A Historical Study on the Preparation of the
1989 Recommendation on the Safeguarding of Traditional Culture and Folklore

Samantha Sherkin

Consultant
Intangible Cultural Heritage Unit
Division of Cultural Heritage, UNESCO

Introduction

The General Conference of UNESCO adopted at its twenty-fifth session (1989) the Recommendation on the Safeguarding of Traditional Culture and Folklore. This act was the culmination of over fifteen years of observations, examinations, and analyses undertaken by UNESCO into the possibility of establishing an international instrument designed to protect the intangible cultural heritage, or folklore. [1] Despite its great significance, this endeavor was laborious, costly, and dilatory because it was affected by many events within and outside of UNESCO. The effort may also have been impeded procedurally because it was at once closely affiliated with, yet distinguished from, efforts to provide copyright protection for intellectual property. Specifically, a distinction developed between the overall question of folklore and the intellectual property aspect of folklore, [2] creating a conceptual dilemma that has continually confronted both UNESCO and the World Intellectual Property Organization (WIPO). Yet, impediments aside, this memorable action was welcomed by Member States, particularly countries of Africa, Latin America, Asia, and the Pacific, who have long been concerned for their intangible cultural heritage. Such preoccupation has manifested itself in a variety of acts, including the adoption of national legislation and the organization and promotion of local and regional art and music festivals.

This report, based on a study of the files available at UNESCO Headquarters, will review the historical events including conceptual trends, tendencies, and impasses that led to the eventual adoption of the 1989 Recommendation. As will be illustrated, theoretical preferences played a profound role in shaping the direction of events.

Phase One: 1952-1971

The creation and eventual adoption of the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore was the result of a multiyear process that aimed to establish legal protection for the world's intangible cultural heritage. Throughout these years of intense examination and deliberation, interest in cultural heritage, both tangible and intangible, increased within UNESCO and many of its Member States, a fact confirmed by the organization of regional festivals and conferences and by UNESCO’s adoption of related legislation, such as the Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import, and Transfer of Ownership of Cultural Property [3] adopted by the General Conference of UNESCO at its thirteenth session (November 1964). The latter Recommendation aimed to protect national material cultural heritage from illicit operations that threaten it. Shortly thereafter, the General Conference at its fourteenth session, November 1966, adopted a Declaration of Principles for International Cultural Cooperation, which was aimed at providing individuals with equal access to knowledge and enjoyment of the arts. Concurrently, in a regional context, the National African Radio and Television Union (URTNA) organized a meeting in Tunis (1964), which focused on the itemization and preservation of folklore, while a World Festival of Black African Art convened shortly thereafter in Dakar (1966).

However, in the initial years of UNESCO investigations into the safeguarding of intangible cultural heritage, a theoretical dilemma was born, one that continues today: namely, whether to protect folklore within or outside of the law of copyright.

The intimate, international relationship between copyright and folklore began in UNESCO in 1952 with the adoption of the Universal Copyright Convention. This Convention, along with the International Union for the Protection of Literary and Artistic Works (Berne Convention), established standards of copyright protection which each country agreed to observe in its national legislation. [4] This national legislation would be extended to protect works from any other signatory country. In short, these Conventions aimed to curb the international exploitation of literary and other works by implementing laws that would enable judges to apply penalties for infringements of copyright.

An affiliation between copyright and folklore was also codified at national and regional levels. [5] For example, in 1956, the Government of Mexico adopted a Copyright Statute, a mixed revenue-based approach, in which works deriving from the pubic domain (like folklore) were to become registered with a Copyright Directorate. [6] In 1967, Papua New Guinea passed the National Cultural Preservation Ordinance, a mixture of preservation and custom approaches, which, prior to independence (1975), aimed at preserving and protecting authentic cultural material from cultural loss and invasion. Shortly thereafter, in 1968, Bolivia passed Supreme Decree No. 08396, a sole copyright approach, whereby ownership and control of certain works become vested in the State. [7] UNESCO and BIRPI [8] jointly organized a Regional Meeting on the Study of Copyright in Brazzaville in 1963; here, for the first time, a recommendation relating to folklore was adopted. [9]

The relationship between folklore and copyright was further explored in 1967 at the Stockholm Conference of the Berne Convention, where a specific attempt was made to protect expressions of folklore at the international level by means of copyright law. Moreover, it was suggested that the concept of folklore become the subject of a worldwide Convention. But after much negotiation, it was concluded that the conceptual and definitional complexity of folklore prevented the immediate development of such a Convention. It was deemed preferable to add a provision to the Berne Convention, one founded on general rather than specific principles. As a result, a new provision was adopted, yet it only provided vague guidelines for the protection of folklore. In fact, the word "folklore" did not appear in the provision itself. The provision is quoted below:

Article 15

4(a) 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.

Article 15, 4(a) is the only legislative history that attests to the international intention to establish a means to protect folklore.

International interest in providing comprehensive protection for intangible cultural heritage continued into the following decade. In 1971, UNESCO prepared a document entitled "Possibility of Establishing an International Instrument for the Protection of Folklore" [Document B/EC/IX/11-IGC/XR.1/15]. This study did not arrive at a specific solution but recommended that a progressively deteriorating situation made further work on the protection of folklore urgent. As will be explained below, this document came to play a constructive role at the outset of what became years of analysis and deliberation.

