This article has been written by Anuja Saraswat, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

Since time immemorial, music has been viewed as a unique piece of personal property, played to entertain and elicit emotional responses from the listener. It’s reasonable that westerners don’t understand, or even openly mock, the regulation of music’s “power” when they have this view of music. Traditional societies, on the other hand, frequently attribute tremendous abilities to their music, such as the ability to cure illness, create an abundant game, summon lightning, murder, etc. With such vast powers, it only makes sense to rigorously restrict and regulate music’s use, rather than its financial rewards. Western law, on the other hand, has evolved in sync with western music, emphasizing the preservation of individual property rights and commercial rewards. As a result, traditional music and western law clash on a fundamental basis. This collision between indigenous/traditional knowledge and intellectual property law is a complex legal issue in today’s world. This article is going to delve into the intricacies involved in protecting the right holders of traditional music. Subsequently, it would deal with the governing national as well as international laws involved to protect the right holders of the traditional music. It is further going to compare the copyright law regime of various non-western and western countries with the help of varied case studies and provide suggestions and recommendations as to how the rights of the indigenous community are recognised and given importance in the current legal framework.

Traditional knowledge in music : a race between western and non-western cultures

Traditional knowledge is known to be a distinct body of knowledge and practices acquired through centuries by people concerning the natural environment of a given geographic area. It encapsulates a lifetime of learning, careful observation, and exploration. It is expressed through stories, songs, music, proverbs, customary rules, and language and is rooted in culture, spirituality, and worldviews. It is passed down orally and through cultural activities and rituals from generation to generation. It’s worth noting that music was not recognized as a distinct art form until 1882. After gaining independence, the United States embraced the core laws of the Statute of Anne, but it wasn’t until 1831 that music was given legal protection. As a result, literature, weaving patterns, and sculpture dominated the early years of copyrights. In the 18th and early 19th centuries, the main creation of contemporary copyright law happened while Western culture was either largely isolated or the “colonial power,” and it was not considered essential to cater to the needs of other cultures. As a result, the rules became more specifically fitted to the role of artistic works in western civilization. As a result, when non-western music is propelled into the commercial music industry, present copyright law stands ill-equipped to give cross-cultural protection.

To protect musicians’ rights, the World Trade Organization and U.S. courts have devised a complex copyright system. However, because the dominant copyright system presupposes a distinctively western perspective to the creative process and intellectual property rights, similar rights are not granted to indigenous tribes’ traditional knowledge. As a result, there is a growing problem with traditional culture governance, which has become particularly serious in the field of music sales revenues. Traditional music is considered a part of the public domain by US courts, who are preoccupied with the assumption that creativity is solely dependent on the assignment and exploitation of property rights over cultural works. As a result, songwriters have complete freedom to combine traditional melodies into new songs.

Not all cultures share the ideas of the U.S. and the World Trade Organization (WTO) on the creative process, as well as the idea of controlling traditional culture as a result. Traditional groups argue that they have legitimate assertions regarding how their culture is increasingly exploited. This approach is opposed to the status quo in the United States and the parallel legal system of the World Trade Organization (WTO). These cultures contend that present copyright legislation should be used for more than only the sole purpose of collecting royalties.

Copyright regime in protecting the rights of the music owners

The ‘right to restrict or permit, the reproduction, adaptation, disclosure to the public and others, and the moral rights of attribution and integrity are the main protection afforded by copyright. This appears to be a good fit for many of the requirements and goals of indigenous peoples and traditional communities. The Indian Copyright Act is an excellent example of copyright legislation that provides specific protection to traditional cultural expressions. As per Section 38 of the said Act, any performer who engages in any performance has a particular right known as the “performer’s right” in connection to such performance. This privilege is given to indigenous artists. This right will last for another twenty-five years. Any individual who, without the performer’s consent, produces a sound or visual recording of the performance; or communicates the performance to the public in any way during the duration of the performer’s right is judged to have infringed the performer’s right (an exception is made concerning usage for educational or reporting purposes). However, while granting such a right to performers of indigenous arts is a step in the right direction, it only gives minimal protection. For example, this right is granted to an individual or a group of performers, whereas, on the other hand, traditional cultural expression belongs to the entire community; second, the right is granted for only twenty-five years, after which the cultural expression will become public domain, free for anyone to distort and deface it in any way they see fit. As a result, there is a pressing need to resolve several key concerns attached to the concept of copyright before copyright legislation can be enacted to provide adequate protection for folklore. 

African countries

A brief inspection of the copyright protection laws of specific African countries demonstrates an effort by African states to reconcile both indigenous notions of music property and Western intellectual property protection. The Bill of Rights in South Africa, for example, “recognizes that members of a cultural community may not be denied the right to enjoy their culture.” The South African Bill of Rights aspires to “create a common value system for a national consensus,” implying that the distinction between customary and statute law will be blurred. The South African Constitution, on the other hand, acknowledges the “status and role of traditional leadership” and specifies that courts must apply customary law when appropriate. This results in a pluralist legal system, in which the law that applies in any given situation can be either customary or statutory.

