Safeguarding Traditional Culture and Folklore --
Existing International Law and Future Developments.

Janet Blake
Visiting Research Fellow
School of Law, University of Glasgow

Introduction

This paper examines existing UNESCO texts [1] and programs relevant to the safeguarding of traditional cultural and folklore heritage (“folklore”), [2] in order to consider the need to elaborate a new Convention; it also examines the viability of these texts and programs as the basis for the new initiative. Recognition of “intangible heritage” as a subject for protection is one of the most significant recent developments of international cultural heritage law, [3] and identifying its character has been a major challenge. [4] Understanding the significance of the transmission of information (e.g., how a carpet is hand-woven) and of the skill of the producer of this heritage is central to its definition. The human (social and economic) context of the production of intangible heritage requires safeguarding as much as the tangible product itself and must be considered in evaluating existing or future protective measures. This perspective addresses the enormous economic and cultural impact of globalization, which is mostly perceived as a threat to the continued existence of this heritage itself, [5] but which also has the potential to aid its preservation. [6] The effects of globalization [7] must be borne in mind when developing any new Convention or other programs for safeguarding folklore. An international standard-setting instrument is a means of countering the economic and cultural effects of globalization, [8] which, while it may reduce the role of states, also increases the importance of local identities in countering global pressures. [9] Giving value to folklore may help states legitimize their role in facing the challenge of globalism by fostering local cultural identities within the framework of the state. [10]

The 1972 UNESCO “World Heritage Convention” and Recommendation

The idea of including folklore within the framework of the 1972 World Heritage Convention (WHC) was raised during its drafting. [11] Such heritage may be undervalued by the state, [12] and the WHC would require the state to protect it and the world community to ensure this happens. Central to this Convention is the characterization of its subject as a “universal heritage” deserving of international protection; [13] and its detailed system for international cooperation to support parties in applying this Convention makes it a potential model for raising national and international awareness of folklore. [14] The composition of any World Heritage Committee is crucial, since this Committee formulates the selection criteria and, if it concerned itself with folklore, would need a broad-based membership that reflects the diversity of interest groups. [15] The flexible character of the selection criteria for sites is useful, [16] allowing for re-evaluation in the light of changing world conditions. The provision of finances [17] is important for empowering cultural communities, while educational programs [18] are a valuable means of safeguarding folklore.

It is difficult to see, however, how folklore could be included within the existing definitional terms and provisions of this Convention, which assume that the subject of protection is a physical entity. [19] This presents a major objection to using the WHC as the basis for safeguarding this heritage, since the Convention would require extensive redrafting to be applicable. Certain provisions, however, could usefully be included in a new Convention. [20] In general, the WHC has had the positive effect of encouraging governments to value protected sites, since their inclusion on the World Heritage List lends them an international prestige. [21]

The 1972 Recommendation, developed alongside the WHC, creates a two-tiered approach to protection that encourages the preservation of certain internationally outstanding examples of this heritage through the WHC, while also urging Member States to safeguard all components of this heritage on a national level. The latter is an important long-term aim, while the former activity raises government and popular awareness of the existence and importance of this heritage. The Preamble and General Principles of this Recommendation contain several ideas highly relevant to folklore and worth considering in drafting a new Convention, in particular, those provisions that reflect the importance of local empowerment and the use of “bottom-up” measures. [22]

The 1989 Recommendation — An Evaluation

This Recommendation characterizes folklore as part of the “universal heritage of humanity,” which raises complex legal issues [23] and seems particularly inappropriate to folklore, given its local rootedness and its centrality to community identity. The local and global can be seen as two sides of one coin, [24] and a universalist approach may be useful in giving value to heritage where the state fails to do so. [25] However, as a legal characterization, it remains problematic. The list of potential threats is open-ended, because of changing social and economic factors such as technological advances. [26] The requirement for governments to take action by applying the principles and measures set out in this Recommendation is clear. [27] The definition of “folklore” [28] usefully notes its importance to the cultural and social identity of the community and its dependence on particular methods of transmission. Despite reference to the cultural community, insufficient emphasis is placed on the social context of folklore creation and the know-how and values that underpin it. “Identification” [29] notes that folklore should be safeguarded "by and for the group . . . whose identity it expresses," suggesting a bottom-up approach that recognizes the need to empower the community to safeguard its folklore traditions. This, however, is not followed through in the rest of the text. [30]

