whole. The question of the involvement of source communities themselves, as opposed to state administrations or category associations of artists, was a major issue. In a contemporary account, American folklorist Alan Jabbour described efforts to get this point across during the discussions with a hint of frustration: “some of us in the Working Group struggled to interpose a concept of adjudication or consultation with the source-group itself” and added:

In October 1983 the General Conference of UNESCO and the Governing Bodies of WIPO agreed to convene a group of 12 experts to study the international protection of expressions of folklore. The group met in December 1984. Alan Jabbour and Serafin D. Quiason were part of that group, along with Indian artist Sankho Chaudhuri and Tunisian musicologist Salah El Mahdi, who chaired the meeting. Member states were invited to send observers to follow the discussion. These observers included Belgian folklorist Samuel Glotz, Finnish folklorist Lauri Honko, French folklorist Jean Roche, and Tunisian musician Fethi Zghonda.Footnote ⁷⁶ Still, the meeting was dominated by the presence of intellectual property lawyers and diplomats (most of them also lawyers) as in earlier instances. This time, a “Draft Treaty for the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions,” based on the Model Provisions, was presented to the group for discussion, and again, the group suggested many revisions and called for further study.

The Draft Treaty reproduced many phrases and definitions used in the Model Provisions, including the terms “illicit exploitation” and “prejudicial actions” used in its title. The definition of “expressions of folklore” as “characteristic elements of the traditional artistic heritage” is copied verbatim. The main purpose of the proposed treaty was to impose a licensing scheme for the use of folklore “outside [its] traditional contexts” if made for profit in another contracting state. This echoed all of the previous attempts to make folklore a contractable good to be used by states in the Global South to balance the books, but this objective had never before been explicitly stated in this form and in such terms.

In the preamble to the Model Provisions there is a first mention of what might be called the gap hypothesis. This is the argument that because expressions of folklore are formally analogous to other works of art, they “deserve legal protection” in the same manner as copyrighted works.Footnote ⁷⁷ It follows that the lack of intellectual property protection for folklore constitutes a gap in intellectual property law, to be filled by the proposed treaty – a position often repeated in WIPO policy documents since then.Footnote ⁷⁸

Finnish folklorist Lauri Honko began his involvement in the discussions on the Model Provisions in Paris in 1982, as a representative of Finland where he was the director of the Nordic Institute for Folklore in Turku. At a second meeting in 1982, he lamented that the “collector” was not mentioned as an interested party in the draft being discussed.Footnote ⁷⁹ He also doubted that any change of copyright law would be sufficient to achieve what he saw as the ultimate goal, namely to protect folklore from distortion and to ensure its survival. Authorization and collection of licensing fees for its commercial use outside its traditional context, he suggested, could be taken care of by folklore archives, like the ones operating in the Nordic countries.Footnote ⁸⁰ Lauri Honko was thus keen on inserting folklorists and folklore archives as mediators and brokers for the use of folklore on behalf of traditional communities, and he saw this as an opportunity to strengthen folklore research worldwide. In one of his first interventions in Paris, he described the cooperation of Nordic folk archives as an example of regional cooperation to be imitated.

The meetings that followed, to discuss a draft international treaty based on the earlier Model Provisions, reinforced Honko’s doubts about the intellectual property approach to folklore protection. For the second meeting in January 1985 he wrote part of a study outlining the two approaches: safeguarding its cultural value (what he terms “positive” protection) and licensing its commercial use (what he terms “negative” or “restrictive” protectionFootnote ⁸¹). In the study, Honko lists a number of objections to the use of copyright-type protection for folklore. Among these loom large the needs of the archives and museums that want to be able to formulate their own codes for access to and use of their materials.Footnote ⁸²

