Global Steps to Local Empowerment in the Next Millennium:
An Assessment of UNESCO’s 1989
Recommendation on the Safeguarding of Traditional Culture and Folklore

Since 1989, when the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore (the “ 1989 Recommendation”) was unanimously adopted at a UNESCO General Conference, [1] the 1989 Recommendation has stood, in the words of one commentator, as “the highest profile declaration on the importance of intangible heritage in the World.” [2] Nonetheless, in the years after its adoption, the 1989 Recommendation has lost momentum, due in part to internal UNESCO matters, a lack of international response, [3] and the difficulty of protecting a living heritage that is constantly evolving. [4]

The ten years since the 1989 Recommendation was adopted have witnessed several trends that confirm the importance of protecting folklore on a global scale. These same trends, however, call into question some assumptions of the 1989 Recommendation.

The first trend is the growing role of information as a driving force in the global economy, powered by the ability to reproduce and distribute it ever more quickly and cheaply by new technology. The laws that control the flow of information, namely intellectual property laws, have acquired increasing prominence. [5] The intellectual property laws developed in Western countries over hundreds of years have now been made global through international legal mechanisms such as GATT (General Agreement on Tariffs and Trade) and TRIPS (Trade-Related Aspects of Intellectual Property Rights). [6] TRIPS codifies the internationalization of culturally contingent and historically derived forms of intellectual property protection. [7] Over 115 nations are signatories to this treaty, which grants the World Trade Organization enforcement powers.

As will be discussed later (Section III), these laws reflect particular values and rationales, which necessarily exclude defined types of cultural practices from the protected ambit of “innovations” and “works of authorship.” When these practices are excluded, therefore placing them in the public domain, it is reasonable to expect certain consequences. As one commentator notes, “In an economic era defined by global information technologies, a monopoly right in the fruits of information is indispensable for the generation of new capital and invaluable for maintaining a global competitive edge.” [8] The fear is that information derived from Indigenous groups will become part of the global flow of information at the same time that it is excluded from controlling mechanisms and disassociated from its origins. This exclusion will first be felt economically by groups [9] that are unable to profit from their own information. These same groups are denied access to protected information and innovations that they are unable to afford. This disparity is likely to have a permanent and profound effect: the devaluation and loss of important knowledge and of its association with those who traditionally maintained it.

The second trend in the years since 1989 is the growing international recognition of the relationship between biological and cultural diversity and the growing concern with the depletion of both, which is manifest in the UNCED Convention on Biological Diversity. Recognition of the loss of cultural diversity is one of the motivations of the conference for which this assessment has been prepared. Whether that loss is called “a creeping monoculture,” [10] “Coca-Colonization,” or “McWorld,” [11] the fear, and increasingly the reality, is of a world dominated by one species, one economic system, a homogenized commodity marketplace, one view of innovation, and one form of relationship to the natural environment. The loss of cultural diversity arises not only from physical extinction but also, in daily increments, from cultural assimilation. [12] One author claims that “the traditions of the Maori in New Zealand, the native Hawaiians and native Americans in the United States, and certain Indigenous cultures of Latin America have become commercialized to such an extent that their cultural and religious significance has been virtually erased from public memory.” [13] The staggering historical loss of cultural diversity continues and increases its pace. [14] For example, an estimated 300 million Indigenous people belonging to around 5,000 groups live in over seventy countries. [15] In Brazil alone, it is estimated that one Indian tribe has disappeared in each year since 1900. [16] Further, one expert estimates that ninety percent of the roughly 6,000 languages being spoken today will die out within around 100 years. [17]

A central premise of the Convention on Biological Diversity is that today Indigenous communities preserve much of the world’s remaining biodiversity. [18] The loss of cultural diversity is certain to increase the loss of biological diversity. Species and varieties are becoming extinct at an unprecedented rate due to cultural extinction, destruction of habitat, [19] and the use of fewer, high-yield commercial varieties in agriculture. Losses in cultural diversity and biological diversity are historically and ecologically intertwined. This relationship is especially clear when one considers, for example, that traditional agriculture maintains myriad genetic varieties (many of which increase yield of other varieties) and that the store of Indigenous peoples’ knowledge about their surrounding biological diversity is estimated to increase pharmaceutical screening efficiency six-fold. [20]

The third trend, and one this author believes to be of major importance, is the fact that over the past ten years, tribal, Indigenous, and other groups have produced increasingly sophisticated arguments laying claims to their intellectual resources, phrased in the language of Western intellectual property laws. Examples include the Mataatua and Bellagio Declarations. [21] The 1989 Recommendation does not adequately deal with many of the central concerns expressed in these discussions. This point will be demonstrated throughout this assessment.

This paper has several goals. The first section attempts to capture several key concerns espoused not only by academics and organizations (such as UNESCO and the WIPO) but also by tradition-bearers and their communities. It will suggest issues that the 1989 Recommendation and other such documents must take into account. Section II assesses UNESCO’s 1989 Recommendation in light of these concerns and points out possible changes to better take them into account. Section III considers UNESCO efforts in this area apart from the 1989 Recommendation and presents a number of possible legal options in an attempt to foster further dialogue.

Given the inherent complexity of regulating and protecting local culture and the rapidity with which cultural diversity and its bearers are disappearing, this assessment will argue for an immediate multifaceted legal response. Namely, it urges action that is:

Accordingly, Section IV proposes that an international instrument, with minimum rights and national treatment, could effectively empower local communities within a global framework. By drawing on some of the options discussed in the preceding section, it suggests the sort of minimum rights that could be included in such an instrument.

The following concerns are central to discussions about the protection of folklore. They are drawn from the Mataatua Declaration, the 1989 Recommendation, the Model Provisions, [22] and academic discussions. These concerns are not described in an overall order of importance, because the relevance of any single concern varies throughout the range of cultural practices encompassed by any definition of “folklore.” These concerns are intended to be descriptive of concerns (and are characterizations of more complex and varied ideologies) raised in public tribal and Indigenous group discourses, but not comprehensive or universally applicable. The concerns include: (1) authorization, (2) informed consent, (3) maintaining secrecy, (4) compensation, (5) attribution, (6) preventing distortion, (7) continuing folkloric traditions, and (8) education. In Section II the author will use these concerns to assess the efficacy of the 1989 Recommendation.

A central issue in the discussions on the protection of folklore is the demand by Indigenous people and other groups that they be able to authorize use of expressions of their folklore by others. A necessary correlate is recognition that Indigenous peoples are the exclusive owners in some sense of their cultural and intellectual property. [23] One frequently cited lawsuit, Milpurrurru v. Indofurn Pty. Ltd., involves the sale of rugs made in Vietnam containing sacred Australian Aboriginal designs that depict stories of the Dreamtime. [24] These images are the Aboriginals’ main historical method of value transmission, and only certain individuals are allowed to reproduce them, and even then only after extensive training. Further, within Aboriginal tradition only those who have been initiated can view them. [25] Thus, as one commentator notes, the commercial sale of the rugs meant that sacred symbols (1) were being copied and seen by unauthorized people, (2) were being presented outside the context from which they derive their meanings, and (3) were being misrepresented—buyers might believe they had bought “authentic” art. Many variations on this story could be told in domains of music, dance, ceremonies, and clothing. Although a tag on the rugs claimed that money was going to the Aboriginal artist, this was not true. Even if compensation had been paid, this would not address more central concerns as to the propriety of the use. Often the use of folklore expressions in non-traditional contexts implicates moral interests, not only, or even primarily, economic ones.

