Edin. L.R.

2009, 13(1), 8-26

Edinburgh Law Review

2009

Conserving culture and copyright: a partial history

William Cornish

© 2012 Edinburgh University Press

Subject: Intellectual property. Other Related Subject: Arts and culture

Keywords: Authorship; Copyright; Cultural property; Legal history; Scotland

Legislation: Draft Convention on the Protection of Traditional Cultural Expressions

Statute of Anne 1710

*8 A. INTRODUCTION

B. THE EMERGENCE OF THE RIGHT OF “COPY”

C. COPYRIGHT IN SPEECH AND SONG

(1) George Thomson and the collection of folk-song

(2) Walter Scott and the Minstrelsy of the Scottish Border

(3) The collector as “author”

(4) Copyright in recorded sound

D. TRADITIONAL CULTURE: ITS PROTECTION TODAY

(1) Community rights in folklore

(2) The WIPO draft Convention

E. FINAL THOUGHTS

A. INTRODUCTION
I begin by drawing together two events from the reign of Queen Anne. One is the Union of Scotland
and England in 1707. The other is the system of copyright protection that was fired by the celebrated
Statute of Queen Anne in 1710 - a precocious blaze, kindled ahead of other nations by the best part of
a century.

From the Union I will draw only one theme - that awareness of Scottishness which was so much
heightened in its aftermath, and which was supported in a flourishing literature. Plainly this formed a
significant part of the rise of an educated, polite society that folded into the renascent economy and
life of the country. By the first centenary of the Union, “Scotland” had acquired a patina of myth, a
pearly Ossianism, that was highly attractive to German and other Teutonic *9 literati. It contributed
its own glow to their idealisation of the Romantic poet, painter and composer. And it is that beguiling
image which many post-modern critics now see as leading copyright law into extravagant overgrowth.
I myself think that particular case is exaggerated. However, there is no denying that such arguments
are part of a dispute over the nature and extent of copyright protection which has gone on ever since
the Statute of Anne.

There were severe Anglo-Scottish tensions in the development of the copyright idea in the eighteenth
century and I shall touch briefly upon them.1 Then I will relate these developments to the evolution of
a literature of folklore, by referring to some Scottish examples that are very much part of the rise in
national consciousness. Next I will note how copyright broadened and intensified over time and what
the relationship of these developments was to those who provided the sources of folk material. Finally
I shall say something of the relation between these historical elements and the current, by no means
uncontroversial, movement to protect folklore on a communal basis world-wide, as one corrective for
the past ravages of Western colonialism.

B. THE EMERGENCE OF THE RIGHT OF “COPY”

The Statute of Anne 1710 on the right of “copy” came after nearly three centuries of print technology,
during most of which monarchs feared attacks on their own irregular lines of succession and on the
church factions to which they had allied themselves. In England, their need to censor radical literature
coalesced with the interest of the early booksellers and printers to act as exclusionary guilds. The
result from the 1550s was twin-headed. The Tudors and Stuarts used their prerogative to grant
exclusive patents for publishing books of certain kinds (one of them was the patent for law books);
these accordingly were monopolies of considerable breadth and printers would pay well for them, and
pay, moreover, in advance. The booksellers, through their Stationers' Company in London, provided a
licensing system, with state backing, giving their members sole rights over particular titles. 2 In the
long struggles against the Stuarts, the licensing system gradually weakened; and after the Protestant
succession in 1695 it disappeared for good. The Lockeian atmosphere of the times fostered
the *10 idea that the rewards of the bookselling enterprise should come from market sales rather
than from the support of patrons or the permission of governments. The London Stationers had trade
rules preventing them from reprinting each other's titles and these lasted indefinitely. But they were
left without redress against provincial upstarts who reprinted “their” books without licence. It was this
trade coterie, therefore, that provided the thrust for the legislation of 1710. Nonetheless the new law
came with limitations that would provide the conceptual skeleton for so much that would follow over
three centuries.

This is not the place for an anatomical dissection of the Act: let me identify only a knuckle or two of its
backbone. First, the right of “copy” in “books and other writings” under the Statute was no longer
given directly to booksellers, as it had been under the old licensing system. The initial recipient was
the author, thus offering a justification for the Act which related to the valuable intellectual activity of
writing useful books. At the same time the right was open to transfer by the author to a successor in
title (in other words, the bookseller - or publisher, as he later became). This hierarchy of title
strengthened the notion that what was being conferred was a literary property, over and above
internal trade practices. However, the right took effect only upon publication, so a bookseller had
already to have entered the relationship as the entrepreneurial risk-taker. The right, moreover, was
dependent on registering the title with the Stationers' Company; and it carried with it an obligation on
the bookseller to deposit a number of copies with national institutions. The result thus reeked of
philosophical compromise rather than wholehearted commitment. In recent years, critics of self-
serving ambiguities and contradictions in matters political and legal have delighted in sniffing them
out.

Secondly, the rights laid down in the Statute continued the approach of the old licensing system, in
that those who infringed the right of copy became liable to have their copies destroyed; and they were
subjected to a legal penalty of 1d a sheet, half to the Crown, half to the right-holder. For new books,
this right in the Statute lasted for only fourteen years from publication, with the possibility of a further
fourteen years if the author was then still alive.

