During the last decades, the discussion on the protection of traditional cultural expressions1 of traditional communities and indigenous groups has gained prominence internationally in academic circles and policy-making fora. Reasons for this are the new challenges and opportunities arising for intellectual property rights through digitization, increased connectivity and content-sharing in the information society, but also the extensive propertization of culture and the commercialization of intangible goods in our times, as well as the socioeconomic effects of globalization on non-dominant cultures of the world, that have seen their cultural heritage being threatened by the modern realities.
The protection of traditional cultural expressions has been a persistent and uncompromised demand of the developing world, chiefly of countries in the African continent, regarded as a matter related to manifold interests of national importance. The major anxieties of the so-called ‘demandeurs of protection’ are the appropriation and exploitation of their folkloric expressions by third parties, resulting to their cultural deterioration and economic damage. These anxieties are followed by concerns relating to the inadequacies of traditional copyright law in protecting expressions of folklore and the subsequent need to create an appropriate legal framework that will respond to the particularities of the subject matter. The latter is referred to as ‘sui generis protection’ in that it features provisions specifically tailored for expressions of folklore that eliminate the gaps of existing copyright law and provide efficient protection, indicatively by indefinite protection and exception from the requirements of originality and fixation.
The first international initiatives for the protection of folklore took place in the ’70s by the Word Intellectual Property Organization and UNESCO, still particularly active in the efforts to resolve the matter. Among these the most notable are the Tunis Model Law on Copyright for Developing Countries of 1976, the Model Provisions for National Laws on the Protection of Folklore against Illicit Exploitation and Other Prejudicial Actions of 1982, and the UNESCO Recommendations on the Safeguarding of Traditional Culture and Folklore of 1989. Although the aforementioned texts are not binding, they have had an important impact both in providing guidance to the countries desiring to implement relevant legislation at the national level, and in documenting in a systematic manner the key-concepts of protection to be further studied and discussed at the international level.
Although there is a wide acknowledgment of the need to protect folklore for its intrinsic value for both the specific communities that are linked to it, as an important means of expressing their identity, and for humanity as a whole, no successful attempt has been made up to now to address the issue of protection in a comprehensive manner at the international level. This is partly owing to the fact that the legal aspects of protection are fragmented in intellectual property, cultural, economic, and human rights regimes, but it is mainly due to the existing major conceptual differences between local traditions and established global law, as expressing the values of the industrialized modern societies. The protection of folklore raises serious policy issues, as it concerns a subject matter traditionally belonging to the public domain, and collides with fundamental intellectual property concepts that are targeted to balance the interests of the authors in exploiting their work with the needs of society for access to knowledge and promotion of creativity.