The international community, with the assistance of UNESCO, has expressed interest in the correlation between intangible heritage (traditional forms of cultural expression like "folkloric" art, design, music etc.) and physical space. Some of the relevant initiatives have taken place under the label of "cultural landscape", although not always so.

Relationship Between Physical Spaces and Intangible Heritage

Legal Protection of Intangible Heritage

Kinds of Legislation for Intangible Heritage

The Relationship Between Physical Spaces and Intangible Heritage

International Consultation on the Preservation of Popular Cultural Spaces (Marrakesh, 26-28 June 1997)

The recommendations and background materials of this international meeting, dealing with how localities can integrate intangible heritage with their planning process, are currently being updated in light of recent UNESCO developments. The updated materials will be available soon.

UNESCO's project pertaining to masterpieces of the oral heritage of humanity (a concept that bears certain parallels, in the field of intangible heritage, to World Heritage Sites in the field of tangible heritage) is described in French at UNESCO's Web Site, and is one of the important initiatives of UNESCO's Intangible Heritage Section.

LEGAL PROTECTION OF INTANGIBLE HERITAGE *

Marc Denhez

Courtesy of:

EXECUTIVE SUMMARY

The 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore is generally recognized as the highest profile declaration on the importance of intangible heritage in the world. It has six main action areas including:
(a) A viable international institutional network: this is arguably the single most important feature of the Recommendation. Significant work has been done in this area since 1989, but considerable work still lies ahead to create such a network internationally and regionally (electronically, in writing, or by whatever other means), including creators and interpreters.

(b) Common typology: UNESCO has carried that task as far as any non-user could be expected.

(c) Training: Much progressive work is still to be done.

(d) Cooperation: these initiatives are continuing, e.g. UNESCO's " Living Human Treasures " programme, promoted by UNESCO's Intangible Heritage Section.

However, the two most important areas, from the standpoint of legal protection, were:

(e) Preventing distortion: For historical reasons, the Recommendation refers only to the dissemination of the Model Provisions (WIPO-UNESCO 1982), which evolved from what was originally a copyright-type model of protection (connected to "Intellectual Property" concepts or "IP"), but the companion documentation repeated that this subject was "complex", that its success would depend upon the technical "definitions" used etc. In the face of this single option and of the warnings above, very few Member States replied, when asked how they would implement this part of the Recommendation. This IP model offers protection against verbatim reproduction and modest distortion...assuming that the original has been accurately recorded, and assuming that the original has been withdrawn from "the public domain" and duly registered as such. It also has applications to traditional knowledge (as opposed to traditional cultural expression). This IP model is more awkward to apply in case of massive distortion (mere emulation of a general "style", i.e. "pastiche"; commercial imitations of a people's traditional style have sometimes been called "fakelore" ). In fact, under copyright notions of "fair dealing", copyright-type protection might not have existed at all under such circumstances. There are, however, other legislative options (e.g. "consumer-type" legislation) which can potentially address cases of "pastiche" or "fakelore". It would be in the interests of Member States to learn what all their options are, what the pros and cons of each option may be, and what precedents are available for each option. Member States may then feel more comfortable in selecting a strategy suited to their own purposes.

Logically, the next steps for the international community are:

• to continue raising the profile of traditional culture;
• to continue building the networks for intangible heritage at the international, regional and
national levels;
• to continue training, cooperation etc.;
• to inform Member States more fully on their options for protective legislation (including pros
and cons);
• to explain the pros and cons of remunerative systems.

(f) Remuneration: the intent was to create a system of remuneration so that creators/interpreters of traditional cultural expression (sometimes called "folklore") would be on an even footing with e.g. copyright-holders. The Recommendation again referred only to the Model Provisions, which had evolved from copyright concepts. As in the case of "protection" above, these concepts were originally designed to compel authorization (and usually payment) for verbatim reproduction, or reproduction with only modest variations. They were not designed for "pastiche". It has been argued that the overwhelming majority of misappropriations of traditional cultural expression or folklore are in the form of pastiche, not of verbatim reproduction. It is possible to legislate for "pastiche" (see above); but if the intent is to create a system of remuneration when a culture borrows the "style" from another culture, then that triggers an element of risk. The risk is simple: on any given day, "dominant cultures" export more cultural expression to "threatened cultures" than vice versa (that is precisely why the former are called "dominant" and the latter are called "threatened"). If remuneration must accompany the transfer of these cultural expressions, lawyers within the dominant cultures may quickly argue that since they are exporting more than they are importing, the "balance of payments" -- for transfers of cultural "styles" -- should favour the "dominant cultures" at the expense of the "threatened cultures". That would be the diametric opposite of what the Recommendation had intended. The only way to reverse that balance of payments would be to have such subtle drafting that (a) payment would be owing when "dominant cultures" borrowed expressions from the "threatened cultures", but (b) payment would not be owing when the "threatened cultures" borrowed idioms from the "dominant cultures". To date, no one has shown how such an arrangement could be worded.

