Can Folklore be protected by copyright?

Folklore has great artistic value but, most importantly, is part of the cultural and historical human heritage. It results from the formational and developmental processes of human society. It reflects cultural and social identity and can be transmitted orally or physically, according to the various forms in which they are manifested, such as literature, music, customs, art, or architecture. Examples of famous folklore include the German Erzgebirge Wooden Figures, Turkish Tekke and Asik, Vietnamese Đông Hồ paintings, One Thousand and One Nights from the Middle East, Ukrainian Easter eggs, and Easter Island Statues.

Another feature of these works is that they were often created by unknown authors hundreds of years ago. This conflicts with standard copyright rules where the author's identity is the most crucial factor in protecting a work by copyright. The question thus arises, how to protect copyright for folklore?

Figure 1: Folk art from Ukraine - Ukrainian Easter Eggs

One attempt at a solution comes from the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), which has 181 member states (Berne Convention, 1886, p.13). This convention, nevertheless, does not provide a specific regulation on folklore works and only mentions unpublished works where the author's identity is unknown, as below:

In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union (The Berne Convention, Article 15(4)(a))

Through this provision, the country's representative will likely protect folklore by copyright. However, an important question is whether these works are bound or protected by the law of each country. This article will provide an answer by analysing two different instances of folklore protection in Germany and Vietnam.

Folklore protections in Vietnam

Vietnamese Intellectual Property Law, Article 23 states:

Folk literature and artworks are collective creations on the traditional basis of a group or individuals to reflect the aspirations of the community, commensurate with their cultural and social characteristics. Standards and values are communicated by simulation or otherwise. Literary and folk artworks include: (a) Stories, poems, and riddles; (b) Singing, musical melodies; (c) Dances, plays, ceremonies and games; and (d) Graphic art products, paintings, sculptures, musical instruments, architectural models and other art forms expressed in any material form.

Accordingly, folklore is listed in a closed list and protected by this law. In addition, a work protected by intellectual property rights under Vietnamese law must be a work that the author directly creates with his or her own intellectual labor without copying another person's work (Intellectual Property Law, Vietnam, Article 14(3)).

One barrier to using the law to protect folklore is that most folk works were created by unknown authors decades or centuries ago. Therefore, Vietnamese law permits all to use these folk works provided that the user explicitly references the source. This setup ensures the preservation of the actual value of the work (Intellectual Property Law, Vietnam, Article 23(2)). Folk works, thus, fall into an exception to Vietnamese Intellectual Property and Copyright Law, so anyone can use them without paying royalties.

Furthermore, general works are protected for the life of the author and 50 years after the author's death (Intellectual Property Law, Vietnam, Article 27 (2)). The same provision protects anonymous work for 70 years from the time the work was first published. Therefore, although the term of protection for anonymous works in Vietnam is 20 years longer than that of the Berne Convention (Bern Convention, Article 7 (3)), it is not contrary to the provisions of this convention.

Figure 2: Thanh Giong, Vietnamese Folklore

In addition to provisions in the Intellectual Property Law, Vietnam has also introduced measures to preserve this particular type of work under the Cultural Heritage Law. Accordingly, folklore expressing the national identity reproduced and passed on for generations is considered the cultural heritage of the whole country, which provides measures to preserve and maintain them.

Folklore protections in Germany

Germany, on the other hand, like Berne Convention, does not provide a specific regulation on copyright for folklore. In Section 2, the German Act on Copyright and Related Rights (the German Copyright Act) about protected works, one can find a list of different types of protected works without mentioning folklore or folk artworks. As a result, it is not clear whether folklore is integrated within the protected category of works or not.

The act also states that only the author’s intellectual creations constitute works within the meaning of this act, and the author is the creator of the work (German Copyright Act, Section 2 and 7). Therefore, based on this Act, folklore cannot be protected by copyright when the author is unknown.

The German Copyright Act also provides for anonymous works as orphan works. Formally, however, orphan works include those that have already been published and the right holder of which could not be established or traced (the German Act on Copyright, Section 61). At the same time, in the article Orphan Works Database on the European Union Intellectual Property Office website defines orphan works as “works that are still protected by copyright, but whose authors or other right holders are not known or cannot be located” (“Orphan Works Database - Observatory - European Union Intellectual ...”).

Thereby, folklore is not mentioned, even though these works described are partly folklore. Considering all this, the German Copyright Act does not provide any specific regulations on folklore, folk artworks or even folk tales or folk music, despite the fact that these works are quite famous and have cultural solid values in Germany.

Figure 3: Bavarian music - A kind of folk music in Germany

Discussion

The author analyses copyright law in Vietnam as an example of countries that protect folklore by copyright law. In contrast, Germany and many countries do not include copyright protection in this case in their statutory law. The author believes protecting folklore by copyright is not practical based on the following reasons:

Firstly, copyright law aims to protect the right of the author or the creator through the creation and intellectual labor. If the creators and authors of such works cannot be explicitly identified, the rights attached to the law have no practical value, such as the moral rights of authors and exploitation rights.

Secondly, folklore is the common property of the whole community, creating a unique identity for the culture of each nation. At the same time, the characteristics of folk works are oral transmission through the generations and collective character. Therefore, granting copyright to individuals or organizations loses the inherent characteristics of folk works.

Thirdly, allowing people to use folklore based on respecting the nature and value of such works will increase creativity and make folklore diverse and last forever.

Many scholars also believe protecting the copyright, in this case, is difficult. Unlike works of intellectual property, folk works are created for no economic purpose by the creator but are intended to be exploited communally by the community (Morolong, 2007, p. 64). Many countries try to preserve their culture instead of binding it by copyright law. Furthermore, in the opinion of the author, folk culture needs to be maintained, preserved and promoted in all forms, including the possibility of making new artworks based on respect for the specificity of previous generations' folklore and artworks.

Bibliographical References

Berne Convention for the Protection of Literary and Artistic Works. (1886, September 9). WIPO Lex. https://wipolex.wipo.int/en/text/283698

Berne Convention for the Protection of Literary and Artistic Works. (1886a). WIPO. Retrieved September 22, 2022, from https://www.wipo.int/export/sites/www/treaties/en/documents/pdf/berne.pdf

Latest Act of the Convention to which State is party and date on which State became party to that Act, Status on June 9, 2022

Intellectual Property Law, Vietnam. (2019). thuvienphapluat.vn. https://thuvienphapluat.vn/van-ban/So-huu-tri-tue/Van-ban-hop-nhat-07-VBHN-VPQH-2019-Luat-So-huu-tri-tue-nam-2005-424231.aspx

Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG). (n.d.-b). Retrieved September 19, 2022, from https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html

Draft Recommendation to Member States on the Safeguarding of Folklore. (1989). Unesdoc Digital Library. https://unesdoc.unesco.org/ark:/48223/pf0000083102

Orphan Works Database - Observatory. (n.d.). European Union Intellectual Property Office Observatory. https://euipo.europa.eu/ohimportal/en/web/observatory/orphan-works-db?TSPD_101_R0=085d22110bab2000d9ef3685f907043439a5673d30787ed5a8370d17e5b0b860c87651ccc63885b50867093d501430009bf83e1866c7997164590877067439769968c29d73746efddea9a116a748cc7e19a97bacc22bf6e787f2d8033824aa47

Morolong. (2007, May 23). Indigenous Knowledge System and Intellectual Property Rights in the Twenty-First Century: Perspectives from Southern Africa. Codesria.

Visual Sources