American countries

The United States copyright legislation, as well as the copyright framework included in the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), disregard traditional norms and take a mercantilist approach towards the creative process. Because a copyrightable work can only be generated by an author’s brilliance, this legal system assumes that a single author deserves exclusive rights over a copyrighted work. The assumption behind this legal framework is that by providing an economic incentive to authors, the creative process will flourish. Furthermore, it is assumed that the lack of any form of compensation for creative endeavors will stifle the creative process. By regulating the definition of work, ownership of that work, and allowed uses of that work, copyright law formalizes the mercantilist approach. Copyright is only applicable to original works that have been fixed in a physical medium. The author of a work has the right to reproduce, distribute, perform, display, or create derivative works from the copyrighted work under copyright law. Infringement actions emerge when other parties use the work or copy a significant portion of it without the author’s authorization. Although observers consider the copyright system as an unbiased adjudicator of an individual’s property rights and freedom of expression, the prevailing or dominating majority groups have profited from ethnic minorities’ contributions.

TRIPS framework 

The TRIPS framework is a pro-business regulatory framework intended at protecting copyright and other intellectual property rights. Even though TRIPS’ declared purpose is to regulate only intellectual property trade, the agreement encourages domestic legislators to change national legislation and increase intellectual property author and owner protection. The 2001 revisions to China’s 1990 copyright legislation, implemented to bring the country into compliance with TRIPS, for example, increase the scope of protection for copyright owners to encompass performance, broadcasting, exhibition, leasing, distribution, and information communication via the internet. The principal beneficiary of this new copyright law is a multinational corporation doing business in a developing country. TRIPS fundamentally extends on the Berne Convention’s economic rights and strengthens author/owner control by forcing countries to implement automatic copyright awards, include software in copyright protection, and tighten enforcement methods. Similarly, by formulating the boundaries of fair use exclusions and explicitly eliminating protection for moral rights, TRIPS dilutes the public interest part of copyright. The understanding that any non-compliance can be judged through the WTO’s dispute settlement procedures ensures TRIPS monitoring.

Exclusive rights assigned to the copyright owners vs. claims of traditional knowledge right holders

There have been several controversies that have emerged while deciding who should be the rightful owner of the traditional folk music and to whom the protection should be provided in case of a conflict. The case study based on this is discussed below:

The case study of “The Lion Sleeps Tonight”

One of the instances in South Africa is the modernization of traditional music, which highlights how current copyright laws may diminish the value of traditional culture. This lawsuit is a dispute between the estate of Solomon Linda, a Zulu songwriter, and Disney Enterprises, Inc. over the usage of a song (Disney). Linda died a well-known but underprivileged Zulu singer/songwriter and his family is still poor today. Linda’s estate claims copyright to the song “The Lion Sleeps Tonight,” which was featured in Disney’s 1994 film “The Lion King.” The allegation stems from Disney’s failure to recognize the purported copyright derived from Solomon Linda and his band, The Evening Birds’ 1939 recording of “Mbube.” The 1911 British Imperial Copyright Act was in effect in South Africa at the time of the song’s production.

In the 1950s, Linda sold the song’s rights to Gallo (Africa) Limited for ten shillings, and the firm attempted to commercialize it in the United States. One of the folk singers, Peter Seeger, from the United States, heard “Mbube” and adapted “Wimoweh” from it. Soon after, George Weiss, Luigi Creatore, and Hugo Peretti rearranged “Wimoweh” to create a new song, “The Lion Sleeps Tonight.” If the work’s creator was the first owner and an assignment was made while the Act was still in place, the assignment would only endure for 25 years after the author’s death, according to the British Imperial Copyright Act. All assignments would revert to the original author’s legal representative or estate after 25 years. Linda and his estate were unaware of the song’s reversionary interest. When the estate’s representatives discovered that the reversionary interest could exist, they selected a new executor in 2003.

Based on the disputed assumption that “The Lion Sleeps Tonight” is a substantial replica of “Mbube,” the executor asserts that all uses of the song since 1997 have required the estate’s specific agreement. In the absence of it, the executor claims that all uses of the song, including those by Disney in all Commonwealth jurisdictions, are infringements of the “Mbube” copyright. Although the Zulu community’s collective right to the song will not be considered at the hearing, it should be highlighted that Linda had the good fortune of having a strong individual copyright claim as a result of the recording. This example, however, is the exception rather than the rule, because indigenous communities are frequently unaware of copyright law, do not assign individual responsibility for innovation, and do not document their works.

International framework for the protection of traditional music

Despite the TRIPS Agreement’s approval and implementation by all 148 WTO member nations, developing countries and growing customary international law are pushing back against this imposition of sovereignty. According to multilateral treaties and emerging case law, the current copyright regime’s exclusive absorption of individuality is incompatible with the process of cultural production accepted in developing countries. As opposed to the TRIPS model, the international community has acknowledged indigenous communities’ ability to preserve their heritage under copyright law. The Universal Declaration of Human Rights, the Berne Convention, and the General Agreement on Tariffs and Trade (GATT) are the three primary international agreements that currently govern the protection of non-western music. Among the three potential sources of protection, only the Berne Convention and the GATT are currently considered binding international law. Furthermore, neither of these approaches is proven to help safeguard non-western music. Finally, exploitation of non-western music will need to be handled specifically in a new international agreement.

