Intellectual Property, Cultural Heritage and Human Rights
RESEARCH HANDBOOK ON INTELLECTUAL PROPERTY AND CULTURAL HERITAGE, Irini Stamatoudi, ed., Edward Elgar Publishing, pp. 294-310, 2022
17 Pages Posted: 27 Oct 2021 Last revised: 11 Apr 2022
Date Written: October 26, 2021
The relationship between intellectual property and human rights in the cultural heritage context is both complex and challenging. Although these two sets of rights frequently align, they also compete against each other. The resulting tensions and conflicts affect not only the relevant cultural groups but all of us. Even more challenging, there has so far been no consensus on how to protect cultural heritage. Nor are there generally agreed definitions of "culture" and "cultural heritage." Although a diverse array of conventions, protocols, declarations, laws, policies and guidelines has been established to protect cultural heritage and cultural diversity, many of these normative documents include definitions that were drafted on a text-by-text basis. It is therefore difficult to generalize definitions across a variety of contexts, including those at the intersection of intellectual property and human rights.
This chapter begins by mapping the contours of the international human rights framework as it relates to intellectual property and cultural heritage. The chapter then offers three sets of illustrations covering situations in which tensions and conflicts between human rights and intellectual property rights may arise: (1) the production of user-generated content; (2) the reproduction of indigenous cultural heritage; and (3) the digitization, sharing or dissemination of cultural materials by museums, libraries and archives. This chapter concludes by advancing a three-step balancing process to help resolve these potential tensions and conflicts.
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