Honko’s study was part of what became the proverbial spanner thrown in the works. Another meeting of governmental experts in April 1985 again reflected the move away from the intellectual property approach toward what Lauri Honko termed the “positive” aspects of folklore protection. Along with folklorists Lauri Honko (Finland), Vilmos Voigt (Hungary), Samuel Glotz (Belgium), and Jean Roche (France), participants included Indian historian Kumar Suresh Singh, Jamaican anthropologist Beverley Hall-Alleyne, Tunisian musician Fethi Zghonda, and Saudi composer and ethnomusicologist Tariq Abdulhakim. From the International Council of Organizations of Folklore Festivals and Folk Arts (CIOFF), recently granted status as an official UNESCO partner organization, were Philip Conroy (England), Guy Landry (Canada), and Fanny Thibout (Belgium), among others.Footnote ⁸³

The group of governmental experts sidelined the intellectual property aspects of folklore protection while elaborating on the inventorying and archiving aspect. The report that they sent to the General Conference in October 1985 led UNESCO to abandon the idea of an international treaty defining folklore as a special kind of intellectual property. At the General Conference it was concluded that the experts had expressed their preference for the first type of folklore protection (safeguarding) in the form of a recommendation.Footnote ⁸⁴ With this the two-decades long cooperation between UNESCO and WIPO on the issue of folklore protection fell apart, and the hopes that many countries in the Global South had of using folklore to balance the books in the global intellectual property system were again crushed. What remained was the half-hearted inclusion of the licensing scheme in copyright laws in Africa and Asia, usually without regulatory implementation.

We know from later accounts that many of the people who so earnestly participated in these discussions believed that some form of licensing scheme would emerge sooner or later, and for better or for worse. Finnish folklorist Lauri Honko saw a prospect in the discussions, as he believed that the folklore archive could be the answer to calls for further inventorying and research into folklore. He also thought that the archive could serve as the “competent authority” mentioned in the Berne Convention, which would broker rights connected with the commercial use of folklore. As the United States withdrew from UNESCO in 1984, American folklorist Alan Jabbour did not get a chance to continue his work at that time and did not take part in the expert committee in 1985. In the “Director’s Column” of the American Folklife Center newsletter in 1982, however, Jabbour expressed his doubts about the process and warned especially about the primacy it afforded to national governments over communities of tradition-bearers:

From the change in tone of the discussions after 1982 it seems clear that the intervention of folklorists and folk practitioners in the discussions served to confirm the doubts, already present among many other participants at the time, that intellectual property was not a good fit for traditional culture, despite its formal analogy with other artistic creations covered by copyright law. Instead suggesting changes to neighboring rights (i.e., performers’ rights) or a sui generis approach to the question indicated a growing concern that copyright was not the way forward for folklore protection, precisely because of its communal and traditional characteristics.

Finnish folklorist Lauri Honko and Hungarian folklorist Vilmos Voigt continued to work for UNESCO on what became the “Recommendation on the Safeguarding of Folklore and Traditional Culture” (the Recommendation) adopted by UNESCO’s General Conference in 1989. In the Recommendation, the intellectual property aspects are mentioned but decisively sidelined with the focus shifted to “the interest of the collector” and the archive.Footnote ⁸⁶ Although the Recommendation was adopted unanimously by member states at the General Conference that year (thanks in no small part to its nonbinding character, as opposed to a convention or treaty), it failed to gather the expected momentum in the following years. Later studies by UNESCO showed that it had not been implemented either in the Global North or the Global South.Footnote ⁸⁷ Among other things it was criticized for being too bent toward an academic, archivist, and objectified idea of folklore.Footnote ⁸⁸ A more hands-on approach to the subject matter was suggested instead. This was the spirit of the Living Human Treasures program started in 1993, inspired by legislation in South Korea and Japan.Footnote ⁸⁹ Eventually, the nineteenth-century English term “folklore” itself was abandoned as the main subject of discussion, in favor of “intangible cultural heritage,” a concept adapted from East Asian legislation on the preservation of traditional culture.Footnote ⁹⁰ When the ICH Convention was adopted in 2003, UNESCO definitively sidelined the intellectual property aspects of traditional culture, making a clean break with the original idea behind the inclusion of folklore on its agenda four decades earlier.