English courts began to accept that a civil right of action arose at law. In doing so, however, they
refused to adhere to this time limit: first of all Chancery granted injunctions protecting “out-of-time”
books against piracy; and eventually, in 1769, the Court of King's Bench unearthed a common law
property which gave rise to damages for infringement also beyond the Statute of Anne's period. The
common law right was accordingly perpetual.3 The historical foundations of *11 this literary property
have been hotly contested by modern scholars; but it is not my purpose to explore that issue, or the
fascinating question of how to regard a judicial precedent that has been justified upon historical error.
Suffice it to note that the courts in Scotland refused to find any equivalent right. According to Lord
Kames, there was no foundation for it “either in the law of nature, or the law of nations, nor was any
vestige of such a right to be found in the law of Scotland”. Calculating the economic consequences of
perpetual copyright after the manner of Adam Smith, he denounced the consequences as raising the
price of good books beyond the reach of ordinary readers and leaving the commerce of books “in a
worse state than before printing was invented”.4 The ultimate showdown came in the English case
of Donaldson v Becket in 1774.5 This took the question of perpetual right on appeal to the House of
Lords, at that time still a general chamber not confined to Law Lords. The majority of those present
voted in favour of the Scottish view. By that vote they set a pattern, ultimately followed round the
world, of limiting copyright of published works by duration. A clear majority of the House felt impelled
to strike a balance with claims of the polity in general to a freedom of expression that extended to
copying the works of others.

This litigious “Battle of the Booksellers” involved many well-remembered personages: Sir William
Blackstone and Lord Mansfield, for instance, in favour of the perpetual right, Lord Camden and Mr
Justice Yates against. The opponent sans pareil, however, was Alexander Donaldson, Edinburgh
bookseller and entertainer, down in the West Bow, of the ebullient minds of the town. For it was
Donaldson who had the audacity to develop a reprint business at cut prices which he also took to his
shop in St Paul's Churchyard in London, the very hub of the Stationers. And it was against him above
all that the Stationers sought injunctions. He was the defendant in both the Scottish case against
perpetuity and in the English case which the Lords settled in 1774.6 While the case for perpetuity,
which some English judges had favoured, would not in future stand much chance of a revival, there
were many other issues on which the protagonists of enlarged interests for publishers and their
authors would seek to revive the spirit of “literary property”, and they would include the extension of
term to the period of the author's life and fifty years thereafter which was introduced by the Imperial
Copyright Act 1911.

*12 C. COPYRIGHT IN SPEECH AND SONG

In the many compromises that would be struck, the starting point was that copyright turned on
authorship. Who then could count as an author? The Statute of Anne was about the creation of books
or other writings and even more about their publication. My particular question is, how far, if at all,
could a person who contributed to another's book in a non-literate fashion - i.e. by speaking or singing
- have any claim to authorship, and so to the status that copyright law had settled to be primal; and
in that connection, did it matter that the performer was a mere repeater of what was already known?
These are significant questions when it comes to conjuring up a people's culture out of folk material.
Given the importance of that process to eighteenth century perceptions of Scottishness, let me give a
couple of examples.

(1) George Thomson and the collection of folk-song

One is the collection and publishing of Scottish folk-song. Collections had been appearing since at
least the 1720s: first there was Orpheus Caledoniensus of a William Thomson, then around mid-
century came Oswald's Caledonian Pocket Companion, and Allan Ramsay, no less, put out a collection
of folk-song lyrics. Towards the century's end, Pietro Urbani and William Napier were active. James
Johnson's Scots Musical Museum was successful after being knocked into shape through the
enthusiasm of Robert Burns.

After all these came the man on whom I will concentrate a little attention: George Thomson, for nearly
seventy years clerk to the Board of Trustees for Manufactures in Scotland. Thomson had time to
devote to music publishing, putting his heart particularly into the collection and “improvement” of
Scottish and then other Gaelic folk song. He did not think much of Johnson and
Burns' Museum, calling it “as much a book for topers as for piano players”.7 He had plentiful sources
that had already been collected from the non-literate but often strong-minded populace, and he did
more of his own. And he hit upon two types of improvement in order to offer them to a literate
society. First there was the business of supplying words when they were lacking, or where their
coarseness needed to be carded out. For this he employed skilled versifiers, who would stretch up to
the levels of Burns, Scott and James Hogg, Shepherd of Ettrick.8 Secondly, he would have the tunes
given an attractive *13 accompaniment by composers of repute, including Joseph Haydn, Beethoven,
Hummel and Weber. For all this, it seems, he paid. His correspondence records his struggles to get
unmusical poets to fit their words to the tunes; and his constant pleading with adventurous composers
to supply accompaniments suited to the Emma Woodhouses of the salons, rather than just the Jane
Fairfaxes. With the composers, he had battles over the price that he would pay for each piece,
Beethoven expressing (in French) his regular disgust at Thomson's not ungenerous proposals, and
Haydn less grudgingly accepting (in Italian) a ducat or two for each of the 300 and more songs that he
set in his last years. Thomson meanwhile complained that he made next to nothing out of these
superior arrangements, which lay unsold on his shelves.9

This was not the earnest recording of old traditions that would set in with the folk-song and folk-tale
collectors of the nineteenth century, and certainly not the work of the ethno-musicologists from
academic institutions who would follow them. To begin with, Thomson was able to pick some basic
material from what was already recorded, but with time, particularly when he went on a hunt in
unfamiliar territory, such as Wales, he was musician enough to take down the songs of the harpers as
they sang them.10 Although it is hard to find information, there is no sign that Thomson expected, or
was expected, to pay these traditional performers. Certainly so far as copyright is concerned, he
registered it with the Stationers' Company as his own. When at the good age of 86, he was presented
by the citizens of Edinburgh, presided over by his friend Lord Cockburn,11 with a much ornamented
silver vase, the engraved encomium recorded his “early, continuous, and at first hazardous exertions
for the improvement and diffusion of the united national music and poetry of Scotland”.12

Thomson did, however, discuss a plan to bring one of the Welsh harpers to Edinburgh to teach his art.
The harper, as he saw it, could make enough out of his teaching and playing to provide for himself.
The plan apparently came to nothing,*14 but it was all too natural to consider how the best traditional
performers might be encouraged to become saleable. The same would become evident enough as
other great oral cultures were transmuted into modern, commodified forms. Payment could come from
live performances, and much later on from recording, films and broadcasts. One immediately thinks of
jazz, of the blues, and latterly of the use made by many stars of pop and country music: Tommy
Makem, The Pogues, Moby, Paul Simon - to name the merest handful.

