Appropriation of Intangible Cultural Heritage by Means of Intellectual Property: The Asymmetry Between the Cultural and Commercial in the Age of Globalization
The diffuse (cultural, commercial, technological) perception, meanings, potential and use of resources (objects, practises, expressions) and the accelerated access to and exploitation thereof by globalizing industries (respectively, e.g. through Internet and travel; and by appropriation through intellectual property) leads to intense conflicts among communities (e.g. traditional knowledge holders versus pharmaceutical and entertainment industries) and countries (e.g. Northern versus Southern countries). Presently, several overlapping (inter)national legal regimes apply to these resources. But they are not suited to effectively safeguard the myriad of interests involved. In this presentation, some of these regimes will be set forth and analysed. The interfaces between - on one hand - the Convention for the Safeguarding of the Intangible Cultural Heritage and the Convention on Cultural Diversity and - on the other hand - intellectual property rights regimes are made explicit. Particularly, copyright, patent, and trademark law are addressed, and their applicability to said resources (exemplified by some of UNESCO’s Masterpieces of the Oral and Intangible Heritage of Humanity), as well as their asymmetrical workings and conflicts with referenced heritage instruments. Initiatives to reconcile the cultural with the commercial and the local with the global – also through intellectual property law instruments – are explained and analysed. Suggestions on how to move forward will be set forth. Most importantly, practical advise will be given for people that currently work in the field. Social science researchers (e.g. anthropologists) can positively contribute to reconciliation and protection of (indigenous) cultural interests; among others, by being conscious about ethical and legal standards and by bearing the consequences of their actions in mind. Conclusively, by acting upon contemporary proprietary regulations and workings, as to use them in favour of their profession and the peoples/cultures they work with/on. Ultimately, tips on how they can do so are provided.
Keywords: Globalization, Cultural Heritage, Traditional Knowledge, Commercialization, Appropriation, Intellectual Property
Ph.D. Researcher, Centre for Intellectual Property Rights (CIER)