Conflict and doubt over the inclusion of folklore on the agendas of UNESCO and WIPO was already apparent as of the Stockholm revision meeting in 1967. While diplomats and experts from Africa, Asia, and South America felt that folklore should be a globally licensed good, hoping to balance the books of the global intellectual property system between the Global North and the Global South, legal experts from the Global North repeatedly expressed their doubts. Experts in intellectual property law eventually recommended a sui generis approach instead of substantial changes to copyright legislation.

The two positions can be summarized on the one hand as the gap hypothesis (folklore is analogous to other types of artistic endeavor and the fact it is not covered by current regulations constitutes a gap to be covered in the global intellectual property system, and on the other as the bad fit hypothesis (folklore is fundamentally different from other types of artistic works as it is collectively created and manifested in an infinite variety of versions over extended periods of time, so applying intellectual property legislation to it is like trying to fit a square peg into a round hole.

Neither position fully captures the fact that the global intellectual property system is founded on a historical distinction between two types of creativity at its inception in the nineteenth century. This distinction is not based on content or form but on derivation and circulation, and ultimately on class and colonial relations. The system derives its value from positing a difference between the “art” created by bourgeois artists and the “folklore” created by peasants, workers, colonial subjects, and Indigenous peoples. Folklore is thus a constitutive outside of art, making it categorically unprotected and hence set to become “raw material” for the latter.Footnote ⁹¹ It is only by virtue of its difference from folklore that art becomes protectable subject matter, measured through criteria such as originality, novelty, and authorship. In other words, the very concept of artistic creation underpinning copyright law is founded on the exclusion of folklore – creativity that is distributed in space and time, cumulative, collaborative, and collective.

TRIPs and the reemergence of folklore

After the dismissal of the draft international treaty in 1986, the intellectual property aspect of folklore protection was sidelined for a number of years. Meanwhile, UNESCO explored various means of safeguarding folklore (in the sense of ensuring its future survival), first with the Recommendation in 1989 and later with its Living Human Treasures program in 1993, which focused on the transmission of traditional culture rather than its conservation in archives. This marked a change from a European paradigm focused on the protection of expressions and their traces to an East Asian paradigm focused on recognizing master performers and ensuring the continued viability of their traditional arts.Footnote ⁹² Both Japan and the Republic of Korea had for decades had systems in place for the protection and preservation of intangible cultural assets, and this provided UNESCO with an alternative model of cultural preservation.Footnote ⁹³

In 2003 an international convention was adopted for intangible cultural heritage, or ICH for short. The convention was successfully negotiated in less than 3 years, thanks to the determined support of Japan, with Japanese diplomat Koichiro Matsuura serving as the director-general of UNESCO between 1999 and 2009.Footnote ⁹⁴ The ICH Convention places a heavy emphasis on source-group consultation, which Alan Jabbour had struggled to propose to the expert working group 20 years earlier.Footnote ⁹⁵ This is not coincidental, as Alan Jabbour was among the participants in a conference entitled “A Global Assessment of the 1989 Recommendation On the Safeguarding of Traditional Culture and Folklore: Local Empowerment and International Cooperation” at the American Folklife Center in Washington D.C. in June 1999. Along with the Nara Conference on authenticity in Japan in 1992,Footnote ⁹⁶ this conference was influential in setting out some of the initial terms of what would eventually become the ICH Convention, including the importance of consulting with source communities.Footnote ⁹⁷

The fate of the proposed folklore convention of 1984 led to the temporary abandonment of attempts to make folklore a globally licensed good for commercial use. Instead of balancing an intellectual property system favoring old colonial empires, UNESCO sought to balance its system of world heritage, long criticized as too Eurocentric.Footnote ⁹⁸ Folklore, however, came back to haunt the intellectual property system at the very moment that system seemed to triumph globally as part of a sweeping international trade agreement.