A major criticism of this text is that it is heavily weighted towards the needs of scientific researchers and government officials. For example, actions for the “Identification” of folklore and the section on “Conservation” [31] are essentially concerned with collating and documenting what data available in tangible form. [32] One suspects that researchers will benefit mostly from this, despite reference to the needs of "tradition-bearers.” [33] This also implies that the non-utilization and/or evolution of such oral traditions are always a form of degradation rather than integral to the folklore in some cases. Data collection and documentation have their value but are favored over measures that would foster the present and future creation of oral traditions. Another serious failing is the lack of reference to the central role of women in producing and transmitting folklore and to ways of empowering them in this. [34] The equal emphasis placed on folklore and those who transmit it, [35] and on acknowledging the importance of the producer community in preserving folklore in the face of cultural globalization are both positive points. [36] Certain other specific measures are less likely to be of direct benefit to the producers of folklore, such as encouraging regions, municipalities, the media, and associations to create employment for folklorists. [37]

The limitations of using intellectual property rights (IPRs) as a means of safeguarding folklore are noted, [38] which is significant in the light of current consideration of the role of IPRs and copyright in this. Section G appears to place at the forefront practitioners and the development/revitalization of folklore through their exchanges of ideas and experiences, a positive point since the safeguarding of folklore should start from the cultural community itself. [39] However, few of the proposed actions for international cooperation would clearly support, encourage, and inform the creators of folklore themselves, which is a missed opportunity. [40] This Recommendation contains provisions which merit consideration for inclusion in a new Convention text (with some amendment or rewording), particularly the Preamble and general introductions to sections. However, the heavy emphasis on the needs of the scientific community is a major weakness, the definition is too narrowly focused, and the Recommendation fails to safeguard folklore through the social and economic empowerment of its creators.

Other UNESCO Actions in the Field of Folklore

Living Cultural Properties/Living Human Treasures

This program [41] proposes the establishment of national systems of “living cultural properties,” who are exponents of folklore. It reflects concern over the effects of globalization of the economy and culture (especially the communications revolution) on oral and traditional culture and the producer communities. [42] States are invited to submit to UNESCO a list of “living human treasures” in their country for inclusion in a future UNESCO World List. [43] The program focuses on the bearers of this heritage and their ability to transmit the skills, techniques, and knowledge to “apprentices” as the most well-directed response to its increasing vulnerability. [44] This recognizes that the continued existence of folklore is inextricably linked to the social and economic well-being of its creators and that its continued value to them and their way of life must be sustained, even if changed in the modern context. [45] The primary purpose of this system is to preserve the skills and techniques needed for the continuation of this heritage, an element that is missing from international protective measures so far, and that must be included in any future UNESCO instrument. The selection process of exponents of traditional knowledge and techniques for listing them further underlines the crucial role of the practitioners themselves and their apprentices. [46]

Masterpieces of the Oral and Intangible Heritage of Humanity Program (1998)

This aims to develop criteria for the selection of “cultural spaces” [47] and popular/traditional forms of cultural expression to be proclaimed “Masterpieces of Oral and Intangible Cultural Heritage” (henceforth “Masterpieces”), whose survival is essential to the world because of their "universal value.” [48] A central aim is to raise awareness amongst governments, NGOs, and the producer communities themselves of the value of this heritage and the urgency of safeguarding and revitalizing it. The description of this heritage as "intangible" as well as "oral" is important, since the identification of the intangible cultural heritage is a major challenge facing cultural heritage law and this program will contribute towards this development. [49] The concept of “cultural spaces” is new and supports recent work on the idea of cultural landscapes. [50] However, the use of the 1989 Recommendation’s definition of “folklore” (with a minor addition) [51] limits the development of the concept and perpetuates its weaknesses. Reference to the risk of its disappearance through acculturation [52] points to the desire to safeguard this heritage in response to the effects of cultural and economic globalization. Any instrument designed to safeguard this heritage must balance the right of the communities concerned to take advantage of economic, social, and other developments (which may well have a profound effect on their traditional cultural creations) with the right to preserve the oral and intangible heritage in a living form. [53] The cultural criteria for proclamation include some positive points worth noting, [54] while the organizational criteria are mostly “bottom-up” in approach, [55] which is appropriate to this heritage. This program includes elements that can usefully inform a future Convention text.