Informed consent is primarily a concern when research by outsiders involves direct interaction with Indigenous peoples and their ecological surroundings. This research includes academic fieldwork, such as that conducted by anthropologists. Although the academic work may be beneficial, the “subjects” deserve -- and they have been demanding -- more say about how it is conducted and used. A recent example is the Human Genome Diversity Project, which seeks to record genetic information from so-called isolates of historic interest. [26] Indigenous groups have reacted strongly against this project of Western academia, and the Mataatua Declaration calls for an immediate halt to it “until its moral, ethical, socioeconomic, physical and political implications have been thoroughly discussed, understood and approved by Indigenous Peoples.” [27]

Maintaining secrecy, which may also be thought of as the right to determine whether and how information is divulged and commercialized, is increasingly viewed as a vital concern by Indigenous peoples. It is significant to note, in a legal perspective, that Indigenous proposals emphasize control more than compensation, namely the right to prevent the disclosure and/or commodification of knowledge, plants, animals, and objects. [28]

The ability to seek compensation is associated with the ability to define the conditions of use. Until the mid-1980s there was little, if any, discussion of compensating people in developing countries for use of biological resources, and the discussion of intellectual property emerged even later. [29] The Model Provisions provide for compensation for “artistic” expressions of folklore, and the Suva Declaration seeks compensation for Indigenous intellectual property, [30] although the former does not seek to assure that compensation benefits the community from which the folklore originates. For example, assuming the above use of Aboriginal sacred symbols was by law required to have been appropriately authorized, the stewards of that information could seek compensation for its use. Similarly, Indigenous communities that provide plant resource information subsequently commercialized by pharmaceutical or agro-industry companies argue they are entitled to receive compensation. In fact, approximately three-quarters of the plant-derived drugs now in use were discovered through research involving Indigenous groups, and in the United States alone the sale of plant-derived drugs reached an estimated fifteen billion dollars in 1990. [31] The active ingredient in the neem plant, used for thousands of years by Indigenous farmers in India as a natural insecticide and to treat skin disorders, is now the subject of a patent granted in the United States to W.R. Grace, which has allegedly indicated it has no plans to compensate anyone in India who provided the enabling knowledge. [32] [See Puri in this volume]

Another example that has attracted media attention illustrates how copyright law grants rights to users of folklore without any benefits to its stewards and performers. [33] Sherylle Mills, an intellectual property attorney, describes how in 1992, two Frenchmen created an album Deep Forest, which combined samples of music from Ghana, the Solomon Islands, and African pygmies with “techno-house” rhythms. [34] The album sold over two million copies and received a Grammy nomination. [35] The music from the album has been used by, and presumably licensed to, such companies as Sony, Porsche, and Coca-Cola. [36] Besides distorting sacred music and failing to attribute its source, the record producers likely paid no benefits to the sources of the music samples. In fact, United States copyright law would not protect the tradition-bearers unless they had fixed their rendition in a tangible form, [37] and even then, protection would not extend to melodies or words that are in the public domain through years of use.

Attribution is the right to require that commercial expressions of folklore accurately identify their sources. In the Deep Forest example, the album’s liner notes make no mention that the Solomon Islands was the source of music sampled in one hit song. Similarly, Enigma’s 1995 hit, Return to Innocence, used a recording of Amis tribesmen in Taiwan with no attribution or compensation. [38] Correct attribution helps protect consumers from false associations, while building accurate associations between “consumers” and the community where the folklore originates. Correct attribution thus serves an educational as well as an economic function.

Preventing distortion, simply stated, means that appropriate groups have the ability to control how folklore is used. In the previously mentioned Australian example, the use of sacred symbols on carpets is argued to be harmful to the interests of the Aboriginal people and should be prevented as a violation of their moral rights (droit moral). These rights have long been recognized as an integral part of intellectual property laws in France but not the United States. Moral rights in artistic property are separate from economic rights and generally remain with an artist even after he or she has transferred the economic rights. The implications of moral rights on the protection of folklore will be discussed in Section III.

Protecting folklore is not the same as protecting historical monuments. It directly implicates the living communities engaged in producing and transmitting knowledge on a daily basis. Therefore, it is imperative for those who seek its protection to be ever vigilant against the threat of laws that would reify folklore and place it in the control of external bodies. In fact, currently the term “folklore” itself is thought to suggest ossification and public domain and, therefore, to be inappropriate. The Mataatua Declaration recognizes this and proclaims that in their policies and practices, states and national and international agencies must “[r]ecognise that Indigenous Peoples also have the right to create new knowledge based on cultural traditions.” [39]

Finally, many parties, including UNESCO and many Indigenous groups, acknowledge a common, international interest in sharing and promoting folklore in a manner consistent with the above concerns. The Mataatua Declaration summarizes this succinctly, stating in its preamble “that the knowledge of the Indigenous Peoples of the world is of benefit to all humanity” and that they are “willing to offer it to all humanity provided their fundamental rights to define and control this knowledge are protected by the international community.” [40]

The preamble to the 1989 Recommendation states that “folklore forms part of the universal heritage of humanity and that it is a powerful means of bringing together different peoples and social groups and of asserting their cultural identity.” [42] The 1989 Recommendation continues by recognizing the “extreme fragility of the traditional forms of folklore,” and the “need in all countries for recognition of the role of folklore and the danger it faces from multiple factors.” It concludes that “the governments should play a decisive role in the safeguarding of folklore and that they should act as quickly as possible” by taking “whatever legislative measures or other steps” are necessary to give effect to the principles and measures contained in the 1989 Recommendation.

At a general level, it is difficult to fault the 1989 Recommendation’s systematic call for Member States to identify, conserve, preserve, disseminate, and protect folklore. [43] However, the 1989 Recommendation has come under criticism by experts because, while it attempts to impose requirements on Member States, it provides insufficient explanation of how to implement them, such as could be expressed through model provisions. [44] This may be why, in 1991, when UNESCO sought follow-up comments from Member States, only six eventually replied. [45] The replies were so general that one commentator stated, “It is impossible to deduce concrete conclusions.” [46] One expert advised that the 1989 Recommendation be allowed to “hibernate.” In 1992, further assessments were made of the 1989 Recommendation, “questioning the overall validity of the initiative and of the procedure that led to [its] development.” [47]

Whenever an international instrument is drafted, particularly by an organization as prominent as UNESCO, it will be closely scrutinized by Member States, non-governmental organizations, and concerned individuals and groups throughout the world. These groups look to an international instrument for diverse purposes: from ensuring compliance by Member States to justifying individual and state actions. Thus, it is crucial to ensure that actions enjoined by the instrument’s terminology are in harmony with the instrument’s intent. Throughout the 1989 Recommendation language and emphasis both help and hinder the document’s stated goal of protecting folklore.

The 1989 Recommendation defines “folklore” broadly as “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.” [48] Further, “[i]ts forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.” [49] In the 1989 Recommendation, folklore is no less than what some anthropologists define as “culture.” [50]

A history of UNESCO’s struggle to define this term may be found elsewhere, [51] but one document notes that by 1995 “complete unanimity (had) not been reached. On the contrary, it begins to seem that the definition must not be made a matter for dispute if the work is to progress.” [52] The same report concludes, “Logically, this does not appear very satisfactory, for how can it be possible to safeguard something that cannot even be defined?” [53] One assessor of the 1989 Recommendation concludes with the following:

After this many years of discussion, this may simply be an area in which there is little alternative but to return to still another elephant parable—as unsatisfactory as it is—namely that this animal is difficult to define, but relatively easy to recognize. Barring a major investment in further philosophical discussions, that may be the best that this subject matter can expect in the way of definitions at this time (emphasis in original). [54]

The author sees little harm in an over-broad definition as a potential motivator in a general policy statement, but any actual legal mechanism will require a more limited definition. This is consistent with the author’s view that no single mechanism is likely to meet all, or even many, of the concerns described above in protecting folklore (especially so broadly defined); but many different mechanisms, each with an appropriately limited definition, could work together to meet many of these interests.

