Definition and characteristics of folklore

Folklore expresses an assortment of traditions and customs that reflect a people's culture [1]. It is expressed through music, dance, drama, craft, sculpture, painting, literature [2] and other means of creativity which generally require little dependence on high technology.

Folklore tends to be passed on from generation to generation within a community from memory, by word of mouth, or visually. The particular community to which the folklore is recognised as belonging is both its conveyer and user and so works of folklore are easily absorbed into the community's culture and social life. In this respect folklore is part of the collective consciousness of a culture. It is not just a static replication of the past.

Folklore is a dynamic and living entity which evolves with the culture. Within indigenous societies the expressions of folklore, although often transient in form, are nevertheless lasting in a social sense because their richness plays an integral part in collective and individual life [3]. Folklore is part of the cultural heritage of indigenous societies such as the Australian Aborigines, the Maori of New Zealand, Indian tribes in the USA, and the Indians, Inuit (from the north) and Metis (from the prairies) of Canada [4]. It derives its practical use and social value by being crafted for particular ceremonies or other forms of group participation or by being related to a continuum of events and circumstances within the community [5].

For indigenous peoples, that continuum of events can go back a long, long time. Their language, literature, traditional spiritual beliefs and cultural customs [6] will often be intertwined with their folklore. The age-old character of many works of folklore and long history of indigenous cultures usually means that the creators of folklore are anonymous [7]. This also highlights the communal ownership of folklore.

Collective ownership of indigenous people' folklore

The close identification of indigenous folklore with community life has as its corollary the notion of overriding community control of intellectual and creative works so that to impart total control to the individual creators of these works is seen as undermining part of the foundations of that community [8]. This means that an individual's creative work attains a place and is attributed with some meaning within the indigenous culture when it is somehow co-extensive with the performance of communal obligations and adherence to communal requirements.

In consultation with others in the indigenous community, it is not uncommon for individual creators to work with concepts, styles and techniques handed down to them and be restricted in their creative and aesthetic inclinations in order to advance the mode and manner of collective traditions and practices [9]. As a result, the creative expression of an individual or group of individuals is considered to be an expression and product of the community as a whole. This is particularly so where current works are derived from older works whose original creation cannot be ascribed to any definite persons. This situation gives rise to ownership rights within indigenous cultures regarding works of folklore which are at odds with Western legal concepts such as absolute individual ownership and freedom of alienability of property [10].

The idea that folklore belongs to a living and changing group of people means that Western concepts of individual creation and individual ownership reflected in copyright law through such exclusive rights as reproduction and adaptation, publishing and recording, performing, and broadcasting rights [11] do not necessarily hold up for indigenous peoples [12]. For indigenous peoples it is the aesthetic, social and cultural elements within a work of folklore that are determinative of its value which has to do with the sentiments and emotions attached to the folklore and its use and enjoyment. This construct of value represents a communal "moral right" or moral concern with the work of folklore and surpasses whatever economic advantages can be gained from the work by its sale or disposal to others [13]. A system of legal protection for indigenous folklore has to recognise this fact if it is to be effective.

It should, however, be acknowledged that within indigenous cultures the value of things may, where occasion calls for it, also be expressed in terms of a potential exchange value, although this is not the usual standard for ascertaining value [14]. Nevertheless, with the availability of contemporary and more efficient technology for making creative works the potential for an exchange value does become an important factor when considering how to legally protect the intellectual property of indigenous peoples' folklore in the Western world.

Distribution of rights within indigenous cultures

A system of legal protection for folklore cannot ignore customary rights of ownership of creative works by indigenous communities. How such rights function within Australian Aboriginal society was discussed in Yumbulul v Reserve Bank of Australia [15]. In that case the court noted that rights are distributed within different groups [16] usually along the lines that ownership of various works, designs or imagery is vested in a clan and the right to use a design or image or to make and sell a work or create a facet of a work for various purposes is vested in certain members of that clan [17]. These rights can be inherited or gained by reputation.

Also in New Zealand, in Maori society the use of property including cultural and creative works are managed on a differentiated basis so that control and use is distributed over several levels [18]. This ranges from a chief (ariki) who is considered as the guardian of tribal (iwi) interests, followed by minor chiefs acting as "custodian trustees" within sub-tribes (hapu) in relation to various subordinate and collective affairs, and then extended family (whanau) and individual property rights. Individual rights are qualified by an over-sight of the community to use property to serve wider needs [19]. The defined bundle of privileges and obligations that exists is similar to a process of delegated authority [20].

The system holds together because of a tribe's close social bonding and the imposition of supernatural restrictions (through concepts such as "sacredness" or tapu prevalent in Maori society) which govern how certain works or techniques can be used for different purposes or ceremonial occasions [21]. While this may prohibit undue departure from traditional usage, it also ensures the retention of recognised standards and emotional attitudes towards the use of a work or its adaptation. In this sense the tribe's moral concern with the work is strengthened which in turn reinforces the communal ownership of the work.