UNESCO and WIPO -- Intellectual Property Rights and Safeguarding Folklore

The 1989 Recommendation calls on Member States to draw the attention of the authorities to the work of UNESCO and WIPO in the area of using intellectual property rights (IPRs) [56] to safeguard folklore. It makes an important proviso, however, that this work relates to only one aspect of folklore protection and stresses the urgent need for separate action in a range of other areas. [57] Clearly, protecting the IPRs of creators and performers of folklore/traditional expressions is imperative to prevent its "improper exploitation" and distortion through commercialization, but this should be seen as a relatively narrow form of protection. Overemphasis on this may distort the way this heritage is viewed and the relationship of the creators to its practice by concentrating on protecting their rights in terms of the product and/or its public performance. This is not to deny the real problem of inappropriate commercialization of folklore and the value of developing legal protection against unauthorized exploitation. [58] It is rather that IPRs do not adequately address the most central concerns for safeguarding folklore -- its integrity, its role in expressing the identity of the community for the community, its continued practice in traditional forms, and its valuing by the producer community itself. [59] It is vital to protect legally not only the product (or performance) but also the spontaneous act of creation and the social and cultural context that fostered its production. Furthermore, the definition of the subject of protection in the 1985 Model Provisions [60] excludes many significant aspects of folklore such as beliefs, legends, practical traditions, craft skills, and other know-how.

In considering current moves to develop a new international treaty on the subject, [61] one should bear in mind the limitations of IPRs in relation to folklore. Further examination of the role existing or new IPRs can play in the protection of expressions of folklore is a valuable exercise that may answer a specific need. However, it is potentially damaging to UNESCO’s aims in relation to folklore if a new Convention on the IPR issues is drafted independently of one treating this heritage as a whole. If new IPR rules are to be elaborated on folklore, this should be within the framework of a new UNESCO Convention that embraces as broad an understanding as possible of folklore and safeguards not only the product but also the spontaneous act of creation and its social/cultural context. [62] WIPO's exploring innovative ways of using IPRs to protect expressions of folklore in those contexts where this is appropriate would be an important adjunct to UNESCO’s work. [63]

Conclusion

In sum, no existing Convention, Recommendation, or other UNESCO text fully addresses the needs of safeguarding folklore, but an effective instrument could be elaborated taking into account the above comments. The 1972 Convention and Recommendation contain elements that might usefully be considered for inclusion but cannot by themselves provide the basis for a protective regime. The role of the 1972 WHC in raising international awareness of the value and vulnerability of the cultural heritage should be borne in mind, since such awareness-raising for folklore is needed. The 1989 Recommendation has positive points worth keeping, especially some section introductions and the general principles set out in the Preamble, but it has many limitations as it stands. The “Living Human Treasures” and “Masterpieces” programs have much to offer in terms of raising awareness of this heritage, encouraging the development of appropriate national legislation, and developing the conceptual understanding needed in elaborating a new instrument. The UNESCO/WIPO work on applying IPRs to folklore could be very useful if placed within the context of a broad-based Convention on its safeguarding. Essential points are that any new Convention should take a predominantly “bottom-up” approach and seek to empower producer communities; should be broader in focus than the 1989 Recommendation definition of folklore; and should aim to foster the social/cultural context and spontaneous act of its creation as well as the product itself.

References

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Additional Sources

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Notes



[1] Convention concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972 (“World Heritage Convention”); Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage, 16 November 1972; Recommendation on the Safeguarding of Traditional Culture and Folklore, 15 November 1989.

[2]   The question of terminology is a difficult one. I have chosen to use “folklore” since it is employed in the 1989 Recommendation. A more recent UNESCO program in this area refers to “intangible and oral heritage” (see infra n.48), and the argument as to the most appropriate term to employ is open to debate. I suspect lawyers favor the latter since it appears to encompass a broader class of heritage (answering also issues such as the deliberate targeting of cultural or religious monuments during armed conflict and including cultural rights aspects) as well as signaling clearly that it is a new departure from the existing UNESCO instruments, which are limited to “tangible” elements of the cultural heritage.

[3] See, for example, Prott 1989, 224-25.

[4] Prott 1998, 222-23, 234.

[5] See Featherstone and Friedman 1995.

[6] Vinson notes that "[t]he broad and integrating anthropological conception of the heritage which has emerged in recent decades should be accentuated by the properties of the networks which favor the integration of related fields such as the performing arts, crafts, oral traditions, into the cultural heritage." (Vinson 1998, 243) She gives the example of a site on Canadian Schoolnet which sets contemporary Inuit artworks in the context of the myths, legends, and traditional way of life of the Arctic Inuit people.

