Intellectual Property Rights and Intangible Cultural Heritage (and what is ‘ICH’, anyway?)
by Megan Rae Blakely
It is notoriously difficult to design and attach suitable legal rights to intangible cultural heritage (ICH), due to its nature as an evolving, living heritage. A brief examination of the history of the rapid global expansion of Western intellectual property protection reveals a culture of collecting tangible things and exclusionary personal property protections. Westernised social and legal systems disproportionately reward tangible manifestations of cultural heritage, such as built heritage or fixed works suitable to copyright protections. This was exemplified with the 1970 World Heritage Convention, which protects tangible manifestations of cultural property such as monuments, paintings, sculptures, and antiquities.
Following the passage of the World Heritage Convention, many countries pointed out that these cultural representations did not represent a totality of world heritage – especially in non-Western cultures. The 2003 Convention for Safeguarding Intangible Cultural Heritage (2003 Convention) was, in part, a reaction to this incomplete representation. The 2003 Convention defines ICH as “transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.” Further, the 2003 Convention provides some examples as to how ICH might manifest: “oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.”
Even with suggested examples, the essential evolutionary component of ICH means the definition must be flexible enough to accommodate organic developments. Part of the legal protection challenge stems from the nebulous nature of ICH itself and the resulting problematic definitions; the law cannot protect what it cannot define. Thus the conscious choice to use ‘safeguarding’. Nonetheless, by defining ICH or listing specific manifestations, there is an inherent danger in stagnating and ossifying the cultural practice, which could prevent living expressions and natural evolutions that are essential to ICH remaining relevant to the practicing community.
However, societal perception of the need to protect creative and cultural output through intellectual property rights has become so ingrained in the process and practice that we rarely take the opportunity to consider what might be the impact of applying limited, exclusionary rights on ICH. Particularly, the form and fixation requirements for copyright protection alter the fundamental expression and practice of ICH so that it may garner intellectual property protection, which now shapes future cultural expression as well as selectively preserves historical expression.
‘Tangification’, Intellectual Property Rights, and ICH
While past ICH safeguarding has focused primarily on developing countries, the social and economic impact of the subtle erosion or, conversely, the ossification of living heritages in developed countries is also of concern, particularly in the face of some developed countries’ non-ratification of the 2003 Convention (such as the U.K. and U.S.) Propelled by forces including copyright education, social expectations, economic motivation, and technological innovations, intellectual property protections have steadily expanded. When it comes to culture, though, not all expressions readily meet intellectual property protection requirements. Scholars have explored propertisation, of creative and artistic works through the legal lens of intellectual property, but even this lexicology tends to omit or minimise the impact of ownership on tangible and intangible cultural heritage.
By using terminology like ‘tangification’, the focus shifts to the precondition for intellectual property, as most copyright regimes require fixation. The ‘tangification’ process identifies how ICH and other intangibles convert into a form that can be owned, a process that ossifies the living heritage and may evolve into a generic saleable good as opposed to a cultural practice. This is a prerequisite – necessary but not sufficient – for propertisation and shapes the ICH in a (often) nondeliberate way through rewarding tangible manifestations with legal protections and social reinforcement. Once culture is owned as intellectual property, it is subject to commodification and further to commoditisation, which is a generic saleable form. This commoditised form is bereft of the intangible traits that enrich and create value for creative and cultural ICH.
ICH Matters to …
There is no tangible cultural experience without an intangible element – a story, a history, a ritual, or tradition. The converse, focusing only on the propertisable tangible – endangers the powerful yet subtle intangible. ICH holds a unifying power – as opposed to furthering the gap between cultures perceived to be ‘knowledge producing’ or ‘culture producing’. All cultures have valuable ICH that may be endangered by the spread of copyright maximisation and overvaluation of the tangible. The first steps in reconciling the challenges of domestic regulation of diverse ICH in countries typically less geared at ICH safeguarding can be achieved through acknowledging the social and cultural benefits of ICH by an examination of the relevant lexicology and legal systems. The impact of tangification as a necessary, but not sufficient, link in the propertisation chain, a phenomenon that deserves further consideration and study.