Limitations of copyright law - originality

In contrast, copyright law is based on the premise that works originate from an author's own judgment, skill or labour [22]. Individually or jointly vested rights (in proportionate shares) enable copyright owners to license or assign their intellectual property to others and thereby obtain some economic remuneration from the copyrighted work. However with indigenous peoples customary claims to intellectual property are in substance those of the tribal community (without any tracing as to proportions).

A problem posed by the established assumptions of individual and exclusive rights under copyright law is that it is possible for an individual indigenous artist's work (made since the advent of English and now Australian law [23]) to be protectible under section 35(1) Copyright Act 1968 as that artist's own intellectual property even if made in an indigenous setting. The artist is the author of the work and all that is required from the artist to gain protection is a minimal amount of originality [24]. However, the customary law is actually that the intellectual property rights to the work are non-exclusive communal property. In this respect western copyright law diverges substantially from the customs and practices of indigenous cultures [25].

Conversely, it is possible that some works by an individual indigenous artist, such as simple paintings or those drawn from or imitating pre-existing traditions [26], might not be regarded as original works. For example, the emblems and designs used may have existed in a tribe for thousands of years and been handed down over the centuries. In this respect the work of the artist is basically unoriginal and an adaptation. However given the low degree of originality required to obtain copyright protection, then so long as the work has some element of distinctiveness that comes from the artist the copyright in it will belong to the individual artist [27].

In such cases the customary interests of a tribe may come into conflict with the copyright law [28]. This is especially so where there is a tribal assertion that permission must be obtained by others to use a certain idea or concept such as, say, a specific style of dot painting common to Australian Aborigines. One of the reasons for such permission is to ensure that the cultural integrity of similar already existing works is not denigrated or misrepresented.

This approach is not easily compatible with that of individual creativity and the free flow of ideas under copyright law [29]. This form of customary regulation and entitlement implies that a licence is needed from the tribe to use certain designs, imagery, concepts or ideas [30]. The general principle under copyright law is that there is no property in ideas.

Limitations of copyright law - fixation in material form

An unsatisfactory situation which has arisen in Australia concerning the cultural integrity of folklore is where copyright protection can be obtained for prints on consumer items such as tea-towels, wall hangings, postcards and other souveniers [31], but the prints are merely adaptations of traditional and possibly sacred pieces of Aboriginal artwork or other cultural imagery which do not fall within the term of copyright protection because of lapse of time (eg ancient rock art) or there is no identifiable creator [32]. Other works not in a material form such as native dances, music and lyrics have also been known to be performed in the wrong context without emphasis on their inherent cultural or spiritual meaning, especially where the objective is to rake in the tourist dollar under the demands of popular marketing.

Verbatim note taking of myths and legends is also a problem. Here the notetaker should only be considered as a mere scribe who does not own the copyright in those myths and legends [33]. The copyright should belong to the person who recited the myths or legends as a representative of their tribe.

Many works of folklore do not always have a fixed material or tangible form [34] but are still capable of remaining relatively unchanged and well-known through the ages. Within indigenous cultures a particular work or expression often only exists for a performance or an occasion, but even then it still has a transient type of structural arrangement or formation which continues and can be revived for subsequent performances or occasions in a way very similar to how it was expressed previously. For example, it may be drawn, sung, created musically, performed, danced or recited in a way it has been known from time immemorial or adapted accordingly, and then effaced or destroyed while not being permanently retained or captured by some technological means of recording.

Therefore, the work of folklore has some known configuration, (even if somewhat variable in expression) and does exist in the collective consciousness of the community to which the folklore belongs. In this sense it is stored in that collective consciousness. This concept of "storage" or "fixation" is, of course, very different to that under copyright law which, in accordance with section 22(1) Copyright Act, requires that the work must be "made" in such a way that it is "reduced to writing [35] or to some other material form [36]" in order to obtain protection under the Act.

So while a work of folklore may often not be in a permanent form it is clearly more than an idea. It is an actual artform having cultural significance or historical value worthy of both tangible and intangible preservation.

It also has to be recognised that the work may not have been fixed in a material form simply because the particular culture places no predominant importance on such fixation. This does not mean that the culture considers the work to be unimportant. Indeed in some indigenous cultures, such as the Australian Aborigines, the work could be so important or sacred that it should not be fixed in a permanent form capable of easy material reproduction or public viewing [37]. The law of copyright should make provision for such worthwhile differences in cultural perceptions and practices and not allow for loss of copyright protection in these situations. In some countries such as Germany, works do not have to be fixed in a material form to be protected [38]. This should be readily extended to works of folklore.

The fixation requirements may actually present an obstacle to the growth and development of folklore because they potentially allow for works of folklore to be taken away from indigenous cultures by persons who seize the initiative of fixing them in a material form [39] by, for example, adding their own distinctive changes to the original, yet unprotected, works. Once fixed by persons outside that culture, the distinctive expressions in those fixed works may not again be able to be used by the very culture from which they came, because to do so could amount to copying or other infringement of intellectual property rights in the fixed work. Protection for indigenous folklore to the effect that this type of adaptation does not give rise to a separate copyright is clearly required as it was not the intention of copyright law to decrease the development of the arts of which folklore is a part.

