about the article

Dr Cathie Clement's response to Dr Graham Seal's discussion paper, Who Owns Folklore?

about the author

DR CATHIE CLEMENT, MPHA is an historian and heritage consultant who is recognised as an authority on the history of Australia's North-West. She has produced and/or contributed to a broad range of publications and other media that inform people about that region.

 

OWNERSHIP, CREDIBILITY AND CONTROL OF FOLKLORE OF PLACE
page 2 ... © Dr Cathie Clement
 

CONSERVING FOLKLORE

Seal has written elsewhere about conserving and using folklore. In that sphere, I think that conservation and credibility should be accorded equal value. The former is more easily managed than the latter because people often either ignore or undervalue credibility. I see that situation as a major concern, particularly in relation to stories and yarns. I realise that, in holding such a view, I am out of step with people who place variation far ahead of credibility. I wonder, though, whether the imposition of a material value on folklore will make the issue of credibility more topical.

As an historian who reads selectively but widely, I repeatedly encounter corruption and misrepresentation of historical accounts (oral and written). Most of the corruption occurs through writers and storytellers being lazy, lacking appropriate skills, or failing to see that the recycling of inaccurate folklore creates problems. Examples of corruption include the publication of misleading information in literature, on Web sites, and on signs or plaques that record and promote cultural heritage. Everyone who reads this article will be familiar with the type of errors that occur. My "favourites" include the phenomenal distances that Russian Jack supposedly pushed a sick or injured prospector during the Kimberley gold rush. Misrepresentation is most likely to occur where passion and/or politics underpin the presentation of information, eg in the so-called history wars.

It is often hard to get a story straight, and it stands to reason that old stories from remote settings are some of the hardest to verify. Museum professionals are only too aware of both that situation and the backlash that occurs if their handling of a story causes offence in a vocal segment of the community.

Many people hold the view that it doesn't matter whether interesting stories about places, people and encounters are accurate. We've all heard people say, "You can't let facts get in the way of a good yarn. If people want to know more, they can find out for themselves." That approach would be fine if all the stories and yarns that find their way into the public domain carried a credibility tag – a 1 to 10 grading of their reliability. They don't; and too many people believe that if something is in print or on air it must be true. It is therefore critical that, in seeking to conserve folklore of place, we focus on credibility as well on richness and breadth.

A lot of good things are happening to make accurate information available, eg Jim McJannett writing his recent letter about Dargin's Grey. People who take steps to ensure that accurate information is recorded and released into the public domain are to be applauded. In many instances, that material comes from history enthusiasts and professionals who donate time to projects and/or write letters to editors. The imposition of fees to access and/or use folklore should not be allowed to disadvantage or deter such people.

DEVELOPING FOLKLORE AS AN ECONOMIC RESOURCE

In dealing with economic value, Seal's discussion paper covers 'folklore as an economic resource, the question of "public domain" and "community right" and some of the issues involved'. In seeking to control and benefit from folklore, he proposes a 'community right' principle. That principle 'reverses the public domain status of folklore which is that no-one owns folklore therefore anyone can make use of it and says that everyone owns folklore and therefore no-one can make use of it without permission'. I suspect that such a reversal could create more problems than it solves. I would therefore suggest that anyone wishing to develop folklore as an economic resource first looks at what has happened when other cultural resources have been turned into economic resources.

Seal asks: "What other mechanisms exist to safeguard the use of intellectual property and allow its creators a share in the returns?" In a partial answer, he mentions performance rights and copyright payments. He then states that: 'What these things require to make them effective is a listing or register of items likely to be made use of and an appropriate monitoring arrangement for the subsequent re-uses of this material.' Before such things can be made effective, someone will have to investigate:
  • The extent to which copyright can be shown to exist in old items of folklore, as opposed to literature and art, and,
  • The extent to which the proposed payments relate to copyright in, rather than possession of, an item of folklore.
It seems that Seal's concept, like reference library policy for handling pictorial images, calls for creators and their descendants to forego any share of returns derived from use of folklore. To do otherwise would be difficult although, when published material has been made available through libraries, both creators and publishers have benefited from Public Lending Right and Educational Lending Right payments. Seal mentions that some revenue could be directed to bearers of traditions. If that is to happen, it will be critical to anticipate that those links, like the rights of some Indigenous people to speak for country, could be hotly contested.

I question whether it is ethical for a government-funded agency to ask members of the public to pay to reproduce items that have been donated or consigned to it. I am not suggesting that the imposition of fees for the use of all cultural material of private origin is unethical; but the imposition of fees for the use of individual items does need to be justified.

If emphasis is to be placed on copyright in, rather than possession of, folklore, there is a risk that custodians of collections will be obliged to pay a copyright fee for holding copies of folklore items for public access. I understand that the Copyright Agency Limited demands such fees from reference libraries. As a result, some useful collections that comprise or, at one time, comprised copies of articles about popular authors or subjects have been removed from public access or destroyed.

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