Phase Two: 1972-1979

The years between 1972 and 1979 were formative in the project to protect intangible cultural heritage both within and outside of UNESCO. In this period attitudes towards traditional culture were changing worldwide, as many pre- and post-independence developing countries engaged in the process of nation-building. They reinvented and revived local traditions, constructing national sentiment and identity, and also increasing the commercial utilization of folklore. This enthusiasm resulted in regional art festivals, including the first National Cultural Festival (Libreville, 1974) and the World Festival of Black African Art (Lagos, 1977), and in academic analyses, such as the 1975 investigation by the Nordic Institute of Folklore into the relation between copyright and folklore.

 UNESCO, responding to the growing interest among its Member States, began convening meetings and intergovernmental conferences on matters relating to tangible and intangible heritage. Between 1972 and 1979, UNESCO convened three Intergovernmental Conferences on Cultural Policies: Yogyakarta (1973), Accra (1975), and Bogota (1978). All three conferences requested UNESCO assistance in preserving cultural heritage and popular traditions. [10] At its nineteenth session, November 1976, the UNESCO General Conference officially launched the UNESCO Comprehensive Program on the Intangible (non-physical) Cultural Heritage, the aim of which was to promote appreciation and respect for cultural identity, including different traditions, ways of life, languages, cultural values, and aspirations. [11] Shortly thereafter, in conjunction with this program, UNESCO convened two meetings on the study of oral tradition, the first in Manila (1978), the second in Katmandu (1979).

The beginning of this era of cultural policy formation can be placed in November 1972, when the General Conference of UNESCO at its seventeenth session adopted the Convention concerning the Protection of the World Cultural and Natural Heritage. This Convention protects tangible material items which are considered to possess outstanding value to human history, art, science, or aesthetics. Despite its great importance, this Convention neither applies nor extends to intangible cultural heritage. To address this need, the Government of Bolivia put forward a request [12] in April 1973 that a Protocol be added to the Universal Copyright Convention that would protect the popular arts and cultural patrimony of all nations. [13] In December 1973, the question was submitted to the Intergovernmental Copyright Committee, [14] which decided to entrust it to UNESCO. The organization was requested to determine the extent to which the protection of folklore might involve copyright [15] and to report to both the Intergovernmental Copyright Committee and to the Executive Committee of the Berne Union at their forthcoming meeting (December 1975). It is significant that the subject of folklore was here explicitly divided between the overall question of folklore and the intellectual property aspect of folklore. This duality, as will be repeatedly illustrated, has persisted.

In 1975, at the request of the Intergovernmental Copyright Committee, UNESCO submitted a document it had prepared in 1971 entitled "Possibility of Establishing an International Instrument for the Protection of Folklore" [Document BIEC/Ixil 1-IGC/XR.1/15]. After much deliberation, the Intergovernmental Copyright Committee and the Executive Committee of the Berne Union concluded that although folklore was in need of protection, a solution at the international level was unrealistic. Moreover, they felt that the problem was of a cultural nature and, as such, was beyond the bounds of copyright. The Committees referred the problem to the Cultural Sector of UNESCO for further study.

As years passed, the schism between the overall question and the intellectual property aspect widened, shaping the development of methods and means for the protection of folklore. For example, in 1976, UNESCO and WIPO, citing the "intellectual property aspect of folklore,” undertook a joint effort for its protection by preparing the Tunis Model Copyright Law for Developing Countries. This Model aimed to provide a reference that countries could employ when drafting their national copyright law; Section 1, paragraph 3, protects folklore (as intellectual property) within the framework of copyright. [16] The conceptual division widened in July 1977 following the Expert Committee on the Legal Protection of Folklore convened in Tunis. [17] This Committee, [18] comprising both folklorists and lawyers, determined that problems in the protection of folklore (overall) were essentially cultural, involving issues such as definition, identification, conservation, and preservation. As such, the problems required an interdisciplinary examination, one that should be conducted under the sole auspices of UNESCO. The intellectual property issue, in contrast, was deemed relevant only in matters where folklore was utilized to promote a national cultural identity, and as such, should be pursued jointly by UNESCO and WIPO. In short, it was concluded here, as it was at the 1975 meeting of the Intergovernmental Copyright Committee and the Executive Committee of the Berne Union, that copyright law was an ineffective and non-adaptable means for the (overall) protection of folklore. These findings were further endorsed in the succeeding meeting of the Intergovernmental Copyright Committee and the Executive Committee of the Berne Union, which convened in November/December 1977 in Paris.

In May 1978, the Secretariats of UNESCO and WIPO formally agreed that UNESCO would examine the question of safeguarding folklore on an interdisciplinary basis and within the frameworkof a global approach, while WIPO would participate only in circumstances involving aspects of copyright and intellectual property. The two organizations agreed to reconvene in 1979 in order to conduct a further joint study on these matters. This was the authoritative agreement that demarcated, both conceptually and practically, "folklore" from "intellectual property.” Subsequently, the General Conference of UNESCO adopted at its twentieth session, October/November 1978, Resolution 5/9.2/1 in order to "identify ways of providing for folklore at the international level.”

In accordance with their agreement of 1978, the Secretariats of UNESCO and WIPO re-convened on 27 February 1979 for further deliberations. In March 1979, the Third Session of the Permanent Committee of the WIPO Permanent Program for Development Cooperation Related to Copyright and Neighboring Rights met in Dakar. One of the studies examined at this session was conducted by WIPO and the Executive Committee of the Berne Union [19] in February 1979. It focused on the possibility of establishing draft provisions for the national protection of works of folklore, and recommended that a joint WIPO-UNESCO Working Group be organized, as soon as possible, to consider both domestic and international aspects of the issues.