Claiming Surrogate IP Rights: When Cultural Institutions Repossess the Public Domain
by Andrea Wallace
If you think that cultural property in the public domain remains in the public domain, it’s time to think again. As the digitization of collections becomes the norm for cultural institutions around the world, they have started to claim legal rights over the digital reproductions of cultural property long held to be in the public domain. As a result, practices are becoming accepted that reassign certain rights to a work that have long expired—rights that are being claimed through a surrogate party.
For centuries, cultural institutions have been responsible for preserving the world’s cultural heritage—but the past few decades have brought novel challenges for cultural institutions to navigate. The exponential rise of globalization and the development of new technologies have created new obligations for preservation and new opportunities for dissemination to an audience larger than ever before. With public funding being slashed by governments, cultural institutions are left to devise their own solutions for how to finance digitization projects.
To make matters worse, digitization is tricky. Institutional missions obligate cultural institutions to make collections available to the public while balancing the legal obligations to honor the authors’ intellectual property rights. These copyright-imposed obligations can make an object’s digital transformation and maintenance astonishingly expensive. For financial and practical reasons, cultural institutions have started by digitizing their out-of-copyright works. After all, the rationale behind the public domain permits unqualified access to works whose intellectual property right have expired, been forfeited, or are no longer applicable. But, in reality, gray areas continue to perplex many works. These can range from anywhere to what quality to make the work available, to whether the digital reproduction may be protected by a new copyright, or to whether an orphan work is in copyright purgatory or has crossed into the public domain.
Through institutional efforts to find sustainable solutions for these issues, two trends are starting to emerge. First, to offset digitization costs, many cultural institutions are conditioning permission to use reproductions of public domain works through certain restrictions or revenue producing agreements. Some of these agreements function as licenses for limited use, while others resemble a claim to copyright-by-contract generated through online terms and conditions. With works clearly in the public domain, these efforts greatly undermine the rationale behind an expiration of the copyright protection period.
Second, others are turning to orphan works legislation when the item is in copyright purgatory. In the United Kingdom, the Orphan Works licensing scheme enables individuals to submit an application for qualified use of an orphaned work. Works are deemed orphaned when a work is still in copyright, but the rightsholder cannot be located. Often, because little is known about the work, the date of creation is also unknown. It is this category of works—orphan works that are in copyright purgatory because their date of creation cannot be ascertained—that becomes complicated. Moreover, several works have begun to appear on the scheme’s registry as licensed, though they clearly fall within the public domain.
Works in the Public Domain
Without sufficient financial or legislative guidance, cultural institutions have been left to design policies that capitalize upon their useable assets, mainly works in the public domain. Doing so implicates the obvious risks in mind: once something is placed on the Internet, there is no going back, and any decision to make a work fully available is handled with caution. Accordingly, cultural institutions are taking a “better safe than sorry” approach when determining what level of access to permit through Internet-based platforms. After all, access can always be expanded at later date—but it cannot be retroactively restricted.
It is against this backdrop that a general trend resembling a copyright-by-contract and licensing for public domain works has emerged. Institutional policies range anywhere from charging for commercial reuse of digital material or adding an obtrusive watermark to digitized images, to providing only a low resolution image while charging for the download of public domain material at a higher resolution. Some institutions go so far as to separately license different digital formats of the same work, such as a tiff or jpeg. Most policies mandate including a reference to the institution, such as by using Creative Commons licenses designed for this purpose. Such policies resemble an exercise of the moral right of attribution, and effectively require a user to reference not only the source of the digital reproduction, but also the physical location of the public domain work.