There are, however, other important legal mechanisms (aside from intellectual property) which are available to combat fakelore, notably specific consumer protection legislation. The key is for governments to review the various options at their disposal, and to adopt the assortment of legal measures which best fits their situation.

FULL TEXT

LEGAL PROTECTION OF INTANGIBLE HERITAGE *

Marc Denhez

Courtesy of:

1. INTRODUCTION

The 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore can be divided into several distinct parts:

(A) Definition: "the totality of tradition-based creations of a cultural community (reflecting) social identity...transmitted orally, by imitation or by other means (including) language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts."

(B) "Identification":

• inventory of institutions
• identification and recording systems
• standard typology.

• archives
• archival services
• exhibits
• presentation within cultural context
• harmonization of archives
• training staff
• secure copies

• curricula
• self-documentation
• national folklore councils
• support for dissemination
• research
• a researcher's Code of Ethics

• events
• media
• hiring folklorists
• educational materials
• information centres
• meetings and exchanges

• cooperate with international and regional organizations
(i) exchanges
(ii) training
(iii) joint projects
(iv) meetings and courses
ensure internationally the economic, moral and so-called neighbouring rights
provide copy of research/materials to host country
no damage
risk avoidance.

The document then goes on to identify the following objective:

Protection: "Folklore constitutes manifestations of intellectual creativity (and)...deserves to be protected in a manor inspired by the protection provided for intellectual productions. Such protection of folklore has become indispensable as a means of promoting further development, maintenance and dissemination."

(a) Publicize UNESCO/WIPO Model Provisions (1982) and related work

(b) (i) protection of privacy of folklore informants; (ii) collections to be kept in good condition; (iii) protection against misuse; (iv) archives to monitor subsequent use.

There are certain caveats.

• First, some countries prefer the expression "expressions of traditional culture" to the word
"folklore" on the assumption that the latter sounds condescending, although the word "folklore" is used in this paper without any such connotations intended.
• Second, the emphasis in this paper is on expressions of culture (connoting a dynamic element)
as opposed to traditional knowledge (a more static concept) [methods of legal protection for the latter have been described by Dr. Howard Mann in his reports pertaining to the Biodiversity Convention, and entitled Intellectual Property Rights, Biodiversity and Indigenous Knowledge, and Indigenous Peoples and the Use of Intellectual Property Rights in Canada].

With the above qualifications, it is possible to summarize the recommendation's thrust as follows:

SIX PRIMARY ACTION ITEMS FOR EXPRESSIONS OF TRADITIONAL CULTURE:

1. A VIABLE NETWORK OF SUPPORT/ACTIVITIES
2. A COMMON TYPOLOGY
3. TRAINING
4. PROTECTION AGAINST DISTORTION
5. REMUNERATION FOR CREATORS/INTERPRETERS
6. FURTHER CO-OPERATION

2. HISTORY

In 1972 the General Conference of UNESCO resolved to adopt a "ten-year plan for the systematic study of oral traditions and the promotion of African languages", soon followed "by similar efforts in Asia and Latin America". UNESCO also responded to a 1973 overture by Bolivia, by calling for analysis of the "intellectual property" dimension of folklore. UNESCO's comprehensive programme on the intangible (non-physical) cultural heritage was officially launched in 1976 under the auspices of Programme Resolution 4.111 adopted by the General Conference (Nairobi, 1976). After many expert meetings hosted by the World Intellectual Property Organization (WIPO) and UNESCO , in 1979 the Director General of UNESCO also contacted Member States with a questionnaire identifying five problem areas concerning "folklore":

• Definition
• Identification
• Conservation
• "Exploitation"
• "Use" (later called "Protection")

A new survey was launched in 1986 "among Member States to find out about the situation of their non-physical heritage and what safeguarding actions were most badly needed." After still further meetings and reports, the text of a Recommendation was finalized and was adopted unanimously by the General Conference on November 15, 1989. However, when the UNESCO Secretariat sent a circular letter on April 8, 1991 asking countries about their follow-up to the Recommendation, only six Member States replied, and even there, most answers were so general as to be essentially meaningless.

2. PROTECTION OF EXPRESSIONS OF TRADITIONAL CULTURE

For decades, the international community has spoken out against the distortion of traditional culture. That concern did not dissipate. When folklore is artificially reproduced out of context far from its roots, it risks undergoing caricature which one delegation to UNESCO described as "mediocritization". Others call it "fakelore".

In response, one possible legal recourse that was examined in some detail was that of assimilating traditional culture to other forms of cultural expression protected by copyright; copyright is part of a family of legal measures for "intellectual property" ("IP").

However, no one ever promised that the remedial legislation would be easy to draft. In the Model Provisions and the lead-up to the Recommendation,

• the legal field chosen was described as "complex".
• The adaptability of "intellectual property" to folklore was said to hinge on
"definitions" -- requiring further technical thinking.

• objecting to the selection of "intellectual property" rules,
on principle;
• arguing that "intellectual property" rules address only
part of the problem of distortion; and/or
• preferring a different category of legal tools.