(2) Walter Scott and the Minstrelsy of the Scottish Border

My second example is, inevitably perhaps, Sir Walter Scott, whose four collections of Minstrelsy of the
Scottish Border 13 were the great stepping-stone in his professional life. The collecting, conserving and
imagining that went into them led on directly to his immense and profitable successes as poet and
then novelist. At the same time, in this work he would demonstrate the optimistic energy and equable
balance that were his own peculiar enlightenment - abilities which among other things would allow
him to keep a purposeful but carefully limited foothold (as Sheriff of Selkirkshire) in the legal system
of his birthright. His name alone appears on the title pages of the Minstrelsy volumes and what he
contributed to the enterprise exemplifies the combination of capacities that, then as now, easily
attracted the designation of “author”.
Certainly Scott did more than his armchair predecessor, Bishop Percy,14 in foraging for versions of old
ballads from the ordinary folk of his country. In debt to Percy, he pursued the theory that ballads were
creations of troubadour-poets for kings and lords, and that their core, even in long descent, remained
intact as a single composition. Hence his romantic title, Minstrelsy. 15 This conception was already
hotly contested by those who saw folk stories as constantly remoulded by their retelling at different
social levels and between different peoples.16 Be that as it may, Scott showed skill and taste in
selecting, and where necessary bowdlerising or rounding out, his raw material.

At the same time he was adept in using younger, educated men to undertake the hard grind of
assembly, and to some at least he provided a stipend, or other *15advancement in their careers. As
with George Thomson, these assistants would come to include that self-inflating character, the Ettrick
Shepherd.17 But the foremost was the remarkable John Leyden, in appearance none too couth, but in
linguistic ability a paragon. His role in the Minstrelsy was later down-played by Scott, but it was he
who persuaded Scott to expand his first interest in derringdo stories of attack and repulse in order
also to include romantic ballads of love gained and lost. Leyden also worked at the material with
extraordinary perception and effect. Between them he and Scott generated a commercial success,
which left lesser antiquarians and folklore searchers of the period well behind, as mere contributors
towards Scott's corpus.18

(3) The collector as “author”

What can be seen from these examples is that, partly for copyright purposes but also in more general
terms of recognition, a named author was the central organiser, part writer, part promoter, who
typically would pay those within the literary ranks, and doubtless other helpers too - agents, for
instance, who might make the contact with an actual source. But at the same time these were early
instances of an attitude that would be repeated countless times across many countries and indeed
continents. Those who could recite or sing the very stuff of tradition were simply not of a standing to
expect recompense. And it was probably beyond conception that they would have any share in the
“literary property” of copyright or confidence or any other similar right in an intangible. In formal legal
terms there were three separate barriers to their inclusion: first, they themselves produced no writing
- no fixation - and those who recorded from them were not acting on their behalf; secondly, they
appeared to be giving away what they performed, since they placed no limitations on the subsequent
use of their material - it was put into the public domain; and thirdly, as they were only transmitting
what they themselves had been taught, there was no originality.

So no fixation, no constraints on public use, no originality. It is the third objection which distinguishes
my situations from those that Professor MacQueen has addressed in an admirable and exhaustive
article.19 His focus was chiefly on conversations between celebrities and professional interviewers,
where what *16is said is an expression of thoughts that are original, not derived; and it is this
theoretical difference, as well as the very different connotation in which interviews with great or
gorgeous figures occur, that have led courts and legislatures, hesitantly, towards treating the person
interviewed as a copyright author of what he or she says.

To trespass into the territory of the conversationalist for a moment, here is Matthew Arnold, poet and
(in the copyright context) educator, reflecting on the Report of the Royal Commission into Copyright
(1876-78), set up by that self-gratified novelist, Benjamin Disraeli. Arnold says at one point:20

There is no property, people often say, in ideas uttered in conversation, in spoken words; and it is
inferred that there ought to be no property in ideas and words when they are embodied in a book. But
why is there no property in ideas uttered in conversation, and in spoken words, while there is property
in ideas and words when they come in a book? A brilliant talker may very well have the instinct of
ownership in his good sayings, and all the more if he must and can only talk them and not write them.
He might be glad of power to prevent the appropriation of them by other people, to fix the conditions
on which alone the appropriation should be allowed, and to derive profit from allowing it.
But no one engaged in the politics of publishing and copyright in the last decades of Victoria's reign
was prepared to take up Arnold's case in favour of mere oral transmission, even when the stuff of it
was highly original. The contrast with the supplier of fixed material became the more pointed as the
courts made clear that it was not just imaginative “intellectual labour” but the written presentation of
facts - often very mundane facts - and professional information that was honoured by the accolade of
copyright.

