Why not property rights in folklore?

Recent UNESCO/WIPO proposals have called for the creation of copyright in folklore and oral culture. In other words, if a corporation drew from the native stories of a tribe, it would owe royalties or could face legal sanctions.

We all know that U.S. copyright typically protects the expression of an idea, and not the idea itself. But hey, native tales and folklore are expressions of sorts, just not durable ones in the way we are accustomed to protecting. I don’t see any principle in the pure theory of copyright itself that should rule out such an extension.

So why don’t we do protect folklore by copyright? First of all, whose courts do we trust to get it right? Presumably Ghanaian courts should decide when Disney has borrowed too much from native folklore, the incentive problems are obvious. The difficulties multiply if the “victimized” tribe crosses national boundaries.

And how does this sound, noting that the Hague Convention allows for the enforcement of “sui generis” copyright laws as well?

…if Cuba enacted a sui generis regime and declared that the Cuban “beat” was intellectual property, it could get a judgment in Cuba against US record companies that were engaged in cultural “piracy,” and demand for example, 5 percent of the revenues from global sales of music that use the Cuban beat. Other countries could do the same thing. These judgments would be enforceable globally, under the [Hague] Convention. So too would bio-piracy judgments against US and European biotechnology and pharmaceutical companies, for “stealing” traditional knowledge, or exploiting without benefit sharing a variety of biological and genetic resources. The motion picture industry could be hit with new sui generis IPR liabilities by countries that give rights in history. Countries like China, which is a member of the Hague Conference, could use this to limit who could actually make films about China. The Hague convention would instantly create a legal framework to legitimatize all of these new IPR claims, and it would not even matter if the “infringing” party did business in the country at all, since the judgments would be enforceable globally, in any Hague member country, and the claims could be based upon shares to global (rather than local) revenues of products.

By the way, three Maori tribes are threatening to sue Lego for using Maori and Polynesian words in a computer game. Some countries are already establishing copyright protection for folklore, though not always in a Hague-consistent fashion.

OK, OK, I’ve been talked out of the idea of copyright protection for folklore. But when you boil down the criticisms, what do they really amount to? Is it much more than “we don’t trust other peoples’ courts to enforce the decisions that we enforce on other countries all the time”?

Where to go from here: Copyright is enormously useful, but its boundaries are morally arbitrary to a considerable degree. Unfortunately a too-public recognition of this arbitrariness interferes with its usefulness. By asking for copyright protection for folklore, the poorer countries are pushing on this tension in copyright law.

If you can think of a good economic reason for not allowing copyright protection for folklore, let me know, I will offer your proposals in a future post. Don’t send in “we can’t trust their courts,” I’ve already cited that argument.

Thanks to Daljit Dhadwal for the pointer to the topic and the Cuba quotation.


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