"Plan A": Copyright-Type Measures

In assessing the potential impact of "intellectual property " instruments, it is essential to understand the classic concepts. When looking at the work of an individual creator, it is possible to conceive a number of scenarios:

If a third party wishes to use the work of another person in its intact state (i.e. verbatim), then

• the creator's consent must be obtained (and often paid for) because the classic concepts of
copyright recognize that the creator has a proprietary interest in that creation.
• Since it is his/her "intellectual property", the creation cannot be "borrowed" without the
owner's consent.
• To take it without consent would be theft ("plagiarism").

However, if the work has been dramatically distorted (what is sometimes called "pastiche", although that is not a technical term), then it might fall into the category of a "new" work.

• Under classic concepts, massive tampering is called
"fair dealing" which could lead a court to conclude that the product has now become a "new" work.
• The question is then the following: how much distortion must have occurred, in order to
classify a work as a "new" creation...
• and hence
exclude it from the protection (associated to previous works) normally offered by "intellectual property"?
• Under classic concepts, that is a grey area where the line of demarcation is not always easy to
define.

So three primary scenarios are conceivable: (a) verbatim reproduction, e.g. note-for-note copying of a folk song, word-for-word repeating of a folk tale etc. [furthermore, as mentioned earlier, there are applications to the field of traditional knowledge, which is outside the scope of this paper]; (b) partial distortion, and (c) "pastiche", e.g. an unrecognizable composite or alternatively an "interpretation" based upon the broad style, without any single discernable model etc.

(a) Verbatim Reproduction

Copyright-type protection of folklore confronts the generally-accepted rule, in many western countries, that artistic creations fall into the public domain after a certain time. One possible solution, in theory, would be for these governments to announce that as arbitrary as it may sound,

• some older works will fall into the public domain and
• others will not.

• closer to that of historic
cultural property statutes
• than of
copyright statutes.

• the creation of a kind of
Register in which there was a perfectly unambiguous portrayal of the folkloric item in question, i.e. with a level of precision that could later satisfy a court of law, on a par with copyright cases.
• This kind of Register is
feasible, although politically sensitive in some countries.
• Other countries create a "blanket" protection for folklore via a requirement for authorization
on a much broader basis (e.g. requirement for approval on anything that might be considered folkloric). This presupposes a different form of administrative infrastructure.

So far, this description has focused on protection, not money. However, if the national legal protection (or a future hypothetical Convention) triggers a copyright-type royalty (e.g. "PLRs", i.e. "Public Lending Rights") in the case of verbatim reproductions of registered expressions of traditional culture (but not pastiche), then the total amount of money changing hands in any given year is likely to be small, for three reasons:

• it will take some time to physically register (for legal purposes) a very significant number of
different expressions of traditional culture;
• there is nothing in UNESCO's files to indicate that in any given year there are very many
instances of verbatim appropriation of a traditional cultural expression for gainful intent;
• if the appropriating party wanted to avoid liability for payment, all that it would have to do is
tamper sufficiently with the folkloric expression ("fair dealing"), thereby turning it into pastiche and excluding it from normal "intellectual property" obligations.

(b) Modest Distortions:

This can usually be dealt with in the same way as verbatim reproduction. Indeed, the intellectual property community has developed computer programs helping identify plagiarism when it occurs.

(c) Massive Distortions ("Pastiche"):

When there is more than a slight change in a work of intellectual property, the normal rules usually refer to this re-interpretation as "fair dealing", i.e. it can normally be used as the "inspiration" or a "basis" for a new work, without permission. This is why, under normal intellectual property approaches, it is difficult to protect a given "style" as an offshoot of copyright, and certain countries have therefore examined alternative legal approaches to achieve better protection.

"Plan B": Other Legislative Options

There have been alternative legislative solutions for years e.g.

• Legislation for the protection of "sacred" symbols:
this exists in a number of countries, and relates to items such as flags, religious symbols, heraldry etc.
• Extension of "industrial design" legislation:
this is one of the few kinds of legislation which deals specifically with "style" -- although it is not the only one. Another kind of legislation which often deals with style is...
• Consumer protection legislation:
it is not uncommon for such statutes to address style and pastiche when there is a possibility that buyers could be misled. Sometimes, this legislation takes the form of a Code of Ethics; and in other cases, it takes a different form.

There are different ways in which legal documents can spell out terms of reference unambiguously. "Style" is not impossible to regulate (it is already used in the industrial design legislation in several countries), but is sometimes difficult to interpret. An easier course of action (in drafting terminology which is unambiguous) is to refer to e.g. materials. One strategy for defining intangible heritage, but this time including pastiche, is to focus on a combination of two elements:

• traditional
materials (which are usually relatively easy to define for legal purposes, e.g. lacquer, soapstone, turquoise, etc.) and
• a particular
style on the same basis as industrial design legislation.

6. REMUNERATION

One major reason why some countries wanted

• legislation to follow the model of "intellectual property" (as opposed to say, the "consumer
protection" model was that
• under classic intellectual property rules, there are usually payments for the items used
("royalties" or "PLRs") .

