A Case Study on the Protection of Cultural Expressions

 

Jerry Feng Xia

 

 

 

The Center for Intellectual Property Law (CIER)

Utrecht University, the Netherlands

2002.1 – 2002.5

 

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[Facts]

 

1.      Aboriginality Music BV (AM) is a phonographic industry specialized in reshaping traditional folk music from the Andes into modern house-style dance music. To that aim scouting teams roam through the region recording whatever music they hear the indigenous people play.

2.      One of the songs produced by AM in the indicated way, being based upon a religious hymn from a certain Peruvian tribe, becomes a major number one hit both in America and Europe. As a consequence the song generates enormous revenue for the company.

3.      Not long after the song has been released AM is visited by a Peruvian governmental representative stating that from now on AM will not be allowed to unconditionally scouting traditional music on Peruvian territory. Any future visit and recording will be bound to previous negotiating of an appropriate contract with the Peruvian government, reflecting as its basic understanding the equally and fairly sharing of the benefits from any prospective release.

4.      You are asked by the Peruvian Government to draft on its behalf a concept for a contract along the lines of your own national law.

 

[Chinese Law Perspective]

 

As we all understood folklore is an important element of the living cultural heritage of every nation. However, folklore is often commercialized without due respect for the cultural and economic interests of the communities in which it originates. And, in order to better adapt it to the needs of the market, it is often distorted or mutilated. At the same time, no share of the returns from its exploitation is conceded to the communities who have developed and maintained it.[1] Such abuses and distortions, which may tend to be multiplied by the spectacular development of technology, the newer and newer ways of using both literary and artistic works and expressions of folklore (e.g., audiovisual productions, phonograms, their mass reproduction, broadcasting, cable distribution, and so on), obviously are prejudicial to the cultural and economic interests of the nation.[2] As the world’s largest developing country which enjoys a 5000-year history of civilization and glorious cultural traditions, China has long recognized the need for effective legal protection of expressions of folklore, for example, intellectual property law protection.[3] The first Copyright Law of China in 1990 did indicate that it is the intention to protect expressions of folklore by copyright while "regulations for the protection of copyright in works of folklore shall be established by the State Council."[4]  However, it was not until January 1997 that the State Council of China started drafting the Regulations on the Protection of Works of Folklore[5](“Folklore Regulations” hereinafter) which, however, have not come into force yet as of today.[6]  The National Copyright Administration of China (NCAC) is responsible for administering the Regulations.[7] 

 

The Chinese Folklore Regulations have 24 articles in all, which are basically consistent with the principles contained in the UNESCO & WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (“Model Provisions” hereinafter).[8] Along the lines of these Regulations as well as some official commentaries by NCAC, we may furnish a brief concept for contract under Chinese law on behalf of the Peruvian government against AM’s exploitation of Peruvian traditional folk music.

 

I. Legal Grounds for Contract i.e. Legal Grounds for Protection

 

To make AM fully aware of the need for this contract and that without this contract its exploitation shall be stopped under legal instruments, the Peruvian government may have first to justify its legal stand before AM in respect of the subject issue, i.e., the legal grounds for which the government is entitled to require such a contract. Specifically in this case, a clear fact shall be proven that the traditional folk music from indigenous Peruvian tribes is protected by law as one of the expressions of folklore in Peru; AM’s acts are falling within the utilizations subject to authorization from the competent authority; and, the Peruvian government representing the indigenous community is the competent authority that enjoys the ownership of such expression of folklore. Under the Chinese law regarding the legal protection of folklore, we shall then look at the following:

 

1.  The goals of protection

 

The point of departure should be that making such a contract is in order to fulfill the goals of the protection of folklore. The Chinese Folklore Regulations serve three objectives[9]:

1)      for the purpose of developing and protecting the creation and dissemination of the folklore of China;

2)      for the purpose of preventing the illicit exploitation and other prejudicial actions described;

3)      for the necessity of maintaining a proper balance between protection against abuses of folklore and encouragement of further development and dissemination of folklore.

 

2. The scope of protection

 

Then it comes to the subject matter of the contract, i.e., the question whether such traditional folk music does fall within the scope of the protected expressions of folklore. The Chinese law takes the term “works of folklore”. According to the Article 2 of the Folklore Regulations, the subject matter is referred to as “works of folklore”, regardless of whether the works have been fixed in a tangible form.[10] They cover the following literary, artistic and scientific works where the author is unknown, but where there is every ground to presume that he or she is a national of China:

1)      verbal expressions, such as folk tales, legends, folk poetry, common proverbs and the librettos or scripts of ballad singers, etc.

2)      musical expressions, such as folk songs and national instrumental music, etc.;

3)      expressions by action, such as folk dance, folk operas, folk quyi (folk art forms including ballad singing, story telling, comic dialogues, clapper talks, cross talks, etc.), folk customs and rituals;

4)      tangible expressions, such as

a)         production of folk art, especially drawings, paintings, murals (frescos), carvings, sculptures, pottery, mosaic, metal-ware, weavings and knitting, embroidery, ornaments and decorations, costume ornaments and designs, moulds of traditional arts and crafts and musical instruments;

b)        artistic forms of folk architecture.