In this, Scottish judges were willing enough to follow English precedents. InMaclean v Moody, 21 the
Court of Session upheld copyright in the Clyde Bill of Entry and Shipping List, which detailed the
movement of ships in and out of the Clyde over decades. Lord Deas affirmed that the Statute of Anne
should always be “construed liberally in favour of the privilege, and according to its spirit rather than
its words, as all the decisions shew”.22 Copyright did not just protect works of literary merit. Theory
did not confine copyright by reference to any innately *17uplifting view of authorial creativity.23 Lord
Deas' opinion was one signpost to a path down the incline.24

The pit floor was reached by the House of Lords in 1900 in the case of Walter v Lane, 25 an English
appeal which nonetheless concerned the speeches of a prominent Scot. Exceedingly well-off through
marriage to a Rothschild, Earl Rosebery was in 1893 the unhappy successor to Gladstone as Liberal
Prime Minister. Not for him the collection and publication of his speeches at the hustings, rousing
though they were.26 So The Times employed reporters to take the speeches down by the acquirable
technique of stenography. The defendant claimed that the newspaper had no copyright to prevent him
from putting these reports into book form. In a typically bluff performance, Lord Halsbury LC pushed
aside all the objections to the claim. And he led not just his toady, Lord Brampton, but also Lord
Davey and even a doubting Lord James of Hereford to the same conclusion.27Fixing on Lord Deas'
opinion that the Clyde shipping list qualified for copyright, he could see no difference in the skill,
labour and judgment that the stenographers brought to preserving Lord Rosebery's orations.

Walter v Lane had two interesting consequences. One, an issue well-known to specialists, was its long
after-life in defining what could be a literary work for copyright purposes, even though afterwards the
1911 Copyright Act specified, for the first time, that the literary work had to be “original”. Cross J,
noting this difference, did cast some doubt on Walter v Lane, 28 but other judges have shown a soft
spot for it when they have wanted to use copyright to protect other commercial investments that led
to publications.29 Sir Geoffrey Cross' case deserves a mention because it concerned a claim by the
estate of Sir Hugh *18Roberton, of Glasgow Orpheus Choir fame. Sir Hugh had made a dance setting
of an old Scots or Gaelic tune - “Westering Home” was the name he used for it.30 The defendants had
taken up this tune (though not Roberton's accompaniment or his words) as the march of the Scots
Guards; and it became a prime target in copyright terms when they had Vera Lynn record it. The
Roberton estate utterly failed to convince the judge that the tune was derived from Sir Hugh's version,
and so lost on that simple ground.31 The case stands as a warning to transmitters of folklore that
there are many traps along the path to enforcing claims to exclusive rights in the material, even when
it has been permanently “fixed”.

(4) Copyright in recorded sound

The other aspect of the Rosebery case is less discussed. The one member of the House of Lords who
dissented was a Scottish Lord of Appeal, Lord Robertson.32Presciently, he asked: what was the
difference between stenography and purely mechanical recording on a phonograph - “which has no
literary taste, good or bad, and no intellect, great or small” yet “will record Lord Rosebery's speeches
better than the best of reporters”. To posit copyright in such a recording was, he considered,
“a reductio ad absurdum of the whole argument of the appellants”.33

The views of judges were not necessarily shared by legislatures, which were being lobbied hard by the
growing phonograph industry.34 In the upshot, Lord Robertson's objectionable case was dealt with by
according it a special type of protection. This would prove to be a first example of what were later
labelled *19“neighbouring” or “related” rights to copyright. In somewhat different ways, the investor
gained some initial entitlement in the United States in 1909,35 and in Germany in 1910, as well as by
the grandly imperial Copyright Act of 1911.36 The crucial characteristic of the novel right was that it
gave the investor who organised a sound recording a copyright-like exclusivity in the marketplace.
Title did not have to be traced back to a creator-author; this was direct protection of entrepreneurial
risk-taking. A second was that protection extended only to the copying and the public performance of
the recording, not to other recordings or uses of the musical work or the spoken text in question. In
the 1911 Act, the length of the term marked the difference: authors were allowed life plus fifty years
for their published works, the producers of recordings only fifty years from making the master
copy.37This difference is something that in Britain remains high politics. The recent Gowers Review
refused to level the two up (levelling down was not even discussed).38 The Treasury, which
commissioned the Review, subsequently accepted this among other findings.39

The step in 1911 had both a theoretical and a political interest. The nineteenth century had been
preoccupied with deciding what aesthetic or quasi-aesthetic activities fell within the copyright of
authors. The twentieth was turning its attention to neighbouring rights, and who should qualify for
them. As well as record producers, there would be other investors in new technologies of information
and entertainment: film producers, broadcasters, publishers, database investors would all in time push
their cases. But in these arguments, the old antipathy that we have been observing returns again. The
1911 sound recording right did not go to the reciter, actor or musician who performed, but to the
enterprise that made the recording. There would be strong resistance to conferring a neighbouring
right on the performer, the person whose interpretative, intellectual skill might make all the difference
to the sales sheet. Pragmatic argument prevailed. Things were best kept simple. The recording
enterprise would settle by contract with performers what their earnings (if any) would be. It alone
would conduct the war against pirates who copied *20 the recording and would organise all the
business of licensing IP rights which followed from that.40

The same might have been said against giving authors the initial right of copy in books in 1710. But at
that moment of birth-pangs, authors were needed in order to mount a sufficient campaign for the new
form of protection. Some European countries, recognising that performers were next-nearest to
authors in realising the artistic possibilities of a text or score, made a performers' neighbouring right
the first that they would concede.41 But the British long refused to do more than create a criminal law
regime against wrongly copying and marketing performances that had been fixed without permission.
It would only be in 1988 that the UK legislature took its first, highly complex step towards giving
performers their own neighbouring right.42 To this, EU harmonisation would add its own supplements
and indeed performers now enjoy moral rights to be named and to resist distortion of their
performances in much the same manner as authors.43