Linked to this is the question of duration of copyright. As folklore enhances the whole community's cultural heritage for the benefit of all it is argued that there should be no time limitations both forwards and backwards in relation to its protection. The Tunis Model Law on Copyright for Developing Countries produced by UNESCO and the World Intellectual Property Organisation ("WIPO") in 1976, and which is the basis of copyright laws in countries such as Sri Lanka and Zaire, provides for economic and moral rights for folklore without limitations in time and for the control of folklore to be in a "competent authority" of government for the duration of its protection. It would, however, be preferable for that control to be with the culture from which the folklore stems so long as that culture also recognises the wider public interest.

The limitations of the Copyright Act in relation to protection of Australian Aboriginal folklore has been recognised by the Australian Federal government in 2 reports. These are the 1981 Report of the Working Party on the Protection of Aboriginal Folklore [40] and a report entitled The Aboriginal Arts and Crafts Industry [41] published in 1989. These limitations have also been judicially recognised in Yumbulul v Reserve Bank of Australia [42]. In many respects these limitations exist and persist because of the law's difficulty in dealing with communal ownership and aboriginal rights which involve questions of equity, fairness and reasonableness [43].

The equitable interface between customary law and copyright law

Established equitable principles should be capable of being applied to copyright law [44] and asserted by indigenous groups or tribes to enable them to gain some effective control over creative works which they consider to be communally owned even though the work's tangible creation is by individual authors or artists.

Where, as under Australian Aboriginal customary law, an artist is permitted by the tribe to depict certain designs for a particular purpose it is commonly recognised that the tribe is the custodial owner of the rights in the design [45] and the finished product. However, the tribe does not have an actual legal interest in the copyright of the work produced by the artist. This can only arise pursuant to a written assignment of copyright from the individual owner to the tribal "owners" in accordance with section 196 Copyright Act which, at present, seldom happens.

Nevertheless, if the tribal "owners" have an equitable interest (whether personal or proprietary) vested in the members of the tribe in the copyright of the work, then they have a right to permit or restrain the further reproduction, adaptation or other redepiction of the work [46]. The law appears to be capable of recognising that equitable interests between tribal members and property could arise out of the obligations, rights, rules, representations, entitlements and dealings applied as customary law within a tribe and which govern the interrelationship of an artist to an indigenous group. This is so, provided that what is demanded in equity does not simply consist of some idiosyncratic notions of justice or fairness [47].

Even though under section 8 of the Copyright Act copyright, as a legal interest in intangible property, does not subsist otherwise than by virtue of the Act, this cannot bar or deny the existence or assertion of any equitable rights or interests. It is feasible that equity could protect the interests of the members of a tribe in a creative work, just as it can protect the interests of members of an unincorporated association or mutual association of persons [48]. Given the circumstances of tribal ownership this protection could extend to a work produced by another member.

Thus if there is an unauthorised reproduction of an individual's work without the permission or licence of the tribe, equitable relief by way of an interlocutory injunction may be claimed in the name of the members or representatives [49] of the tribe to restrain an infringement of copyright because the members have an equitable interest [50] in the work. This principle is no different than in the case of unincorporated or mutual associations [51].

Where a permanent injunction is sought the tribal equitable owners will have to join the individual artist as legal owner of the copyright [52]. The reason for this is to preclude a defendant after having defeated the claim of an equitable claimant to again have to defend similar proceedings by the legal owner. This means that a licensor of Aboriginal works should have regard to any tribal rights and the licence should be entered into with the licensee recognising both the legal rights of the copyright owner and the equitable interests of the tribe [53]. This procedure would more closely reflect how things are done under Aboriginal customary law.

Where sacred or secret ideas, motifs and traditions are conveyed by a tribe to another person, then equity can also intervene through the law of breach of confidence [54] provided that the information has not already fallen into the public domain. Thus in Foster v Mountford [55] an injunction was granted to restrain the sale of a book revealing tribal secrets of deep religious and cultural significance to Aboriginal persons on the basis that their revelation could give rise to serious damage in the form of disruption of aboriginal culture and society.

Aboriginal cultural rights

To further strengthen indigenous claims to folklore the concept of aboriginal rights requires serious consideration. Included within aboriginal rights are not only rights in relation to land based on native title, but also pre-existing rights or privileges that were practiced long before settlement by Europeans, and rights to an indigenous people's cultural survival [56]. In the Canadian case of R v Sparrow [57] the Supreme Court stated that the protection of aboriginal rights extended to those practices which were "an integral part of their distinctive culture" [58].

In New Zealand, Article the Second of the Treaty of Waitangi of 1840 recognises Maori customary rights. The English version of Article the Second states that the Crown confirms and guarantees to the Maori "full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively and individually possess". In the Maori text of the Treaty of Waitangi the word "taonga" is used in substitution for the words "other properties". Taonga when translated means "treasures".

While Maori people have available to them the rights and privileges under laws made by the Crown [59] (including laws in relation to intellectual property), this does not disturb the possession and retention of Maori cultural "treasures" and customs. Under the Treaty of Waitangi Maori language is one such treasure that requires protection. This has recently been confirmed by the Privy Council in New Zealand Maori Council v Attorney General of New Zealand [60]. Obviously if language is a cultural treasure worthy of protection in the "partnership" [61] between Maori and the Crown, then other creative treasures including folklore must also be protected under the treaty in favour of the indigenous people [62].