Perhaps more fundamental is the dissonance between the language used in the 1989 Recommendation and that used in discussions by Indigenous peoples. No Indigenous declaration uses the word “folklore.” The Mataatua Declaration refers to “Indigenous intellectual and cultural property” and “cultural heritage,” [55] and the Suva Declaration calls for “the United Nations Development Program (UNDP) and regional donor to continue to support discussions on Indigenous Peoples’ knowledge and intellectual property rights.” [56]

A second problem in language use is that the 1989 Recommendation, recognizing the difficulty of protecting “living folklore,” primarily addresses folklore that has been removed from its original context. Thus, Section C states, “While living folklore, owing to its evolving character, cannot always be directly protected, folklore that has been fixed in a tangible form should be effectively protected.” Its main emphasis falls on archiving, typologies, museums, publications, etc. This may explain why Member States seem unclear about the steps that should be taken to preserve and promote living folklore.

In its preamble, the 1989 Recommendation sets forth several justifications for the protection of folklore, including a statement that folklore “forms part of the universal heritage of humanity.” [57] Certainly, it is important to identify a common goal that will motivate and unite concerted international action in support of the 1989 Recommendation’s principles. However, the phrase “universal heritage of humanity” has been historically used to justify appropriation and therefore should be used, if at all, with some qualification.

It may make sense to describe ancient monuments that need protection as “universal heritage” -- although the debates over the “Elgin Marbles” suggests that this usage also may be challenged. But when the “objects” of regulation are ongoing practices of living communities, declaring those practices part of “universal heritage” encourages, and may even justify, a way of thinking neither shared by the communities involved nor beneficial to their long-term interests. The Mataatua Declaration, Suva Declaration, and the Convention on Biological Diversity make the point quite clearly. At best, the phrase shows a misunderstanding of how folklore is created and perpetuated, and at worst, its claim is yet another act of appropriation and colonization, especially in the minds of many local and Indigenous people. One author notes critically how the “fruits of Indigenous and local knowledge are tagged ‘common heritage of humanity,’ rather than the evolving product of defined living communities.” [58] If all folklore is logically the common heritage of all people, then on what basis can a local individual or group lay paramount claims over its use, dissemination, or protection?

Even if the intent is not to appropriate, declaring folklore part of “universal heritage” may place it in the “public domain,” where it may be used without consent, compensation, or attribution. Many originators and stewards of folklore would surely take issue with this fundamental tenet espoused in the preamble to the 1989 Recommendation.

There is, however, a “universal” incentive to protect folklore behind which all Member States can unite. Every nation, region, and tribe, etc., has its own folklore and traditional culture that its members wish to protect. Therefore, the protection of folklore is of universal interest. As the growing eradication of cultural and biological diversity is increasingly becoming a global concern, each Member State should agree to protect and respect the folklore of others in order that their own be respected and protected in turn.

Accordingly, the author submits that in this area, where there is a vital concern that groups work together, any further work by UNESCO should be especially sensitive to universalistic claims to particular folklore, which are likely to be offensive to many of those the 1989 Recommendation is aiming to assist. Rather than choose a fundamentally divisive premise, UNESCO could proclaim that it is in the universal interest to protect the folklore of all peoples and nations. This would allow the Member States and constituents in them to align behind a common interest, while preventing the 1989 Recommendation or other instrument from being used to justify appropriation of folklore by any taker.

Control of folklore -- by the individual or group that serves as its steward and is responsible for its perpetuation -- is central to its protection. And central to control is the ability to grant authorization or withhold it for particular uses. Nowhere does the 1989 Recommendation call for giving control to the tradition-bearers or their communities. Section F provides some indirect support for control by stating that “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.” [59] This statement, however, is problematic. First, the use of “in so far as” might imply an assumption that a significant portion of folklore is neither creative nor intellectual and hence is relegated to the public domain.

Second, for that folklore which is deemed creative, the 1989 Recommendation states that it should be protected in a manner “inspired by” the protection provided to “intellectual productions.” Although this latter term is left undefined, the implication is that folklore expressions and intellectual productions are two separate, mutually exclusive categories. Separating folklore from other intellectually creative works may imply that even folklore judged “creative” merits less protection—protection “inspired by” but not necessarily “equal to” the protection afforded to “intellectual” works.

UNESCO’s policy on the protection of folklore should be especially attuned to the use of language and its implications. UNESCO should clearly recognize that many folkloric expressions are already protected under existing copyright laws and also that, although these protections are often insufficient to meet the interests outlined earlier in this assessment, such laws can still be of benefit. At the same time, and while balancing other interests, UNESCO should develop and recommend other forms of protection to Member States to give relevant groups specific, additional tools to assure appropriate control.

Section F(b)(i) states, specifically referencing privacy and confidentiality, that “the informant as the transmitter of traditions” should be protected. There is also a call for the international scientific community to adopt a code of ethics to ensure a proper approach to and respect for traditional cultures. [60] There is, however, no specific call for obtaining informed consent, or for including tradition-bearers in the adoption of an ethical code.

The 1989 Recommendation assumes that all folklore should be disseminated as long as it is not distorted. The dissemination of all folklore is readily encouraged throughout the 1989 Recommendation (e.g., Section B(c)(i), seeks a typology of folklore by way of “a general outline of folklore for global use”; Section C(g), seeks the creation of “security and working copies of all folklore”; and Section E is premised on the need to widely disseminate all folklore). Of course, it can be crucial to disseminate folklore outside of its traditional context in order to create international awareness and respect for diversity. However, nowhere does the 1989 Recommendation acknowledge that in some cases no dissemination is proper, even of the non-distorting kind. In contrast, this point receives emphasis in Indigenous and local community discussions. The Mataatua Declaration specifically calls for an appropriate body to monitor the commercialization of Indigenous cultural properties and for national and international agencies to recognize that Indigenous people have the right to protect and control dissemination of customary knowledge. [61] The Suva Declaration “urges Pacific Governments who have not signed GATT to refuse to do so and encourages those Governments who have already signed to protect against provisions which facilitate the expropriation of Indigenous peoples’ knowledge.” [62] The Charter of the Indigenous-Tribal Peoples of the Tropical Forests states, “Since we highly value our traditional knowledge and believe that our biotechnologies can make an important contribution to humanity, including ‘developed’ countries, we demand guaranteed rights to our intellectual property, and control over the development and manipulation of this knowledge.” [63]

Further work by UNESCO should expand the 1989 Recommendation’s call to protect the privacy and confidentiality of informants by seeking the protection of confidential or sacred folklore from inappropriate use. As the author will propose below, the right of a community to prevent the misappropriation of historically restricted folklore should be facilitated in the law.

While Section G(c) seeks to insure that various “interested parties” enjoy the economic, moral, and neighboring rights in folklore, it remains completely neutral as to which interested parties, such as the originating communities, are entitled to control the moral and economic rights.

The 1989 Recommendation has an entire section on the identification of folklore, and a separate section on dissemination. In many ways, the 1989 Recommendation supports the interest of correct attribution through archiving, publishing, and education. Despite urging its identification by outsiders, Section B states that folklore should be safeguarded “by and for the group . . . whose identity it expresses.” Even so, nowhere does the 1989 Recommendation explicitly call for the correct attribution of folklore that is to be disseminated.

Section G of the 1989 Recommendation states that distortion “should be avoided.” This seems to imply that distortion is a relatively minor matter. However, as already described in the Milpurrurru case, such distortion can offend central community tenets and practices. Since this issue is of primary concern to Indigenous groups and tradition-bearers, UNESCO should study further what distortion is, what kinds of distortion are acceptable to the tradition-bearers and the originating community, and how certain distortions can be prevented. A balance must be struck, however, lest anti-distortion efforts unduly promote claims of ethnic and cultural purity by those seeking an absolute form of ownership of their cultural patrimony. [64]

In marked contrast to documents produced by Indigenous peoples, the 1989 Recommendation places emphasis throughout on the role outsiders (researchers, archivists, institutions, and governments) play in the identification, dissemination, and conservation of folklore. Section C(g) states that the cultural community should be assured of access to its folklore but on the whole, the role of tradition-bearers is seldom discussed in the 1989 Recommendation.