[7] For example, globalization threatens the continued practice of traditional arts by turning youth away from traditional (Indigenous) culture towards a “global” culture; it also forces us to redefine the role of states in the cultural arena and the relationship of private individuals and independent organizations to government.

[8] There exists an apparent contradiction between the universalist nature of the standard-setting instruments of UNESCO (discussed below) and the importance of respecting cultural diversity. UNESCO has also been criticized as expressing a “Western” (even colonialist) view of “global” cultural heritage which does not value other cultural traditions sufficiently. More recently, however, UNESCO programs have increasingly included non-Western views of heritage. Recognition of the importance of intangible/oral heritage is a case in point, given that this heritage has traditionally been undervalued in Western societies and that it may be the predominant form of cultural heritage in some societies. See Lowenthal 1997, 227, 239.

[9] L. Meskell notes "the contradictory tendencies of globalization and localization existing side by side" (Meskell 1998a, 8).

[10] In much the same way, cultural heritage in its traditional sense was used to lend legitimacy to the nation-state. Of course, the state may be challenged by cultural groups such as Indigenous peoples and other minorities who seek self-determination, but in general, accepting or increasing the profile of local cultural traditions within a state framework is more positive for the state than not. See "Recasting cultural policy," in UNESCO 1998a, 344.

[11] The Bolivian delegation suggested this in the early 1970s.

[12] A state may have little motivation to represent the culture of a minority (or class such as women) that has little political or economic power in society.

[13] Article 6 states such heritage "constitutes a world heritage for whose protection it is a duty of the international community as a whole to co-operate." See section on the 1989 Recommendation for a critique of the “universal heritage of humankind” approach.

[14] Articles 8 to 14 deal with establishing the World Heritage Committee (“the Committee”), which selects sites for the World Heritage List and the List of World Heritage in Danger; Articles 15 to 18 establish the World Heritage Fund financed by subventions from parties and from private donations, etc., to provide financial assistance to parties in identifying and preserving listed sites where appropriate; Articles 19 to 26 set out the conditions and                 arrangements for international assistance in the identification and protection of the world cultural and natural heritage. This is an extremely detailed system, which provides the mechanism for international cooperation and assistance (also called for in Section G of the 1989 Recommendation) but which is heavily reliant on state action, and this may render it problematic for the protection of folklore.

[15] This point is adequately addressed by the membership of the jury to select “Masterpieces of the Intangible and Oral Heritage,” which is likely to produce a balanced group representing the interests of producer communities as well as experts. Notably, the Convention also calls for a sufficient representation of women and youth, who are often under-represented in such fora. Allowing submissions to be made by NGOs (unlike the World Heritage Committee) is also likely to increase their voice.

[16] The criteria for selection are contained in the Operational Guidelines (see UNESCO Document WHC-97/WS/1 for the most recent version) prepared by the World Heritage Committee. These can be updated, as they were in 1992 by the inclusion of cultural landscapes in response to the need to list Uluru (a site sacred to Australian Aboriginals) and Tongariro (a site sacred to New Zealand Maoris) that qualify as both cultural and natural world heritage. See Simmonds 1997, 259 and Prott 1998, 234 n.4.

[17] Articles 15 to 16; see n.14 above for details.

[18] Articles 27 and 28.

[19] Article 1 gives a definition of cultural heritage that is broken down into "monuments,” "groups of buildings," and "sites"; natural heritage is defined in Article 2. In both sets of definitions, the element concerned must be "of outstanding universal value" from the point of view of history, art, science, ethnology, anthropology, etc.

[20] These include the recognition of threats directly relevant to traditional cultures such as technological advances and globalization; the responsibility placed on each state to safeguard those elements of heritage located within their territory. A provision that parties should give mutual support could be extremely valuable where a minority culture in one state comprises the majority culture of another; or where states with advanced legislative systems for safeguarding traditional heritage can advise other parties.

[21] Simmonds 1997, 254. The WHC has also been the most successful of UNESCO’s Conventions on cultural heritage with 149 state parties.

[22] These include provisions that an "active policy" should be developed for conserving this heritage and "giving it a place in community life"[point 13]; that private as well as public-sector financing should be encouraged [point 11]; that responsibility for protection should lie with regional and local bodies as well as national authorities [point 17]; and that voluntary bodies should be set up to encourage local and national authorities to use their powers to safeguard heritage [point 64].