Cultural institutions are selectively enforcing such policies—if they choose to enforce them at all. To illustrate, the Kelvingrove Museum in Glasgow maintains a policy that requires a written request for permission to draw or photograph any of its collection. A visitor can easily satisfy this requirement by stopping by the information desk upon arrival. But after reviewing the Kelvingrove’s twitter feed—populated by retweets of visitors’ photographs of the galleries—it seems safe to assume the policy is completely disregarded, both by the visitors and the administration.
In an effort to balance the practical effects and rationale for maintaining control versus granting full access, cultural institutions are claiming new surrogate intellectual property rights. Yet, surprisingly, this copyright-by-contract and licensing phenomenon is actually dependent upon the user. The reproduction is not “removed” from the public domain until the user accepts the cultural institution’s terms and conditions, thereby submitting to the surrogate right. Not only do these surrogate rights overreach and undermine the rationale behind the expiration of copyright protections, but they also serve to restrict access to cultural property validly in the public domain.
Orphan Works in Purgatory
Should a member of the public in the United Kingdom want to make use of an orphan work, he or she should apply for a license through the Intellectual Property Office and pay both an application and licensing fee. The licensing fee, sometimes as little as 10p, sits in an account should the rightsholder comes forward. After eight years, any unclaimed fee is distributed to an unspecified cultural fund—it does not pass on to the hosting institution trusted with the work’s preservation. Before the scheme, most cultural institutions provided access based on a fee payment and through a license containing an indemnification clause. As such, the UK licensing scheme effectively usurps its cultural institutions’ practices of licensing works and collecting a fee that helped to finance the digitization and preservation of its collection.
Though the Orphan Works scheme has been heralded as a trailblazing measure creating access to more than 91 million works, experience seems to prove otherwise. A number of procedural and practical problems have surfaced that effectively deter users from taking advantage of the scheme. These users forego seeking a license in favor of blatant infringement and the risk of an unlikely lawsuit, sometimes at the advice of a cultural institution. For example, take a film studio that wants to make use of, or even re-release, an orphaned film held at the National Library of Scotland. The studio would learn after submitting an application that its request for commercial use of 120 minutes of the film will cost £62,000—a fee substantially larger than if the studio had negotiated for a license through the Library. A payment of that substantial fee is made even more impractical by the license’s restrictions: any re-release would be limited to the United Kingdom, and the studio’s license would be non-exclusive. This means any other person willing to pay the licensing fee could also make use of, or even re-release, the same film. To be fair, it is important to protect remuneration for use of orphan works in order to prevent that orphan works are used in unfair competition with other protected works. However, had the studio been able to locate the rightsholder, it would have hardly settled for less than an exclusive license in order to protect its investment. In these types of circumstances, it is worth asking how many orphan works are not being used, digitized, and disseminated due to the licensing scheme’s design.
In fact, as some cultural institutions would point out, it is much cheaper to violate the copyright, purchase legal insurance, and re-release the film without obtaining the appropriate orphan works license. In most cases, such actions incur little risk, if any. This is because, usually, in the rare instance that a rightsholder discovers an institution has a copy of a work and comes forward, he or she is excited to learn that the work has been archived and is even being reused at all.
It is against this backdrop that surrogate licensing and copyright infringement is occurring. Institutional policies range from enforcing an attitude of “damage control” to protect works still in copyright by digitizing a work in purgatory, granting access through an Internet-based platform usually located at the institution’s physical site, and maintaining a take-down policy on the off-chance that a rightsholder comes forward, to exercising all rights in trust for the rightsholder and holding copyright to the metadata. Some policies include the general practice of letting users view (and subsequently copy) materials out-of-sight in order to protect the institution from any connection to infringement, while others require users to view materials in-sight, but post a sign that says the institution is not responsible should the user make any unauthorized copies.
