Folklore Protection in the Eritrean Context: Legal Issues and Choices
| DOI | 10.3366/ajicl.2012.0032 |
| Published date | 01 June 2012 |
| Author | Luwam Dirar |
| Pages | 229-250 |
| Date | 01 June 2012 |
In today's global world, copyright law plays an important role in protecting authors against the unfair economic and moral exploitation of their works.
Copyright law is generally categorised into economic and moral rights of authors. Almost all countries of the world today protect the economic rights of authors. Certain countries, for instance the US, have a very limited moral rights concept. One of the challenges that creators of works of authorship suffer in this age of technology is that it has become so easy and cheap to reproduce works of authorship. The cost of producing a song is much more than burning it on a CD. In addition, the intangibility of the property rights in creative works also allows the non-rivalrous consumption of the good. This non-rivalrous character does not deter the buyer of an original CD from allowing his or her friend to make a copy of it. Both the original and copy CDs can be consumed at the same time without reducing the value of the original CD for the original buyer.
It incentivises production by granting authors a limited monopoly over their creations.John Stuart Mill, the grand philosopher of liberalism, explained how intellectual property rights can incentivise creations. He emphasised the need for granting authors a limited time monopoly for their creations. The debate about whether granting authors limited monopoly rights serves as an incentive for creativity is as prevalent today as it was in the 1800s (Commission on Intellectual Property Rights,
However, it is not necessarily true to assume that people invest time and effort to create works because of the incentives granted to them by copyright laws. The Creative Commons is a non-profit organisation that is dedicated to making access to information easy. For instance, the movement with Mozilla Firefox and other open source software is one of them. For further discussion on the works of the Creative Commons movement, see
Historically, in the 1950s there was a prevalent view that the rationale for intellectual property rights protection was mainly to protect against retaliation from foreign governments. For instance, Edith Penrose said, ‘Any country must lose if it grants monopoly privileges in the domestic market which neither improve nor cheapen the goods available, develop its own productive capacity nor obtain for its producers at least equivalent privileges in other markets. No amount of talk about the “economic unity of the world” can hide the fact that some countries with little export trade in industrial goods and few, if any, inventions for sale have nothing to gain from granting patents on inventions worked and patented abroad except the avoidance of unpleasant foreign retaliation in other directions. In this category are agricultural countries and countries striving to industrialize but exporting primarily raw materials … whatever advantages may exist for these countries … they do not include advantages related to their own economic gain from granting or obtaining patents on invention’ (Commission on Intellectual Property Rights,
Contemporary copyright laws require originality and fixation of the creative work.
17 USC section 102(a) states: ‘Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.’
However, folklore does not satisfy this threshold because it is based on the traditions, cultures and beliefs of a society. It is transmitted orally from generation to generation.For further explanation of ‘orality’ as one of the main characteristics and the challenges it faces in this era of print, see Ntongela Masilela,
The intellectual property laws of the global South have been criticised repeatedly for their lack of adequate laws, legal systems and enforcement mechanisms.
See for example Afifah Kusumadara,
For example, the herbal and pharmaceutical knowledge of indigenous communities in the global South has been subject to appropriation by companies in the developed North, including the plants turmeric (
The classical conception of folklore as something of historical value, to be collected and preserved rather than as a living and evolving intellectual work, has been a subject of debate for decades.
Mary Magoulick,
William Thoms was a British antiquarian who coined the term ‘folklore’ in 1846. Thoms was trying to come up with a unified word for folkloric studies. Before the term folklore was used, different scholars used ‘popular antiquities’ or ‘popular literature’ to designate folkloric studies. The use of different terminologies created confusion amongst scholars of that era (The Center of Studies of Indian Languages,
The word ‘folklore’ is composed of two words: ‘folk’ and ‘lore’:
Folk means: ‘The people there when the Europeans arrived, in a definitive manner, appear not as walled up behind a tight and exclusionary social wall, but as just folks, living their lives and not unhappy with them, unstructured though they may have been though European eyes’ (H. Patrick Glenn,
Lore means ‘a body of traditions and knowledge’ (Evelyn Forbes et al. (eds),
The classical definition of folklore does not do justice to the ever-evolving intellectual creativity of societies. To date, there is no internationally agreed definition of folklore.
Folklore is defined differently for different purposes. For instance, the 1976 Tunis Model Law on Copyright defines ‘folklore’ as ‘all literary, artistic and scientific works created on national territory by authors presumed to be nationals of such countries, or by ethnic communities, passed from generation to generation and constituting one of the basic elements of the traditional cultural heritage.’ This definition is broader than the UNESCO definition of folklore in that it includes scientific knowledge.
Durkheim warns us to take methodological caution when forming definitions or defining what social facts are. According to Durkheim, a definition must eliminate the preconceptions of a layman and must be based onTo continue reading
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