ISSUE 16 - APRIL 2005

- Making Connections in Folklore -

OWNERSHIP, CREDIBILITY AND CONTROL OF FOLKLORE OF PLACE

by Cathie Clement

In 'Who owns folklore?', Graham Seal raises some important and challenging issues. He asks the question: “Is it possible - and desirable - to establish a basis for valorising, conserving and developing Australian folklore of place in the same way that environmental, built and moveable heritages are valued, conserved and developed for the national benefit?”

My familiarity with heritage suggests that it would be possible. Whether it would be desirable is another question. To answer that question, Seal and/or others would need to determine a) whether the work necessary to achieve his goal is warranted and b) the extent to which the status quo can be altered without causing harm.

History is littered with actions that were meant to fix one problem but caused another. The introduction of cane toads and camels comes to mind, as does public liability insurance and its impact on recreational activities. Attempts to derive income from cultural resources can also create problems. So, with a view to assisting Seal and others to assess his concept in terms of its feasibility, desirability and possible outcomes, this article looks at issues associated with the use of stories and images. It does not pretend to offer answers. It merely puts forward a personal opinion formed during several decades of involvement with history and heritage. The comments that follow will give others insight into my perspective.

Seal's reference to folklore of place caught my attention because I am interested in:

My interest in folklore relates to my interest in the history of Australia's North-West. I spend a lot of time, both as a consultant and as the honorary coordinator of the Kimberley Historical Sources Project, collecting and analysing data relevant to the North-West. In 1986, I established the Project as an extension of my honours and post-graduate work at Murdoch University. Since then, without any outside funding, it has brought together a vast amount of local studies material. I draw on that material to contribute information to publications and to cultural heritage documentation and signage.

In all of my work I try to gain the best possible understanding of past events by blending together snippets of folklore, oral history and historical data. Before any writing is done, a lot of analysis takes place to ensure that the folklore snippets enrich and inform, rather than distort, the material into which they find their way. Other historians do similar work but few are likely to look for folklore with the intention of trying to verify it or sift germs of truth from it.

Given the above, this response to Seal's discussion paper should be seen to come from someone who has a vested but largely non-commercial interest in a small segment of folklore. None of my comments should be seen to relate to such things as craft, costume, fairs or live performance. Those things can certainly be linked to folklore of place but their management calls for an approach that differs from that relevant to stories and images. My objective in writing this response is simply to show that the imposition of fees for the use of a cultural resource can have a negative as well as a positive impact.

OTHER FORMS OF HERITAGE
We can learn a lot from the 'valorising, conserving and developing' of heritage places and items. Not least of those lessons is that both good and bad things are happening in the areas of environmental, built, moveable and Indigenous heritage. Places and items are being protected and conserved every day but only in the face of frustrating and divisive issues that include:



VALORISING FOLKLORE
When it comes to valuing folklore of place, we need to acknowledge that only a minority of people will ever recognise or respect the heritage significance and provenance of folklore. To assume anything else, one has to ignore the evidence that exists in the other areas. Education programs and prosecutions have not stopped plagiarism. Nor have those things stopped the desecration, destruction, pollution and vandalism of heritage places and the environment. Any attempt to 'valorise' Australian folklore of place will therefore need to acknowledge that many people will either ignore or oppose an attempt to regulate the use of folklore.

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:

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.

DEVELOPING A REGISTER OF FOLKLORE
I think that much could be gained from the creation of a folklore listing or register. Its usefulness will, of course, depend on its form and capabilities. Consideration could be given to whether the National Register of Folklore Collections could be expanded and made into an electronic, searchable register of agencies and people who hold and/or have rights to specific items of Australian folklore. Such a register, as well as picking up where the Australian Folk Trust publications of the 1980s and early 1990s left off, could encourage and facilitate the responsible use of folklore. It could also provide advice on the ethical use of folklore.

If such an item level register were to be created, it would be desirable for it to be designed with input from all the individuals responsible for major collections of Australian folklore. It would also be desirable for it to include information about sources of credible information relevant to specific items of folklore. That information, as well as coming from catalogues, could be obtained by inviting input from knowledgable people. Individuals who are interested in specific topics will already hold details of material, including corrective information, for their own purposes. In some instances, libraries will be indexing such material for interest groups and/or public use. An item level register could begin to pull together much of that material and, in the process, identify folklore about which little is known. With such a register in place, it might be possible to:


THE PROPOSED IMPOSITION OF FEES
Whilst my interest in a register is in its value as a tool and a finding aid, Seal's interest seems to be in its scope for exacting payments for the use of folklore. I recognise that the custodians of the various components of our heritage are under pressure to make users pay but I believe that caution is needed. In particular, I believe that custodians who wish to impose fees for the use of cultural resources should investigate whether doing so is likely to have a negative impact.

To explain my concerns about negative impacts, I will refer to an existing situation rather than a hypothetical one involving folklore. The existing situation involves the fees that are asked for the use of the majority of the wonderful pictorial images held in government-funded reference libraries and repositories. The fees vary but few self-funded writers and publishers can afford them. As a result, many of the books and heritage materials that are compiled in this country miss out on using the best and most relevant images from the past.

For those who are not familiar with publishing, it is worth noting that many books about the past are published, often with little or no payment to the author, in print runs of up to 1000 copies. Those copies generally sell slowly and are often priced between $20 and $40. The return to the author and/or publisher is usually minimal, meaning that an outlay of $50 and more per image cannot be justified. The paragraphs that follow comment on the costs associated with the production and sale of a very modest book.