• Would that imply that every time a tailor in Hong Kong made a dress shirt, a token payment
would need to be sent to Jermyn Street in London?
• Would it mean that when the respected Inuit entertainer Charlie Panigoniak performed for
money (which is his profession) -- and which is done in the Inuktitut language (thereby advancing another of UNESCO's objectives) -- he would have to send a payment to Spain for the use of his guitar, one to Africa for the use of his rhythms, and one to Nashville USA for the use of his musical idiom?

The fundamental problem is that in the case of the world's "dominant cultures", the practices which are being absorbed into minority cultures (and sometimes engulfing the latter) often have a so-called "folkloric" root of their own. Indeed, if one adds so-called "syncretic urban cultures" to the equation (as some have suggested for the purposes of the Recommendation,) then how is it possible to draft a legal document which would not impose a royalty liability whenever a "minority" population chose to "popularize" itself with the help of idioms borrowed from the dominant cultures?

Similarly, if the very threat to minority cultures (e.g. in "Least Developed Countries" or "LDCs") is precisely because they "borrow" more daily from the dominant cultures than vice versa, then how would the international community prevent the lawyers from the dominant cultures from

• demanding more money from the LDCs (for borrowing these cultural expressions)
• than the LDCs can demand in return?

That is the risk in attempting to construct a system of remuneration around the "borrowing" of "expressions of folklore", like styles. At any given time,

• the "dominant cultures" are being borrowed from most frequently: that is precisely why they
are called "dominant".
• In the meantime, the "threatened" cultures are doing most of the borrowing; that is precisely
why they are considered "threatened".

If legal instruments merely entrenched a monetary liability every time that one culture "borrowed" so-called folkloric expressions from another, how long would it take before the cash flow favoured the dominant cultures, at the expense of the minorities? One may add, parenthetically, that it is usually the "dominant cultures" who also have the largest number of intellectual property lawyers at their disposal, to argue that a given item deserves remuneration.

CONCLUSION

UNESCO has adopted a wide range of initiatives to pursue the goals of the Recommendation on the Safeguarding of Traditional Cultures and Folklore. These focus on items like networking, training and cooperation; but there is still work to be done in this vitally important area.

Member States have not responded to UNESCO's requests for information on follow-up protective legislation. Models derived from "intellectual property" are not easy (particularly in the common case of "pastiche"). To increase the comfort level of Member States, the time has come to outline

• their
options,
• pros and cons,
and
• alternative
precedents.

Remuneration (for appropriations of folklore) is a laudable goal. Certain technical hurdles would need to be overcome, to establish systems that work e.g. for verbatim reproduction of folklore (and some countries have done this). In the case of "pastiche", however, countries must understand the risk of linking the borrowing of a "style" or "idiom" to the payment of money. Lawyers within "dominant cultures" could immediately argue that since their clients "export more cultural idioms" to "threatened minorities" than they import, the balance of payments should favour the dominant cultures at the expense of the minorities. No one has yet offered legal wording that is so subtle that it would avoid this counterproductive prospect. That is not to say that such wording is necessarily beyond the reasoning ability of human beings; but it has not yet been advanced, let alone negotiated.

There are, however, other important legal mechanisms (aside from intellectual property) which are available to combat fakelore, notably specific consumer protection legislation. The key is for governments to review the various options at their disposal, and to adopt the assortment of legal measures which best fits their situation.

KINDS OF LEGISLATION FOR INTANGIBLE HERITAGE *

Marc Denhez

Courtesy of:

THE CHALLENGE: GETTING FROM THE AMORPHOUS TO THE SPECIFIC

What are the legislative heritage options which may be pursued by a government on the specific topic is intangible heritage? Both Canada and the international community have struggled with this issue. For example, experts in Ontario addressed this question in April 1992 at a workshop hosted by the Minister's Advisory Committee on New Heritage Legislation. The problem was the shortage of precedent in this area in Canada: Canadian materials are in short supply; and unless one has ready access to the experience of other countries in this area, the task of systematizing the subject-matter is difficult. At the international level, however, organizations like UNESCO have made some progress. UNESCO's initiatives, under the direction of its Intangible Heritage Section, include projects such as the Living Human Treasures programme; furthermore, such initiatives have the backing of the international community, as reflected in UNESCO's 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore.

The April 1992 Ontario workshop on intangible heritage assembled a list of topics for close consideration. These "intangible heritage resources" included

belief customscollective memories traditions folklore tastes attitudes perceptions skills

techniques rites rituals languages dialects stories dances songs music symbols games

The issue of legislation for intangible heritage burst onto the international scene at a high-level intergovernmental meeting in Stockholm in 1967. Subsequently, the relevant legislative dimensions were articulated with progressively increasing specificity by the U.N. agency responsible for copyright and related rights, namely the Geneva-based World Intellectual Property Organization (WIPO).