 

Evidently the traditional folk music in this case is among the protected “musical expressions.”

 

3. Whether subject to authorization?

 

The Peruvian government may continue to conclude that AM’s exploitation acts are or will be trespassing on the exclusive rights in such traditional folk music and thus it needs to obtain relevant authorization from the competent authority. The Chinese Folklore Regulations regulate that two categories of utilizations should require authorization:

1)      any reproduction and distribution of a work of folklore;

2)      any public performance and broadcast of a work of folklore.

Such rights are exclusive in nature. The principles that are used to determine on what occasions such utilizations require authorization completely follow the Section 3 of the UNESCO & WIPO Model Provisions, i.e., when a work of folklore is utilized with gainful intent and outside its traditional or customary context, the authorization is required.

 

The Regulations also provides exceptions. In the following cases, a work of folklore may be utilized without permission from, but with payment of remuneration in accordance with the statutory standards, to the copyright owner, provided that the origin and the provider of the work utilized are clearly indicated in an appropriate manner:

1)      broadcast of a work of folklore by wireless or cable means;

2)      distribution of a published work of folklore that has been produced in the form of phonogram.[11]

In other cases, a work of folklore may be utilized without permission from, and without payment of remuneration to the copyright owner, provided that the origin and the provider if the work utilized are indicated in an appropriate manner.[12]

 

In this case, AM produced the song by recording and reshaping the original music that the indigenous people play in Peru and conceivably has made it available to the public in the performance and broadcast of the song as well as in its commercial circulation, for example, sale of the CD copies. According to Article 10 of the Copyright Law of China, these acts shall be regarded as reproduction and distribution: “the right of reproduction, that is, the right to produce one or more copies of a work by…making a sound recording or video recording, duplicating a recording, …or by any other means; …the right of distribution, that is, the right to make available to the public the original or reproductions of a work though sale or other transfer of ownership.”[13] As well understood AM’s exploitations are also made both with gainful intent and outside the traditional or customary context of the work of folklore. Besides, this case does not meet the requirements of the statutory exceptions. Therefore, it shall be deemed mandatory that AM should request authorization from the competent authority for its relevant utilizations of the work of folklore.

 

4. Who takes ownership?

 

The competent authority as referred to above shall be the Peruvian government. In China, expressions of folklore are regarded as the “property” of the country as a whole (as part of the national cultural heritage).[14] Thus the government represents the communities of folklore and enjoys the ownership of these expressions of folklore, including their copyright and other exclusive rights. According to the Folklore Regulations, the Ministry of Culture and the culture administration department of the local People’s Government are competent authority. Their main function is to give authorization, which includes to receive applications for authorization of the utilization and to decide on the scope of the utilization to be authorized. Besides, the National Copyright Administration of China (NCAC) is the supervisory department for the protection of works of folklore. Its main functions shall be to approve the tariffs payable for the authorization of utilization of works of folklore and to supervise the distribution and exploitation of the fees collected.[15]

 

II. Some Special Considerations In Drafting the Licensing Contract

 

The Chinese Folklore Regulations, however, do not provide specific principles for drafting the authorization or licensing contract. Apart from the general contract rules that apply, the following aspects, in line with the relevant provisions in the Copyright Law of China, may be taken into special consideration when drafting the licensing contract between the cultural authority and the licensee.

 

1.  Form of the contract

 

A copyright licensing as such shall be in written form[16] and shall include the following basic clauses: 

1)      the category of right licensed for exploitation of the work covered by the license;

2)      the exclusive or non-exclusive nature of the right to exploit the work covered by the license;

3)      the geographic area and term of the license;

4)      the standard of remuneration and the method of payment;

5)      the liability in case of breach of the contract;

6)      any other matter that the contracting parties consider necessary.[17]

NCAC is responsible for providing a standard form of the contract.[18]

 

2. Non-exclusive

 

In general, such a license shall be non-exclusive in nature in accordance with the Implementing Regulations for the Copyright Law of China.[19] In most cases the sublicensing of the same right to a third party is not allowed or at least is subject to the permission of the copyright owner, i.e. the cultural authority.

 

3. Remuneration

 

The Folklore Regulations provide that anyone who utilized a work of folklore shall pay a fee to the competent cultural authority. The fee shall be no less than 7% of the profit made from the utilization of a work of folklore, and shall be used mainly for the following purposes: first, to support and assist the work of national folklore organizations, folklore artists, folklore research institutions, folklore museums, exhibition halls and archives; second, to subsidize the community creating and spreading folklore to carry out meaningful activities on traditional folklore; third, to protect and disseminate Chinese folklore works.[20]

 

4.  Liability

 

The licensee is not only bound to the general contractual obligations that it agreed upon in the contract but shall be also subjected by the competent cultural authority to such administrative sanctions as warning, imposition of a fine, or confiscation of unlawful income if its acts may constitute the violation of the provisions of the Folklore Regulations and other laws.[21]

 

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