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Conflict between Intellectual Property Rights and Human Rights: A Case Study on Intangible Cultural Heritage

59 Pages Posted: 20 Dec 2015 Last revised: 3 Mar 2016

Paolo Davide Farah

West Virginia University (WV, USA); gLAWcal - Global Law Initiatives for Sustainable Development (United Kingdom); University Institute of European Studies - IUSE (Turin, Italy)

Riccardo Tremolada

Cleary Gottlieb Steen & Hamilton LLP; gLAWcal - Global Law Initiatives for Sustainable Development

Date Written: December 19, 2015

Abstract

The ability to protect and safeguard cultural heritage is of vital importance to some communities. Without the ability to maintain control over these expressions, external subjects could freely appropriate them, which could negatively affect the community’s identity, spirituality, and general well-being. Increasing awareness regarding cultural heritage provides momentum to better define a legal framework for the protection of the intangible goods that constitute cultural heritage. It is fundamental to ascertain whether the current intellectual property rights (IPR) regime represents an adequate model of protection vis-à-vis intangible cultural heritage (ICH). The culture’s unique concerns, which variably affect ICH, make it difficult to compare the rationales for these two legal domains. These concerns are pivotal in elaborating the need for legal protection. Not only does misuse and misappropriation of ICH cause economic damage, but it also violates the community’s human rights and identity.

Accordingly, a range of issues must be taken into consideration, starting with the desirability of the commodification, or “reification,” which would allow communities to control the commercialization of their ICH through the current IPR regime. To adequately address concerns about commodification, a legal framework must be developed that can guarantee adequate advantages for the countries and communities where the intangible goods originate. This legal framework must, in due time, boost the efforts of these communities to promote a self-sustainable model of economic development and lead them through the inevitable social policy changes that would accompany new ICH protections.

Therefore, our study aims to clarify theoretical and practical legislative tools available to help the actors concerned ascertain how to exploit, trade, and market their own resources and heritage within the global market. Bearing in mind that there are numerous potential legal remedies or amendments to the current legal regime covering the protection of cultural heritage, it is not conceivable to tackle this issue as one uniform hurdle. Each community’s ICH concerns are extremely specific, and, as a result, it may be appropriate to apply ad hoc legal remedies to some, but not all, circumstances involving ICH.

This analysis consists of five Parts. Part I defines fundamental concepts associated with ICH. Part II looks at ICH as a continuous process of social involvement that helps preserve cultural identification. Part III analyzes the current forms of protection available for cultural expression and knowledge. Part IV discusses the shortcomings of adopting a single, all-embracing, umbrella solution and analyzes ways in which the current IPRs can help protect ICH. And finally, Part V proposes ways to modify and improve the current IPRs to protect ICH more efficiently.

Keywords: Intellectual Property, IP, Technology Transfer, Human Rights, Sustainable Development, Intangible Cultural Heritage, Indigenous People, Commodification, Local Communities, IPR, ICH, UNESCO, Patents, Copyrights, Trademarks

JEL Classification: O30, O31, O32, O33, O34, O38, O39, K11, K12, K33

Suggested Citation

Farah, Paolo Davide and Tremolada, Riccardo, Conflict between Intellectual Property Rights and Human Rights: A Case Study on Intangible Cultural Heritage (December 19, 2015). Oregon Law Review, Vol. 94, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2705698

Paolo Davide Farah (Contact Author)

West Virginia University (WV, USA) ( email )

325 Willey Street
Morgantown, WV 26506
United States

HOME PAGE: http://paolofarah.wordpress.com

gLAWcal - Global Law Initiatives for Sustainable Development (United Kingdom) ( email )

United Kingdom

HOME PAGE: http://www.glawcal.org.uk/

University Institute of European Studies - IUSE (Turin, Italy) ( email )

Turin
Italy

HOME PAGE: http://paolofarah.wordpress.com

Riccardo Tremolada

Cleary Gottlieb Steen & Hamilton LLP ( email )

One Liberty Plaza
New York, NY 10006
United States

gLAWcal - Global Law Initiatives for Sustainable Development ( email )

52 East Quay, Wapping Quay
Liverpool, L3 4BU
United Kingdom

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