If an author or publisher locates a desirable image in a reference library and wishes to reproduce it in a book, he or she usually has to pay one fee to obtain the image, another fee to reproduce it, and possibly a third fee for postage of the purchased image. If those fees add up to $50 for a single image, and the book in question retails at $20, the publisher may have to sell twenty or more copies of the book to recoup the cost of that image. Additional books would have to be sold to cover the cost of either a more expensive image or multiple images.

The sharing of $20 from a sale in a bookshop will vary but would be in the vicinity of: $1.82 to the government in GST; $7.27 to the bookshop (at the usual 40% commission); and $10.91 to the publisher. Payments for freight and possibly for royalty will come out of those amounts. Of much greater impact, however, is that the publisher will probably have spent upwards of $2.00 per book in preparing the text and any images for printing, and then another $6.00 or thereabouts per book in having the copies printed. The publisher thus stands to derive a return of approximately $2.50 per book if he/she has not paid reproduction fees for images. In those circumstances, it is hardly surprising that self-funded authors and publishers find it hard to justify paying $50 and more to obtain and use an image. The same is true of professionals and enthusiasts who document built environment heritage.

It could be argued that heritage practitioners and self-funded writers and publishers should factor the cost of using the best images into the prices they charge. But, in the market place, such actions are not always an option. For example, when a modest book has to compete against others that include lavishly presented works subsidised by government agencies, even a small price increase will make a modest book less attractive to a customer.

Another argument offered in support of fees is that, while the use of images in many written works is decreasing, their availability in other formats is improving, eg on the Web sites of libraries, archives and museums. To some extent that improvement reflects a decreased external demand, which allows staff more time to conserve and process pictorial collections. But Web images are generally available for viewing only in a context divorced from the circumstances in which they were created. Some images also carry incorrect information because too little is known about them. In the meantime, the written works miss out on images that would make them more visually appealing, interesting, and informative. It is therefore essential, if folklore is to be considered as an economic resource, that someone investigates both the pros and cons of imposing fees for access and use.

An investigation should also be made into the likely returns that can be expected from payments for the use of folklore. Seal writes: 'The returns might fund the administrative costs of registering, monitoring and collecting and any residues could go into a perpetual fund that could be used for the benefit of the community(ies), perhaps on a grant-giving model such as many places employ with the proceeds of their lotteries.' I would be surprised if the returns were substantial. An investigation of the returns from payments made for the use of images (after administration costs) would provide insight into the likely level of returns that might come from developing folklore as an economic resource.

EXEMPTIONS FROM CHARGES
In proposing the imposition of fees for the use of folklore, Seal states that: 'Appropriate exemptions could be given for education, research and charitable purposes.' But how does one set parameters for those purposes and create a handling procedure that is both fair and efficient? At the very least, the people who fill out an exemption application, and those who assess it, have to be able to deal with it in much less time than it would take to earn the fee that would otherwise be paid.

To return to the example of pictorial images, some custodians will consider item by item applications for reproduction fee exemptions from people who wish to use material for non-commercial purposes. Others argue that, if a writer or publisher is to receive a subsidy for, and/or a material benefit from, a work, he or she should either meet or seek outside funding for the cost of using material from collections. Yet, because outside funding more often than not comes from government, that scenario results in people seeking money from one agency so that they can pay it to another agency. Anyone who is familiar with applying for funding will know that the impact on time, stamina and morale often convinces a would-be applicant to forego any opportunity to compete for the funds. It follows that he or she will probably also forego the opportunity to use images on which reproduction fees are mandatory.

There is no easy answer to this dilemma. Without reproduction fees, the conservation of collections can become a low priority item in departmental budgets. Yet, without generous exemptions, the fees put those cultural resources out of the reach of many of the people who put their time, energy and skill into making information about the past available to the public.

One solution, instead of demanding a flat fee for the use of an item of folklore, might be to develop a sliding scale. Payment could be based on a) the ratio between public and commercial benefit, b) the user's capacity to pay, and c) the likely return from the end product. Contributing factors could include:

ECONOMIC RESOURCES AND ACCOUNTABILITY
Another point that needs to be taken into account in considering folklore as an economic resource is whether the recipient of a fee for use has a duty of care in making the folklore available. This article mentions that some images held by repositories are wrongly captioned. Such images find their way into material that enters the public domain. Once there, wrongly captioned material has the potential to embarrass (personally and financially) authors, publishers and others. Inaccurate folklore has the same potential.

Consideration is being given to defamation of the dead and, whilst it seems that any approved action will apply only to material that is published within three years of a person's death, it must be remembered that folklore is still being created. People are encouraged to record stories about themselves and others and, while they have a responsibility to ensure that the material is not defamatory, human nature suggests that that not all of them will do so. Does a repository that makes oral history and personal stories available to others have a duty of care to ensure that the material is not defamatory? Can inaccurate folklore that is carried into oral history and personal stories be considered defamatory?

IN CONCLUSION
Any attempt 'to establish a basis for valorising, conserving and developing Australian folklore of place' needs to take into account the full extent of how, and by whom, folklore is used. I suspect that the majority of the people who use it are not in the category of 'commercial interests'. I am aware, for example, of a wide range of people who, individually and collectively, spend thousands of hours locating, recording and analysing information and images from our nation's past. They do that work, usually without payment, so that others can see the results in articles, books, local studies collections, museum displays, cultural heritage projects, Web sites and other formats. In some instances, their work helps to conserve or evaluate folklore but, in most instances, they simply use folklore as interesting or informative material.

It is one thing to ask how folklore resources can 'be developed for the common good before commercial interests monopolise them'. It is another to work out how to prevent commercial interests monopolising folklore without also impacting on people who use it for the common good.



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.


This article first appeared in Issue 10 of Simply Australia.




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