Between Intellectual and Cultural Property: Myths of Authorship and Common Heritage in the Protection of Traditional Cultural Expressions.

Author:Fredriksson, Martin


If we as an international community of critical scholars want to tackle the problem of how to embrace non-Western framings of law, we have to confront the supposed absence of myth in "modernity". The birth of the rational man and modern law are indeed just as mythical; the portrayal of the lawless nature of the savage has been used to justify the need for rationality and universality, but these concepts are just as mythical as the savage's supposed irrationality and bestiality. Instead of exoticising the other, the law needs to decolonise internally, only by "exoticising" its own myths can it de-exotise the other. (Vermeylen 2013, 200) As Saskia Vermeylen points out, dichotomies between Western and non-Western, or traditional and non-traditional, cultures convey preconceived images of "the other", but they also convey preconceived images of "oneself". The challenge when speaking from a culturally dominant position is not so much to deconstruct the image of the other, but to deconstruct the image of oneself and acknowledge the power that image exercises. This article addresses how the dichotomy between commons and authorship--between collective creativity and private appropriation--is inscribed in a colonial imagination. The discursive polarization between "traditional" culture and "modern", "Western" culture incorporates different understandings of authorship, commons, and intellectual and cultural property. This article analyses how authorship and the commons are conceptualized in a legal discourse on traditional and non-traditional cultural expressions, approached through a decolonizing perspective which takes the colonising culture, and not the colonised, as its object of deconstruction.

The article begins with an overview of how the discourse on traditional cultural expressions has changed since the 1970s and how it relates to the parallel and partly intertwined discourse on biopiracy and the protection of traditional knowledge and genetic resources. This highlights the impossibility of making clear-cut distinctions between natural and cultural--material and immaterial--resources. This is followed by a discussion on the romantic idolisation of the individual author but also of collectively created folk art and how this challenges the dichotomy between Western and non-Western art as one between individual and collective authorship. This leads up to an analysis of a particular paragraph in the Swedish copyright law, known as "the protection of classics", which serves as a case study that exemplifies how a Western law, based on individual rights of authorship, also acknowledges works of particular importance as common cultural property. Looking at the protection of classics contributes to an internal decolonisation of Western law by exposing the inconsistencies hiding behind the myth of rationality. The last section relates the question of authorship to a hierarchy of different property regimes and discusses what these different perspectives on traditional and non-traditional, cultural expressions actually say about how we can view authorship, commons and intellectual property. Finally the article reflects on how the protection of classics offers a space of intervention where an internal decolonisation of Scandinavian copyright law can take place.

From Folklore to Traditional Cultural Expressions

Since its adoption in 1886, the Berne Convention for the Protection of Artistic and Literary Works has been one of the most important instruments for the international harmonization of national copyright laws. When the Berne Convention was revised at the Stockholm meeting in 1967, an amendment was passed that protected anonymous and unpublished works. This was the first attempt to provide some kind of international copyright protection for expressions of folklore (Hemmungs Wirten 2010; Hafstein 2014). It coincided with a global development towards decolonization, in which some nations were gaining independence from former colonial empires while other, sovereign, developing nations were claiming participation and influence in international politics. At the Stockholm meeting, the issue of global justice took an important position on the Intellectual Property Rights (IPR) agenda which lead to, for instance, a discussion of the global exchange of knowledge. Representatives of the developing world criticized the global IPR regime for maintaining colonial inequalities that positioned them as "recipients of knowledge ultimately produced somewhere else", while it discarded and excluded folklore and traditional knowledge as not qualified for protection (Hemmungs Wirten 2010, 550).

During the 1970s, developing countries saw how traditional patterns and expressions of folklore were being increasingly commercialized, and called for the United Nations Educational, Scientific and Cultural Organization (UNESCO) to establish protection for folklore. UNESCO turned to the World Intellectual Property Organization (WIPO) and together they developed the "Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions". This document was presented in 1985 as a model for the protection of folklore that states could utilize in national legislation at will. The model provisions were originally intended to lead to an international convention. Although this never happened, the model provisions did have an impact on national legislation. One example is Ghana, which incorporated a protection for folklore into its national legislation the same year that the model provisions were released (Perlman 2011; Boateng 2011; de Beukelaer & Fredriksson forthcoming).

The political landscape changed in many ways during the 1990s. Global justice remained a core issue, but a wider range of social interests, such as the environment and indigenous rights, made their way onto the political agenda. These perspectives were also present in the Convention on Biological Diversity (CBD), which was adopted by the UN in 1992. The main focus of the convention was environmental protection, but it acknowledged indigenous rights, with Article 1 of the CBD calling for a:

...fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding. (CBD Article 1) This statement refers not only to biological resources, but also to the rights of indigenous people to the traditional knowledge that they hold about those resources. This was intended to address the problem of biopiracy that had grown throughout the 1980s. Biopiracy refers to the illegitimate appropriation of locally held knowledge by non-local commercial actors. It is usually associated with Western pharmaceutical companies who forage the rain forests of biodiversity-rich developing countries to exploit and commercialize biological substances that have been used by indigenous people for generations.

The most obvious problem with biopiracy is that it reinforces economic inequalities through a neocolonial appropriation of commercially valuable resources from the developing world. There is, however, also a cultural side to biopiracy, since it tends to decontextualize resources--not only the plants and species themselves, but also locally held knowledge on how to use them--that play an important role in local traditions and cultures. There are, in short, cultural and religious values to these resources that are neglected and violated when they are commercialized as products for Western consumers (Shiva 2007; Oguamanam 2006; Robinson et al. 2014; Dahlin & Fredriksson 2017; Fredriksson 2017). The debates about patenting of traditional knowledge speaks to the impossibility to make a clear distinction between natural and intellectual resources in traditional communities, as well as to the problems that arise when alienating certain resources from their original context.

Throughout the 1990s, the views held by WIPO and UNESCO on folklore began to change. Cultural expressions increasingly came to be regarded as embedded in holistic cultural systems, much like traditional knowledge. Erica-Irene Daes concluded in a WIPO report from 1993 that "A song, for example, is not a 'commodity', a 'good', or a form of 'property', but one of the manifestations of an ancient and continuing relationship between the people and their territory" (Daes 1993, in Perlman 2011). At the WIPO and UNESCO World Forum in Phuket in 1997, representatives of indigenous peoples in Australia criticized the concept of "folklore" for being: "narrowly defined". They argued that it should not be limited to artistic expressions but should include "knowledge systems and biological diversity". Since the word "folklore" was seen to connote inferiority, they recommended replacing it with "indigenous intellectual and cultural property" (Perlman 2011). In the following years, UNESCO and WIPO undertook a number of fact-finding missions. The term "traditional knowledge" became increasingly used, and came to encompass expressions of folklore.

UNESCO and WIPO issued their "Revised Provisions for the Protection of Traditional Cultural Expressions/ Expression of Folklore" in 2005. This was an attempt to create guidelines for the protection of folklore, which in the document was primarily defined as traditional cultural expressions (TCEs). This change of terminology marked a turn in views of folklore/TCEs.

There are several significant differences between folklore as it is defined in the model provisions and the understanding of TCEs that underpins the revised version. The model provisions saw folklore as an artistic expression, while the revised version sees TCEs as an expression of "traditional culture and knowledge". The revised version...

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