In August 1979, pursuant to Resolution 5/9.2/1, and in conjunction with the overall approach to folklore assumed by UNESCO Secretariat, the Director-General of UNESCO addressed a letter to Member States accompanied by a "Questionnaire on the Protection of Folklore.” This interdisciplinary questionnaire covered the definition of folklore and its identification, conservation, preservation, utilization, and protection against exploitation. The purpose of this survey was to evaluate the present situation of intangible cultural heritage in Member States and to seek ways to develop additional measures to ensure the authenticity of folklore and protect it against distortion. In line with the agreement of 1978, WIPO would be involved only in matters concerning copyright and intellectual property. The division of labor on folklore had so solidified by this time that it seemed to create an impasse in theoretical and practical developments throughout the following decade.

Phase Three: 1980-1989

Numerous projects between 1980 and 1989, national and international in scope, strove to promote and protect tangible and intangible cultural heritage. National activities included festivals such as the eighteenth International Folkloric Festival (Portugal 1982) and conferences such as the twelfth session of the International Center of Bantu Civilizations (CICIBA, Libreville, 1982). On an international scale, UNESCO continued to convene intergovernmental conferences such as the World Conference on Cultural Policies (MONDIACULT, Mexico, 1982). UNESCO expanded its activities in the field of intangible heritage, establishing a special Section on Non-Physical Heritage (1982) and developing by 1984 a new program entitled "Study and Collection of Non-Physical Heritage.” UNESCO worked with WIPO to establish a legal mechanism to protect folklore, convening many international and regional meetings whose conceptual organization confirmed the dichotomy between the overall question of folklore and its intellectual property aspect. The latter received much attention between the years 1980 and 1984, when UNESCO and WIPO organized four meetings of Expert Committees (1980, 1981, 1982, 1984) and four Regional Meetings (1981, January/February 1983, February 1983, 1984). The overall question of folklore received much attention in later years through the sole efforts of UNESCO.

In January 1980 in Geneva, [20] following deliberations of the Executive Committee of the Berne Union and the Intergovernmental Copyright Committee (February 1979) and the decisions of UNESCO and WIPO Governing Bodies, UNESCO and WIPO jointly convened the first meeting of the Working Group on the Intellectual Property Aspects of Folklore Protection. The primary objectives of this meeting were to study a Draft Model Provision for National Laws on the Protection of Creations of Folklore, and to examine international measures for the protection of works of folklore. This meeting, the first of its kind, reflected a growing international concern for the protection of intangible cultural heritage, particularly those aspects relating to intellectual property. [21] With respect to the Model Provisions, the Working Group recommended that the Secretariats should prepare a revised draft and commentary thereon and present it for further consideration to a subsequent meeting. It was also suggested that the Secretariats should continue to study the intellectual property aspects of folklore at the international level and should also identify and pursue regional possibilities for the protection of folklore.

UNESCO initiatives continued to expand in 1980 with the approval and adoption by the General Conference at its twenty-first session of various programs and resolutions. These included approval of a triennial working period (1981 to 83) involving the convocation of two Committees of Governmental Experts in protecting folklore. In accordance with the UNESCO-WIPO agreement of 1978, the first Committee would meet under the sole auspices of UNESCO with a view to defining measures to safeguard the existence, development, and authenticity of folklore and to protect it against distortion. The second Committee would meet under the joint auspices of UNESCO and WIPO with a view to drawing up proposals for regulating the intellectual property aspects of folklore protection. In addition, the General Conference approved the joint convening of three regional Working Groups by the Secretariats of UNESCO and WIPO [22] to search for ways to apply these regulations at regional levels. The General Conference also adopted Resolution 5.03, which declared that folklore was of considerable importance and deserved international regulations to ensure its protection, preservation, and development. Subsequently, the Secretariat was invited to conduct further studies regarding technical and legal aspects of this question and to present its findings to the General Conference at its twenty-second session.

In February 1981, UNESCO and WIPO convened the second meeting of the Working Group on the Intellectual Property Aspects of Folklore Protection (Paris). [23] The Group concluded that the Model Provisions and related commentary thereon should be presented for further consideration at a meeting of governmental experts jointly convened by UNESCO and WIPO in 1982. [24]

In October 1981 in Bogota, UNESCO and WIPO jointly convened the first Regional Meeting of the Expert Committee. The Committee recommended that, in addition to the adoption of a model national law, immediate attention should be given to the establishment of international measures for the protection of folklore.