For example, Section C urges the conservation of folklore through national archives and museums and the training of “collectors, archivists, documentalists, and other specialists in the conservation of folklore,” but it does not discuss the support, training, or participation of tradition-bearers and other interested community members in such conservation efforts. In contrast, the Suva Declaration urges steps to strengthen the “capacities of Indigenous peoples to maintain their oral traditions, and [to] encourage initiatives by Indigenous peoples to record their knowledge in a permanent form according to their customary practices.” [65]

Another example of this imbalance is Section D, which urges that folk traditions be economically supported, but presents an action plan to support academics, not tradition-bearers, by creating educational curricula and National Folklore Councils. Similarly, subsection (a) of Section E encourages events where folklore can be performed and shared but emphasizes its dissemination through the media, museums, archives, the scientific community, and institutions. Instead of requesting funding of tradition-bearers, the UNESCO document seeks “full-time jobs for folklorists.”

By emphasizing the interests and contributions of outsiders and de-emphasizing the crucial roles tradition-bearers play in the protection and dissemination of folklore, the 1989 Recommendation implies that originating communities do not have a significant interest in the folklore they create and pass on. This view reflects and bolsters the notion that folklore is part of the “universal heritage” of humankind. If the originating communities do not have a controlling interest in their own folklore, this errant logic would run, they do not need to be consulted over its use and preservation, which can be managed for them.

The 1989 Recommendation proclaims, “It is essential for the items that make up this cultural heritage to be widely disseminated so that the value of folklore and the need to preserve it can be recognized.” [66] Though a laudable concern, the emphasis is on creating typologies, training folklorists, establishing new museums, and arranging festivals. The 1989 Recommendation does not make a point to encourage community education by its own members.

When considered in its entirety, the 1989 Recommendation does touch upon all eight key areas of concern outlined in Section I, but its approach is inadequate. When it addresses central concerns, it often does so with a clear bias toward the researcher, the global public (humankind), and fixed expressions of folklore removed from their cultural contexts. In some cases its language and intent are incompatible with the tenor of Indigenous discussions cited.

In the words of one commentator, “[I]t would be in the interests of Member States to learn what all their options are . . . [so that they] may then feel more comfortable in selecting a strategy suited to their own purposes” [67] (emphasis in original). To this end, a discussion of various options follows, including (1) extant UNESCO efforts, (2) modifications to existing intellectual property laws as implemented by GATT TRIPS, and finally, (3) an international contracting framework proposed by the author in an attempt to open dialogue. Several of the options in (2) have already been touched upon in many publications, so the author will provide relatively brief discussions of the underlying legal concepts before focusing on how they may be used to advance some of the interests already identified.

This brief assessment of the Model Provisions concludes that their potential has been unrealized partly because they fail to adequately resolve issues of authorization and compensation and could even serve to disempower local groups. The Model Provisions were approved by a Committee of Governmental Experts, convened by WIPO and UNESCO in 1982. [68] It was anticipated that they would be a model for national and international protection. In broad strokes, the Model Provisions protect “artistic expressions” of folklore from unauthorized use by a “competent authority” outside of their traditional or usual context for gainful intent. [69] The Model Provisions require attribution for certain uses of “identifiable” folklore expressions and provide penalties for harmful distortions.

The Model Provisions appear to address concerns of authorization, compensation, prevention of distortion, education, and continuation of folkloric traditions. Despite this, after more than ten years, not a single state has adopted the Model Provisions. [70] In 1984, WIPO and UNESCO convened a Group of Experts, the majority of whom concluded that, despite the increasing and uncontrolled use of folklore, an international treaty was premature. [71] The main issues they identified were (1) the lack of appropriate sources for identifying expressions of folklore and (2) the lack of mechanisms for dealing with folklore that can be found in more than one country. [72]

One commentator believes the Model Provisions to be flawed because “it [sic] offers protection against verbatim reproduction and modest distortion . . . assuming that the original has been accurately recorded, and assuming that the original has been withdrawn from the ‘public domain’ and duly registered as such . . . [but] [t]his model is more awkward to apply in case of massive distortion” (emphasis in original). [73] In addition to reproduction and distortion, two other concerns may be raised: authorization and compensation.

By leaving authorization to a “competent authority,” the Model Provisions beg the question that is central to most Indigenous discussions on this topic: namely, who is the competent authority? Worse, the fact that the Berne Convention uses the same phrase suggests that copyright offices are the appropriate authority. It seems possible that the easy and likely designate in most cases would be the state, in the form of a copyright office. But in many cases this would not be desirable. For example, in the United States, the inappropriateness of granting the Copyright Office the authority to authorize uses of Hopi folklore is obvious. In the United States, Native Americans would presumably have the political power to prevent adoption of this provision, but in some other countries, where Indigenous groups are not as powerful, a state agency might be able to control such authorizations. What recourse would an Indigenous community have, if it were to object to a use authorized by its national government?

The second issue is compensation. Under the Model Provisions the competent authority, although not required to, may assess license fees. These revenues are meant to go towards promoting “national” culture, and there is no assurance or requirement that any of the fees will benefit the originating community.

In short, the Model Provisions fail to recognize and confront the complexity of the political relationships between states and Indigenous groups within them. This is the reality that Indigenous groups currently express in such documents as the Mataatua Declaration and the Suva Declaration.

UNESCO adopted regulations in 1998 to implement a program to “pay tribute to outstanding masterpieces of the oral and intangible heritage of humanity.” Under the program, every two years the Director-General will proclaim no more than ten awards. Between six and ten recommendations will be made to the Director-General by a jury of “creative workers” and “experts” in appropriate disciplines and from different geographic regions. Governments and certain intergovernmental and non-governmental organizations may submit candidates, with no more than one being submitted every two years from each Member State. [74]

The program could provide a visible, feasible, and effective role for UNESCO to draw attention to the importance of folklore without the need to wait for international agreements. It has clear potential to serve the interests of education, compensation, attribution, prevention of distortion, and continuation of folkloric traditions through generations. In addition to the monetary grants that are to be paid (although exactly to whom is unclear), the concomitant licensing of a UNESCO certification mark could also give the tradition-bearers increased visibility. This in turn could lead to increased compensation and respect for the tradition-bearer. However, just like intellectual property law discussed herein, such incentive programs cannot address all concerns in protecting folklore.

There are several potential limitations within the program as currently proposed. First, its narrow focus on the more “romantic” conception of authorship characteristic of copyright laws and “high art” is indicative of a shift away from the broad definition of folklore contained in the 1989 Recommendation. This particular focus may lead to recognition of Western-style artists at the expense of others. Second, implicating no more than ten examples of intangible heritage every two years, the program will have only a limited impact in the daily preservation of folklore. It may be hoped, however, that Member States will choose to adopt their own similar programs on a national level, which would increase the number of beneficiaries. [75] Third, the system currently depends on the value judgments and beneficence of Member States for selecting the examples of oral and intangible heritage to be submitted, since the tradition-bearers or their communities cannot submit examples directly. Again, in states where tensions exist between Indigenous groups and the state government, there is no reason to believe this program will benefit these groups in any way. Years of history suggest the opposite: The groups that are most in need due to state neglect are the very ones likely to be left out of the nomination process.

