The legal protection of folklore: can copyright assist or is a Sui generis right necessary?

Over the last few years, it became clear that copyright industries, amongst others, increasingly find their inspiration in and borrow material from folklore and other traditional sources, particularly from Indigenous and traditional communities in developing countries. A number of problems are associated with this phenomenon. The use of copyright is becoming instrumental to protect works of authorship based on traditional works. The Western copyright allows the exploitation of the original sources that provide the inspiration, the backbone and often much more for the new work. There is no reward or acknowledgements for the real creators and this can be easily defined as 'new colonialism'. There is an internationally recognised need to protect folkloric works and satisfy Indigenous peoples' demands in regulating access to their folkloric works and in benefiting from the commercial exploitation of these works. Copyright remains inapplicable to protect folklore due to some obstacles conceived in the nature of the right while some others lie in the dominant copyright doctrine. In response to this situation, the thesis questions the present boundaries of copyright and the proprietary doctrine inherent to the system. It proposes a new way of conceiving creation based on transactionable human relationships, instead of acquiring propriety over the creation. It thereby challenges the very foundations of copyright law. However, we argue that, at least theoretically, copyright could become a far more adaptable instrument. Admittedly, it is unrealistic to expect a change in the political setting. Historically, copyright is proven to depend on the dominant political regime and the current trend is towards an inflexible application of copyright categories. At the international level efforts are focused towards suitable means of protection which go far beyond the copyright applicability. However, the difficulty in protecting folklore lies in the fact that there are no precise boundaries to define a phenomenon which has a dynamic and communal nature. Therefore, multiple solutions should be explored: from enhancing values as cultural diversity to implementing customary laws and empowering Indigenous peoples to allow them to participate in decision making processes. Overall, it is a matter of balancing rights, of regulating and sharing access. It is a cultural clash which needs to be set: the Western ideology of culture with its material creation versus the Indigenous world, bearing a complexity of very different values and principles.