As international lawmakers grapple with the choices involved in shaping any new international legal regime to protect traditional cultural expressions, it is timely to carefully consider the “gaps” in the law that may – or may not – need to be addressed, and to reflect on whether existing international copyright laws can support, albeit partially, recognition of traditional cultural expressions.
Before going further, there are two points to bear in mind. The first is that not every identifiable gap in the law needs to be filled. As an example, 19th-century champions of expansive copyright believed that term limitations were a defect in the system that would be remedied by introducing a principle of perpetual protection. Since then, however, Western copyright experts have generally embraced the value of term limits (albeit very generous ones) as a way of assuring a public domain and maintaining balance in the system.
Second, only a multilateral solution can adequately address the specific problems facing the protection of traditional cultural expressions, many of which occur in the global information economy. International IP law assures recognition of rights across the national boundaries of states that sign up to it. It also assures some degree of harmonization among national laws by establishing mandatory minimum standards for national legislation.
Spotting the gaps
The absence of an international agreement on the protection of traditional cultural expressions is a major structural gap in international law. Some commentators attribute this to the fact that existing IP laws have been constructed around a paradigm that is selectively blind to the scientific and artistic contributions of many of the world’s cultures and established in forums where those most directly affected are not represented. They argue that systematically treating the cultural productions of some communities as naturally occurring raw materials for use by others risks putting a brake on human progress.
There are also gaps at a more functional level, in that there are some things the law does not accomplish – and arguably should. The difficulty in addressing these gaps was driven home to me some years ago on a field trip in Samosir Island in North Sumatra, Indonesia. Together with my fellow researchers, I was invited by chance to a traditional funeral celebrating the life of a local matriarch. It was a joyous event involving dancing couples and a group of young local musicians performing traditional music on local string and drum instruments and an electronic keyboard. The keyboard player told us he loved the old music, but enjoyed tweaking it to reflect Western popular musical influences. He also revealed that the prohibitive cost of hiring a large group of musicians with traditional instruments made...