Two days ago I asked whether we should extend copyright protection to folklore. Thank you all for your interesting and informative replies.
Here are some possible answers which I don’t find sufficiently forcing:
1. Folklore has already been produced. TC: Of course you could say the same for a good deal of music. Why treat folklore differently?
2. Most folklore is very old and copyright protection would have expired by now anyway. TC: Folklore is not so old and musty; rather it evolves frequently and changes rapidly. Here is one source on contemporary folklore, here is another. Here is a brief account of contemporary Haitian folklore.
3. Folklore could never have evolved in the first place, had much earlier folklore received copyright protection. TC: This point is true, but you still could have copyright protection against for-profit uses of folklore. Author Edwidge Danticat can publish and copyright a processed version of folklore. Since those books bring in money, the law could stipulate that some royalties go back to the folklore creators.
4. Copyright is an incentive for future production, and we’re not going to have much future folklore anyway. TC: Hard to disprove a claim of this kind, but I don’t believe it. Arguably folklore has never been more vital than in today’s world.
So we are left with the following:
5. With folklore it is harder to define a clear line between copying and independent discovery. Similarly it is hard to draw a clear line between general inspiration and outright borrowing. Borrowing in general is harder to trace, a given derived story could have come from numerous sources. TC: This argument carries real force with me, although how different is music, consider George Harrison.
6. A culture is better off if other cultures can borrow its tales and “memes” without restriction. TC: Copyright holders could always waive their rights if that were beneficial, though admittedly there is an externalities problem for a culture as a whole. And again, you could apply the same argument to music.
7. Folklore is collectively produced, ownership is hard to assign, and there are no relevant corporate entities in most cases. Entrusting copyright ownership to “tribes” will encourage politicization and rent-seeking behavior. TC: Hard to argue here.
8. Folklore rarely offers a final, set, canonical, or well-defined final product. TC: I wonder if digital technologies will move other art forms in this same direction.
All interesting hypotheses. Many of them might be true, I still can’t get past “I don’t trust the courts in these other countries to enforce copyright in folklore, it will just lead to rent-seeking.” See my earlier post, at the first link, for further clarification.
I hope to soon consider other angles on related problems, such as whether there is a right to cultural privacy.