A legislative regime for folklore recognising aboriginal rights

The legal conceptions of indigenous peoples, though differently developed, are not necessarily any less precise than those of the common law [63]. It is possible to surmise from the High Court's decision in Mabo v The State of Queensland [No.2] [64] that upon the Crown gaining sovereignty over Australia through annexation it still respected the pre-existing rights and interests of the indigenous Aboriginals in their creative and intellectual works [65] even if they were of a kind unknown to the common law. These customary rights have not been expressly extinguished by the Crown under the Copyright Act or similar legislation. In line with the evolving nature of folklore, it also makes sense that the ongoing observance of customary rights can be in a modernised form [66].

It is possible that both indigenous and western conceptions in relation to intellectual property can be utilised to frame an effective legislative regime for the protection of folklore. This can be achieved by recognising those aboriginal rights which are integral to the indigenous culture [67], rational or not contrary to the Australian common law, and which were continually observed up until settlement or have been modernised since then [68]. Such rights should be capable of being asserted outside the indigenous community, even though not alienable outside the indigenous system [69].

To achieve this a discretion can be vested in the indigenous culture as to how it, through various tribal structures, wishes to reasonably control the dissemination, reproduction or public disclosure of its own folklore (particularly its sacred aspects) [70]. Where the use is for education or as an aid in creating other original literary, dramatic, musical or artistic works this should be regarded as a fair dealing which should not be unreasonably denied.

Protection of indigenous folklore therefore requires a consideration of the concept of community ownership [71] of works and the management of rights associated with those works in accordance with the customs of the particular indigenous culture. This would enable greater indigenous control of folklore and ensure that its commercialisation does not take place in the wrong context so as to result in indigenous knowledge and creativity being seen merely as a commodity [72] with the folklore loosing its primary role of strengthening the indigenous culture. Only when indigenous folklore is strengthened so that it is no longer, as in some countries, in a state of "extreme fragility" [73] can its secondary commercial or entrepreneurial potential be appropriately utilised [74] or fairly disseminated within its true cultural parameters.

Protection by droit moral

A system of protection should encourage indigenous peoples' expectations of respect for their creative works, particularly from those outside the indigenous culture. This means that folklore should be protected from debasement, distortion and consequent loss of cultural integrity due to inappropriate uses [75] which would be offensive to the community from which it originates or prejudicial to the artist's or tribe's honour or reputation.

Copyright law, if considered to be a purely economic instrument, would not be a sensitive enough tool to deal effectively with the management of many works of folklore considered to be spiritually significant [76]. In order for indigenous peoples not to loose their power to protect their cultural heritage [77] and their ability to supervise the commercial by-products of their culture it is necessary to have a mechanism which helps retain the integrity of original works of folklore. If there is no such legal protection, then folklore traditions run the risk of becoming fixed in society's memory devoid of their original context. This would inhibit the creative evolution of that folklore [78].

Moral rights or droit moral give that legal ability to ensure that the integrity of a work when it is used, performed or displayed is maintained. In the western context moral rights originated in Europe and are associated with a moral concern of the author with that author's work. Moral rights recognise the personal connection a creator has with the work. This should be capable of being extended to the tribal connection that members of a tribe have to a work so that the concept is adapted to suit the particular needs of each country or culture [79].

In the context of countries with indigenous cultures the law should give recognition to the communal nature of works of folklore by allowing for the enforcement of associated "communal moral rights". Therefore the creation of moral rights attaching to a tribe could sit alongside the individual copyright and moral rights of an artist.

Moral rights generally comprise 3 types of rights [80] which are useful in protecting folklore. These rights being the power to control the publication or dissemination of a work (including its alteration and withdrawal from the public), the right to have the artist's (or tribe's) name associated with the work, and the right to prevent misuse, mutilation or distortion of a work. A moral rights mechanism extending indefinitely beyond the usual copyright term seems to be appropriate in order to ensure that sufficient control of works of folklore remains with their indigenous custodians after the copyright expires or after the works (or their copyright) have been transferred to others or when the works are displayed, reproduced or used. Moral rights legislation is also an appropriate way of recognising the communal nature of ownership in works of folklore.

Moral rights in relation to folklore should be personal as well as tribal in nature and should not be able to be transferred. This would enable indigenous artists and tribes to ensure that the vital theme or essence of a work is retained in the future. Moral rights are also capable of taking into account different ideas of value or subjective appreciation [81] associated with a creative work and which are dependent upon differences in cultural wants so that these differences are indirectly recognised in law. In addition moral rights can more adequately deal with cases of false attribution under section 191 Copyright Act where, for example, an indigenous artist is held out as being the author of an altered work similar to that which the artist created [82].

Protection by domaine publique payant

An extension of economic rights called domaine publique payant [83] may also be suitable for the protection and promotion of folklore [84]. This requires commercial users of folklore or unprotected materials that are not subject to copyright, because the work has either fallen outside the copyright term of protection or not been reduced to writing or some material form, to still pay for the use. The moneys collected are used to further public rather than private interests by being distributed to artists or organisations concerned with the arts. This can include indigenous tribes and peoples. In this way money can be used for the development of folklore especially if the system of distribution is in accordance with regulations or schemes reflecting aboriginal rights, customary entitlements and traditions.

