Appropriation of Intangible Cultural Heritage by Means of Intellectual Property: The Asymmetry Between the Cultural and Commercial in the Age of Globalization

By:
Jerzy Koopman
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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
Stream: Anthropology, Archaeology, Cultural Studies, Humanities
Presentation Type: Paper Presentation in English
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Jerzy Koopman

Ph.D. Researcher, Centre for Intellectual Property Rights (CIER)
Molengraaff Institute
Faculty of Law, Utrecht University

Utrecht, Netherlands

Jerzy Koopman studied law at Utrecht University and New York University, where after he worked as counsel in the IP department of a law firm. Presently, Jerzy is a Ph.D. researcher at the Centre for Intellectual Property Law, Utrecht University, The Netherlands. In the project ‘Sharing nature and its biodiversity: Claims to genetic resources, technology and biotechnological products in a proprietary perspective’, perspectives on the manner in which patent law may apply to resources and outcomes of biotechnological R&D are analysed. The patentability of biotechnological inventions is analysed in view of the principles, goals and features of such instrument, and in respect of various cultural and economic perspectives thereon. Think of the debates on, so to say, traditional knowledge and cultural diversity, genetic resources and biological diversity and up- and downstream patenting and the anti-commons. If contemporary law would show to be insufficiently suited to accommodate these types of inventions and the related interests, manners of changing it will be explored and formulated. Both public (human and cultural rights regimes) and private law (property, contracts regimes) instruments are considered, to reconcile the conflicting interests – from industries, academics, traditional knowledge holding communities and countries that provide genetic resources. See: http://www2.law.uu.nl/priv/cier/eng/research/dissertations8.htm.

Ref: I07P0694