On the Tension between Copyright and the Conceptions of Collective Creation in some Mapuche Poetry

Abstract

America has many Indigenous peoples in its territory, with their own cultural, artistic and intellectual ways of communicating. In this sense, the Mapuche people, who traditionally lived in the South of Chile and Argentina, have faced a dichotomous process of integration and resistance, in which the transmission of values and cultural/artistic elements across generations has been fundamental to preserving a common cultural base. Those values have been transmitted, among other things, through poetry. However, it seems that some cultural expressions find it very difficult to accommodate the rigid legal structure of Copyright. One of the main reasons is that Copyright understands creation as something individual, or at least as made by specific individuals. But the Mapuche understands that some of their artistic creations belong to the community as a whole, and not to one individual. This article attempts to show the existing tension between the individualistic tendency of the legal framing of Copyright and the collective characteristics of Mapuche poetry, to propose a review of the adequacy of Copyright norms to regulate those specific and traditional cultural expressions.

Keywords:

• poetry
• Indigenous
• copyright
• Mapuche

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 This article adopts an interdisciplinary approach combining Law and Literature. One of the main reasons, as explained infra, is that there is a lack of academic literature that analyses the specific relation between the law (copyright and intellectual property) and Indigenous artistic and cultural creations. Nonetheless, there are approaches to similar problems from other disciplines, like Anthropology (vid. Guarda, Le Bonniec, and Martínez Mauri 2017).

2 In this work, we use the term “copyright” to refer in general terms to the legal institution, regardless of whether it refers to the common law “copyright” or the continental law derechos de autor (author’s rights). Unless otherwise specified and to convey a single meaning, we will omit the main difference between them, i.e. the attribution of moral rights.

3 For an analysis of various moral rights infringements, see Ramos Toledano (2018) and Bianchi Pérez (2020). It is also important to note that the revision of the Berne Convention in 1928 included in Article 6 bis a dual approach to moral rights, emphasising the independent existence of moral and economic rights. The Berne Convention, however, refers to only two specific rights: paternity and integrity. In common law countries, except Canada, moral rights are not incorporated into national law. However, countries such as the US, Australia, and the United Kingdom have included in their legislation a minimum set of moral rights, such as paternity and integrity (Davies and Garnett 2010).

4 The native people have experienced various integration processes, which is why they have adopted, to a greater or lesser extent, traits, and structures of the society they integrate into. However, cultural and artistic transmission aspects remain particularly ingrained as their collective and communal element.

5 Mental maps express the result of a historical process of self-identification as Indigenous peoples belonging to a territory and a language as a conjunction of the original culture (Aguilar Castro and Parra 2014).

6 We are aware that Mapuche poetry is varied and not homogeneous. Therefore, what we intend to analyse here is not an all-encompassing view of the literary phenomenon of Mapuche poetry, nor its particularities with respect to intellectual property law. Our main objective is to rescue and highlight some of the elements present in Mapuche poetry that allow us to perceive a way of understanding artistic and cultural creation in clear conflict with copyright regulations.

7 There is no clear and concise definition of the concept of “Mapuche poetry” (or ethnocultural poetry, as it has also been called). Different authors convey elements used to delimit what belongs to Mapuche poetry and what does not, as well as the topics it speaks about (i.e. if they refer to the Mapuche culture, their way of living and coexisting, to their traditions), the ethnic ancestry of the writer, or the use of Mapudungun (Moens 1999). However, it is impossible to precisely state a criterion of what is considered Mapuche poetry, but rather a confluence of diffuse criteria, which ultimately remain open to debate.

8 The wekufe is an important concept in the Mapuche culture, representing some kind of harmful spirit or energy. A good and explained analysis on this concept can be read in Crow (2015).

Additional information

Funding

Project funded by the National Agency for Research and Development of Chile (ANID) (FONDECYT INI 11201188) and the project funded by the Office of Research at the Universidad de La Frontera, Chile (DI20-0009).

Notes on contributors

Joan Ramos Toledano

Joan Ramos Toledano is Lecturer in Law at the Department of Political Science, Constitutional Law, and Philosophy of Law (University of Barcelona, España). He is Principal Investigator of the project funded by the Office of Research at the Universidad de La Frontera, Chile (DI20-0009) and the project funded by the National Agency for Research and Development of Chile (ANID) (FONDECYT INI 11201188).

Sulan Wong

Sulan Wong is Associate Professor of the Department of Law at the Universidad de La Frontera, Chile, and co-researcher at the project funded by the Office of Research at the Universidad de La Frontera, Chile (DI20-009).