Community as a Holder of Intangible Cultural Heritage: A Broader Public Policy Perspective
Hokkaido University Graduate School of Law
January 1, 2009
INTANGIBLE CULTURAL HERITAGE AND INTELLECTUAL PROPERTY: COMMUNITIES, CULTURAL DIVERSITY AND SUSTAINABLE DEVELOPMENT, Toshiyuki Kono, ed., 2009
This Chapter addresses particular aspects concerning how to define a “holder” of intangible cultural heritage. The author argues that the concept of “belonging” can hardly justify any one-size-fits-all solution based upon conventional views that assume community’s entitlements to their cultural traditions are identical for all types of communities. This Chapter advocates that the efficient scrutiny of the conundrum regarding “holdership” of intangible cultural heritage requires viewing the web of relationships amongst various stakeholders (such as humankind, communities, their members and non-members) with regard to individual components of cultural traditions as a social product. This facilitates recognizing diversity and vibrancy emerging amongst Indigenous, traditional, local and other cultural communities. Ensuring adequate and sufficient importance placed on networks of social relationships, which occur within and outside communities relative to their intangible cultural heritage, lies central to designing an efficient legal framework for the protection, preservation and safeguarding of cultural traditions.
This is especially indispensable when we take into account the fact that each regime aiming at the protection, preservation or safeguarding of cultural traditions works well only with regard to certain types of communities and their organizational structures, but not with the others. The ways of defining a “community” as a holder of intangible cultural heritage and the community’s role in the entire process of its preservation, safeguarding and survival then considerably depend upon specific features and mechanisms of particular regimes. Each regime constructs different conditions and requirements for an entitled person. The configuration, or say definition, of entitled entity thus differs between individual regimes which can range from those based upon granting communal property rights, through imposing liability for expropriation of intangible cultural heritage by non-members of affected communities, to those aiming at the safeguarding of intangible cultural heritage through the implementation of measures financed from private or public funds. Some of them are currently in preliminary stages of their proposal; others in final stages of adoption or implementation such as the system under the Convention for the Safeguarding of the Intangible Cultural Heritage (ICH Convention). As the efficiency of particular regime depends upon its fitting to particular types of communities and their intangible cultural heritage, the preservation of myriad cultural traditions in living incarnation requires to design efficient networks of regulatory regimes tightly nested to understanding the web of relationships concerning cultural traditions within and outside the concerned communities as a social product.
Keywords: intellectual property law, intangible cultural heritage, community, Convention for the Safeguarding of the Intangible Cultural Heritage, protection of traditional knowledge and traditional cultural expressions (folklore)Accepted Paper Series
Date posted: August 1, 2009
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