Copyright Protection for Folklore from the Legal Perspective

Abstract

The concept of expressions of folklore lacks a universally accepted definition, despite its recognition in various national and international legal frameworks. Generally, it encompasses cultural materials transmitted across generations, often created collectively and without identifiable authorship. This paper examines the extent to which copyright law can effectively protect such expressions, focusing on Malaysia and Indonesia as case studies. It traces the historical development of the debate on folklore protection, particularly since the 1967 Stockholm revision of the Berne Convention, and evaluates key challenges such as originality, fixation, and authorship. The paper further explores the implications of treating folklore as part of the public domain, especially in developed jurisdictions, and how this perspective influences global policy approaches. This study adopts a qualitative doctrinal legal research approach. Through analysis of the Rasa Sayang dispute, the paper highlights the complexities surrounding shared cultural heritage within the Nusantara region. It argues that while national legal frameworks provide some degree of protection, they remain insufficient in addressing cross-border issues. The study proposes that principles such as national treatment and collective ownership could serve as viable mechanisms to safeguard shared folklore. Ultimately, it underscores the urgent need for enhanced regional cooperation to prevent future disputes and to ensure the sustainable protection of folklore from misappropriation by external parties.