The result of WIPO's efforts was the publication of a "model" statute for the protection of intangible heritage. As with numerous U.N. inspired projects of the era, this model was based on a long string of "lowest common denominators" in the legislation of various countries; however, relatively few countries and even fewer western countries chose to adopt this model.

Before entering into specific legislative options, however, it is useful to note two points:

• The subject-matter is often called "folklore" in Canada; in certain other countries that word has
pejorative connotations, and hence the expression "intangible heritage" is seen in international documents. The following text will, however, use the word "folklore" from time to time as it is meant in Canada, where those pejorative connotations do not exist.
• Before entering into legislative specifics, it is important to review fundamental principles in this
field.

GENERAL LEGISLATIVE APPROACH

Positive and Negative Legislation

At the risk of oversimplification, statutes can be categorized in two main brackets:

• "positive" legislation (i.e. to
promote something positive ); or
• "negative" legislation (i.e. to
regulate or control something to avoid negative results ).

This categorization can be applied to legislation for intangible heritage, as will be seen later.

"Intangible Heritage" vs. " Expressions of Intangible Heritage"

This brings us to the first critical distinction in any systematization of the subject-matter. Although it may be arguable that there are subtle distinctions between the WIPO/UNESCO definition of "folklore" and Ontario's discussion of "intangible heritage", the two concepts are sufficiently similar to draw practical conclusions. The international community has been careful to distinguish between

• folklore, and
• "expressions of folklore".

The distinction is critical, from a legislative standpoint, because

• "Folklore" is what is locked in people's heads: it is in their thoughts.
• "Expressions of folklore", on the contrary, are quite different: they are not merely something
which is locked in a person's head, but are externalized and can be both perceived through the senses and (usually) recorded by some means.

The international initiatives have focused exclusively on "expressions of folklore", as opposed to "folklore" itself, and for an elementary reason:

• although it is possible to enact both positive and negative legislation for "expressions of
folklore" (i.e. both promoting and regulating the outward manifestations of folklore),
• it is not usually possible to enact both positive and negative legislation for the "folklore" itself
(i.e. the thought or creative processes themselves). The legislation may be positive, but not negative.
• This is because, in the case of thought processes, it is possible to enact legislation of a
promotional variety, but
• most modern legal systems do not treat thoughts as justiciable (i.e. subject to litigation,
regulation, law etc.).

Although thought processes are often critical to legal determinations (e.g. in criminal law, industrial design disputes, contractual disputes etc.), regulatory systems are essentially designed to deal with their external manifestation.

TARGET	POSITIVE LEGISLATION	NEGATIVE LEGISLATION
Folklore itself	Feasible	Not Feasible
Expressions of folklore	Feasible	Feasible

That leads to an inevitable conclusion, when one looks at the two columns of intangible heritage described at the beginning of this article.

• The first column is composed of thought or creative processes which are not rightfully capable
of regulation per se. Items like "beliefs", "customs", "memories" and "traditions" could not themselves be the object of regulatory legislation, although the expression of beliefs, customs, memories and traditions might be.
• By the same reasoning, items in the second column (techniques, rites) are already the
expressions of something, and the same problem does not apply.

Therefore, unless one wishes to rewrite international experience, one must distinguish between "intangible heritage" and " expressions of intangible heritage":

• Legislation can make
positive declarations about wishing to encourage certain thought patterns, authorizing educational and related initiatives for that purpose etc.
• However, one cannot normally expect legislation to
regulate those thought patterns. The purely intellectual aspects of intangible heritage, therefore, cannot be subject to a regulatory scheme as tangible heritage can.
• Expressions of intangible heritage, on the contrary, are capable of being subjected to a
regulatory scheme. Whether they should or not, however, is a critical policy decision.

The extent to which legislation can intervene in such "expressions" will be addressed next.

IDENTIFYING THE SUBJECT-MATTER

Varying Needs for Specificity

A preliminary question, in addressing possible legislation, is the identification of the subject matter. The need for specificity varies:

• in "positive" legislation, there is usually only a modest need for specificity in listing the
categories to be promoted (e.g. by grants and public relations programs).
• in "negative" legislation, there is a substantial need for specificity to clearly identify what is
regulated and what is exempt from regulation.

That requirement, in turn, leads to another preliminary question: is such specificity possible? Although that question may be moot in the case of positive legislation for "intangible heritage" per se, it would be crucial for any regulatory legislation affecting "expressions" of intangible heritage. That question is addressed below.

Methodology of Identification

Is it possible to identify forms of intangible heritage with enough specificity for legislative purposes?

The answer is yes. In fact, various forms of cultural expression (and other expression) are routinely identified by the law every day. In particular, is it possible to identify expressions of intangible heritage with sufficient precision to allow certain legal consequences to follow?

For example, this is done routinely in the area of law called "Intellectual Property" (IP). That topic includes subjects like copyright and industrial design; it also extends into consumer protection law and competition law, under the label of "passing off". Entrepreneurs have no difficulty whatever in attaching a price tag to various sounds and motions which they or their employees produce (in the form of services of some description)... and the federal government has no hesitation whatever in applying Goods & Services Tax to same. In this area of the law, parties may challenge each other pertaining to

• the
identification distinguishing features of various intangibles (words, phrases, music, choreography, design concept etc.) and
• attribution.