The need for a domaine publique payant system for folklore also arises because this material lends itself more easily to use and exchange through the market place [85] if it is not subject to any authorisation and the charging of private copyright royalties. The impact of charging a public royalty for folklore is that the monetary charge is capable of compensating a social or indigenous group connected with the work. It also gives some control and guardianship over the exploitation or distortion of the work. There should be no charge where the purpose is for education or creating a new original work.

Promotion and protection by droit de suite

Another extension of economic rights called droit de suite can also be used to promote folklore. This is a type of resale royalty giving the creator of a work the right to share in the increased value of a work if it is later resold or gives rise to a windfall gain [86]. Given the increased interest in indigenous folklore and art, which can now fetch high prices, it would seem inherently inequitable that creative works and art from indigenous peoples can be acquired at a small cost to the purchaser without proper recognition of the artist's or tribes' labour and skill and later resold at a considerable profit.

Consideration should be given to the collection of part of any windfall gain derived from the sale or resale of works of folklore to be used for the benefit of indigenous communities or the promotion of their folklore.

Joint WIPO and UNESCO Model Provisions

The Berne Convention does not contain a direct reference to folklore. The closest it gets is Article 15(4)(a) which deals with unpublished works by unknown authors believed to be nationals of a country. Article 15(4)(a) allows the country to designate a "competent authority" to represent the author and protect and enforce any related rights. This article could possibly be used in relation to folklore [87].

However a more comprehensive model set of rules dealing specifically with folklore has been jointly developed by WIPO and UNESCO in 1985 in the form of the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions ("Model Provisions"). This aims to achieve a compromise between the economic and moral rights surrounding folklore and attain a balance between the protection of folklore against abuse and encouragement of its further development and dissemination. It is up to each country, if it so wishes to implement legislation in this area.

Section 3 of the Model Provisions provide for a system of prior authorisation to be administered by a "competent authority" or the "community concerned" in relation to the utilisation of expressions of folklore "made both with gainful intent and outside their traditional or customary context". If legislation based on this model was to be introduced in Australia it could be necessary to obtain prior permission from an indigenous community to publish, reproduce, distribute, recite, perform, transmit or in any other way communicate to the public expressions of folklore.

The Model Provisions are flexible enough to take into account the differing situations in each country, so that recognition of aboriginal rights could be part of any legislation in Australia. This may depend a lot on the favourable "redefinition" of aboriginal land rights currently taking place in western common law countries. The link between land rights and cultural rights is difficult to separate [88] as both are concerned with the Aboriginal spiritual worldview.

It should be noted that the Model Provisions do not deal adequately with matters of collective ownership of works and here the importance of communal moral rights may fill the gap. Section 12 also makes it clear that the Model Provisions do not limit or prejudice any protection available under other forms of law, so that tribal equitable interests in works of folklore are viable.

Conclusion - wholistic position

The purpose of protecting an indigenous people's folklore is not to cut it off from outside influences. It is not in society's best interests or the intention of copyright laws to setback the policy of broadening everyone's knowledge and increasing the free flow of information. There is, however, a need to maintain the integrity of works of folklore and to ensure that they are not distorted out of context.

The creation of a sui generis category of intellectual property rights for folklore is a means of giving greater control to the community from which the works derive and to strengthen its folklore. This is necessary for the appropriate realisation of both the cultural and economic potential of works of folklore for the benefit the indigenous culture.

This would involve recognising aboriginal and moral rights as well as equitable interests in works of folklore. The appropriate combination of these rights and interests is also a good way of acknowledging the communal origins of folklore [89].

Footnotes:

[1]. See K. Puri, "Australian Aboriginal People and their Folklore", (1992) Ngulaig, Monograph No.9, Aboriginal and Torres Strait Islander Studies Unit, The University of Queensland, Brisbane, at 1.

[2]. Department of Home Affairs and the Environment, (1981) Report of the Working Party on the Protection of Aboriginal Folklore, Canberra, at para.1201.

[3]. J.G. Weiner, "Protection of Folklore: A Political and Legal Challenge", (1987) IIC (International Review of Industrial Property and Copyright Law), Vol.18, No.1, pp.56-92 at 58.

[4]. Refer to section 35(2) Constitution Act 1982 (Canada) which lists the indigenous cultures of Canada.

[5]. J.G. Weiner, op. cit., at 61.

[6]. K. Puri, "Australian Aboriginal People and Their Folklore", op. cit., at 10-11. See also Mandla v Dowell Lee [1983] 2 AC 548 at 562 per Lord Fraser (HL) and King-Ansell v Police [1979] 2 NZLR 531 at 543 per Richardson J (NZCA) for a list of similar characteristics used in determining an ethnic group.

[7]. J.G. Weiner, op. cit., at 59.

[8]. P. Tennant, (1985), "Aboriginal Rights and the Penner Report", in The Quest for Justice: Aboriginal Peoples and Aboriginal Rights", ed. by Menno Boldt and J. Anthony Long, University of Toronto Press, Toronto, pp.321-332 at 324.