Thus, by the onset of 1982, much international attention had been directed towards the intellectual property aspect of folklore and ways to ensure its protection through copyright law. The two Working Groups on the Intellectual Property Aspects of Folklore Protection (Geneva, Paris) and the Regional Meeting of the Expert Committee (Bogota) substantiate this point. However, in February 1982, a shift in focus occurred when UNESCO, addressing the overall question of folklore, organized a Committee of Governmental Experts on the Safeguarding of Folklore (Paris). [25] The aim of this meeting was to analyze various aspects of folklore with a view to defining measures aimed at safeguarding its continued existence, development, and authenticity and protecting it from distortion. The results of this meeting are memorable, for it was here that for the first time a definition of folklore was firmly established. In short, the Committee adopted a series of recommendations, [26] most of which focused on the importance of institutional infrastructure. The recommendations placed a strong emphasis on the need for UNESCO to establish a task force of experts in documentation, archiving, and classification of material relating to traditional culture. They also suggested that UNESCO should continue its efforts to formulate an international recommendation on the preservation and safeguarding of folklore and should proceed with WIPO in the examination of the intellectual property aspect of folklore. Yet it was recommended that this aspect not be immediately considered. [27]

In June/July 1982, UNESCO and WIPO jointly organized a meeting of a Committee of Governmental Experts on the Intellectual Property Aspects of the Protection of Expressions of Folklore (Geneva). The primary purpose of this meeting was to draw up model provisions for national laws to protect expressions of folklore using principles similar to those of intellectual property law and taking into account the results of previous meetings. Such provisions would make utilization of folklore subject to authorization and allow the imposition of prohibitions or restrictions on cultural distortions and economic exploitation of folklore materials. Authorization implies a fee, a fixed amount collected either by the community concerned, which corresponds to the author in copyright law, or by a competent authority usually nominated by the state. Collected fees would be used to promote or safeguard national culture, folklore, or a combination of the two. [28] At this fruitful meeting the Committee adopted the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions. [29] Many hoped that these provisions would serve as a basis for a subsequent international regulation.

This focus on an international legal instrument continued throughout 1983, when UNESCO and WIPO jointly convened the second and third Regional Meetings of Expert Committees in New Delhi (January/February) and Dakar (February). These meetings, like the preceding one (Bogota), recommended the elaboration of a specific international regulation of the intellectual property aspects of folklore, an action, it was argued, that could be implemented more quickly than an interdisciplinary operation. In addition, these Committees reiterated that emergency action be taken towards the preservation of popular traditions.

However, in addition to UNESCO-WIPO efforts, UNESCO also began to assume a more active role independent of WIPO in the protection of folklore. This was evident at the 116th session of the UNESCO Executive Board (May/June 1983), where a report entitled "Preliminary Study on the Technical and Legal Aspects of the Safeguarding of Folklore” (Document 116 EX/26) [30] was submitted for examination. [31] The Board was invited to decide whether it would submit to the General Conference at its twenty-second session a proposal concerning an international regulation for the safeguarding of folklore. [32] The Executive Board adopted Decision 5.6.2, in which it decided to follow up this matter inviting the Director-General to pursue the technical, legal, and administrative aspects of general regulations concerning the preservation of folklore. It recommended that during the 1984-1985 biennium a Committee of Experts carry out a thorough study of the possible scope of such regulations. Lastly, in accordance with the findings of Document 11 6/FX 26, the Executive Board decided to propose to the General Conference that UNESCO and WIPO continue their efforts towards the formulation of international regulations for the preservation of folklore as intellectual property.

Pursuant to the recommendations of the Executive Board, the General Conference, at its twenty-second session (October/November 1983), approved an interdisciplinary study of ways and means of safeguarding folklore. [33] To this end, the General Conference endorsed the creation of another Committee of Governmental Experts to perform the analyses. The Executive Board would review these findings at its 121st session, spring 1985, following which the General Conference would deliberate the matter at its twenty-third session (October/November 1985).

The binary approaches to folklore -- one addressing its overall nature, the other its existence as intellectual property -- persisted in 1984. Throughout this year, UNESCO and WIPO continued their joint efforts by organizing the fourth Regional Meeting of the Expert Committee (October, Doha), and a Committee of Experts on the International Protection of Expressions of Folklore by Intellectual Property (December, Paris). [34] Both meetings addressed the need for specific international regulations to protect expressions of folklore through intellectual property law. The Paris meeting concluded that the Secretariats of UNESCO and WIPO should continue to explore a treaty for intellectual property type of protection for expressions of folklore and prepare a document which would consider alternative means of implementing this protection. All findings were to be submitted to the Executive Committee of the Berne Union and the Universal Copyright Committee. [35] However, this joint meeting in Paris was the last of its kind. UNESCO and WIPO convened no further conferences on this matter for the remainder of the decade.

Following Decision 5.6.2, adopted by the UNESCO Executive Board at its 116th session and noted by the General Conference at its twenty-second session, the Second Committee of Governmental Experts on the Preservation of Folklore was convened 14-18 January 1985 in Paris. [36] The aim of this meeting was an interdisciplinary study of possible regulations that could safeguard folklore as a whole. Little attention was paid to the intellectual property aspects of folkiore. [37] For this reason, WIPO felt that its contribution to the work of the Committee would be marginal and, thus, declined to participate. [38] This reasoning was transmitted in a letter of 11 January 1985 by the Director of the Public Information Division of WIPO to the Director of the Copyright Division of UNESCO. An excerpt of this letter is cited below:

The preparatory document . . . quotes from the decision of Unesco's Executive Board . . . concerning the separation of Unesco's work on general regulations concerning the preservation of folklore and Unesco's work, jointly with WIPO, on specific regulations regarding the ‘intellectual property’ aspects of such preservation . . . . [T]his separation is clearly necessary in order to ensure rational and coordinated methods of work without duplication. Particularly in view of the fact that WIPO will not be represented at the second session of the Committee, we would be grateful if you could, if necessary, remind the participants that this separation has already been agreed and should be maintained.