Precedents in Identifying Specific Forms of Expression

The courts have had to develop a long tradition of identifying specific forms of expression, for the purpose of resolving copyright and industrial design disputes. Despite this long tradition, the method of identification is neither complicated nor sophisticated: it is as elementary as whether item A "looks like" or "sounds like" item B. This is sometimes addressed in the subjective view of the judge, and at other times there is an attempt to assess objectively what the-person-in-the-street would think (i.e. whether that person could see a distinction).

The best analogy is the Industrial Design Act (Canada), which explicitly regulates style. For decades it has been understood that

The Industrial Design Act , on the other hand, covers the appearance of an industrially produced article or the aspects of design intended to make an article more appealing to the eye. Industrial designs are registered with the Canadian Industrial Design Office for the shape, pattern or ornamentation of industrially produced articles... much time, skill, effort and money may be employed in the execution of a design, and a successful one may yield sizeable rewards. But without legal protection of innovative design, successful creations would also be quickly imitated. By knowing their legally defined rights in registering their original designs, designers, craftsmen and manufacturers can prevent such limitation. This protection yields profits for the successful designer and thereby encourages design innovation beneficial to all. [ Industrial Design Act: an Introduction, Consumer & Corporate Affairs Canada, Ottawa, 1983, p. 5]

In cases involving disputes, the court usually hears expert testimony, and finally reaches a decision by eyeing the product. In the words of one prominent judgement, the issue is "judged solely by the eye" [ Kaufman Rubber Co. Ltd. v. Minor Rubber Co. Ltd., (1926) Ex.C.R.26]. This judgement "solely by the eye" has never deterred the Canadian courts from applying the Industrial Design Act, and hence there is no reason to believe why the courts would be incapable of adjudicating on matters of design in other areas as well.

Problems in Attribution

In disputes over intellectual property, the core of the issue usually focusses on the competing proprietary claims to the concept in question. The Industrial Design Act creates a presumption that the registrant has title to the concept; and under Canadian copyright law, the registrant of the is also presumed to be the owner of the concept (although that presumption is rebuttable).

The question is more complex, however, in the case of intangible heritage. In many cases, "folkloric" items are the product of an evolutionary process encompassing many people as opposed to a single creator. Canadian copyright law does not deal easily with the notion of "group copyright" (except under certain contractual circumstances). Originally, this failure to acknowledge the product of groups had a disastrous corollary:

Although an individual creator could take legal action to prevent the illicit exploitation of his work under copyright law (e.g. unauthorized copy, desecration etc.), no member of a group was thought to have a legal right of action to prevent the "illicit exploitation" of the product of the group (e.g. unauthorized of borrowing of designs for pastiche, desecration etc.).
For example,

• if someone reproduced a Michael Snow painting of a walking woman without Snow's
permission, Snow (as an individual creator) could take legal action (and obtain an injunction and damages if necessary). Furthermore, if someone tampered with his work and "called it into disrepute" (e.g. a mobile of geese at the Eaton Centre in Toronto, covered with little ribbons without the artist's permission), Snow could (and did) take successful legal action to prevent such tampering, even though the ownership of the mobile was not his. This was considered a legal right inherently attached to the creators of such works. [ Snow v. Eaton Centre Ltd., (1982) 70 C.P.R. (2d) 105]
• However, if a
group like the Inuit objected to the "rip-off" of Inuit design concepts in the production of fake Inuit art and the affect of such pastiche in calling their work into disrepute, the Inuit were thought not only to lack any legal recourse (they were a group, not an individual); when they threatened to boycott the merchants of fakes, it is the Inuit who were threatened (by the federal government of the day) with prosecution for conspiracy in restraint of trade (1973).

The above concern did not start to dissipate until the late 1980s, during the controversy over whether Canadian vintners could give their products names like "Champagne" etc. That controversy dealt with whether a group (French vintners) could assert ownership over the "goodwill" that is associated with a particular known product, to the exclusion of others. If so, the French vintners could take legal action against Canadian vintners for "passing off" their product as "champagne". In other words,

• reference (by Canadian vintners) to their product as "champagne" was opposed by e.g. French
vintners from the Champagne district, who insisted that as a group, they had rights to the exclusive use of the name.
• The Canadian response was that, among other things, the "group" rights invoked by the
French vintners could not be recognized under Canadian law;
• but that argument collapsed in court, and instead the primary reason why Canadian vintners
were allowed to continue using the name "Champagne" was not because of the inexistence of "group rights" by the French, but rather because it was decided that there was so little risk of consumer confusion between the products.

It would therefore appear that the fact that something is the product of a group -- rather than an individual -- is no longer (in and of itself) an insuperable obstacle to the assertion of rights over it.