1. Universal Declaration of Human Rights 1948

Article 27(2) of the Declaration directly addresses the protection of artistic works, stating that “everyone has the right to the protection of oral and material interests arising from any scientific, literary, or artistic output of which he is the creator.” However, it is just intended to serve as a guideline for treatment. If a government or company, for example, violates Article 27 by appropriating a community’s music, the Universal Declaration simply serves as fuel for political pressure. It may or may not allow access to legal forums. As a result, the Universal Declaration’s practical application is severely constrained.

2. The Berne Convention

The challenges of preserving non-Western music were first addressed at the 1967 Stockholm Conference on the Berne Convention, which resulted in the creation of Article 15(4) (a), the only provision addressing traditional music. Unfortunately, the provision states that “for unpublished works where the author’s identity is unknown but there is every reason to believe he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority who shall be entitled to protect and enforce his rights in the countries of the Union.” As a result, traditional groups and musicians are not granted directly recognized ownership rights over their music unless their national government designates them as the “responsible authority.” The Berne regulations, on the other hand, are nearly equivalent to the United States copyright system. The same difficulties of involuntary transmission and de facto control that beset the US scheme would resurface if the major Berne clauses were applied to traditional music. As a result, in the case of non-Western music, the Berne Convention is mostly ineffective.

3. The General Agreement on Tariffs and Trade (GATT)

When a country suffers harm as a result of a GATT violation, the most common response is to halt trade or apply sanctions on the offending party until it complies. Smaller countries in Africa, South and Central America, and Oceania are currently producing the most marketable indigenous music. If, for example, Senegalese music becomes the next big thing in world music, the US music business might start recording it in contravention of Senegal’s intellectual property laws.

Aside from these protections, Article 15 of the International Covenant on Economic, Social, and Cultural Rights declares that everyone has the right to freely engage in community cultural life, enjoy the arts, and have moral and material interests protected as a result of artistic work. Furthermore, nation-states must preserve, respect, and maintain traditional knowledge for the conservation and sustainable use of biological diversity, as well as promote their wider application with the approval and participation of traditional knowledge holders, according to Article 8(j) of the Convention on Biological Diversity, 1992.

Traditional contributors to modern work should have continuous access to their resources, and any advantages obtained from their contribution should be shared equally; and traditional custodians should be acknowledged as the contribution’s creators, at the very least. Although intellectual property owners may argue that overprotection will deter them from investing in research and development, under protection may lead traditional right holders to construct regulatory fortresses to keep intellectual property innovators out or just hide their assets. One sensible approach to the ownership conundrum is to raise the originality standards for copyright to avoid authors/owners from dominating works they did not create. To prevent conventional right holders from exerting too much control, they may be allowed to claim just the works that they continue to use.

Conclusion 

Although the current copyright regime comprises Western conceptions of ownership, originality, and integrity in creative work, issues will surely arise when these normative standards are applied to topics that are part of a separate cultural milieu. In the United States, the TRIPS Agreement and Copyright’s unique jurisprudence foster an individualistic vision of authorship that discriminates against and marginalizes substantial musical contributors to the current cultural scene. By confusing multi-cultural conceptions of authorship and creativity, copyright law mandates the misappropriation of indigenous cultures, restricts an important source of invention, and slows the growth of the global marketplace. The law in the United States, as well as the TRIPS Agreement, should be updated to reflect this. Copyright legislation should take into account cultural and economic reality. It must recognize that different cultures have different views on how to assert proprietary control over music and thus provide some form of ownership rights that recognize not only private property claims but also the collaborative nature of the creative musical process to achieve its goal of promoting creativity. Some of the particular recommendations include strengthening originality standards, clarifying the term of ownership overworks, and boosting moral rights. Furthermore, there must be norms for customary law, just as there are for statutory and common law i.e. customary law that would be applied in a given setting must have the same force as a statute that would be applied in a similar, non-traditional circumstance. Because the South African Constitution includes provisions for customary law and its enforcement, it sets a strong precedent for the recognition of customary law’s legitimacy alongside that of statute law. Only in this way would traditional law and statutory law be on an equal footing in terms of protecting traditional people. If these intercultural safeguards had been in place during Solomon Linda’s climb to fame, he would not have perished in abject poverty, without the respect or money he deserved. Recognising the differences between customary and statutory law can help to build respect for both systems. Only if these two systems are treated with respect and mutual enforcement can they coexist harmoniously. As a first step toward equal empowerment of traditional music custodians, true protection of their economic and cultural rights, and overall human rights advancement, such structural adjustments are critical.

References

1. https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1322&context=hrbrief 
2. https://www.education.gov.in/hi/sites/upload_files/mhrd/files/upload_document/CprAct.pdf 
3. https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1 
4. https://www.copyright.gov/title17/title17.pdf 
5. https://www.wipo.int/treaties/en/ip/berne/ 
6. https://www.wipo.int/wipo_magazine/en/2006/02/article_0006.html 
7. https://www.wipo.int/pressroom/en/briefs/tk_ip.html 

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