Before turning to a discussion of particular intellectual property concepts as embodied in Western intellectual property law regimes, specifically in the United States, a justification and appropriate caveats must be made. Many commentators have claimed that the globalization of intellectual property laws is one of the problems facing the protection of traditional culture, rather than a possible solution. One commentator calls GATT TRIPS “a form of passive coercion,” [76] while another concludes that these laws “exacerbate . . . de-culturization by promoting ‘McWorld’ over native traditions and customs.” [77] Another states that “applying the customary tools of intellectual property (patents, copyrights, trademarks, trade secrets, and plant variety protection) to Indigenous knowledge is likely to do more harm than good, both to Indigenous groups and to others.” [78] Surendra J. Patel concludes an article on intellectual property rights for Indigenous knowledge with a recommendation that “we should make a 180-degree about-face on empty debates on using and modifying the intellectual property rights system” because “[t]he course followed so far is a dead end.” [79] The 1989 Recommendation itself refers to intellectual property, but pointedly declares that this “relates only to one aspect of folklore protection.” [80] A further criticism is that concepts such as “tangible,” “intangible,” “artistic,” “sacred,” etc., cannot be used in those Indigenous societies where such distinctions are not made.

All laws embody and inculcate values; intellectual property laws are no different. It has been pointed out many times that the individualistic values embodied throughout all intellectual property laws are premised on culturally bound and historically derived concepts of “authorship” and “innovation.” [81] For example, the Bellagio Declaration states, “Contemporary intellectual property law is constructed around a notion of the author as an individual, solitary and original creator, and it is for this figure that its protections are reserved.” [82] The Mataatua Declaration seeks a different intellectual property-rights regime which incorporates: (1) collective and individual ownership, (2) protection against debasement of culturally significant items, (3) a cooperative framework, and (4) a multigenerational coverage span, with the first beneficiaries to be the direct descendants of the guardians of traditional knowledge. [83]

Another fundamental problem with trying to harness historically Western intellectual property laws in the protection of folklore is the incentive structure that provides their rationale. [84] Their economic rationale is that a limited, government-granted monopoly on material that could otherwise be readily copied by others allows the author or inventor to capitalize on his or her work for a limited time and simultaneously makes the inventive or creative elements embodied in the work or invention available to the public at large; eventually, the work or invention enters the public domain. Thus, in copyright, the author obtains the exclusive right to sell copies of the work for a limited time; during this time, others are free to copy the ideas, but not the expressions. After a period of time, the expression itself enters the public domain. This calculus aims at balancing incentives to produce with the public benefit of making the expression available to others. Too much protection for the author is thought to create a net inhibition on creativity in the broader society by preventing the ability of one author to draw on the work of another; whereas too little, it is feared, will stunt individual creativity. [85] One wonders how this simplistic economic incentive structure (e.g., the author gets a royalty for each copy sold) maps onto complex social relationships involved in artistic creation and innovation different from those recognized in the West. [86]

Moreover, the rationale relied on by the United States may even be based on an inaccurate understanding of Western reality. [87] Many Continental European countries emphasize natural rights, which grant both economic and moral rights to authors, yet have substantively similar intellectual property laws. The point here is that, as Western intellectual property laws -- and any laws pertaining folklore -- become more common around the globe, careful attention must be directed to how these laws interact with the complex and varying social relations of those engaged in the ongoing practices of folklore.

The following subsections discuss copyright, trademark, patent, and trade secret law, focusing on areas where they may be put in the service of several of the central concerns. [88] I argue that one avenue worth further exploration is expanding the newly internationalized trade-secret concept and linking it to an international contractual framework.

Indigenous people and academics have focused on copyright as having the most potential of all the Western intellectual property laws. [90] Copyright superficially appears appropriate because two of the concerns--control over images and other artistic works and compensation for authorized use--are typically dealt with by copyright. If a copyright, or a right similar to copyright, is recognized in a given expression of folklore, then the owner, be it an individual or group, can authorize use, seek compensation, impose use restrictions to prevent distortion, and assure correct attribution. This is the body of law that was successfully used by the Aboriginal artist in the Milpurrurru case discussed above in Section I. But even though copyright has been the first choice of many, there has also been a recognition that copyright law presents several problems in this context. [91]

These problems include the limited duration of copyright, the emphasis on individual authorship/ownership, the fair-use exception (which typically extends to parody) and, perhaps, most fundamentally, the fact that copyright does not extend to “ideas.” Thus, a painter of sacred images copied from a prior public domain work (e.g., no longer protected by copyright due to the passage of time) would, under current copyright law, own rights in the work only if enough “original” expression is added (assuming that threshold could be met, let alone whether it is an appropriate standard to apply). Even these rights would be insufficient to prevent use of the images, where all that is copied is already in the “public domain” (e.g., the incremental “original” expression is not copied). Nor would any copyrights prevent anyone from copying the sacred “ideas” embodied by the images. Further, the copyright ownership would be placed in the hands of the individual artist who created the work, even if this would be inappropriate in the particular society. Many societies do not define ownership in an individualistic way, and to give all rights to an individual could negatively impact on long-standing relations between such individuals and clan elders, for example, who provide the initial training and authorization. Whether under an economic incentive theory, as in the United States, or under a natural rights authorship theory, as in France, it is the individual that is meant to be rewarded.

Of course, since the majority of copyrights in the United States are in fact owned by corporations due to the “work made for hire” doctrine, there is precedent for assuring joint ownership. One method, which already exists and provides for the most flexibility, is the right to license or assign [92] all or parts of a work to others. This licensing and/or assignment could become complex, given that multiple parties would be involved. The objectification of relationships in license and assignment agreements could also affect those relationships in unexpected ways. On the other hand, with minimal education, standard forms of licensing and assignments could be devised and used. Because copyrights are infinitely divisible, with careful thought, a group could approximate, within the dominant copyright law context, that group’s desired legal relationships, both within the group and with respect to those “outside” it.

Another option is to expand the joint authorship concept. Currently, under United States law, where two or more individuals collaborate with the intent that their expressions be merged into a single work, each will be considered a joint author, so long as each contributed copyrightable expression. They would each have the right to exploit the work, subject only to an accounting for profits to the other. Under existing law, it would not be a huge stretch to proclaim those directly involved in the collaborative effort joint authors, so long as the combined result is a copyrightable work. Whether this would sufficiently recognize the authority of all the appropriate people is a different story. All that can be said here is that these are options that could be pursued, and the results analyzed.

It is also possible to recognize traditional forms of ownership. This could be done through a mechanism (contractually between the group members, or statutorily) which delegates to tribal authorities and other officially recognized groups the right to determine who is an “author,” or at least who is an owner and can exercise control. It may also be possible to incorporate a group’s traditional customary law concepts within the dominant legal framework of the state.

Among the exclusive rights granted to the copyright owner is the right to create derivative works, which could be used to prevent some distortions. [93] Derivative works are new works that are based on existing works. In the United States, this concept initially arose because courts held that translations did not constitute “copies.” The concept has been extended to cover new versions of software, the creation of movies based on books, etc. When a new work incorporates too much of a pre-existing work without authorization, it is an infringing derivative work (unless it is a “fair use”). If the derivative work contains only a small or substantively unimportant amount of the pre-existing work, no infringement will be found. The exclusive right to create derivative works serves the interest of preventing distortion, if the distorted work contains sufficient amounts of the pre-existing work to constitute an infringement.

In short, copyright law may have some use in serving the interests of compensation, authorization, attribution, and preventing distortion, but it will not be effective in many situations.