The Committee concluded that international regulations be established in the form of a Recommendation rather than Convention to Member States. A Recommendation, unlike a Convention or declaration, is a flexible instrument whereby the General Conference formulates principles and invites Member States to adopt any means, legislative or otherwise, in order to apply them. The Committee also suggested that an interdisciplinary approach to folklore be embraced, one that would address its definition, identification, conservation, preservation, and utilization. The Committee also recommended that the General Conference examine the development of infrastructure possibilities, including the establishment of an international register, network, and standard typology of folklore and cultural property.

Shortly thereafter, the General Conference at its twenty-third session, October/November 1985, adopted Draft Resolution 15.3, in which it decided that the question of safeguarding folklore could be the subject of an international instrument in the form of a Recommendation to Member States. Subsequently, the Director-General was invited to convene a special Committee of Governmental Experts to examine the question and report on this matter at the twenty-fourth session of the General Conference.

Pursuant to Draft Resolution 15.3 and in accordance with the Governing Bodies of WIPO, UNESCO and WIPO agreed to organize a Committee of Governmental Experts in 1987. The aim of this Committee was to continue the examination of measures to be taken to ensure both the preservation of folklore within a global and interdisciplinary framework and the international protection of intellectual property aspects of folklore. To this effect, the Copyright Division of UNESCO assembled a Special Committee of Technical and Legal Experts on the Safeguarding of Folklore to convene in June 1987. The working document for this Committee was that elaborated by the Second Committee of Governmental Experts on the Preservation of Folklore (January 1985). However, WIPO later decided that it did not wish to be included in the organization of this meeting. The Organization felt that the intellectual property aspects of the international protection of folklore expressions, of concern to both UNESCO and WIPO, could only be addressed after the question of the preservation of folklore, of concern to UNESCO alone, had been clarified. [39] Despite its withdrawal, a representative of WIPO from the Copyright Law Division attended the meeting. The Special Committee [40] deliberated over the general question of folklore, particularly the means to create appropriate infrastructures for its protection, including the establishment of a universal typology and the promotion of international cooperation. The committee suggested that such efforts could be achieved through the provision of intellectual and technical assistance to Member States, particularly the developing countries, for the establishment of centers and the training of specialized personnel. The legal protection of folklore was not widely considered, as it was identified as problematic in nature. Some delegations felt that the intellectual property aspect of the issue belonged in the hands of other bodies, while others maintained that the intellectual property aspect covered only part of the legal protection of folklore. [41] The Committee desired that the General Conference would embrace its conclusions and decide on the preparation of an international instrument, preferably a Recommendation to Member States, in conjunction with Draft Resolution 15.3 and the findings of the Second Committee of Governmental Experts on the Safeguarding of Folklore (Paris, 1985).

Subsequently, the General Conference at its twenty-fourth session, October/November 1987, adopted Resolution 15.3 in which it expressed a desire that an international instrument on the safeguarding of folklore be prepared in the form of a Recommendation to Member States. For this purpose, the General Conference approved the organization of a Special Committee for the preparation of a final draft of a Recommendation to be submitted to the General Conference at its forthcoming session.

On 1 June 1988, the first draft of a Recommendation (Document CC/MD/4) prepared by the Special Committee of Governmental Experts (1987) was distributed to UNESCO Member States for their opinions and observations. On the basis of comments transmitted, a revised document (Document CCI/MD/8) [42] was submitted to the Special Committee [43] of Governmental Experts who convened from 24 to 28 April l989. [44] This Committee was responsible for preparing a draft Recommendation to Member States on the safeguarding of folklore. It is significant that WIPO was not represented at this meeting. Following its deliberations, the Committee unanimously approved the draft Recommendation on the Safeguarding of Folklore and submitted it to the General Conference for adoption, as provided for in Article IV, paragraph 4, of the UNESCO Constitution and Article 11 of the Rules of Procedure concerning Recommendations to Member States. Subsequently, the General Conference at its twenty-fifth session adopted the Recommendation on the Safeguarding of Traditional Culture and Folklore.

Conclusion

The process of adopting an international instrument for the protection of folklore was laborious and costly and took more than fifteen years. Yet the adoption of the 1989 Recommendation occurred despite many obstacles because the document appealed to a large majority of UNESCO Member States. It was of particular interest to the countries of Central and Eastern Europe, which had ideological reasons at the time to preserve and accentuate the importance of popular ethnic culture, as well as to the countries of Africa, Latin America, Asia, and the Pacific, which have long been concerned about the erosion and exploitation of their intangible cultural heritage. The latter concern is illustrated in the following declaration transmitted by a representative of Tunisia:

[T]he Ministry of Cultural Affairs considers that Tunisia has much to gain from adopting Unesco's Recommendation on the safeguarding of folklore, in view of its rich artistic heritage which is in danger of being exploited or even distorted by our own people and by foreigners for commercial purposes.

However, the entire process of adopting the Recommendation became enmeshed in a divisive debate based in the perceived opposition between the overall question of folklore and its intellectual property aspect. The positions of UNESCO, WIPO, and UNESCO Member States became dominated by this issue. The text of the Recommendation itself tries to satisfy both theoretical camps. As Professor Lauri Honko, Director of the Nordic Institute of Folklore (Turku, Finland) states:

The Recommendation wisely emphasizes positive aspects of folklore protection such as proper ways for the preservation and dissemination of folklore. The negative aspects such as the problematic application of the "intellectual property right" (chapter F:a) are relegated aside. [45]

It may be questioned whether this division was correct or even useful. At any rate, the attempt to avoid the dilemma posed by the apparent opposition between two views may well have contributed to the Recommendation's shortcomings. For this reason, it might be worthwhile to change the method of approach in future action aimed at altering the existing Recommendation or preparing a new instrument, by developing a coherent theoretical basis and clear ideas of the practical results desired.

