Attempts to recognize cultural difference in rights discourse: collective rights to folklore and the steel pan

• Author: Sharon Le Gall
• Position: LL.B (Hons) LL.M (Osgoode), Lecturer in Law, University of the West Indies, Cave Hill, Barbados, Attorey-at-Law
• Pages: 189-207

ATTEMPTS TO RECOGNIZE

CULTURAL DIFFERENCE IN

RIGHTS DISCOURSE:

COLLECTIVE RIGHTS TO

FOLKLORE AND THE STEEL PAN

SHARON

LB

GALL*

Introduction

Folklore has been described as "the real "common property' of the commu-

nity

."11

This element of communality is reflected in the definition of folklore

found in the Tunis Model Law on Copyright for Developing Countries

(1976) (hereafter the Tunis Model Law) which speaks of

folklore

created by

"authors presumed to be nationals of

a

country" and ''ethnic communities",

passed from generation to generation.2 This was one of the first forms of

model legislation which sought to address the issue of protection of folklore

using copyright legislation. From the time of the formulation of the Tunis

Model Law in 1976 until the early 1990's, there was significant discussion

about folklore protection with intellectual property law being the almost

natural choice of law (more specifically, copyright law) to achieve that

objective. Since the latter part of the 1990's, the term 'folklore' has become

*LL.B (Hons) LL.M (Osgoode), Lecturer in Law, University of the West Indies, Cave

Hill, Barbados, Attorey-at-Law. An earlier version of this paper appears as part of her

unpublished LL.M thesis, entitled preserving One's Narrative: Implications of

Intellectual Property Protection of Folklore and the Steel Pan in Trinidad and Tobago,"

York University (1994).

1 See Dan Ben-Amos,

Folklore

in Context,

Essays

(New Delhi, Madras: South Asian

Publishers, 1982) at p.5.

2 Section 18 of the Tunis Model Law defines 'folklore' as all literary, artistic and scientific

works created on national territory by authors presumed to be nationals of such countries

or by ethnic communities, passed from generation to generation and instituting one of

the basic elements of the cultural heritage.

subsumed in the new catch phrase 'Indigenous Knowledge' or 'Traditional

Knowledge' or even to a lesser extent 'Logal Knowledge' which terms are

used interchangeably, although some writers feel that they mean different

things.3 It is more common now to speak of protection of lndigenous Knowl-

edge or Traditional Knowledge as opposed to folklore, although folklore can

be considered a significant part of Indigenous Knowledge or Traditional

Knowledge in some parts of the world.5

The Barbados Copyright Act, 1998, No,4 of 1998 (hereafter 'the Barbados

Copyright Act*) attempts to address the issue of folklore protection in section

22(5) and (6), Section 22(5) provides that in respect of folklore, that is to say,

all literary and artistic works, that (a) constitute a basic element of the

traditional and cultural heritage of

Barbados;

(b) were created in Barbados by

various groups of the community; and (c) survive from generation to generation> the rights of the author vest in the Crown to the same extent as if the

Crown had been the original creator of the folklore. Section 22(6) provides

that the rights of the Crown in respect of folklore are enforceable at the instance

of the Attorney-General These rights are assumed to be the economic and

moral rights to which authors are entitled under the Act.

The Tunis Model Law, on the other hand, provides that where a work is

that of national folklore (or derived therefrom) its protection is governed by

section 6(1) which states that 'works of national folklore shall be susceptible

to the rights referred to in section 4 (economic rights) and 5(1) (moral rights)

which shall be exercised by what is designated as the 'competent authority'.

Any attempt to protect or preserve folklore must be considered within the

context of that "group or collective" which is responsible for its existence. The

history of the evolution of the steel pan is another manifestation of a commun-

3 See John Mugabee, "Intellectual Property Protection and Traditional Knowledge," in

"Intellectual Property and Human Rights," a panel discussion organized by the World

Intellectual Property Organization (WIPO) in collaboration with the Office of the United

Nations High Commissioner for Human Rights (OHCHR), November 9, 1998.

4 See article 8j of the Convention on Biological Diversity, 1992 which mandates Contracting

Parties, as far as possible and where appropriate, 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.

5 Note the observations recorded in the WIPO Report on Fact-Finding Missions on

Intellectual Property and Traditional Knowledge (1998-1999), entitled "Intellectual

Property Needs and Expectations of Traditional Knowledge Holders," Geneva (2001).

The Fact-Finding Missions were conducted in the South Pacific, Eastern and Southern

Africa, South Asia, North America, Central America, West Africa, Arab Countries, South

America and the Caribbean Region.