Moral rights (droit moral) are typically treated as non-economic rights provided under copyright laws. They include the rights to attribution and integrity contained in the Berne Convention, which provides, “[i]ndependently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or any other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. . . .” [94]

Although moral rights have been traditionally recognized in Continental European countries, it was only when the United States joined Berne that limited moral rights were specifically created in the United States through the Visual Artists Rights Act (VARA). In addition to VARA, courts in the United States have used the Lanham Act to forbid false authorship attributions, but the latter is not effective in preventing distortions. [95]

VARA covers only single-copy or limited-edition visual or sculptural works and photographs produced for exhibition purposes only. [96] Authors of these works have the rights of attribution and integrity, separate from their economic rights. The attribution right allows the author to disclaim association from works he or she did not create or works that are distorted in a manner prejudicial to his or her reputation, as well as claim authorship over works he or she did create. The integrity right prohibits intentional distortion or mutilation that would be prejudicial to the author’s honor or reputation and any grossly negligent destruction of a work of “recognized stature.” [97]

Moral rights appear to readily lend themselves to protecting the folklore concerns of attribution and preventing distortion and are utilized in the Model Provisions. However, once again issues arise about who should be vested with the power to claim and enforce moral rights. In fact, the theory of authorship underlying moral rights is an even more romantic conception than that in the economic-incentive rationale for copyright in the United States.

The author believes trademark and related areas of law could be of some assistance in the areas of attribution, compensation, education, and preventing distortion. However, because trademarks relate to the sale of goods or services, they are by definition commercial. Therefore, any trademark approach could be expected to increase commodification. Further, it would not protect against the disclosure of secrets.

In addition to registering trade or service marks for specific goods or services and preventing others from using confusingly similar marks, groups could register certification marks. The group could then license use of a certification mark under conditions it specifies. As long as a mark chosen is not generic, the certification mark could be used, for example, to identify only those artists who manufacture particular crafts in a traditional manner. The registrations owned by the Council of the Cowichan Indian Band for both word and design marks (“Genuine Cowichan” and “Cowichan”) do just this. They are “to be used by persons authorized by the certifier, [who] will certify that the goods, namely clothing, blankets and rugs, have been manufactured by members of the Coast Salish Nation in accordance with traditional tribal methods and that the wool and yarn used therein have been made in accordance with traditional tribal methods.” [99] However, a search of the United States Patent and Trademark Office database showed no other certification mark registration by Indigenous groups.

Under the Indian Arts and Crafts Act of 1935, discussed further below, the Indian Arts and Crafts Board, a government agency, certifies that a given artist is an “Indian.” [100] This is viewed by at least some individuals and tribes as effectively granting citizenship to certain tribes on the one hand, and preventing members of non-federally recognized tribes from claiming their art is “native-made,” on the other.

As an alternate to this certification, groups could register collective marks. In this context, any member of the group -- and only a member of the group -- could use the mark to identify goods or services. Collective marks can be used not only to identify goods or services but also to denote membership in an organization. [101] For example, the Inter-Tribal Indian Ceremonial Association, Inc., has applied for a collective (membership) design mark for denoting membership in an organized collective association which “promotes the preservation of the Native American or American Indian culture, traditions, art and related activities.” [102] A collective organization would hold title for the entire group.

Of course, there are major limitations in trademark law with respect to the protection of folklore. First, trademark law generally is only implicated when consumers are likely to be confused as to the source of the goods or services, or where there is a false attribution of origin. It is not effective where material distortions in the mark (whether the mark is a symbol, pottery shape, scent, color, or words) are such that consumer confusion would not result. The latter is often the case with parodies. However, in the United States and some other countries, trademark law will provide a remedy even where there is no consumer confusion for “famous” marks. [103] Second, and more fundamentally, trademark law is premised on and supports commodification. While it may be highly effective for groups with distinct and commercially viable folklore, for many other groups it will either be offensive in its commercial nature or of limited benefit.

UNESCO may be an appropriate body to establish a certification mark program on an international scale. It could be used, for example, in conjunction with its Masterpieces of the Oral and Intangible Heritage of Humanity program, discussed above. [104] Use of the mark(s) could be restricted, for example, to situations in which compensation returns to the originating community in a manner approved by the community, and in which appropriate steps are being taken to preserve the particular folklore in its living context. The synergy of a global UNESCO “brand recognition” along with the necessary involvement of local tradition-bearers and their communities would be one way of promoting the sale of appropriate folkloric works, within the greater context of preservation.

In addition to the above uses of trademarks, it is also possible for individuals or groups to seek cancellation of federally registered marks that are immoral or scandalous, or which falsely suggest an association with or disparage particular groups or institutions. The Trademark Trial and Appeal Board recently held that the registered mark “Redskins” (referring to Native Americans and featuring a stereotype image of a Native American) used by a professional football team disparages Native Americans and will be cancelled. [105] This cancellation does not mean the former owner of the trademark must cease using it, but it does mean the mark owner cannot rely on federal protection and associated benefits.

The inability to obtain or maintain federal registration, along with the educational impact from the publicity surrounding a cancellation action, could be an effective deterrent to the inappropriate adoption of marks incorporating sacred symbols or referring to groups in an offensive manner. To make this weapon effective, multiple Indigenous groups within a Member State could work together, perhaps through a non-profit organization, to police registrations, seek cancellation in proper circumstances, and educate the public on the harm which results from the use of such marks. Under recent judicial precedent, a party has standing to oppose registration of a mark simply because it offends the party’s religious values. [106] A prior decision already established that individual Native Americans have standing to seek cancellation of a mark that disparages them as Native Americans. [107]

It may also be feasible to lobby for a change in the law so that the relevant group considered in deciding whether or not a mark is scandalous would not be the population at large, as is the current United States law, but the group to which the mark refers, or from which it originates. This would further the interests of authorization, preventing distortion, and education. The United States Patent and Trademark Office has recently sought comments, as part of a statutorily required study, on how official insignia of federally or state-recognized Native American tribes might be better protected under trademark law. The study is due to go to Congress no later than September 30, 1999, and must address issues such as the definition of “official insignia,” the impact of legislation on international legal obligations, and the administrative feasibility. [108] This study may provide an important opportunity to deter harmful uses of sacred symbols and to strengthen control over them by the group that holds them sacred. It may be more practical and beneficial to empower governmental or non-governmental agencies to monitor and prosecute infringements on behalf of the originating communities with the latter’s authorization.

As discussed above, trademark law may be a powerful way to protect folklore, albeit indirectly, but it may depend upon enforcement through expensive and complex procedures. For this reason, laws that prohibit the false designation of goods as “folklore” or “traditional art” enforceable by the state may be beneficial. Established laws in the United States that prohibit the false designation of “Indian” arts and crafts may be examined to assess the benefits and limitations of such labeling requirements.

Section 305(c) of Title 25 of the United States Code makes it unlawful for a person to display for sale or sell a good “in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization.” It also provides a mechanism for the Indian Arts and Crafts Board to assist Native Americans and their tribes and associations to register their own certification marks. [109] Under this law, both members of Indian tribes and the United States government may prosecute violators, so that Indian tribes with limited resources are not left with the expensive and time-consuming task of enforcing labeling requirements.

New Mexico has embraced this principle and expanded it. In New Mexico, not only it is unlawful to misidentify a good as “Indian,” but it is also the affirmative duty of anyone selling an Indian product “to make due inquiry of his suppliers concerning the true nature of the materials, product design and process of manufacture to determine whether the product may be lawfully represented as authentic Indian craft.” [110] In New Mexico, violations of the labeling requirements result in both civil and criminal penalties.

Labeling laws appear to offer many benefits. First, they are relatively simple to draft and police, since they do not require complex registration schemes. Further, the statute could enable both government enforcement and a private right of action. Finally, the proscribed behavior may be defined with enough clarity that it is easily understandable and avoidable by merchants. Labeling laws protect the interest of attribution by prohibiting the sale of falsely labeled imitations. Compensation will be furthered where merchants turn to those folklore products that can accurately be labeled authentic. Finally, distortion may be lessened in the mind of consumers when labeling creates a more informed marketplace. Consumers will learn to distinguish the authentic from the inauthentic items, and demand for the latter can be expected to decrease.