To return, then, to the traditional balladeers and songsters: a century or less ago, there were many of
them performing to collectors without question even of recompense. Only if, through talent and
chance, they were taken up into the world of commerce would they be paid whatever they (or their
agent or publisher) could negotiate. Now they can add to their basket the weight of their own
performers' right. In many situations this may not have much effect on their earning power, but it
sometimes creates a new set of royalties.44 For the traditional performer who incorporates his or her
own creative contribution, there is now the added benefit of becoming an author in relation to his
extemporisations. The 1988 Act changed earlier assumptions - as a parallel to the new right being
given to performers - by stating that any recording of the performance, authorised or unauthorised,
would be a fixation that gives rise to an author's copyright in the material that is original. 45

*21 D. TRADITIONAL CULTURE: ITS PROTECTION TODAY

Today there is rising interest in the capacity of developed, globalising law to provide some recognition
for those claiming rights over the traditional culture of their community, whether it is a tribe, sect,
caste or even the nationals of a state. The focus is upon North American Indians, Central American
peoples, African tribes, Australian aboriginals, New Zealand Maoris, and many others.46 The claims are
often to decide upon and to share in the process of commercialising folklore; but they may just as well
be claims to protect what is private and sacred according to group understandings. The copyright idea
can to an extent cover both objectives, especially when backed by liability for breach of confidence or
invasion of privacy. So analogies to established forms of intellectual property are often made
alongside those rules that control access to physical material, which are important where a manuscript
is the only source, or a physical place needs to be entered.

(1) Community rights in folklore

Claims to folklore rights are only one element in the demands of indigenous groups for retribution in
respect of past exploitation. Its significance is that it is the groups' communal persona, that essential
aspect of their human condition, which is at stake. Over the last fifty years the demand has become
louder, as developing countries have gained status in international affairs. Responses have occurred in
that time, beginning with a non-compulsory provision inserted into the Berne Copyright Convention in
1971; but that intervention was ill-defined, and distinctly placatory in tone.47 Writers, scholars and
inter-governmental confabulations, coming to realise that paper-thin appeasement would not suffice,
have examined whether existing intellectual property regimes and preservation laws could be properly
adapted to the tasks. Fever level was reached only after the extraordinary success of developed
countries in imposing high-level IP protection on virtually every country in the world as part of the
World Trade Organisation *22 in 1994, the vehicle being the ever-contentious Agreement on Trade-
Related IP (TRIPs). Why in contrast, it was demanded, should there be no international protection for
group rights in folklore or any benefit-sharing in the modern derivations from traditional medical and
agricultural knowledge?

Apart from these fractious North-South exchanges, there is in any case an inherent attraction in
pursuing analogies to existing, individual intellectual property rights. For one thing they are not
dependent on privileges obtained from governments, but operate under a rule of law that is essentially
private. For another, they inhabit a realm where instruments for mutual recognition internationally
have been in effect for well over a century.

(2) The WIPO draft Convention

By now the debates have at least attained some maturity.48 In 2003, UNESCO brought about a
Convention aimed primarily at preserving and enhancing both tangible and intangible elements in
indigenous cultures.49 More significantly, WIPO has patiently cultivated multi-voiced consultations
towards an instrument concerned with proprietary protection. Since 2005 a Convention on Rights in
Traditional Cultural Expressions has existed as an advanced draft and it continues to be refined.50 A
prime object is to secure a form of communal right in folklore (intangible cultural heritage). According
to the plan, it will stretch beyond individual copyright in the following main ways:

(i) It will apply to any forms in which traditional culture and knowledge are expressed, appear or are
manifested, and which are the products of creative intellectual activity, individual or communal,
provided that they are characteristic of the community's culture and social identity and cultural
heritage. The present draft calls for evidence that the subject-matter should have been maintained for
at least two generations.

(ii) Following from that, in some cases at least, the object is to protect general manifestations of a
culture: for instance even a musical instrument could *23 be protected, whatever is played upon it.
Pretty clearly, the right is not just to particular works as they are expressed in detail. Yet copyright
protects only such expressions, not more general ideas. The group right will extend to styles and other
broad deployments of aesthetic ideas as they are used in many sorts of artefact or entertainment. The
monopoly potential is accordingly expanded to a level that is closer to the patent system than to
copyright - something which will raise the cautionary hackles of any IP specialist of reasonable
objectivity.

(iii) The right will last indefinitely - that is, as long as it continues to be used by the claimant
community as part of its heritage (and to this there will be certain further extensions). The model here
is not copyright but trade mark protection, and more particularly the protection of geographical
indications of source (often valuable indicators like “Champagne”, “Fetta”, “Melton Mowbray” - rights
shared in by a group of traders, albeit that among themselves they are competitors).
(iv) The subject-matter will not have to be in any fixed, permanent form, though of course there may
be added problems of proof if it is not. Courts have already encountered this kind of difficulty. In the
Hindmarsh Island Bridge case in South Australia, for instance, one group in an aboriginal tribe gave
affidavits that a certain piece of land was given over to women for the discussion of women's matters;
but then the other side produced other witnesses from the same tribe who denounced this as
humbug.51 Turning an argument into litigation to be fought out in the alien world of a modern court-
room can be a disturbing experience.