The scheme also becomes impractical in instances where a user requires quick access. This is often the case with organizations like the BBC, which will approach libraries and archives and need footage that same day. Any application to the Intellectual Property Office might take up to 14 days for approval and any financial payment would be circumvented to a governmental account, rather than the cultural institution’s purse. Perhaps this is why the Orphan Works Registry surprisingly lists so few successful licenses. To date, only 266 orphan works licenses have been granted since its launch in October of 2014. And to further complicate matters, of those licenses granted, 212 have been for photographs—the majority of which fall in the public domain under exceptions that existed before the United Kingdom extended the copyright term in compliance with EU law.
In the Defense of Cultural Institutions
It is no wonder that cultural institutions are crafting their own solutions to better serve the public. Quality reproductions are critical to creating institutional websites and exhibition catalogs, and high-resolution and accurate reproductions are expensive to reproduce. Expanding access to collections through online-based platforms furthers educational missions and attracts interest in works that might otherwise remain unseen and unappreciated. Such objects might even be entirely inaccessible without the existence of and access to a digital reproduction. Moreover, cultural institutions in the EU have a moral obligation to align their policies and digitization projects with the aspirations of Europeana, the 2008 digital library created to connect cultural institutions across Europe with a single and centralized online point of access. Such considerations weigh heavily upon institutional operations.
Cultural institutions are right to pursue innovative solutions in order to fund digitization and to protect the integrity of their online collections once they are made publicly available. Yet, works in the public domain are deemed copyright-free so that the public and future generations can make use of and reinterpret them for the creation of new cultural goods. When these two premises clash, the public suffers despite the outcome—on the one hand, any loss of generated income from public domain and orphan works causes damage to institutional efforts in cultural preservation; but, on the other hand, permitting such restrictions inflicts damage on the public domain and, ultimately, on cultural dissemination.
This scenario has recently played out in a twitter account, @MedievalReacts, operated by a marketing group called Social Chain. By pairing witty captions with images of illuminated manuscripts from the online collections of libraries and archives—all of which are in the public domain—the twitter account has amassed almost 300,000 followers since its first tweet in March 2015, through which the marketing group generates revenue. Most of the images are used in violation of institutional policies, which dictate that images cannot be used for commercial purposes and must include acknowledgement or credit to the hosting institutions. One must ask why, then, is it legally and morally acceptable for users to monetize works in the public domain that are digitized, preserved, and made accessible by cultural institutions, yet monetization and policies restricting such use are in contradiction with the legal and moral expectations of the very institutions responsible for the manuscripts’ preservation and continued existence? In the interest of culture, shouldn’t the public domain be fair game for anyone to monetize, including cultural institutions? And, if not, what are the justifications for enforcing such double standards?
For legal certainty, it seems like it is already, once again, time for copyright and orphan works legislative reform. Recent legislation is well intentioned and certainly a step in the right direction, but it has proven to be fraught with difficulties. As technological developments and globalization expand at an exponential rate, these issues will only become more complex. While focusing on works in the public domain, this analysis only skims the surface in revealing the complexity of such issues for in-copyright works.
Without digitization, many digital collections will lose currency, contact with and access to the current generation. As digitization advances, businesses in the private market are beginning explode with the increased demand for innovation and the development of new business models for companies specialized in digitizing collections. These business models range from the direct investment of funds in return for exclusive commercial exploitation of the digitized material, to classical sponsorship schemes for advertising and marketing purposes. So, then, what rights and limitations should private companies gain over public domain items in order to incentivize investment? Such rights will also be negotiated through contract agreements and reflected in online terms and conditions. In the interest of culture, it is worth considering whether these agreements should focus on alternatives to restricting access to the public domain.
In any case, time is of the essence. Cultural institutions that proceed successfully will set the tone for the rest of the industry, as this is already what is happening in other parts of the world. It is time to examine whether surrogate intellectual property rights may be our friends or our enemies—or even, perhaps, our frenemies. Similar variations of copyright have already been addressed and expanded through neighboring rights. The outcome could make all the difference in whether we are approaching a future with a digital Renaissance or a digital Dark Age.