Labeling requirements have limitations. Labeling requirements do not control the use or misuse of folklore once purchased. Nor can labeling requirements assure that the originating group provided informed consent for the initial sale or that they obtained fair compensation. Finally, labeling laws do not prevent distortions, so long as the goods at issue are not falsely passed off as authentic or Indian.

The criteria of novelty and non-obviousness, the unpatentability of products of “nature,” the concept of “inventor,” and the limited duration of protection all present substantial obstacles to the patenting of non-Western forms of innovation. [112] “Novelty” means that the claimed invention differs from the prior art in that no single invention or descriptions of it contain all elements of a claim. [113] Even where an invention is novel, it may not be patentable because it is “obvious.” [114] An invention is obvious if a person with ordinary skill in the relevant art could reasonably believe, at the time of the invention’s conception, that it was to be expected. As one commentator notes, “Patents reward the kind of individual, secretive effort epitomized by the lone scientist in his basement laboratory.” [115]

The ideology of the sole inventor may be descriptively suspect in industrialized nations, but it meshes with romantic conceptions of inventorship. In non-Western and Indigenous societies, individual inventorship is likely to be more suspect even as an ideology. In the latter case, knowledge is often descriptively and conceptually seen as collective and built upon prior knowledge. Singling out an individual as an inventor entitled to monopoly rights would be problematic. Although similar concerns arise with respect to copyright laws, the impact in that context would be less, since patent rights are so “strong”. That said, the internal division and conception of ownership within a group is separable from the issue of ownership with respect to those outside the group.

The non-obvious criterion effectively requires some “inventive step,” such as through purification of naturally occurring substances. The application of this requirement to folklore is problematic. First, rarely would a shaman have an incentive (other than to get a patent) to take this step. Second, these steps favor those who possess sophisticated laboratory techniques. For example, Naomi Roht-Arriaza describes how the neem seed has been used in India for hundreds of years as a pesticide, yet the only patent protection obtainable is for the laboratory-purified derivatives, which is held by the company that made the purification. No compensation or recognition is due, under the patent laws, to the people who discovered the beneficial uses and ensured the perpetuation of the seeds. [116] Patent law as currently conceived raises other issues, given its emphasis on “reproducibility” and maintaining knowledge in secret prior to obtaining a patent.

One author, Michael J. Huft, considers closely the concept of co-inventorship. [117] After discussing United States case law on joint-inventorship, Huft argues that in many situations the collaboration of an Indigenous healer with a Western drug developer should result in each being a joint-inventor. [118] The difficult issue is exactly what contribution, under existing law, is required for the Indigenous knowledge to be deemed an element essential to the “conception” of the invention as described in the patent claims. Legislative modifications may be possible to specifically define the circumstances in which parties are considered joint-inventors. Such recognition would serve the concerns for compensation, attribution, and to a lesser degree authorization (any joint-inventor can exploit the patent without the permission of any other joint-inventor). However, it would do so only for the individual involved, absent agreements within the community as to the division of ownership interests. Another proposal would require -- as part of any patent application in which the invention is derived from Indigenous knowledge -- a declaration that informed consent has been obtained. [119] A patent issued with a false statement of informed consent could be subject to revocation.

Trade secrets have received scant attention in the literature on folklore protection. [120] Yet of all the standard intellectual property law regimes, trade secrets may be most fruitful in advancing the concerns of secrecy, compensation, authorization, informed consent, and preventing distortion, especially when used in conjunction with the contractual framework described in the following section. Perhaps the lack of discussion is due partly to the fact that only with TRIPS have trade-secret laws become an increasingly international requirement. [121]

In the United States, trade-secret law developed through the courts rather than the legislature. Thus, it is conceptually flexible and expansive: information of any kind which has potential commercial value and which has been the subject of reasonable steps to maintain its confidentiality will be protected. [122] The owner will be able to get judicial relief against those who have stolen or revealed it in violation of a duty of trust. Misappropriation includes both the disclosure or use of the trade secret of another without express or implied consent and the acquisition of a trade secret by a person who knows or had reason to know the trade secret was acquired by improper means (e.g., theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy). [123] A trade secret is not lost, for example, where an employee reveals the information, if there is an express or implied duty to maintain the secrecy of the information. Remedy may be had against the employee and against the third party if he or she knew or had reason to know of the misappropriation.

A trade secret can consist of any kind of information (formulas, processes, inventions, etc.) so long as it has the potential (even if unrealized) to provide a commercial advantage. In determining what makes particular information a trade secret, courts typically consider numerous factors: the extent to which the information is known outside the owning entity, the extent to which it is known by members inside the entity, the extent to which measures have been taken to protect the secrecy, and the value of the information to the owning entity. [124]

Once a trade secret is established, it may be sold or licensed to others. If a court finds theft or misappropriation has occurred, it may issue an injunction preventing use of the information, and it may award compensatory damages. Trade secrets are generally owned by collective entities, such as corporations. Because absolute secrecy is not required, but only “reasonable precautionary measures,” courts typically look to the type of secrecy employed in the industry involved. Courts have been guided in this area by close contextual analysis and not ideological conceptions of “authors” and “inventors,” creating a flexible area of law that is fruitful to explore.

For example, it would be fully consistent with existing concepts of trade-secret law to protect knowledge from disclosure outside of a group if that group (or appropriate people in it) can show the information was subject to disclosure restrictions, written or implied, which are part of the cultural practices of that group. Thus, trade-secret law readily lends itself to incorporating concepts and practices of the applicable groups themselves. Within a given group, some information will not be subject to restrictions while other information will be. Where the customs and practices show that the party disclosing or using the information knew or should have known of these restrictions, use of the information would be a misappropriation.

Legally recognizing misappropriation in certain kinds of traditional or Indigenous knowledge in itself not only promotes the interests of authorization, secrecy, compensation, informed consent, and preventing distortion but also provides a “property” hook on which a contractual framework can be hung. In the biodiversity literature, there has been much emphasis on contractual arrangements. [125] One frequently cited example is a contract between Merck Pharmaceuticals and INBio, a private non-profit biodiversity institute created by the Costa Rican government. [126] The agreement is said to provide Merck with a certain number of natural extracts in exchange for up-front money and royalties on any commercialized products. INBio is required to provide some of the funds to natural conservation, and Merck is to provide technical training to Costa Ricans. [127] In this particular contract, however, it is unclear whether and how Indigenous individuals and communities will benefit, since the contract does not directly implicate INBio’s relationship with the suppliers of the information and samples.

The potential of private contracts nonetheless provides, as noted by Naomi Roht-Arriaza, the benefits of allowing Indigenous and local communities to bypass the state and negotiate on their own behalf. [128] Further, contracting provides parties with the potential to ensure that the use of information and resources is acceptable to the community and that benefits go back to the community. [129] One patent scholar notes that “the low frequency of these transactions, coupled with high policing and enforcement costs, make such private contracts preferable to a worldwide system of intellectual property rights in Indigenous plant and animal species.” [130]

On the other hand, oft-noted problems with private contracts include disparities between the parties in information, bargaining power, and enforcement capacity. Perhaps more problematically, when the information is available from several groups within a state or in different states, the party seeking the information will go to the group or state that has it at the lowest cost (meaning at no cost where no property right is recognized). Thus, although private contracts may benefit groups that adopt the practice, those who do not or cannot require contracts (in effect, giving away its information and resources) will be the target of increased exploitation. The groups seeking contracts may ultimately find they have priced themselves out of the market simply by refusing to give away the information.

Despite these problems, the Mataatua Declaration, for example, specifically calls for the consent of the appropriate Indigenous people prior to any commercialization of biogenetic resources obtained from the community, [131] which presumably would be embodied in some form of binding arrangement. Given that authorization, informed consent, and compensation are key issues, it is hardly surprising that Indigenous groups and local communities want to maintain control and not delegate it to states or other entities, as would be done under the Model Provisions.