In the 1970s, however, the prevailing view was different; and in this area, Canadian law was not alone. Most copyright statutes around the world shared the same problem. At the international level, the intangible heritage of some countries was being routinely pirated (to use the expression of the day) by other countries. It was said sarcastically, for example, that "the best African art is made in Italy". Canadian Indian baskets were being made in the Philippines. Ookpiks were mass produced in Poland; and wherever this occurred, the creating group was deprived of whatever royalties may have accrued, had the creation been done by an individual.

It is with this in mind that Bolivia and other Andean countries broached the subject at international meetings starting in 1967. The first item on their agenda was native-style flute music resembling the Andean tradition, and whether there was a way to redirect any royalty money to the Andes countries where this musical style originated. By the 1980s, there were enough countries around the world who sensed comparable frustrations that, in the opinion of WIPO and UNESCO, the world was ready for one or more international conventions on the subject.

The initiative to produce an international convention on the protection of intangible heritage failed. Various reasons have been advanced, e.g.

• The experts (convened to draft a legislative document) not only started with the "positive" side
of the legislation; they went further, and tried to define the good things which should happen to "expressions of folklore" (beginning with a comprehensive definition of folklore itself).
• This approach eclipsed the more classic legal approach, which is negative (i.e. what are the
forms of negative behaviour and negative impact on folklore which the public wanted to restrict).

The result was as unfortunate as it was predictable in an international arena. Among other problems, the participants were unable to get a full international consensus on the definition of "folklore". Furthermore, when they tried to phrase even the regulatory sections in positive terms (what people should do instead of what they shouldn't do), they ran into an insuperable drafting problem. This should have been predictable. For example, could one expect the Criminal Code of Canada to be worded in such a way as to define all the good forms of behaviour, and to say that those were permitted - and fail to enumerate the bad forms of behaviour, on the assumption that they were prohibited by necessary implication? That is simply not how legal drafting under those circumstances is done.

It would be relatively straightforward to avoid the international community's mistake. Some approaches are described below.

"POSITIVE" LEGISLATION

General

Legislation which is intended to promote positive behaviour (as opposed to regulating negative behaviour) generally falls into three main categories:

• Enabling legislation:
this well-known form of legislation is designed to authorize certain agencies or institutions to pursue various enumerated laudable goals.
• Incentives:
legislation can establish the framework for an incentive program of almost any description.
• Honorifics:
legislation can be used to convey an exclusive title upon a given category of people. The legislation is complicated if the title carries certain exclusive rights and responsibilities (e.g. an accreditation system), but is far simpler when the title is purely honorific (e.g. the Queen's Counsel system among lawyers). In the area of intangible heritage, the best-known example is probably the Japanese practice of declaring certain highly-skilled experts (potters, swordsmiths etc.) as living human treasures.

This is a topic to which UNESCO has addressed considerable thought, e.g. under its Living Human Treasures programme. It leads to the following set of policy questions, concerning the potential contents of a new heritage statute.

Question 1: Enabling Legislation

What enabling legislation, if any, does the government wish to establish in the field of intangible heritage? Does it wish to authorize one or more agencies to promote intangible heritage? If so, which agencies? Would different categories of intangible heritage be assigned to different agencies?

Question 2: Incentives

If a given agency is authorized to promote a given kind of intangible heritage, how would that promotion take place? Would there be grants? If so, would they be conditional on the recipient having one or more apprentices? Would there be other educational activities? Would there be other promotional programs? Would there be other forms of incentives? Would there be support for Non-Governmental Organizations? If any of these answers is affirmative, what format would that support take?
Question 3: Honorifics

Does the government want its legislation to provide for specific ways of honouring people whose skills, experience or achievements have a special relationship to intangible heritage? Would the government, for example, contemplate

• "Designating" people for their skills (as in Japan)?
• Medals?
• Other titles?
• Other honours?
• Would they be conditional on the recipient having one or more apprentices?

In the same vein, are there areas where the government wishes to use this legislation to issue declarations of intent, e.g.

• to signal the intent to occupy a given legislative field in due course?
• to signal its pleasure or displeasure at anything in a preamble to the relevant statute?

NEGATIVE LEGISLATION: THE REGULATORY DIMENSION

Existing Legislation

The more typical rationale for legislation is not to promote something positive, but to control something negative.

The subject of "intangible heritage", at least with relation to traditional design and production concepts, is already the subject of voluminous legislation in Canada. This legislation is overwhelmingly at the federal level.

For example, there is an extremely lengthy itemization of expressions of foreign folklore and its treatment under Canadian customs legislation (e.g. the Handicraft Goods Order ). Federal legislation on the accurate identification of any expressions of folklore offered for sale, is found in the Competition Act, the Trade-Marks Act, etc. The legislation to assure accurate identification of products on the market is supplemented at the provincial level in places like Ontario by the Ontario Business Practices Act and by the Consumer Protection Act

The question of attribution is governed at the federal level by e.g. the Copyright Act.

