Protection of Traditional Cultural Expressions under Copyright Law

A wide range of traditional cultural expressions (expressions of folklore) is consisted of literary works such as tales, folk art like drawings and paintings and folk songs and music. It would not be surprising to choose copyright law as the primary legal system in intellectual property to protect expressions of folklore since there is a close resemblance between these expressions and the protected works under copyright law. In fact, the expressions of folklore can be categorized under different protectable works in this system such as literary, musical and artistic works. This may suggest that copyright law can be opted as an appropriate regime to protect these expressions and in practice some countries have taken this approach. An accurate study of prerequisites and requirements of protection in copyright law, however, reveals that in spite of the similarity between the expressions of folklore and works under copyright law, these expressions lack the very basic and fundamental preconditions to be considered as a protectable work under this regime such as authorship, ownership of rights, originality and fixation as well as the temporary duration of protection. Despite these shortcomings, many have tried to justify and adapt the characteristics of these expressions to such prerequisites to fit them into copyright system so that they can benefit the provided protection. It seems, however, infeasible to entirely apply copyright rules of protection to expressions of folklore. More importantly, the aim of protection is different in each of these two categories. Considering these differences, protection of expressions of folklore under copyright law, not only demands excessive exemptions in application of its rules, but also does not ultimately lead to the desirable outcome. Accordingly, it appears that imposing expressions of folklore to copyright system neither benefits these expressions nor the aforementioned system. Therefore, it would be more appropriate to structure a sui generis system in order to protect traditional cultural expressions.