FROM PUBLIC DOMAIN TO COMMUNITY RIGHT
By its traditional nature, folklore, folklife, folk or 'intangible heritage' - whatever we wish to call it - belongs to everyone past, present and future (dead, alive, yet to be born). However, the legal status of folklore, such as it is, is very much at odds with this communal cultural resource. The notion that folklore is in the 'public domain' and so owned by no-one is a situation that allows anyone to use folklore without paying for it. Neither the creator, creators (if they could be found, which they almost never can be), nor the bearers of the traditions and, in many cases, not the collectors and preservers of these traditions shares in the often considerable financial rewards derived from those who exploit traditional music, song, dance, costume, designs, stories, techniques, etc.
Should these pre-existing links in the chain of tradition share in the profits derived from the cultural resource they have maintained? If so, how can a legal system geared to the notion of individual ownership and exploitation of intellectual property be amended to deal with the notion of communal ownership and appropriate community recompense?
One possible approach would be through the development of a 'community right' principle. This reverses the public domain status of folklore which is that no-one owns folklore therefore anyone can make use of it and says that everyone owns folklore and therefore no-one can make use of it without permission.
What other mechanisms exist to safeguard the use of intellectual property and allow its creators a share in the returns? Performance rights are one example. Copyright payments are another. What these things require to make them effective is a listing or register of items likely to be made use of and an appropriate monitoring arrangement for the subsequent re-uses of this material. Folklore is a broad, diverse and ever-changing form of cultural expression and activity, but with modern information and electronic technologies it is feasible to seriously consider such arrangements. The returns might fund the administrative costs of registering, monitoring and collecting and any residues could go into a perpetual fund that could be used for the benefit of the community(ies), perhaps on a grant-giving model such as many places employ with the proceeds of their lotteries. Appropriate exemptions could be given for education, research and charitable purposes.
What are the likely advantages of such an approach?
- It will allow the interested parties - the tradition-bearers - to have an input
- It will provide the opportunity for appropriate use of traditional materials
- It will ensure the distribution of any financial returns to the community from which the resource has been mined rather than solely to the pockets of individuals or corporations
- an appropriate proportion of the funds generated to be channelled back into the collection, preservation and study of the nation's folklore resources
 
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