[9]. Report of the Working Party on the Protection of Aboriginal Folklore, op. cit., at 8.

[10]. J.G. Weiner, op. cit., at 64.

[11]. Refer to section 31(1) Copyright Act 1968 (Cth).

[12]. See Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481 at 490.

[13]. R. Firth, (1959), Economics of the New Zealand Maori, 2nd ed., A.R. Shearer Government Printer, Wellington, at 398.

[14]. Ibid.

[15]. (1991) 21 IPR 481 at 482-484.

[16]. Ibid.; See also K. Maddock, "Copyright and Traditional Designs - An Aboriginal Dilemma", (1988) Aboriginal Law Bulletin, Vol.2, No.34, pp.8-9.

[17]. K. Puri, "Australian Aboriginal People and their Folklore", op. cit., at 14.

[18]. R. Firth, op. cit., at 356.

[19]. Ibid.

[20]. R. Firth, op. cit., at 366; Australian Copyright Council, "Aboriginal Arts and Copyright", (1992) Bulletin No.75, at 11.

[21]. K. Puri, "Copyright Protection of Folklore: A New Zealand Perspective", (1988) Copyright Bulletin, Vol.XXII, No.3, pp.18-27 at 21.

[22]. See Walter v Lane [1900] AC 539 (HL).

[23]. See Australia Act 1986 (Cth).

[24]. See University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601.

[25]. Report of the Working Party on the Protection of Aboriginal Folklore, op. cit., at para.705.

[26]. J.G. Weiner, op. cit., at 70.

[27]. C. Golvan, "Aboriginal Art and Copyright: The Case for Johnny Bulun Bulun", [1989] 10 EIPR 346 at 349.

[28]. S. Gray, "Aboriginal Designs and Copyright: Can the Australian Common Law Expand to Meet Aboriginal Demands?", (1992) Copyright Reporter, Vol.9, No.4, pp.8-20 at 14-16.

[29]. See A. Pask, "Cultural Appropriation and the Law: An Analysis of the Legal Regimes Concerning Culture", [1993] IPJ 57 at 73-77.

[30]. Australian Copyright Council, op. cit., at 11.

[31]. See V. Johnson, "A Whiter Shade of Paleolithic: Aboriginal Art and Appropriation", (1988) Aboriginal Law Bulletin, Vol.2, No.34, pp.4-6.

[32]. Attorney-General's Department, (1994), Proposed Moral Rights Legislation for Copyright Creators. Discussion Paper, Attorney-General's Legal Practice, Canberra, at 24.

[33]. See Donoghue v Allied Newspapers [1938] 1 Ch 106.

[34]. K. Puri, "Copyright Protection of Folklore: A New Zealand Perspective", op. cit., at 24.

[35]. As defined in section 10(1) Copyright Act 1968 (Cth).

[36]. As defined in section 10(1) Copyright Act 1968 (Cth).

[37]. See for example Foster v Mountford [1977] 29 FLR 233.

[38]. K. Puri, "Australian Aboriginal People and their Folklore", op. cit., at 32; J.G. Weiner, op. cit., at 74-75.

[39]. Ibid.

[40]. (1981), Department of Home Affairs and the Environment, Canberra.

[41]. Report of the Review Committee, (1989), Department of Aboriginal Affairs, Canberra.

[42]. (1991) 21 IPR 481 at 490.

[43]. Mabo v The State of Queensland [No.2] (1992) 66 ALJR 408 at 416-417 per Brennan J; see also Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 at 24 (CA).

[44]. Massine v de Basil [1936-45] Mac CC 223; John Richardson Computer Ltd v Flanders (1993) 26 IPR 367.

[45]. P.K. Hennessy, (1982) Aboriginal Customary Law: Traditional and Modern Distributions of Property, Research Paper No. 5, Australian Law Reform Commission, Sydney, at 27-28.

[46]. C. Golvan, "Tribal Ownership of Aboriginal Art", (1992) Arts and Entertainment Law Review, No.3, pp.15-17 at 15.

[47]. Legione v Hately (1983) 152 CLR 406 at 431 per Mason and Deane JJ; Muchinsky v Dodds (1985) 160 CLR 583 at 615 per Deane J.

[48]. See Murray v Johnstone (1896) 23 SC 981; K.L. Fletcher, (1986), The Law Relating to Non-Profit Associations in Australia and New Zealand, Law Book Company, Sydney, at 46-50.

[49]. Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 36-39 per Gibbs CJ.

[50]. See Sweet v Shaw (1839) 8 LJ Ch 216; Ward Lock & Co v Long [1906] 2 Ch 550.

[51]. Lloyd v Loaring (1802) 31 ER 302; Clark v University of Melbourne [1978] VR 457. See generally K.L. Fletcher, op. cit., at 190-194.

[52]. Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1.

[53]. C. Golvan, "Tribal Ownership of Aboriginal Art", op. cit., at 15-16.

[54]. Coco v A.N. Clark (Engineers) Ltd (1969) RPC 41.

[55]. [1977] 29 FLR 233.