The issue of defining folklore as intellectual property reemerged when a crisis in the global trade system highlighted the imbalance in current standards of intellectual property. In 1999 the ministerial conference of the World Trade Organization (WTO) in Seattle was meant to usher in a new round of discussions about global free trade with the wider mandate of the recently founded international organization (the WTO was founded in 1995) and a new focus on trade in immaterial goods as detailed in an “Annex on Trade-Related Aspects of Intellectual Property Rights” (TRIPs for shortFootnote ⁹⁹). Earlier that same year, a number of Latin American countries requested that WIPO initiate a discussion on access and benefit sharing, as outlined in the Nagoya Protocol of the United Nations Convention on Biological Diversity of 1993, based on the traditional knowledge of medicinal properties of plant varieties:

What followed in Seattle in December 1999 was described in Newsweek as an “unmitigated disaster.”Footnote ¹⁰¹ Loud protests of crowds outside the conference venue were matched by the activities of nongovernmental organizations (NGOs) inside. Many NGOs from the Global North (seconded by US president Bill Clinton himself) wanted the WTO to include labor and environmental protections in the negotiations. This would have made markets in the Global North even less accessible for agricultural and textile producers in the Global South. States in the Global South, on the other hand, supported by many Indigenous NGOs, complained about the negative impact of the TRIPs agreement, especially Article 27.3(b) with its obligation to allow the patenting of plant varieties, microorganisms, and microbiological processes.Footnote ¹⁰² Bioprospecting (the use of plant varieties obtained from countries with rich biodiversity for the development of food supplements or new medicine) was especially targeted as a neocolonial form of exploitation of the Global South by the Global North, as seen in this declaration from the caucus of Indigenous NGOs at the meeting in Seattle:

This way TRIPs specifically, and the global patent system more generally speaking, came under scrutiny and criticism from many states parties and NGOs, especially Article 27.3(b).Footnote ¹⁰⁴ A disclosure requirement (that if a patent was granted on the basis of a plant specimen, for example, or traditional knowledge, this should be made clear in the patent application) was suggested as a means of counterbalancing increasing pressure for implementing the patentability of plant varieties. Without a disclosure requirement, it was argued, the latter would increase the risk of appropriation of Indigenous knowledge by bioprospecting firms. The term “biopiracy” had been coined in this context by Canadian environmentalist Pat Mooney in 1993 and popularized by Vandana Shiva’s 1997 book Biopiracy: The Plunder of Nature and Knowledge. In Seattle, many Indigenous and peasants’ NGOs argued that TRIPs facilitated biopiracy.Footnote ¹⁰⁵

Around this time there was a change in administration at the WIPO. A former International Legal Council member, Sudanese statesman Kamil Idris, was appointed director-general in 1997. According to Antony Taubman, who headed the Global Intellectual Property Issues Division of WIPO from 2002 to 2009, there was a different perspective at the senior level in WIPO that broader issues of Indigenous rights and the relation of intellectual property with the conservation of biodiversity could not be ignored as unrelated to the core normative work at WIPO or as a purely political issue that might eventually go away.Footnote ¹⁰⁶

Following a number of fact-finding missions in the late 1990s, WIPO was set to discuss the concerns expressed by many states in the Global South in relation to the ministerial conference in Seattle and elsewhere. Hence, as part of a diplomatic understanding at the conclusion of the diplomatic conference for the Patent Law Treaty in June 2000, Kamil Idris proposed that access and benefit-sharing related to genetic resources, traditional knowledge, and folklore should be discussed together by an intergovernmental committee founded in the same year. As far as the discussion on folklore was concerned, this included the baggage accumulated during previous discussions extending all the way back to the 1960s. The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) met for the first time in Geneva in April 2001.

As a consequence of these events, talks on the intellectual property aspects of folklore were revived within WIPO in 2001 and continued since at the meetings of the WIPO IGC in Geneva. Initially, member states from the Global North, such as the United States, Japan, Canada, and the EU members, were firmly opposed to any kind of normative work in this forum. That gradually changed after nearly a quarter-century of regular meetings.Footnote ¹⁰⁷ With a broader, more inclusive mandate than the WTO, the WIPO IGC has become a forum to discuss emerging norms in intellectual property, related to both human rights and environmental issues.Footnote ¹⁰⁸ This eventually led to the adoption, in May 2024, of the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, which stipulates a disclosure requirement for patent applications, expressly recognizing the role of Indigenous peoples as holders of traditional knowledge.Footnote ¹⁰⁹

