Traditional Cultural Heritage and Alternative Means of Regulation: Issues of Access and Restriction Online
In Susy Frankel and Daniel Gervais (eds) The Internet and the Emerging Importance of New Forms of Intellectual Property (Kluwer Law International) 171-201 (2016)
Posted: 16 Oct 2017
Date Written: 2016
Recent decades have witnessed the growth of non-permitted uses of traditional cultural heritage by third parties and the contemporaneous intensification of traditional communities’ discontent at such. Part of the reason why traditional cultural heritage is often considered to be misappropriated is connected to the fact that traditional communities’ understanding of their relationship with their cultural heritage is often holistic, in the sense that there is no differentiation between the intangible and its physical materialisation. Nevertheless, states and international organisations have found it convenient to discuss indigenous cultural heritage in the classical law fields of UNESCO-type cultural heritage and cultural property, and intellectual property. These discussions have seldom resulted in any binding resolution, or great practical effect. As a result, private ordering is often relied upon. This includes industry codes of conduct or institutional policies, practices and protocols, which may or may not have legal effect. They nevertheless can have real practical effect. Whether this is the case online, as opposed to the “real world” is a difficult question. On one hand, the Internet offers ease of access, which may be desirable. On the other hand, indigenous peoples are not the first to experience that the online world is difficult to regulate or control – regardless of any policies, protocols or even law – because of the speed and the low cost at which change and transmission can take place. This paper will discuss New Zealand examples of private ordering by those that deal with media and institutes with collection and archival roles, focusing on their effectiveness in meeting the online interests of Māori. It will also ask if the only reasonable route to protect the online interests of indigenous peoples is the same as that which copyright owners are taking, namely, by targeting internet service providers.
Keywords: traditional cultural heritage, private ordering, New Zealand
JEL Classification: K11, K33, K39
Suggested Citation: Suggested Citation