Table 1. Chronological list of organizations and events
relating to the preparation of the 1989 Recommendation on the
Safeguarding of Traditional Culture and Folklore

6 September 1952 Adoption of the Universal Copyright Convention (Geneva); revised in 1971 (Paris)
14 July 1967 The Executive Committee of the Berne Union: Stockholm Conference of the Berne Convention
1971 UNESCO Secretariat: Preparation of Document B/EC/IX/1l 1-IGC/XR.1115 "Possibility of Establishing an International Instrument for the Protection of Folklore”
16 November 1972 UNESCO General Conference (seventeenth session): Adoption of the Convention Concerning the Protection of the World Cultural and Natural Heritage
24 April 1973 Government of Bolivia: Official request from the Government of Bolivia that a Protocol be added to the Universal Copyright Convention for the protection of folklore
1976  UNESCO-WIPO: Preparation of the Tunis Model Copyright Law for Developing Countries
11-15 July 1977 UNESCO: Expert Committee on the Legal Protection of Folklore (Tunis)
24 May 1978 UNESCO-WIPO: Agreement reached between the Secretariats of UNESCO and WIPO regarding the safeguarding of folklore
Oct./Nov. 1978 UNESCO General Conference (twentieth session): Adoption of Resolution 5l9/2. 1, in order to "identify ways of providing for folklore at the international level"
27 February 1979 UNESCO-WIPO: Joint inter-Secretariat meeting with UNESCO and WIPO
31 August 1979 UNESCO Secretariat: Circulation to UNESCO Member States of the "Questionnaire on the Protection of Folklore”
7-9 January 1980 UNESCO-WIPO: First Meeting of the Working Group on the Intellectual Property Aspects of Folklore Protection (Geneva)
Sept./Oct. 1980 UNESCO General Conference (twenty-first session): Approval of a triennial working period (1981-1983) in the domain of protecting folklore; adoption of Resolution 5.03, confirming the importance of folklore and the possibility of establishing international regulations towards its protection
9-13 February 1981 UNESCO-WIPO: Second Meeting of the Working Group on the Intellectual Property Aspects of Folklore Protection (Paris)
14-16 October 1981 UNESCO-WIPO: First Regional Meeting of the Expert Committee (Bogota)
22-26 February 1982 UNESCO: Committee of Governmental Experts on the Safeguarding of Folklore (Paris)
28 June-2 July 1982 UNESCO-WIPO: Committee of Governmental Experts on the Intellectual Property Aspects of the Protection of Expressions of Folklore (Geneva)
31 Jan.-2 Feb. 1983 UNESCO-WIPO: Second Regional Meeting of the Expert Committee (New Delhi)
23-25 February 1983 UNESCO-WIPO: Third Regional Meeting of the Expert Committee (Dakar)
May/June 1983 UNESCO: 116th session of the UNESCO Executive Board; adoption of Decision 5.6.2, endorsing the continuation of efforts towards the protection of folklore
Oct./Nov. 1983 UNESCO General Conference (twenty-second session): Endorsement of a further Committee of Governmental Experts to carry out analyses towards the protection of folklore

8-10 October 1984

UNESCO-WIPO: Fourth Regional Meeting of the Expert Committee (Doha)
10-14 December 1984 UNESCO-WIPO: Committee of Experts on the Protection of the Intellectual Property Aspects of Folklore (Paris)
14-18 January 1985 UNESCO: Second Committee of Governmental Experts on the Safeguarding of Folklore (Paris)
Oct./Nov. 1985 UNESCO General Conference (twenty-third session): Adoption of Draft Resolution 15.3, in which the question of safeguarding folklore could be made the subject of an international instrument in the form of a Recommendation
1-5 June 1987 UNESCO: Special Committee of Technical and Legal Experts on the Safeguarding of Folklore (Paris)
Oct./Nov. 1987 UNESCO General Conference (twenty-fourth session): Adoption of Resolution 15.3, endorsing the preparation of an international instrument, in the form of a Recommendation, on the safeguarding of folklore
1 June 1988 UNESCO Secretariat: Circulation of the first draft of a Recommendation (Document CC/MD/4), prepared by the Special Committee of Technical and Legal Experts on the Safeguarding of Folklore (1987)
24-28 April 1989 UNESCO: Special Committee of Governmental Experts to prepare a draft Recommendation to Member States on the safeguarding of folklore (Paris)
15 November 1989 UNESCO General Conference (twenty-fifth session): Adoption of the Recommendation on the Safeguarding of Traditional Culture and Folklore

 

Notes


[1] The Recommendation (para. A) provides a definition to the term "traditional and popular culture,” which may also be applied to the term "intangible cultural heritage" as follows: “Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural 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.”

[2] "Study of the Possible Range and Scope of General Regulations Concerning the Safeguarding of Folklore (1)" - Document UNESCO/PRS/CLT/TPC/II/3.

[3] The General Conference at its 16th session, November 1970, adopted an international convention for this purpose.

