Copyright can’t solve---it only benefits non-indigenous people and outside actors continue to commodify.

Another reason for not being able to rely on copyright for refusing documentation is the nature of the works. The Berne Convention allows contracting countries to determine their own originality threshold; however, judicial interpretations usually revolve around a form of “judgement, creativity or intellectual contribution.” Most of the oral traditions would not be original due to their cross-generational nature, as it is possible that the same stories are transferred each time with very minor original contribution. Embracing a low originality threshold would mean that future members of the same community could make minor changes and enjoy copyright protection each time, but it would also mean that non-Indigenous parties could enjoy copyright with very little input from themselves.

Even if the oral traditions satisfied the requirements for copyright, it would be hard to determine who controls them. Most jurisdictions define the author as the individual who creates the work, and some jurisdictions even recognize legal entities as authors of some works. In rare cases, it is possible to find oral traditions where the creator’s name is mentioned within the expression. But, most of the time, it is impossible to determine who created the oral traditions, especially if the work is created a long time ago and it is part of a “collective pool of creative resources.” Even when the community accepts the necessity to identify a single, specific author (who can then exercise the rights and have control), this reduces the options available to the rest of the community. There is also a great risk of parties assuming that oral traditions themselves are in the public domain and therefore can be used by anyone.

As for the copyright of documented versions of oral traditions, this is where copyright could emerge but provide control to the outsiders instead of to the community. Regardless of the type (a text-based work, sound recording, or film), the resulting work would fit within the protected subject matter and be sufficiently fixed, therefore satisfying the protection criteria in many jurisdictions. When the documentation is made by outsiders to the community, they become the authors of that particular fixation of the Indigenous oral traditions. In terms of originality, different criteria would apply depending on the form of documentation. For text-based works, it would depend on how much the author contributes in terms of criteria such as “free and creative choices” or “minimum degree of creativity.” For example, there is more room for originality for an anthropologist making notes on the Indigenous oral traditions witnessed that day, compared to an anthropologist noting it down verbatim. As for sound recordings and films, the law usually does not require any creative contribution. This would mean that the specific representation of the oral tradition recorded in the film or sound recording would be protected by copyright, but it would only benefit the control of outsiders to the community.

In this case, what gives slightly more control to the Indigenous peoples that are being recorded could be the performers’ rights. Article 2 of the 1996 WIPO Performances and Phonograms Treaty (WPPT) defines performers as “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.”Footnote72 Even when the oral traditions themselves are considered to be in the public domain, and their documented version belongs to an outsider, the performer could at least prevent the reproduction and communication of that particular performance.Footnote73 But it is still not a perfect form of control since, first, the performers’ names were usually not kept in the older collections.Footnote74 Newer projects are more sensitive about identifying individuals, using methods such as release forms, permissions, and informant contact information sheets,Footnote75 but the old ones lacked this approach. Second, it is also important to remember that the protection of performers’ rights was provided later in the development of copyright law. Seeing that the Berne Convention did not include performers’ rights and that it was not until the Rome Convention that the performers were recognized at an international level, it can be argued that performers were previously seen as merely interpreting works. Third, and on a more ethical level, the definition of performers in Article 2 of the WPPT might not be in line with how the Indigenous community members see themselves, sharing their past to educate the other members, giving the gift of stories, and ensuring the continuity of the underlying sacred knowledge.

Similar to the oral traditions themselves, these documented versions also carry the risk of being assumed to be in the public domain. In addition to the difficulties in determining the age and copyright status of past collections, there could also be a middle party causing misleading assumptions regarding the ownership of the Indigenous recording. For example, Ami elders’ traditional songs were recorded for archival purposes (the performers claiming that they did not consent, while the institution claims that they had consent forms) and were later made available on an album. Being assumed to be in the public domain, the sample of the chant was later used in the song “Return to Innocence” by Enigma.In this example, the popularity of the song allowed the community to become aware of the situation. In other situations, the discovery might happen much later and indirectly. Such coincidental discoveries then further increase the distrust. For example, Henrietta Fourmile refers to the tapes of her grandfather speaking the language in 1959, coincidentally located in the Australian Institute of Aboriginal Studies after a staff member recognized her name.Footnote78 Given the disappearing nature of oral traditions, these hard-to-find documented versions might be the most complete versions in existence.

To sum up this stage of collection without informed consent, copyright alone is not going to be sufficient to stop collection by outsiders or the community controlling the traditions or their documentations. On top of that, if the conditions for copyright in that jurisdiction are met, the outsiders would enjoy the copyright and the control that comes with it. Thus, copyright is more likely to be used against the community and not by them at this stage. The main option available to the community in this case would be to rely on the protection for performers, which is not uniform and not useful for old recordings made without consent or recognition. The situation is less bleak for newer collections, considering that both sides are more sensitive and aware. Newer projects pay more attention to sharing copyright with the community as a form of benefit sharing. In any case, parties should be careful about determining the copyright ownership before undertaking joint projects.