[56]. D. Ahenakew, (1985), "Aboriginal Title and Aboriginal Rights: The Impossible and Unnecessary Task of Identification and Definition", in The Quest for Justice: Aboriginal Peoples and Aboriginal Rights, ed. by Menno Boldt and J. Anthony Long, University of Toronto Press, Toronto, pp.24-30 at 25; T. Flanagan, (1985), "Metis Aboriginal Rights: Some Historical and Contemporary Problems", in The Quest for Justice: Aboriginal Peoples and Aboriginal Rights, ed. by Menno Boldt and J. Anthony Long, University of Toronto Press, Toronto, pp.230-245 at 238-239.

[57]. (1990) 70 DLR (4th) 385 at 402 per Dickson CJC and La Forest J.

[58]. See also Delgamuukw v The Queen in right of British Columbia (1993) 104 DLR (4th) 470 at 572 per Wallace JA (BCCA).

[59]. Refer to Article the Third of the Treaty of Waitangi.

[60]. [1994] 1 All ER 623 at 629.

[61]. See Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 (CA); Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301.

[62]. See W.C. Canby, (1988), American Indian Law in a Nutshell, 2nd ed., West Publishing, St Paul, Minnesota, at 84-85.

[63]. See Re Southern Rhodesia [1918] AC 219 (PC).

[64]. (1992) 66 ALJR 408. The Mabo case has recently been accepted and applied by the New Zealand Court of Appeal in Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 at 24.

[65]. See K. Puri, (1993), "Copyright Protection for Australian Aborigines in the Light of Mabo", in Mabo: A Judicial Revolution. The Aboriginal Land Rights Decision and Its Impact on Australian Law, ed. by M.A. Stephenson and Suri Ratnapala, University of Queensland Press, Brisbane, pp.132-164 at 157.

[66]. Delgamuukw v The Queen in right of British Columbia, op. cit., at 494 per Macfarlane JA.

[67]. Ibid., at 492-494 per Macfarlane JA.

[68]. P. Tennant, op. cit., at 324.

[69]. See Mabo v The State of Queensland [No.2], op. cit.; Delgamuukw v The Queen in right of British Columbia, op. cit., at 494-496 per Macfarlane JA. See also K. Puri, (1992) "Mabo - A Legal Revolution?", in Mabo - A Critical Review, Annual Symposium, The University of Queensland, T C Biernie School of Law, Brisbane, at 15-40.

[70]. Proposed Moral Rights Legislation for Copyright Creators, op. cit., at 24.

[71]. P.K. Hennessy, op. cit., at 28.

[72]. G.H. Smith, "Maori Culture for Sale", (1993) Polemic, Vol.4, No.3, pp.149-153 at 149.

[73]. UNESCO, "Recommendation on the Safeguarding of Traditional Culture and Folklore: Adopted by the General Conference of Unesco at its twenty-fifth session", (1990) Copyright Bulletin, Vol.XXIV, No.1, pp.8-12 at 8.

[74]. G.H. Smith, op. cit., at 153.

[75]. Report of the Working Party on the Protection of Aboriginal Folklore, op. cit., at para.1110.

[76]. Proposed Moral Rights Legislation for Copyright Creators, op. cit., at 24.

[77]. R.A.I. Bell, "Protection of Folklore: The Australian Experience", (1985) Copyright Bulletin, Vol.XIX, No.2, pp.4-14 at 11.

[78]. A. Jabbour, "Folklore Protection and National Patrimony: Developments and Dilemmas in the Legal Protection of Folklore", (1983) Copyright Bulletin, Vol.XVII, No.1, pp.10-14 at 12.

[79]. Proposed Moral Rights Legislation for Copyright Creators, op. cit., at 24.

[80]. S.P. Ladas, (1938), International Protection of Literary and Artistic Property, Macmillan, New York, at 576.

[81]. R. Firth, op. cit., at 393.

[82]. See Crocker v Papunya Tula Artists (1985) 5 IPR 426.

[83]. See A. Dietz, "A Modern Concept for the Right of the Community of Authors (domaine public payant)", (1990) Copyright Bulletin, Vol.XXIV, No.4, pp.13-24.

[84]. See section 17 Tunis Model Law on Copyright for Developing Countries.

[85]. See UNESCO, "Safeguarding of Works in the Public Domain", (1989) Copyright Bulletin, Vol.XXIII, No.2, pp.25-26.

[86]. See A. Dietz, op. cit., at 19-20.

[87]. R. Bell, "Protection of Aboriginal Folklore: Or Do They Dust Reports", (1985) Aboriginal Law Bulletin, No. 17.

[88]. S. Gray, "Wheeling, Dealing and Deconstruction: Aboriginal Art and the Land Post-Mabo", (1993) Arts and Entertainment Law Review, No.6, pp.5-11 at 7.

[89]. C. Golvan, "Aboriginal Art and Copyright: The Case for Johnny Bulun Bulun", op. cit., at 353.

Bibliography:

Ahenakew, D., (1985), "Aboriginal Title and Aboriginal Rights: The Impossible and Unnecessary Task of Identification and Definition", in The Quest for Justice: Aboriginal Peoples and Aboriginal Rights, ed. by Menno Boldt and J. Anthony Long, University of Toronto Press, Toronto, pp.24-30.