In 2005, in a famous speech on the occasion of the 60th anniversary of UNESCO, during the tenure of Koichiro Matsuura, the famous French anthropologist Claude Lévi-Strauss made the case for distinguishing different cultures, arguing that relative separation was a condition for their survival as distinct entities when faced with the threat of globalization.Footnote ¹¹⁰ Cultural diversity, he argued, was not just analogous to biodiversity, but the very same diversity, with culture and nature being two sides of the same spectrum of human differences.Footnote ¹¹¹ While these were essentially the same talking points that Lévi-Strauss had used in a paper delivered to UNESCO in 1971, to a cool and critical reaction by UNESCO officials, this time he received a standing ovation.Footnote ¹¹² In 2005 cultural differences were no longer considered an impediment to human progress, related to violent and reactionary jingoism, but as important resources for the development of the human race, threatened by a process of human “monoculture” created by globalization.Footnote ¹¹³

With many NGOs representing Indigenous peoples working in other UN fora in Geneva in the early 2000s (for example, working groups within the United Nations Human Rights Council and the Convention on Biological Diversity), some of them “spilled over” to the WIPO IGC, as one Indigenous IGC delegate put it in an informal chat with the author of this article.Footnote ¹¹⁴ This happened once they became aware of the fact that matters discussed there were of relevance to the human rights issues and access and benefit-sharing debated in the other fora. The problematic relationship between the traditional knowledge that many communities have of the medicinal properties of certain plants, and the patenting of new supplements or medicine based on that knowledge by pharmaceutical companies, follows the same pattern as the creation of a new copyright-protected song using a traditional tune, for example. Like traditional culture, traditional knowledge easily becomes raw material for the innovation of others.

Canadian law professor Daniel J. Gervais, who was a member of the original TRIPs negotiating team in the 1990s, wrote in an article published in 2001 about what he saw as two major challenges to the global system of intellectual property: the Internet on the one hand, and traditional culture on the other.Footnote ¹¹⁵ Gervais argued that the current intellectual property system discriminates against creators of traditional culture and holders of traditional knowledge, while protecting those who benefit from cultural productions and inventions directly derived from their work; he described this as a “perverse, if unintended result.”Footnote ¹¹⁶ Gervais acknowledged that the changes required to accommodate the traditional within current intellectual property regulations may stretch the system beyond what could be considered reasonable, and conceded that:

As mentioned previously, several strategies have been proposed to meet this challenge. These include the domaine public payant licensing scheme and the disclosure requirement for patent applications, recently adopted by the General Assembly of WIPO (its first internationally binding result after a quarter-century of committee work and meetings). The use of a sui generis approach, with special treaties dedicated to folklore (as was proposed in 1984) and genetic resources (as was adopted by WIPO in May 2024), avoids the question of whether fundamental changes to the global intellectual property regime are required to accommodate traditional culture and traditional knowledge, setting it apart from the main international treaties governing copyright, patents, trademarks, and trade secrets.

These issues were first pointed out by African intellectuals who participated in joint UNESCO/WIPO conferences in the early 1960s. They mirror concerns expressed by many folklorists at around the same time about what they perceived as the plagiarization of traditional music originating in Anglo-American and European rural contexts.Footnote ¹¹⁸ They have been reiterated many times, not just by state representatives from the Global South but also by NGOs representing Indigenous peoples. Globally, similar cases abound in the fields of design, crafts, performing and visual arts, agriculture, and medicine. They are the subject of a growing body of case study literature on cultural property and cultural appropriation.Footnote ¹¹⁹ They highlight a fundamentally imbalanced structuring of the value chain created by intellectual property that skews it in favor of Western mainstream creators and producers against rural communities and former and present colonial subjects, including Indigenous peoples. The historical relations of domination and exclusion on which the system of intellectual property was founded seem inescapable. The constitutive outside cannot be incorporated without a fundamental revision of the system itself. To date, there has not been much appetite for such revision in the Global North. The books have not been balanced.