As defined in UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore (1989), “folklore (or traditional and popular culture) is the totality of tradition-based creations, of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity;  its standards and values are transmitted orally, by imitation or by other means.  Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.”

The first attempts to explicitly regulate the use of creations of folklore were made in the framework of several copyright laws (Tunisia, 1967;  Bolivia, 1968 (in respect of musical folklore only);  Chile, 1970;  Morocco, 1970;  Algeria, 1973;  Senegal, 1973;  Kenya, 1975;  Mali, 1977;  Burundi, 1978;  Ivory Coast, 1978;  Guinea, 1980;  Tunis Model Law on Copyright for Developing Countries, 1976) and in an international Treaty (the Bangui text of 1977 of the Convention concerning the African Intellectual Property Organization, hereinafter referred to as “the OAPI Convention”).  All these texts consider works of folklore as part of the cultural heritage of the nation (“traditional heritage,” “cultural patrimony”;  in Chile, “cultural public domain” the use of which is subject to payment).  The meaning of folklore as covered by those texts is understood, however, in different ways.  An important copyright-type common element in the definition according to the said laws (except the Tunis Model Law that contains no definition) is that folklore must have been created by authors of unknown identity but presumably being or having been nationals of the country.  The OAPI Convention mentions creation by “communities” rather than authors, which delimitates creations of folklore from works protected by conventional copyright.  The Tunis Model Law defines folklore using both of these alternatives, and considers it as meaning creations “by authors presumed to be nationals of the country concerned, or by ethnic communities.”  According to the Law of Morocco, folklore comprises “all unpublished works of the kind”, whereas the Laws of Algeria and Tunisia do not restrict the scope of folklore to unpublished works.  The Law of Senegal explicitly understands the notion of folklore as comprising both literary and artistic works.  The OAPI Convention and the Tunis Model Law provide that folklore comprises scientific works too.  Most of the statutes in question recognize “works inspired by folklore” as a distinct category of works whose use for commercial purposes requires the approval of a competent body.