Who owns Ananse? The tangled web of Ghanaian cultural heritage and copyright*
by Dr Stephen Collins
This paper takes the form of a critique of s.44 of the 2005 Ghana Copyright Act, which requires both foreigners and nationals to seek permission and pay a fee for the use of Ghanaian folklore; a fee that is required prior to use. It is part of a larger research project that stretches beyond my PhD to an MPhil and several trips back and forth to Ghana working mainly in theatre for development since 2000. What began as an instinctual enquiry into the lack of contemporary playwrights in a country with such a rich and recent theatre history, has developed into an examination of the role of folklore in cultural practice, and the role of the state in controlling and directing that practice.
I have chosen to discuss Ananse as a way of critiquing Ghana’s copyright law because within the folkloric tradition of the Akan of Southern Ghana, Ananse, is the owner of story. According to Akan mythology, Ananse won the stories from the Sky God, Nyame, and folk tales became so synonymous with Ananse that they took his name. Writing in 1916, Robert Sutherland Rattray noted that ‘[t]he spider in Ashanti folk-lore comes easily first as the hero in most of their animal tails. This is true to such an extent that the very word for a story in this language, be the spider one of the dramatis personae or not, is anansesem’.
However, Ananse’s ownership of folk stories has been challenged by the Ghanaian state. Ananse’s status as a character belonging to Ghana’s cultural heritage means that he and his stories are now held in trust by Ghana’s president in perpetuity. Ananse’s stories are allegorical, mystical and old. They are, what the Act refers to as ‘literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by unidentified Ghanaian authors’ (s.76).
Moreover, Ananse is a mischief-maker who finds enjoyment in questioning authority and exposing absurdities. In that light, with this paper I would like to take the opportunity to explore a disconnect, and possibly an outright contradiction, between the aims of copyright as an incentivising and facilitatory mechanism on the one hand, and the potential affect on creativity of the current Copyright Act in Ghana on the other. Why this situation matters and why it should interest us here in the UK, are the subject of this paper.
The Ghanaian government passed its second post-independence copyright Act in 1985. The 1985 Act, provided protection for folklore and the requirements for non-nationals wishing to use it to obtain permission and pay a fee. The 2005 Copyright Act extends this obligation for the use of folklore to Ghanaian nationals under s.44. The Act ‘takes authorship rights away from the creators of expressions of folklore and places them in the President [and] It makes no distinction between works created by unknown authors in antiquity and modern derivative works on individual and identifiable groups’. As such, it is possible that works that use folklore as their source material can be designated as works of folklore and the rights in those works pass to the President in perpetuity, even if the author is known and alive.
Ever since these amendments, various scholars have addressed how the law could affect specific areas of Ghana’s creative industries. Professor John Collins has written extensively and persuasively of the affects of legally imposing a fee on Ghanaian musicians for the use of their own folklore, suggesting in his 2003 article that the law amounts to little more than a ‘folklore tax’. Boatema Boateng of San Diego University has published a book on the potential impact of the Act on the textiles industry, specifically on those artisans who produce Adinkra and Kente designs. However, the law’s relationship to theatre remains unexplored. This lack of scholarship is curious when you consider that following independence Nkrumah openly supported the development of literary theatre in Ghana and together he, Felix Morriseau-Leroy and Efua Sutherland all emphasised the importance of folklore as the basis of a distinctly Ghanaian theatre. It is doubly curious when you consider that the secretary of state for culture at the time the 1985 Copyright Act was brought in and the person responsible for establishing the Folklore Board to administer the act was the great Ghanaian playwright Mohammed ben Abdallah.
