What Is Property's Fourth Estate - Cultural Property and the Fiduciary Idea
6 Pages Posted: 27 Jun 2019
Date Written: 2001
Abstract
Cultural property is a pastiche of the other property regimes. Like real property, there is an implicit assumption that the thing itself, the res, is unique-and not a fungible good in which proprietary rights might be easily exchanged for money. This incommensurability makes other kinds of legal relief, like pecuniary relief, more difficult when ownership is contested since nothing can substitute for the priceless cultural artifact itself. Like chattel, on the other hand, the language of cultural property actions is infused with the language of tort. The wrong committed against the property of a cultural group may lead, as a consequence, to the destruction of a precious and irreplaceable object and a cognizable injury to the feelings of members of the group. The third estate, intellectual property, consists of intangible products of the mind. Here, too, there are bits and pieces shared by cultural property for both regimes are infused with notions of human creativity. Indeed, cultural property has been expanded to include such intangibles as folklore and ritual traditions. The shared idea, of course, for both intellectual property law and cultural property law is that creators-and the heirs of creators-should have some proprietary rights over their creations.
Keywords: Cultural Property, Intellectual Property, Real Property, Chattels
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