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Desirability of Commodification of Intangible Cultural Heritage: The Unsatisfying Role of Intellectual Property Rights

Paolo D. Farah and Ricardo Tremolada – ‘Desirability of Commodification of Intangible Cultural Heritage: The Unsatisfying Role of Intellectual Property Rights’ – Transnational Dispute Management 11(2) 2014. Online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2472339

In this article, Paolo D. Farah (West Virgina University, USA; and gLAWcal, UK) and Ricardo Tremolada (gLAWcal, UK) begin by explaining what is capable of classifying as intangible cultural heritage (ICH). Definitional issues, such as the potential for cultural heritage classified as intangible to also classify as tangible, are explored.

Subsequently, the difficulty of protecting ICH via a regime of intellectual property rights (IPRs) is assessed. It is noted that conventional IPR regimes, including copyright laws, may be ill-suited for this task since their general objective is to protect and reward individual achievements and innovations, whereas protection pertaining to ICH would necessarily be enjoyed by a larger community consisting of all of the individuals who have helped develop and maintain the ICH in question. Furthermore, since ICH is inter-generational in nature, conventional IPRs may provide inadequate protection since they are generally temporal. Copyright laws generally expire subsequent to the passing of a fixed period of time after the death of the right-holder, and patent laws tend to provide protection up to two decades. Additionally, since ICH has typically been developed over a long period of time, it may be difficult, if not impossible, to identify an individual author for the purposes of copyright law, or satisfy the novelty and/or innovation requirements of patent laws.

Given the apparent inadequacy of conventional IPRs as sources of protection for ICH, the authors explore the possible ways in which Sui Generis systems of protection might fill the void. For example, communities who consider the publication ICHs pertaining to them which they regard as sacred should, according to the authors, be protected under privacy laws. The possibility of relying upon trade secret laws is also considered, but the authors observe that the fact that knowledge constituting ICH tends to be shared amongst various members of the relevant group, making it difficult for protection under trade secret law to be achieved. Also, unjust enrichment laws might be appropriately apply in cases where information is provided confidentially to a third party who then exploits said knowledge to gain undue commercial advantages. If a Sui Generis system is implemented, it is suggested that communities should be able to control access to and use of their traditional knowledge and other ICH.

The authors conclude by noting that any sui generis legal protection regime should take due account of the fact that the ICHs to which it pertains are part of a continuous, ongoing development process. Supporting the case for providing additional rights attaching to ICH, it is noted that the individualistic roots which underpin traditional IPRs are not consistent with the traditional practices and conventions of some countries across the globe.