Ananse is a key figure in Ghanaian theatre and across Ghana’s cultural landscape. Though there are notable exceptions, the development of Ghana’s post-independence literary theatre is largely based upon the use and reuse of folklore. More specifically, it is based upon Akan folklore and, more specifically still, it is based upon the story telling art Anansesem. Anansesem is, as Efua Sutherland points out, ‘both the body of stories and the story-telling art itself’ and takes the form of ‘an evening pastime [in which] young as well as the old come together to tell stories that revolve around Ananse.’ Anansesem was developed, utilised, institutionalised and sited as a central element in Ghana’s modern theatre by Sutherland who, through research in the 1960s and 1970s in the village of Atwia, developed and classified anansesem as Anansegoro, the most famous and influential iteration of which is her 1975 play The Marriage of Anansewa. Theatre, or more precisely, literary theatre, was a significant part of Nkrumah’s and later Rawling’s cultural policy. It was at once a reflection of a new, confident national identity; it was a tool of soft politics and a direct link to a reclaimed, pre-colonial identity.
For David Donkor, the enduring appeal of Ananse to artists lies in the fact that he is ‘an excessive subversive who arouses affection and admiration while posing the problems and possibilities of his morphological and moral ambivalence’. For Sutherland, Ananse is ‘a kind of everyman, artistically exaggerated and distorted to serve society as a medium for self-examination’. This is the point: that the appeal of Ananse endures. Ananse inspired and continues to inspire.
Thus there is an apparent synergy between Ananse’s position and the underlying facilitatory function of copyright. So why, if folklore was established as fundamental to the development of Ghana’s post-independence cultural identity, does the state now deny free access to nationals?
* A version of this paper was delivered to the School of Performing Arts, University of Ghana and the Institute of African Studies in February 2014.
 Robert Sutherland Rattray, Ashanti Proverbs: The Primitive Ethics of a Savage People, (London: Oxford University Press, 1916) 73. Rattray notes the meaning of: ananse asem, literally translates as ‘words about a spider’.
 Gertrude Tokornoo, ‘Creating Capital from Culture’, Annual Survey of International and Comparative Law, Vol., XVIII, 3.
 Efua Sutherland, The Marriage of Anansewa, (Accra: Sedco Publications) v.
, Faith Ben-Daniels, ‘A Study of Some Major Influences in Efo Kodjo Mawugbe’s Plays’, MPhil thesis, Kwame Nkrumah University of Science and Technology, 2009, 63.
 David Donkor, ‘Kodzidan Mboguw: Supplanted Acts, Displaced Narratives and the Social Logic of a Trickster in the “House of Stories”’ 46.
 Efua Sutherland, The Marriage of Anansewa, v.
Who owns folklore? The relationship and struggle between cultural rights and the right to culture.
By Mohammad Shahnewaz
Who owns folklore or traditional cultural expressions (TCE, as they are also known)? Is it a communal, state or universal concept? When protecting expressions of folklore, what are the claims of a community, state or even the world at large? Whose claim outplays whom? Who decides the breadth and extent of a nation’s cultural heritage? Is it a democratic process? Can a nation be selective about its past?
To date there has been no internationally agreed definition of exactly what folklore/TCE means. There was an attempt by UNESCO to define which goes like this: “Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognised 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.” (UNESCO 1989)
The connection between folklore as part of cultural heritage and identity is seen as of particular significance. Cultural heritage is an important expression not only of individual creative processes but also of individual and group spiritual, cultural, and political life. And any controlling, removing and destroying of cultural heritage is an effective tool of domination (Coombe 2010). Culture is now seen as a resource. Cultural rights in international law include intellectual property rights (or more generally, rights pertaining to moral and material interests in the works of which one is an author), rights of minorities to maintain and to develop cultural heritage, rights to participate in cultural life, rights to benefit from the arts and scientific achievement, and rights to international cultural cooperation.
Different countries may have different reasons for protecting folklore. It could be economic incentive – creation of new jobs, improving local and national economy etc; or it could be down to cultural identity reasons. The Western approach to folklore has been to view it as something of a historical value, to be collected and preserved, rather than treating it as an organic, living and evolving intellectual product. The existing IP framework also inadvertently provides protection to the performer who might not actually be the originator of the folklore.