What is proposed here, in necessarily broad form, is a kind of overarching contractual framework, such as that provided by the Uniform Commercial Code in the United States. This framework, which applies to the sales of goods, aims at ameliorating disparities in information and bargaining power by implying terms (such as warranties) and requiring certain agreements to be in writing.

For example, drawing on the discussion of trade secrets above, a “uniform folklore code” could be applicable to any information which:

Once the subject of the uniform folklore code is defined, the parties would be required to negotiate a contract for the information, or the law would presume an illegal misappropriation where the information is obtained in violation of the restrictions in (2) or from anyone who the obtainer knew or should have known obtained the information in violation of (2). Violations could be enforceable by the group itself or, with its consent, a governmental agency or NGO, and violators could be subject to penalties.

Once the party that desires the information is forced to deal with the authority that traditionally controls the information, the law should require that all contracts involve the informed consent of the relevant group or community. A court could consider whether informed consent was obtained by determining whether the group or individual traditionally vested with control over the information was consulted and consented. Obviously, many other factors could be added to create presumptions as to whether there is informed consent.

Additionally courts could imply certain terms where the contract is silent. Some examples could be implying:

ii) A provision providing for attribution of the community as creator and steward of the information in appropriate places, such as publications, patent applications, and copyright registrations;

iv) A provision designating an NGO as a third-party beneficiary to enforce the contract where it has authorization from the group

A framework such as the above provides both the flexibility to empower local groups to contract for highly specific terms and protection from overreaching. Importantly, this sort of framework, if done on an international scale, can minimize the potential for increased exploitation which may otherwise arise when only some groups (or groups in some states) are able to protect their knowledge through contracts. Such a framework would extend protection by uniformly defining what material must be obtained through contract (without use of it being presumed an unlawful misappropriation), thus mandating at least face-to-face interaction to determine those contractual terms.

Although some hold it impossible to define and, therefore, regulate folklore, since 1989 more and more people have recognized the need to protect folklore as a part of preserving cultural and biological diversity. If any universal goal unites us now, this is surely one. But we must avoid another ten years of waiting for the formulation of a single all-encompassing and effective solution. Instead, Member States should be provided with many options. These options should have the potential to function within an international framework we hope to develop. I have brought together several options that could advance some key concerns by modifying existing intellectual property laws. I have also suggested that a contractual framework could empower local communities.

An international instrument could be drafted which provides both clear direction and room for experimentation. Such an instrument would specify minimum rights and provide for national (non-discriminatory) treatment, such as in the Berne Convention. Any minimum right adopted should balance being specific enough to provide clear guidance with being broad enough to allow each Member State to experiment with different means of fulfilling its obligations. The following ways of asserting some substantive minimum rights are culled from the above discussion and could be incorporated in such an instrument:

1. Recognizing traditional communal forms of authorship and ownership in copyright (including moral rights as well as economic rights), such as by incorporating concepts of a group’s customary law within the definition of copyright “authorship” and “ownership.”

2. Preventing the registration of sacred symbols and words as trademarks, except where authorized by the group itself.

3. Requiring all patent applicants who used information derived from a group’s folk knowledge of plants or other resources during the process of invention to sign a sworn declaration that the information was provided with the informed consent of the relevant individual and/or group, and making negligent and intentionally false statements punishable and issued patents subject to revocation (possibly with royalties disgorged).

4. Expressly expanding trade-secret law to recognize a group’s restrictions on the disclosure of potentially commercially valuable information, as such restrictions are shown through the past and present cultural practices of the group.

5. Adopting a contractual framework applicable to potentially commercially valuable and traditionally restricted folklore, requiring informed consent for its use, and implying terms such as attribution rights and minimum royalties, as well as setting presumptions as to whether such consent has been obtained from the relevant group.

The above are a small sampling of the kind of minimum rights which could be included. UNESCO should take a leading role in the development of such an instrument. Prior to the adoption of a new instrument, UNESCO should also work to educate Member States and groups within them on the tools that could be created on a national basis.

International work with attention to local relations must be the goal, because although folklore is “local,” its loss is surely a global phenomenon. Legal options should aim to empower those who are stewards and innovators of the folklore being protected, taking cognizance of the varied and complex social relations in and through which folklore is embodied and changes. Effective solutions will consist of both international cooperation and local empowerment.

Notes

The author wishes to thank the law firm of Thelen Reid & Priest LLP, Dean A. Morehous, and Rauer Meyer for encouraging the work on this essay and providing the resources to complete it. The author wishes to acknowledge the capable and astute editorial and intellectual assistance of Esther Eidenow, along with the opportunity, support, and critical feedback from Anthony McCann and Sherylle Mills at the Smithsonian Institution. Although the author claims few original thoughts, he takes sole responsibility for any expressions which are.

[1] UNESCO, 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore, adopted by the General Conference at its twenty-fifth session, Paris, 15 November 1989.

[12] Assimilation is defined as “one of the outcomes of the acculturation process, in which the subordinate or smaller group is absorbed into the larger or dominant one and becomes indistinguishable from it in cultural terms.” The author goes on to note that “the concept of assimilation has been widely questioned in modern anthropology, and most writers now argue for a more careful examination of the different dimensions of cultural interchange and social dominance in situations of contact between different sociocultural systems.” In Charlotte Seymour-Smith, Macmillan Dictionary of Anthropology (Macmillan Press Ltd., 1986).

[13] 23 N. C. J. Int’l Law & Com. Reg. 229 (1998), p. 242. The author comments, “Thus, tourists in New Zealand watch performers clad in bastardized versions of ‘traditional’ Maori dress perform a welcoming ceremony although the performers have no concept of, or appreciation for, the cultural significance of the rituals.”

[19] Id., p. 926. The author notes that 97% of the vegetable varieties sold by commercial seed houses in the United States at the start of the century are now extinct; half of Europe’s domesticated animal species have become extinct in this century; most of the remaining biodiversity is concentrated in “gene-rich” Southern countries where most Indigenous and traditional communities are located. The West’s focus on a few varieties which maximize yield, while perhaps economically efficient from a short-term perspective, may reveal itself to be all too short term, as environmental conditions change.

[21] The Bellagio Declaration, reprinted in Shamans, Software, & Spleens: Law and the Construction of the Information Society, by James Boyle (Harvard University Press, 1996). The Mataatua Declaration was adopted by over 150 delegates from 14 countries at the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples (2-18 June 1993, Whakatane).

[30] The Suva Declaration resulted from a UNDP Consultation on Indigenous Peoples’ Knowledge and Intellectual Property Rights, Suva, Fiji (April 1995). It calls on governments and corporate bodies responsible for the destruction of Pacific biodiversity to stop their destructive practices, compensate the affected communities, and rehabilitate the affected environment.

[43] The following describes the separate elements of the 1989 Recommendation, which calls for the identification, conservation, preservation, dissemination, and protection of folklore.

Identification: Member states are encouraged to identify folklore through surveys, to be incorporated in regional and global registers. States are to create identification and recording systems and work towards a standard typology, by way of a general outline of folklore, a comprehensive register, and regional classifications.

Conservation: In order to conserve that folklore which is fixed in a tangible form, Member States should establish archives, including a centralized archive. States should establish museums and emphasize the living or past aspects of those cultures by showing their context. Archivists and collectors should be trained. Finally, copies should be made for regional institutions to assure access to the culture community from which the folklore derives.

Preservation: Recognizing that each people has a right to its own culture and that its adherence to that culture is often eroded by industrialized culture, each state should implement curricula, emphasizing respect for folklore and promoting a better understanding of cultural diversity. Each State is asked to guarantee the right of access of cultural communities to its own folklore, and to provide moral and economic support for indi