(v) In all cases, protection will cover “moral rights” by analogy to copyright - the group will have a
right to be identified in any commercialisation; and a right to integrity (not using the legend of
Pocahontas for a Disney cartoon, perhaps). On the economic side, the group will also have a claim to
an equitable share in benefits from exploitation. But in addition, a form of registration is being
proposed. Registration aims to give notice of claims to others. When it is complete, the group will be
accorded a full right to prevent use, not merely to claim compensation.

(vi) The right will be that of the possessing community - arising, in an eighteenth-century sense, from
their “occupancy” of the subject-matter. But while this is recognised as the ideal, the group must show
itself sufficiently organised to be able to maintain its legal position; otherwise *24 some appropriate
organ of the state or regional government would have to take the group's place. That authority would
be charged with applying a whole series of general ideals (thirteen of them)52 and guiding principles
(at least nine).53 The draft permits the powers of the state organ to be expressed in terms of
ownership or agency. Even that choice may well affect how far the state is willing to put resources into
the business of tracking down mis-users abroad as well as at home.

In all this fine search for acceptable formulae, I have space to comment only on a couple of aspects
that mainly affect exploitation. The first concerns relations between individuals in a community who
want to pursue their own artistic path with community materials and others who want to stop or
curtail their personal freedom to express themselves (for instance because, as they see it, the result
will be a betrayal of secrets or of the integrity of the tradition). The draft Convention rather blithely
says that the performer or artist remains free to exercise his or her own intellectual property rights,
and suggests or assumes that there will be harmony between the two. Given the underlying thrust of
the document, I suspect that in cases of real conflict, the communal desire is intended to override the
individual right. I also suspect that hard reality is being buried beneath soothing reassurances. What
of communities such as the mid-Australian Pitjantjara tribe whose elders in 1976 obtained an
injunction against the appearance of a famous anthropological work in a bookshop in Alice Springs
because it revealed details of their iconography, rituals and myths, which their women, children and
uninitiated young men were not “allowed” to know according to long respected custom?54 Would the
latter accept such secrecy without question today? The problem of “whose heritage?” no longer has
two-dimensional solutions.

Secondly, there is no scheme yet worked out in the draft for the pursuit of litigation across countries:
it remains pencilled in on the WIPO agenda *25 for the future. Yet, one major objective of the scheme
is undoubtedly to enable indigenous communities to gain a significant source of revenue from
exploitation by tough trans-national businesses in the realms of entertainment and learning. To access
a share in world-wide profits requires practicable modes of enforcement that are spelled out in the
blackest of letters.

The effectiveness of any scheme will turn partly on its acceptability to those who will be obliged to pay
and partly on there being effective machinery to identify unauthorised use of protected material. A
community with an interest in the exploitation of its folklore is likely to need both an operating system
of digital rights maintenance for the material that it allows to go on the internet and also a checking
system to monitor websites where the material may appear without permission. Its business plan
must then determine how far it will chase those who fail to respect its rights. To turn a community
right into a royalty stream calls for resources that need to be carefully planned. How far collective
management can be done on a national, regional or global basis will have to be explored, and the
monopolistic tendencies inherent in collecting society solutions may need addressing. In the nature of
things, it is the music industry that is most likely to be adversely affected by the introduction of
community rights in cultural material. It is of course an industry which, over its own copyright, is
claiming major downturns from digitisation. Against various forms of free access, the large-scale
producers are locked in litigious confrontations of their own on a grand scale. The uncertainties in their
futures may make them unwilling to pay anything much for traditional songs, bands and dances.
Providing effective legal processes for enforcing copyrights and other intellectual property rights is
hard enough even for major corporate players, who can deploy specialists in private international law
alongside international IP detectives doing sometimes very dirty work. What hope, one may ask
bleakly, for modest claimants acting for indigenous groups? They may have great difficulty in showing
that the material in question comes from their cultural tradition, not least when it is being taken over
by multicultural hotheads who mix and match for their own delectation.

E. FINAL THOUGHTS
The preservation of intangible cultural heritage poses many issues, as the American ethnologist,
Michael Brown, makes clear in his admirably balanced, Who owns Native Culture? The subject is much
wider than just the question of a copyright-like property right for indigenous communities. Many
people, backed by governments and international organisations, are today involved in the rescue
operations which see to the preservation and continued practice of ceremonies,*26 dances, ritual
enactments and sport-like contests that belong to past traditions. UNESCO, for instance, under its
2003 Convention, has a list of 90 masterpieces of folk culture from countries around the world,
developed as well as developing, which it fosters and seeks sponsors to keep alive; and it does much
more than that.

Still it seems to me right, and indeed life-enhancing, to seek out an international system of “owning”
the characteristic expressions of a particular community's culture. There will need to be limits, just as
there are different limits in an individual ownership regime such as copyright. Such a system is not
going to lead to any systemic improvement of the lot of pre-literate peoples who have been the
subject, in some cases for several centuries, of selfish invasion and exploitation. This may have
involved eradication, enslavement, corralling and mind-bending through Western-style education or
indoctrination, religious or otherwise. But for some communities there may be certain flows of
revenue, and just occasionally floods. Too large a success inevitably poses administrative complexities
that leaders today must learn to manage in socially beneficent ways. The task requires flexibility and
acumen, since it is in the nature of these quasiprivate rights that they are only a foundation. It takes
enlightened initiative to build successful exploitations that bring the hoped-for returns and then to see
to their useful deployment for the future of culturally distinct communities. But, so long as the
enterprise does not get submerged in a quagmire of indecision, in which no one has the incentive to
drive the programme forward, it is surely an approach which the twentieth-first century should explore
vigorously, above all at the international level.

