Cultural Relics, Intellectual Property, and Intangible Heritage
74 Pages Posted: 24 Sep 2008 Last revised: 8 May 2023
In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken together, all of these new conventions, declarations, laws, and policy discussions have helped establish a new international framework for the protection of intangible cultural heritage.
Published as part of the "Law Without Borders: Current Legal Challenges Around the Globe" Symposium, this article disaggregates the term "intangible cultural heritage" into two components: "intangible" heritage and "cultural" heritage. It explores the similarities and differences between the protection of cultural relics and that of intellectual property. It then outlines eight different objectives for establishing the new framework. It also discusses four different challenges confronting the implementation of this framework: (1) the mode of protection; (2) the power to define protectible subject matters; (3) the means to identify those materials; and (4) the justifiability of international intervention. The article concludes by revisiting a crucial similarity between the protection of cultural relics and that of intellectual property—the need for enforcement and the related challenges. It suggests that countries with significant problems in both areas may provide a rich and fertile ground for future research.
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