[4] The Universal Copyright Convention was first adopted by the Intergovernmental Copyright Conference in 1952 (Geneva), and was later revised in 1971 (Paris). The Berne Convention has been in force since 1886 but has been repeatedly modified. It too was amended in 1971 (Paris).

[5] The following states began adopting copyright legislation as a means for dealing with national folklore: Tunisia (1967), Chile (1970), Morocco (1970), Algeria (1973), Senegal (1973), Kenya (1975), Mali (1977), Burundi (1978), Cóte d'Ivoire (1978), Guinea (1980), and Burkina Faso (1983).

[6] Protection under this Statute does not extend to originating or "basic" work.

[7] In this way, traditional works including popular art, traditional music, and literature fell within the private domain of the State.

[8] [Bureaux internationaux réunis pour la protection de la propriété intellectuelle (Geneva, Switzerland)].

[9] It was decided that the best means to safeguard the integrity of African heritage, or folklore, and to protect it from exploitation would be the adoption by local governments of appropriate legislation.

[10] Recommendations from the Intergovernmental Conference on Cultural Policies in Accra led to the launching by the UNESCO General Conference of a "Ten Year Plan for the Preservation and Promotion of the Performing Arts and Music in Africa and Asia" (19 C/5, Approved, para. 4121). A colloquium for this plan convened at UNESCO Headquarters in June 1977.

[11] This program was launched in conjunction with Program Resolution 4.111.

[12] The request of the Government of Bolivia was expressed by the Minister of External Relations and Religious Affairs to the Director-General of UNESCO in a written communication dated 24 April 1973 (Ref. No. DG 01/1006-79).

[13] It has been suggested that an initial impetus leading to the onset of sixteen years of international debates for the protection of intangible cultural heritage may have occurred in the early 1970s when Western musicians utilized an Andean folk song entitled “El Condor Pasa” without copyright protection. This song later became a remunerative success. (Cited from a draft pre-evaluation on the Recommendation on the Safeguarding of Traditional Culture and Folklore [1989], prepared by Mr. Marc Denhez, 26 March 1997, for UNESCO).

[14] The Intergovernmental Copyright Committee, a body established under Article 11 of the Universal Copyright Convention, is responsible for dealing with matters concerning the application, operation, and revision of the Copyright Convention.

[15] These two Committees convene biennially.

[16] Two basic features of this Model Law are the following: (i) it is compatible with the Universal Copyright and Berne Conventions, and (ii) its provisions allow for different legal approaches of the countries for which it is intended. In addition, the Model Law provides legislation for the author's economic and moral rights, as well as for the protection of traditional cultural heritage. In short, it established a domaine public payant whereby the users of works of folklore pay a percentage of the receipts from the use of the work or its adaptation to a competent authority. The Model Law was itself progressive, as many countries that employed domaine public payant did not often accord either copyright or moral rights to the protection of folklore.

[17] This Committee was convened pursuant to Resolution 6.121, adopted by the General Conference at its nineteenth session, Nairobi, November 1976.

[18] The Committee included participants from the following nine Member States: France, Ghana, India, Italy, Mexico, Democratic Republic of Germany, Senegal, Tunisia, and USSR. A representative from WIPO attended in an observer capacity.

[19] These Committees convened from 5 to 9 February 1979.

[20] Experts from 16 countries were participants, while representatives of two Intergovernmental and seven international Non-Governmental Organizations attended as observers. The meeting was opened by the Director-General of WIPO and, on behalf of the Director-General of UNESCO, the Director of the Copyright Division.

[21] In the words of the Director of the Folklife Center (USA), “The auspices under which the meeting was held reveal a rise in the level of seriousness with which the nations of the world are beginning to regard the issue of protecting their folk cultural traditions” (Director's Column, Folklife Center News vol. 3, no.2 (January 1980): 2.

[22] The General Conference specified that these Working Groups become classified in Category VI (i.e., Expert Committees); the number of participants in each meeting is limited to between six and eight.

[23] 23. Experts who participated were the same as those who convened for the First Meeting (1980). Representatives of two intergovernmental and ten international non-governmental organizations attended as observers. On behalf of the Director-Generals of UNESCO and WIPO, the meeting was opened by the Director of the Copyright Division and the Director of the Public Information and Copyright Department, respectively.

[24] By September 1981, UNESCO had received ninety-two replies from seventy Member States to the "Questionnaire on the Protection of Folklore,” circulated in August 1979. On the basis of comments transmitted, a document entitled "Study of the Measures for Preserving Folklore and Traditional Popular Culture" was drafted. This report later became the Working Document at the meeting of Governmental Experts on the Safeguarding of Folklore (Paris, February 1982).

[25] This meeting conformed to the decision of the Executive Board (1 l2EX/Decisions 4.6.1), and was sponsored by the Programme Support Unit, Copyright Division. A total of 123 persons were present, including eighty participants, five representatives of UN and Special Agencies, thirty-five observers from non-governmental organizations, and three members of the UNESCO Secretariat.

[26] A letter dated 1 March 1982 from the Permanent Delegate of the United Kingdom to the Director of the Copyright Division, UNESCO, stated that “ while the British Government fully sympathized with the intentions behind these recommendations, they would have administrative difficulties in implementing all of them.”

[27] Professor L. Honko, Director of the Nordic Institute of Folklore (Turku, Finland), describes this meeting as the one that created a "positive" concept of folklore protection. He defines the approach undertaken as comprehensive -- scholarly, informative, and ideological; the final recommendations produced a wealth of ideas and methods for the safeguarding of folklore. (These comments were taken from his report, “A Working Document for the Second Committee of Governmental Experts on the Safeguarding of Folklore 1985.”)