Specific International Objectives

The international community has a longstanding interest in several areas of intangible heritage. The first is where intangible heritage is desecrated by the production of pastiche and fakes. This was covered peripherally by a formal UNESCO Recommendation in 1978,. The subject was dealt with more thoroughly by UNESCO in 1989, when its Recommendation on the Safeguarding of Traditional Culture and Folklore emphasized the following:

• "Distortion during dissemination should be avoided so that the integrity of the traditions can be
safeguarded", and
• "Insofar as folklore constitutes manifestations of intellectual creativity whether it be for
individual or collective, it deserves to be protected in a manner inspired by the protection provided by intellectual productions."

WIPO, for its part, had already produced its "model provisions for national laws for protection and expressions of folklore against illicit exploitation and other prejudicial actions." In those provisions,

• Section 5 requires that in all printed publications, and in connection with any communication to
the public of any identifiable expression of folklore, its source be indicated in an appropriate manner by mentioning the community and/or geographic place from where the expression utilized has been derived.
• Secondly, any unauthorized utilization of an expression of folklore where authorization is
required constitutes an offence.
• Thirdly, deception of the public by creating the impression that what is involved is an
expression of folklore derived from a community, where, in fact, such is not the case is likewise punishable.

The priority themes in the international checklist, as it has been expressed over the decades, could be summarized as follows:

• The obligation for attribution in writing.
• A system for registering various forms of expression of folklore, for the purposes of recording,
plus (potentially) regulation and/or royalties.
• A counterpart to copyright protection, where there has been encroachment on registered
expression of folklore.
• A royalty system, to compensate the group (or the heirs thereof) on the use of their
expressions of folklore.
• Controls on distortion of folklore (e.g. pastiche and desecration).
• Controls on the misrepresentation of artificial folklore as the original item.

The Canadian Counterpart

One of these elements already exists in legislation applicable in Canada, (at the federal and provincial level): it deals with encroachment: individuals who market fake "expressions of folklore" in as the authentic item are behaving in a way which is contrary to a variety of federal and provincial statutes; for example, the Government of Canada issued a Misleading Advertising Bulletin dealing specifically with "Fakelore - the deceptive marketing of imitation aboriginal artwork" including "drawings, carvings, sculptures, pottery, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, clothing, musical instruments, audio and video recordings "and any other uniquely aboriginal designed or associated articles". That precedent, however, gives rise to the following question:

Question 4: To what extent is the government satisfied that the rules pertaining to the marketing of fake heritage are as clear, for all categories of expressions of intangible heritage, as they are for expressions of aboriginal heritage?

If the government believes that other areas of its intangible heritage require the same kind of approach, then the most direct overture in Canada would be one to Industry Canada, with complementary initiatives to the Business Practices Branch of the provincial ministry responsible for consumer protection.

In the other areas of international interest, the counterparts are less visible:

• There is no compulsory system of attribution. In fact, with the exception of a certain minority
of products (e.g. foodstuffs), there is no compulsory obligation that most items in the marketplace be labelled at all. If a government wished a system of compulsory attribution, it would have to take specific measures for that purpose; that legislation, in turn, would need to clearly identify the classes of items or expressions which were covered by this legislation.
• Canada similarly has no system for registration of any collective authorship (e.g. or
"traditional" authorship) for any expressions of intangible heritage. Assuming that such legislation were constitutionally feasible (and did not run encroach upon the Copyright Act ), there would again be a question about the definition of the categories of "expressions" covered.

This obviously leads to the following set of policy questions:

Question 5: Does the government wish to impose compulsory attribution, on any works which utilize specified expressions of intangible heritage?

Question 6: Does the government wish to establish a registration system or other inventory for recording the expressions of intangible heritage which are of importance to it?

Question 7: Does the government wish to see the more formalized creation of a royalty system for works which are the product of a collectivity (ethnic, geographic etc.)? If so, that is a tricky proposition that would require unprecedented ingenuity in drafting.

Question 8: Does the government want its agencies, or individuals or groups to be empowered to legally challenge the production of work which "desecrates" some feature of intangible heritage (as individual artists can do for tangible heritage), or otherwise calls that group into disrepute?

CONCLUSION

The above questions all raise profound policy issues which are well beyond the scope of this article. Each topic, if selected to be pursued, would warrant substantially further analysis and reflection.

It is hoped, nonetheless, that the foregoing profile of the subject-matter provides an appropriate point of departure (and specificity) to identify the issues which must be addressed in considering new legislation for a government.

Presentation by Marc Denhez, the past Chair of the ICOMOS Canada Committee on Law, Finance & Organization, to the international conference on Legal Protection of the Expressions of Indigenous Cultures, Noumea New Caledonia, February 1999. The author thanks UNESCO for its support during assembly of the underlying research.

The following article was part of preparatory research for Native Arts, Crafts and Fakelore: Legal and Administrative Options and Recommendations, by Marc Denhez and Anne Noonan. The latter was a 52-page research paper prepared for the Royal Commission on Aboriginal Peoples (1993): it focussed on the misuse of labelling in native arts and crafts, and the cultural significance to native populations. That research paper is available on request from the library of the Department of Indian Affairs & Northern Development, Canada.

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