Herchel Smith Professor of Intellectual Property Law Emeritus, University of Cambridge. This is a
revised version of the Peter Chiene Lecture in Legal History given at the University of Edinburgh on 27
September 2007 as one of a series of lectures marking the tercentenary of the School of Law.

1. For a recent extensive study, where the growing literature can be found, see R Deazley, On the
Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain
(1695-1775) (2004).
2. “Booksellers”, until the mid-nineteenth century, were frequently both publishers and distributors,
their distribution arrangements operating through complex liaisons which earned them the title of
“congers” - congeries, with a certain likeness to the eels.
3. Millar v Taylor (1769) 4 Burr 2303, Yates J dissenting (at his peril).
4. Hinton v Donaldson (1773) Mor 8307, reproduced more fully in S Parks (ed), The Literary Property
Debate: Six Tracts, 1764-1774 (1975) item C, and also
athttp://www.copyrighthistory.org/cgibin/kleioc/0010/exec/showThumb/ùk_1773%22/start/%22yes%
22.
5. (1774) 2 Bro PC 129.
6. For his role as provocateur and its effects on the laws of Scotland and England, see especially R S
Tompson, “Scottish judges and the birth of British copyright” 1992 JR 18.
7. J C Hadden, George Thomson, the Friend of Burns (1898) 23.
8. They also included Andrew Erskine, who 30 years before had pressed poetry on Alexander
Donaldson, alongside his companion, the young James Boswell.
9. See D McArdle, “Beethoven and George Thomson” (1956) 39 Music and Letters27; B
Cooper, Beethoven's Folksong Settings: Chronology, Sources, Style (1994) 11-29, 39-43; K Geiringer,
“Haydn and the folksong of the British Isles” (1949) 35The Musical Quarterly 179.
10. Hadden, George Thomson (n 7) 39.
11. A few years before, Thomson had nicely fixed their social relationship by writing to Cockburn: “You
have ever treated me in the most friendly and condescending manner”: Hadden, George Thomson (n
7) 97.
12. According to Hadden, George Thomson (n 7) 39-40, while Thomson went on the trip with
introductions to “amateurs and antiquaries .. many of his airs were taken down by himself from the
singing or playing of the native harpers”. Compare the search techniques of the American collectors,
Jeremiah and Alma Curtin, working at the end of the nineteenth century in Ireland, as recounted in A
Bourke, “Jeremiah Curtin's Irish journeys”, Parnell Lecture 2006, Magdalene College, Cambridge
Occasional Paper No 35.
13. Published in London, but printed in Kelso between 1798 and 1802.
14. Thomas Percy's Reliques of Ancient English Poetry (1765) showed the increasing popularity of the
genre. See generally, J Sutherland, The Life of Sir Walter Scott (1995) ch 4.
15. For the usages of the word, see M N McLane, “The figure minstrelsy makes: poetry and historicity”
(2003) 29 Critical Inquiry Spring/3; M N McLane, “Tuning the multi-media nation… ” (2004)
15 European Romantic Review 289.
16. On this score, Joseph Ritson was already the Bishop's biting antagonist, but Scott, not untypically,
struck up something of a relationship with him: Sutherland,Sir Walter Scott (n 14) 80, 86.
17. For the row over Scott's taking down of ballads from Mrs Hogg Snr, see e.g. V Bold, “Nouther right
spelled nor right setten down”, in E J Cowan (ed), The Ballad in Scottish History (2000).
18. The most detailed study is M R Dobie, “The development of Scott's Minstrelsy : an attempt at
reconstruction” (1940) 2 Edinburgh Bibliographical Society Transactions 1, 66.
19. H L MacQueen, “‘My tongue is mine ain’: copyright, the spoken word and privacy” (2005) 68 MLR
349.
20. (1880) 49 Fortnightly Review 319.
21. (1858) 20 D 1154. The suspenders' main defence was that there could be no copyright work
without authors, and that their names had to be registered in order that the full term under the
Copyright Act 1842 could be ascertained, since it would extend from 42 years to 7 years from the last
author's death if that was longer.
22. At 1163.
23. See also the slightly earlier decision of the Inner House in Alexander v Mackenzie (1847) 9 D 748:
a Committee of the Society of Writers to the Signet was interdicted for circulating legal forms for
proceedings under the Heritable Securities and Infeftment Acts of 1845 that had been written by Mr
Alexander. Regret that it should have come to court was Lord Fullerton's opening sentence.
24. In the period when the jurisdictions of the various superior courts in England were being drawn
together (notably by the Judicature Acts 1873-5), some of the Chancery judges sought to preserve
equitable ideas based on large moral principles, and supported by such equitable remedies as
injunction and receivership, against the crabbed specificity of the common law. In the realm of
copyright these judges were ready to offer comfort to anyone who had made a written record of the
most mundane material. See, e.g., the extraordinary decision of Malins VC in Cox v Land and Water
Journal Co (1869) LR 9 Eq 324.
25. [1900] AC 539.
26. Earl Rosebery considered his speeches to have been given to the public for reproduction by
anyone; but he did keep a record of The Times articles in an album.
27. Lord Halsbury was ready to take as his starting point Lord Deas' rejection of the view (n 22 above)
that intellectual labour alone constituted the basis of copyright under the Copyright Act 1842.
28. Roberton v Lewis [1976] RPC 169, a case decided in 1960.
29. See, e.g., Express Newspapers v News (UK) [1990] 1 WLR 1320; Sawkins v Hyperion Records
Ltd [2005] 1 WLR 3281.
30. Roberton v Lewis [1976] RPC 169.
31. Tracing back, Dame Vera's song came from the Scots Guards' arrangement made first by Pipe
Major Crabb, who took it down for bagpipes from a sergeant, who had sung it at a mess dinner. The
tune was known to have existed from much earlier times under various names. The link back to Sir