[28] Professor Honko describes the approach adopted at this second meeting as representing a "restrictive" concept of the safeguarding of folklore. According to Professor Honko, “It is between these two concepts of safeguarding, the comprehensive and the specific one, that the philosophy of work initiated and carried out by UNESCO alone or by UNESCO and WIPO has oscillated during the past decade. . . . Although these two concepts of safeguarding folklore are interrelated, they do not seem to be very well integrated in the work carried out jointly by UNESCO and WIPO. One reason for this may be that the comprehensive approach is relatively new and in need of precision, whereas the specific approach is already nearing its logical end” (ibid).

[29] None of UNESCO Member States have yet applied these provisions.

[30] This study was based not only on the findings of the Intergovernmental and Regional Committees of Governmental Experts convened between 1980 and 1983 but also on the responses received from the UNESCO "Questionnaire on the Protection of Folklore" circulated in August 1979.

[31] This act was Agenda Item 5.6.2. (22/04/83) at the Executive Board's 116th session. In light of the findings of the 1981 and 1982 Committees of Governmental Experts, and pursuant to Resolution 5/03, adopted by the General Conference at its twenty-first session, the Director-General submitted this Document to the Executive Board.

[32] Section 5, paragraph 149, of Document 116 EX/26 states, “The various reports etc. reflected in the present study converge towards the conclusion that it is not only desirable but urgent that measures be adopted at the international level to preserve folklore.”

[33] This interdisciplinary examination was to be pursued in conjunction with the activities envisaged under Programme XI.2 (Culture and the Future).

[34] The meeting of the Expert Committee followed the decision of the UNESCO Executive Board (16 EX/5.6.2) adopted at its 116th session and the decision of the Governing Bodies of WIPO at their fourteenth series of meetings (October 1983).

[35] The Executive Committee of the Berne Union and the Intergovernmental Copyright Committee re­convened in December 1983 (Geneva).

[36] Representatives from forty-one Member States participated in the proceedings of this Committee.

[37] Focus was limited to the ways in which local communities could obtain remuneration and to the means by which folklore could be protected against illicit exploitation.

[38] It is important to here note that a similar shift occurred within UNESCO. Until 1985, although the Culture Sector and the Division of Copyright had jointly conducted a global study on the question of the safeguarding of folklore, Copyright assumed the majority of responsibility. However, following the recommendations of the 1985 Expert Committee, Copyright decided to limit its involvement solely to matters involving utilization of folklore, leaving remaining efforts to the Culture Sector.

[39] Such views were expressed in two pieces of correspondence. The first letter dated 15 August 1986 from the Director, Copyright Law Division, WIPO, to the Director, Copyright Division, UNESCO, stated that WIPO wished that the examination of international protection of the expressions of folklore by intellectual property be postponed to a later date. The second letter dated 29 September 1986 from the Director, Copyright Law Division, WIPO, to the Director, Copyright Division, UNESCO, elaborated the reasons for requesting postponement. Specifically, WIPO felt that one of the basic obstacles to the adoption of an international instrument on the protection of the expressions of folklore by intellectual property is the lack in many countries of appropriate and reliable sources for the identification of expressions of folklore to be protected. For this reason, WIPO maintained that only when progress is made in the field of identification of national folklore could there be any chance for success in developing international protection for the expressions of folklore by intellectual property laws. Moreover, identification is part of a bigger task, namely the preservation of folklore, an aspect that falls under the sole auspices of UNESCO. It was thus felt that only when the question of the preservation of folklore is clarified could UNESCO and WIPO continue their joint efforts in the protection of the intellectual property aspect.

[40] The meeting of the Special Committee of Technical and Legal Experts on the Safeguarding of Folklore was convened at UNESCO Headquarters (Paris). It was a Category II Meeting, organized by the Copyright Division and Programme Support. A total of 200 persons present included 150 participants, four observers of Member States, ten representatives of UN and Special Agencies, twenty-six observers from non-governmental organizations, five observers from intergovernmental organizations, and five members of UNESCO Secretariat. It is significant that the number of Member States sending delegates to this meeting was thirty-four, fewer than those sent to the meetings of 1985 (forty-four) and 1987 (forty-one).

[41] At the twenty-third session of the UNESCO General Conference, several representatives of Member States expressed the view that the protection of folklore should not be considered from the point of view of copyright, as works of folklore fall within the public domain and, as such, deserve protection from national legislation. A subsequent letter from the Ambassador of Mexico to the Director-General of UNESCO expressed the following view: “The safeguarding, preservation, promotion, dissemination of folklore obviously cannot be dealt with in the context of intellectual property, which has to do more with commercial considerations.”

[42] All comments received from Member States welcomed the initiative undertaken by UNESCO towards the adoption of a Recommendation on the Safeguarding of Folklore by its General Conference.

[43] Twenty-six written draft amendments to the first draft of the Recommendation were submitted to the Committee for consideration.

[44] 44. The Sponsoring Unit for this meeting was the UNESCO Copyright Division. A total of 164 persons present included 120 participants, ten representatives of UN and Special Agencies, thirty observers from non-governmental organizations, and four members of the UNESCO Secretariat.

[45] This comment is taken from a report written by Professor Honko following the examination of the draft Recommendation (Document CC/MD/4).