[23] The “common heritage of mankind” principle was initially developed in international law in the late 1960s in relation to mineral exploration and exploitation (particularly on the deep seabed) and adapted for use in the 1972 WHC in relation to outstanding elements of cultural heritage. Its use in relation to cultural heritage contains many contradictions, and it is a principle that needs much further elaboration in relation to existing cultural heritage law. Its attraction is that it places a duty on all states to ensure the protection and safeguarding of the heritage concerned; but this often conflicts with local and national claims, thus creating contradictory outcomes. The Parthenon is a good example since it is regarded as a part of the “world heritage” in view of its outstanding character while it remains an essential symbol of Greek cultural identity.

[24] See n.9 above.

[25] This is the aim of the “Living Human Treasures” program (discussed below). Ironically, the accessibility of much folklore and traditional culture and its ability to speak across cultural borders may actually render it more “universal” than much that is traditionally the subject of cultural heritage instruments, despite its rootedness in a specific community.

[26] The danger folklore faces from "multiple factors" is noted (Preamble), and Section D on “Preservation” cites the need to confront serious threats to this heritage from global cultural and economic forces.

[27] The Preamble states that Member States are to apply the principles and measures set out in the Recommendation "for the safeguarding of folklore" by adopting the legislative measures and other steps necessary to achieve this.

[28] Section A, “Definition of Folklore” states, “Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.”

[29] Section B, “Identification of Folklore.”

[30] The specific actions listed in Section B, such as the creation of identification and recording systems and creating a standard typology for folklore, address the needs of researchers and government officials rather than producer communities themselves.

[31] Section C on Conservation of Folklore.

[32] For section B, see n.30 above. Section C proposes such actions as establishing national archives of folklore material; establishing a national archive function for service purposes; creating museums or folklore sections within existing museums; and training collectors, archivists, and documentarians.

[33] Section C (introductory paragraph) states that the object of conservation "in the event of the non-utilization or evolution of folk traditions [is] to give researchers and tradition-bearers access to data enabling them to understand the process through which traditions change."

[34] At the time of this writing, a seminar is to be held in Tehran (Iran) on The Role of Women in the Transmission of Oral Cultural Traditions on 26-29 July 1999 within the framework of the 1989 Recommendation. This should provide the theoretical basis for developing provisions that would foster and empower women exponents of the intangible/oral heritage. A Draft Resolution to be adopted at this seminar will be presented by the Iranian delegation to the UNESCO General Council in the autumn.

[35] Section D (introductory paragraph) on Preservation of Folklore states that "[p]reservation is concerned with protection of folk traditions and those who are the transmitters, having regard to the fact that each people has a right to its own culture."

[36] Section D also notes that "adherence to that [traditional] culture is often eroded by the impact of the industrialized culture purveyed by the mass media" and that measures must be taken "to guarantee the status of and economic support for folk traditions both in the communities that produce them and beyond.”

[37] All but the last of seven proposals in Section E on “Dissemination of Folklore” relate primarily to the interests of folklorists, including: encouraging national, regional, and international events (festivals, exhibitions, workshops, etc.); encouraging better coverage of folklore material in the national and regional media, including by the employment of folklorists in media organizations; encouraging regions, municipalities, associations, etc. to create employment for folklorists; and facilitating meetings and exchanges between individuals, groups, and institutions concerned with folklore nationally and internationally.

[38] Section F on Protection of folklore. See n.57 below for details. Other relevant categories of rights already protected by laws that should be enforced nationally are enumerated. Section G on International Co-operation (paragraph c) requires States to cooperate closely so that the "economic, moral and so-called neighboring rights" of interested parties receive international protection. The "other rights" cited in Section F(b) protect the interests (privacy and confidentiality) of the transmitter of tradition, protect the interests of the collector (ensuring that the collection is properly conserved); safeguard collected materials against misuse, and recognize archives’ responsibility to monitor the use of materials.

[39] Section G, “International Co-operation” (introductory paragraph).

[40] The first action requiring cooperation with international and regional associations, institutions, and organizations concerned with folklore could be seen to offer this. The other three actions, however, tend towards serving the interests of the scientific community, by ensuring the protection of specific legal rights associated with various aspects of folklore investigation, production, and performance, and towards general protective measures to avoid damage or other threats to folklore.