Contemporary copyright laws require originality and fixation of the creative work in order to protect an intellectual creation to protect it under the rubric of intellectual property rights (IPR). However, folklore does not satisfy this threshold because generally it is based on the traditions, cultures and beliefs of a society. It is transmitted orally from generation to generation. It is modified repeatedly through its transmission process. No story is told the same way twice. Certain things will be added while others will be deducted. This is also true for performative aspects of folklore as protection of such activities require fixation, originality and also the question of ownership.
By definition it is generally accepted that the general body of knowledge pertaining to a whole tradition and way of life, and on how to interact with the natural world, cannot have arisen from one individual or a single creator but rather over decades, centuries or millennia through the interaction of individuals and their groups. Folklore, therefore cannot be the single property of one living heir or even of those that have contributed to that specific knowledge, but who no longer live. Hence it appears highly unlikely that those traditional communities would seek Western-type individualistic forms of protection for their knowledge, specific or otherwise. But does it mean they would not seek financial exploitation from folklore at all? Also, the moral rights justification for the protection of folklore argues that the notion of moral right protects the ‘right of integrity’ or the ‘right of attribution’ of the author, which is relevant to local communities’ claims regarding appropriation or misappropriation of folklore.
IPRs, especially copyright is strongly advocated as capable of protecting cultural rights like folklore by characterising IPRs as HRs. There are HR Conventions linking IPRs to cultural rights, protecting traditional and indigenous cultural expressions and knowledge. These include Article 15.1(a) (the right to take part in cultural life) and Article 15.1(c) of the Covenant on Economic Social and Cultural Rights (CESCR); Article 27.2 of the Universal Declaration on Human rights (UDHR); Articles 1, 19, 27 of the Covenant on Civil and Political Rights (CCPR). In particular Article 27 of CCPR (to protect traditional and Indigenous cultural expressions and knowledge) and Article 15.1(c) of CESCR support the characterisation of IPRs as human rights.
These provisions within CESCR, UDHR and CCPR form the background of the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage 2003 and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005.
Both the 2003 and 2005 Conventions are based on HR grounds. Although none of the Conventions mention IPRs as a way of realising their goals, they also do not make much of the negative potential of the international copyright system on cultural heritage, diversity and creativity. Rather UNESCO highlights the importance of fight against piracy to preserve creativity. Coombe (2009) describes this as ‘A new body of negotiated proprieties … emerging in a space of unprecedented legal pluralism’
But, the international copyright system can adversely affect cultural diversity and self-determination by a process of privatisation through commodification and instrumentalisation of cultural outputs, helped further by a high degree of global concentration in the ownership of valuable IP in cultural goods and services. Through private power and control over these, large multimedia corporations can act as cultural filters, controlling what we can see, hear and read. This makes sense in a global economy where homogeneity in products is a tried and tested safe option and diversity is a potentially hazardous business practice. There is volume of outputs, but not enough diversity of cultural products. (Macmillan 2010).
IPRs are generally in conflict with cultural rights even though the persistence in claims to connect the two. There are similarities too, as both seek preservation or reservation of property rights in cultural artefacts in some forms. Macmillan (2010) suggests that the essential features of cultural property ought to be that they are owned publicly or in common; their rights should focus on preservation, access and sharing of benefits associated with it; and that the role of cultural property rights are to prevent or limit the privatisation of cultural property.
The problem with this approach is – the assumption that public cultural property can only be protected by transforming into private property. – Also the appropriate role of cultural property rights in preserving and maintaining cultural property in the intangible realms.
The paradigm of property that emphasizes alienation, exclusivity, and commodification is predominantly a Western one. The very topic of cultural property demands greater critical reflexivity with respect to property’s diverse forms as well as enhanced scrutiny of Western proprietary prejudices. The damage is not purely financial. It is cultural distortion, mutilation and ultimately assimilation through homogenisation.