Hugh's published or recorded versions was not made out.
32. Previously Lord President, he was a firm Conservative in the mould of Dicey. As Rector of
Edinburgh University he urged the study of socialism in order to expose its real objective: “A State in
which man shall live by bread alone; in which, once for all, the human soul shall be given in exchange
for rations; a state, of which slavery is not merely an institution but the corner stone and in which the
gates of intellectual freedom are shut for ever on mankind”: J P B Robertson, The Duty of Educated
Intellect to the State: an address delivered to matriculated students of the University of
Edinburgh (1895) 21-22, quoted by R B Stevens, Law and Politics: the House of Lords as a Judicial
Body, 1800-1976 (1978) 131.
33. [1900] AC 539 at 561.
34. Proclaiming the magnitude of their investment in the new technology, they occupied a great deal
of the time of the Gorell Royal Commission of 1909, which was established to consider the
amendments to the existing ragbag of copyrights needed to comply with the revision of the Berne
Copyright Convention by the Berlin Act 1908. Its well-argued report, taken together with the ensuing
meeting with representatives of the Dominions, would lead to the much better structured Imperial
Copyright Act of 1911.
35. The US Copyright Act 1909 s 26 defined “author” to include an employer in the case of works
made for hire, a concept eventually given a wide interpretation: see P Goldstein, Copyright: Principles,
Law, Practice (1989) I, 4.3.1.
36. Copyright Act 1911 s 19.
37. Since Council Directive 93/98/EEC OJ 1993 L290/9 extended the duration of authors' copyright to
their lives and seventy years, the disparity has been more marked.
38. Gowers Review of Intellectual Property (2006, available e.g.
athttp://www.cipil.law.cam.ac.uk/policy_documents/Gower.pdf ) ch3.
39. Since Council Directive 92/100/EEC OJ 1992 L346/61, this is recognised to be a matter to be
determined by European law and the Commission is currently making its own assessment.
40. In 1952, the Gregory Committee on Copyright still adhered to such arguments: see Report of the
Copyright Committee (Cmd 8662: 1952) pt VII. For the position after the 1988 legislation see n 42
below.
41. As, for example, in the Netherlands.
42. Copyright, Designs and Patents Act 1988 pt II, subsequently revised to give effect to Council
Directive 92/100 OJ 1992 L346/61.
43. The leading text specifically on this byzantine set of rights is R Arnold,Performers' Rights, 3rd edn
(2008).
44. Or what, in some instances, legislation requires to be paid. Thus the EU Directive (n 42) requires
equitable remuneration to be paid to performers in respect of rentals of their recordings.
45. Copyright, Designs and Patents Act 1988 s 3(1), (3).
46. At the end rises the question, why only them? Just as the claim may be not just about folk tales
and songs, but about art work, buildings or special places, so it may be about things in a developed
country. In 1991, the State of Galicia declared General Franco's Pazo de Meirás castle a national
monument, but his widow has occupied it since his death, and is locked in litigation against opening it
to the public.
47. See art 15(4) and, for its genesis, S Ricketson and J Ginsburg, International Copyright and
Neighbouring Rights, 2nd edn (2006) para 7.18. One sop in the direction of this article is to be found
in the UK Copyright, Designs and Patents Act 1988 s 61, providing that a designated, non-profit body
may make recordings of folk song, where the words are unpublished and have no known author; but
no other copyright must be infringed (notably in the music), and no prohibition imposed by the
performer. The section also allows the supply of a single copy for non-commercial research or private
study.
48. For the evolution of the whole subject and well-informed assessment of the current state of play,
see A Lucas-Schloetter, “Folklore”, in S von Lewinski (ed),Indigenous Heritage and Intellectual
Property (2004) 259; S von Lewinski, “Adequate protection of folklore - a work in progress’, in P
Torremans (ed),Copyright Law: Handbook of Contemporary Research (2007) ch 9. There is an
extensive literature which is reviewed in these articles.
49. United Nations Educational, Scientific and Cultural Organization, Convention for the Safeguarding
of the Intangible Cultural Heritage (adopted 2003, in force 2006).
50. World Intellectual Property Organization, Draft Convention on the Protection of Traditional Cultural
Expressions (GRTKF/IC/9/4, 2005). For further work by WIPO's Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, see now the papers
for its 13th Session, 13-17 Oct 2008.
51. See Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106; M Simons, The Meeting of the Waters:
the Hindmarsh Island Affair (2003).
52. In brief: to recognise the values of the material; to promote respect for it; to meet actual needs;
to prevent misappropriation; to empower communities; to support existing practices; to contribute to
safeguarding the material; to enhance innovation and creativity; to promote artistic freedom,
research, and cultural exchange on equitable terms; to contribute to cultural diversity; to promote
community development and legitimate trading; to preclude unauthorised use of intellectual property
rights; to enhance transparency, certainty and mutual confidence.
53. In abridged version: responsiveness; balance; respect for existing agreements and interests;
flexible comprehensiveness; respect for specific nature; complementarity to the protection of useful
traditional knowledge; respect for the rights of indigenous peoples; respect for customary usage and
modes of transmission; effectiveness and access to protection measures.
54. Foster v Mountford (1976) 29 FLR 233. The book was Charles Mountford's extensive ethnographic
study, Nomads of the Australian Desert (1976).

END OF DOCUMENT