[41] It was proposed to the Executive Board of UNESCO in 1993 as a means of implementing the 1989 Recommendation. See: Decisions Adopted by the Executive Board at its 142nd    Session (UNESCO Doc. 142 EX/Decisions, 10 Dec. 1993) and the Guidelines -- Human Living Treasures sent to Member States by UNESCO Secretary-General on 16 Sept. 1998.

[42] The Guidelines on Living Human Treasures distributed to all Member States describes folklore heritage as an "essential source of identity deeply rooted in the past" now disappearing and being displaced by "a standardized international culture."

[43] This is similar in conception to the World Heritage List established by the 1972 WHC.

[44] The introduction to the Guidelines states significantly: "One of the most effective ways of safeguarding the intangible heritage is to conserve it by collecting, recording, and archiving. Even more effective would be to ensure that the bearers of that      heritage continue to acquire further knowledge and skills and transmit them to future generations.” This is fundamental to the whole issue of how to develop an effective protective regime.

[45] This contrasts with the 1989 Recommendation, which tends to protect the folklore product over its cultural and intellectual context.

[46] For example: a serious decline in the number of practitioners and their successors can threaten the existence of folklore, lead to a significant loss of authenticity, or diminish the level of skill or technique of the practitioners and their ability to transmit this to apprentices. A less positive criterion of the program is that selected exponents should be those cultural manifestations that "the State considers have a high historic or artistic value," although this is unsurprising in the context of an intergovernmental organization.

[47] Space is to be understood in the anthropological sense as a locus for popular and traditional activities generally characterized by periodicity (cyclical, seasonal, calendrical, etc.).

[48] UNESCO Doc.155/EX 15 (1998).

[49] Thus far, the UNESCO Conventions and Recommendations protecting the cultural heritage have had physical elements of heritage as their subject of protection. Often, however, the material heritage is the physical evidence of the intangible heritage, while the latter, in turn, is the interface between individuals, groups, and nations and their material culture.

[50] See n.17 above.

[51] For the "intangible and oral heritage."

[52] One criterion for proclaiming a “Masterpiece” is the risk of its disappearance through an accelerated process of transformation, urbanization, or acculturation.

[53] Tourism is probably the most difficult of all areas in this regard. It provides economic benefits to folklore producer communities but may, in turn, influence the social fabric out of which the folklore is produced, with a pernicious effect in the long term.

[54] These criteria include an item’s rootedness in the cultural tradition and history of the community; its role in affirming the cultural identity of the peoples or cultural communities involved; the quality of know-how and the techniques deployed in its creation; and its value as a unique witness of a living traditional culture.

[55] These are set out in Point 6(ii), and include an emphasis on the existence of an adequate local management system with respect to local and national tradition and the desire to sensitize private individuals and members of the community to the value of this heritage and the need for its preservation.

[56] In particular, copyright laws.

[57] The introductory paragraph of Section F on Protection of Folklore reads: "In so far as folklore constitutes manifestations of intellectual creativity it deserves to be protected in a manner inspired by the protection provided for intellectual productions. Such protection of folklore has become indispensable as a means of promoting further development, maintenance and dissemination of those expressions." However, in relation to the joint work of UNESCO and WIPO, it states [paragraph (a)] that "this work relates to only one aspect of folklore protection and that the need for separate action in a range of areas to safeguard folklore is urgent.”

[58] The development of "a special (sui generis) type of law for an adequate protection against unauthorized exploitation" as suggested in the Commentary to the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (UNESCO 1985, 6) can provide an important aspect of protection that would be a positive step if taken within the framework of a broader range of measures to safeguard and foster the creation of folklore.

[59] It is also questionable whether “rights” is a concept that fits with the view many exponents of folklore and traditional knowledge have of their relationship to knowledge and the natural world.

[60] Model Provisions cited in n.58 above. It is difficult to see how traditional crafts such as making giveh (handmade slippers) in Iran or traditional cuisines can fall within the definition of "productions consisting of characteristic elements of the traditional artistic heritage."

[61] See: UNESCO International Forum on the Protection of Folklore, Phuket (Thailand), 8-10 April 1992; and World Intellectual Property Organization (WIPO) Main Program 11 of the 1998-99 Program and Budget entitled "Global Intellectual Property Issues" WIPO Doc.WO/BC/18/X - WO/PC/8/Y.

[62] This includes the empowerment of the producer communities and recognition of the role of gender issues in folklore production, amongst other matters.

[63] Any other intergovernmental organization, NGO, or institution working in the area of applying IPRs to the intangible/oral heritage would make a similar contribution.