Attorney-General's Department, (1994), Proposed Moral Rights Legislation for Copyright Creators, Discussion Paper, Attorney-General's Legal Practice, Canberra.

Australian Copyright Council, "Aboriginal Arts and Copyright", (1992) Bulletin No.75.

Bell, R.A.I., "Protection of Folklore: The Australian Experience", (1985) Copyright Bulletin, Vol.XIX, No.2, pp.4-14.

Bell, R., "Protection of Aboriginal Folklore: Or Do They Dust Reports", (1985) Aboriginal Law Bulletin, No. 17.

Canby, W.C., (1988), American Indian Law in a Nutshell, 2nd ed., West Publishing, St Paul, Minnesota.

Department of Home Affairs and the Environment, (1981) Report of the Working Party on the Protection of Aboriginal Folklore, Canberra.

Dietz, A., "A Modern Concept for the Right of the Community of Authors (domaine public payant)", (1990) Copyright Bulletin, Vol.XXIV, No.4.

Firth, R., (1959), Economics of the New Zealand Maori, 2nd ed., A.R. Shearer Government Printer, Wellington.

Flanagan, T., (1985), "Metis Aboriginal Rights: Some Historical and Contemporary Problems", in The Quest for Justice: Aboriginal Peoples and Aboriginal Rights, ed. by Menno Boldt and J. Anthony Long, University of Toronto Press, Toronto, pp.230-245.

Fletcher, K.L., (1986), The Law Relating to Non-Profit Associations in Australia and New Zealand, Law Book Company, Sydney.

Golvan, C., "Aboriginal Art and Copyright: The Case for Johnny Bulun Bulun", [1989] 10 EIPR 346.

Golvan, C., "Tribal Ownership of Aboriginal Art", (1992) Arts and Entertainment Law Review, No.3, pp.15-17.

Gray, S., "Aboriginal Designs and Copyright: Can the Australian Common Law Expand to Meet Aboriginal Demands?", (1992) Copyright Reporter, Vol.9, No.4, pp.8-20.

Gray, S., "Wheeling, Dealing and Deconstruction: Aboriginal Art and the Land Post-Mabo", (1993) Arts and Entertainment Law Review, No.6, pp.5-11.

Hennessy, P.K., (1982) Aboriginal Customary Law: Traditional and Modern Distributions of Property, Research Paper No. 5, Australian Law Reform Commission, Sydney.

Jabbour, A., "Folklore Protection and National Patrimony: Developments and Dilemmas in the Legal Protection of Folklore", (1983) Copyright Bulletin, Vol.XVII, No.1, pp.10-14.

Johnson, V., "A Whiter Shade of Paleolithic: Aboriginal Art and Appropriation", (1988) Aboriginal Law Bulletin, Vol.2, No.34, pp.4-6.

Ladas, S.P., (1938), International Protection of Literary and Artistic Property, Macmillan, New York.

Maddock, K., "Copyright and Traditional Designs - An Aboriginal Dilemma", (1988) Aboriginal Law Bulletin, Vol.2, No.34.

Pask, A., "Cultural Appropriation and the Law: An Analysis of the Legal Regimes Concerning Culture", [1993] IPJ 57.

Puri, K., "Copyright Protection of Folklore: A New Zealand Perspective", (1988) Copyright Bulletin, Vol.XXII, No.3, pp.18-27.

Puri, K., "Australian Aboriginal People and their Folklore", (1992) Ngulaig, Monograph No.9, Aboriginal and Torres Strait Islander Studies Unit, The University of Queensland, Brisbane.

Puri, K., (1992), "Mabo - A Legal Revolution?", in Mabo - A Critical Review, Annual Symposium, The University of Queensland, T C Biernie School of Law, Brisbane, pp.15-40.

Puri, K., (1993), "Copyright Protection for Australian Aborigines in the Light of Mabo", in Mabo: A Judicial Revolution. The Aboriginal Land Rights Decision and Its Impact on Australian Law, ed. by M.A. Stephenson and Suri Ratnapala, University of Queensland Press, Brisbane, pp.132-164.

Smith, G.H., "Maori Culture for Sale", (1993) Polemic, Vol.4, No.3, pp.149-153.

Tennant, P., (1985), "Aboriginal Rights and the Penner Report", in The Quest for Justice: Aboriginal Peoples and Aboriginal Rights", ed. by Menno Boldt and J. Anthony Long, University of Toronto Press, Toronto, pp.321-332.

UNESCO, "Safeguarding of Works in the Public Domain", (1989) Copyright Bulletin, Vol.XXIII, No.2, pp.25-26.

UNESCO, "Recommendation on the Safeguarding of Traditional Culture and Folklore: Adopted by the General Conference of Unesco at its twenty-fifth session", (1990) Copyright Bulletin, Vol.XXIV, No.1, pp.8-12.

Weiner, J.G., "Protection of Folklore: A Political and Legal Challenge", (1987) IIC (International Review of Industrial Property and Copyright Law), Vol.18, No.1, pp.56-92.