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Folk Music and the Law: A few questions that are doing the rounds

Whether in its original form, sampled or stylistically incorporated into a piece from another musical genre, traditional folk music continues to captivate listeners from across the globe. The popularity of a country’s or region’s folk music can be attributed to several things, but there’s no denying the most basic reason for its allure: the fact that all folk music is about people and their communities – an aspect so basic to us that one can’t help but relate to the songs of a folk musician, whether she’s from India, Panama, UK or Australia.

Folk music occupies an interesting space in the realm of sociocultural and legal studies – it is both creative content and oral history – a time-honoured mechanism by which community members have passed down information relating to livelihoods, social mores and important sociopolitical events to younger generations.

So it’s more than just music. It’s a community’s pulse

Folk music plays a very important role in the sociocultural fabric of a community and it is this very characteristic that complicates our understanding of folk music as a musical work – particularly when viewed through the lens of commercialisation and copyright. In other words, the performances of folk musicians outside the community and the incorporation of elements of traditional folk styles in other forms of music, while popular, have also raised several questions with respect to issues such as musical ownership, cultural appropriation and knowledge preservation.

Whose property is it anyway?

From the legal perspective, folk music and other forms of traditional intangible cultural heritage often find themselves in grey areas between existing forms of intellectual property protection. One of the reasons for this surrounds debate on who gets to own a work that falls squarely within the realm of a particular folk music style or borrows heavily from it.

According to the World Intellectual Property Organization or the WIPO, traditional cultural expressions, like folklore and folk music, are key to the sustainable development, intellectual and cultural flourishing of their communities, and need to be viewed as the “common heritage of mankind”. At the same time, the WIPO recognises that such expressions must also be considered a community’s economic asset, that is capable of being traded or licensed to others in an effort to further economic development (You can read the report that mentions this and much more here).Artistik License Logo - small

The first part of WIPO’s understanding of folk music has us believe that it belongs to the community and unless prevented by the community members, must be made accessible to people everywhere. On the other hand, consider folk music an economic asset that is capable of commercialisation and we are faced with a slightly difficult question – whom does it belong to and who has the right to commercialise it?

For instance, a single family of musicians in a community who have clearly written, composed and performed a particular work of folk music for many generations, might be able to lay claim to the musical work but what if such musical work has become an integral part of the community’s sociocultural fabric in a way that it becomes unfair to attribute ownership to only one musical family instead of all the musical families in the community? What if all the families have jointly reshaped the essence of the work through multiple and diverse renditions over years – who then, can be considered the sole owner of the song?

Another instance involves the sampling or borrowing of a folk music style and its incorporation into a musical work belonging to a completely different style – does the musician responsible for the latter owe a duty to the community whose music she appropriated? Should she give credit, and if so to whom? And finally does attribution or credit translate into other monetary benefits?

Is it time to give back or take it forward?

Existing forms of intellectual property like the copyright system suffer from certain gaps, especially when having to deal with forms of cultural expression that are traditional and tied to the sociocultural mores of indigenous communities. The truth is that the copyright system does not contemplate ownership that spans a community, nor does it offer an effective way to protect a work that is not purely a musical work, but a form of community history.

With an increasing number of instances of cultural appropriation by non-community members, pitted against a diminishing number of community members actively working towards preserving, developing and perpetuating their traditional folk music, it’s also time for the law to consider alternative models of cultural custodianship. Perhaps it’s time for the law to put in place mechanisms by which musicians and producers borrowing folk music elements of a community, ensure that some of the proceeds of their revenue revert back to the community in the form of grants and projects directed towards supporting the folk music traditions in that community.

On the other hand, by making such a system of attribution and revenue distribution compulsory, will the law be intruding into the delicate and often disputed area of creative inspiration? These are just a few questions on the interplay of folk music and the law and while we might still seem far away from finding all the answers we need, there’s no denying the need for a healthy dialogue on all these issues and more.

Featured Image: The Nagore Boys, IndiEarth Out There – Season 1

Manojna Yeluri

Manojna Yeluri

Manojna Yeluri is an independent legal consultant advising artists and startups on issues related to IPR and entertainment law. She also founded and runs Artistik License – a legal education initiative for artists working in India that’s meant to empower artists through simplified legal knowledge. When she's not talking to artists, you can find her drinking tea and trying her hand at all kinds of DIY craft projects. You can read more about her work with Artistik License at artistiklicense.wordpress.com

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