Cultural Relics, Intellectual Property, and Intangible Heritage
Volume 81, No. 2, Summer 2008
By Peter K. Yu [PDF]

In recent years, the protection of traditional knowledge (“TK”) and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage (“2003 UNESCO Convention”). Developed under the auspices of the United Nations Educational, Scientific and Cultural Organization (“UNESCO”), this Convention sought to “safeguard the intangible cultural heritage,” “ensure respect” and appreciation for the materials, “raise awareness” of their importance, and “provide for international cooperation and assistance.” Entered into force in April 2006, the 2003 UNESCO Convention now features more than 100 state parties.

Two years later, delegates from 148 countries, most of which had already joined the 2003 UNESCO Convention, adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (“2005 UNESCO Convention”). Focusing on “the diversity of cultural expressions, as circulated and shared through cultural activities, goods and services,” this new convention aimed “to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner” and “to encourage dialogue among cultures” and countries. It also “reaffirm[ed] the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory.” Entered into force in March 2007, the 2005 UNESCO Convention now includes more than ninety member states. Although both the 2003 and 2005 UNESCO Conventions “deal with expressions as performed or enacted today,” the latter is more “aspirational . . . than obligatory”; it seems to be more interested in providing a platform for nurturing a long-term dialogue than achieving short-term results.

In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples (“DRIPS”). Although DRIPS was released in draft form in August 1994, it took more than a decade before it was finalized in September 2007. With respect to the protection of intangible cultural heritage, DRIPS declared:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

DRIPS echoes provisions in the Universal Declaration of Human Rights (“UDHR”), the International Covenant on Civil and Political Rights (“ICCPR”), the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), and other international human rights instruments. Out of the International Bill of Rights, the ICCPR was the only covenant that explicitly addresses the cultural rights of minorities. Article 27 of the ICCPR provides: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Nevertheless, both the UDHR and the ICESCR cover the area of intangible cultural heritage. While article 27 of the UDHR states that “[e]veryone has the right freely to participate in the cultural life of the community,” [FN18] article 15(1)(a) of the ICESCR obliges states to “recognize the right of everyone . . . [t]o take part in cultural life.”

In addition, both the UDHR and the ICESCR safeguard the right to the protection of moral and material interests in intellectual creations. As the Committee on Economic, Social and Cultural Rights (“CESCR”), the authoritative interpretive body of the ICESCR, recently stated in its General Comment No. 17:

With regard to the right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of indigenous peoples, States parties should adopt measures to ensure the effective protection of the interests of indigenous peoples relating to their productions, which are often expressions of their cultural heritage and traditional knowledge. In adopting measures to protect scientific, literary and artistic productions of indigenous peoples, States parties should take into account their preferences. The CESCR is currently working on a general comment on article 15(1)(a) of the ICESCR, which covers the right to cultural development and participation.

Outside the protections of human, cultural, and indigenous rights, less-developed countries and traditional communities have actively pushed for stronger protection of intangible cultural heritage. The World Intellectual Property Organization (“WIPO”), for example, established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in September 2000 to address the misappropriation of folklore, traditional knowledge, and indigenous practices. This intergovernmental committee provides “a forum for international policy debate and development of legal mechanisms and practical tools concerning the protection of traditional knowledge . . . and traditional cultural expressions (folklore) against misappropriation and misuse, and the intellectual property . . . aspects of access to and benefit-sharing in genetic resources.”

To reform the Patent Cooperation Treaty (“PCT”), Switzerland has advanced a proposal to amend the PCT Regulations by explicitly enabling national patent legislation to require the disclosure in patent applications of traditional knowledge and genetic resources used in inventions for which intellectual property rights are applied. Although the proposal makes the disclosure requirement optional, that requirement, once implemented, will enable the disclosed information to become part of international patent applications.

A group of developing countries advanced a similar proposal at the World Trade Organization (“WTO”). Initiated as a new article 29bis, the proposal calls for an amendment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”). If adopted, that amendment would create an obligation to disclose in patent applications the source of origin of biological resources and traditional knowledge used in inventions for which intellectual property rights are applied. The proposal further requires patent applicants to disclose their compliance with access and benefit-sharing requirements under the relevant national laws. Although a large number of less-developed countries support the proposal, the United States and Japan strongly oppose it, expressing their fear that the additional requirement would destabilize the existing patent system.

In addition, pursuant to the Doha Declaration, the TRIPS Council continued “to examine . . . the relationship between the TRIPS Agreement and the Convention on Biological Diversity [(“CBD”) and] the protection of traditional knowledge and folklore.” The CBD was established in 1992 to promote “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.” Although the convention has had only limited success, it remains one of the more “authoritative international instrument[s]” on the protection of traditional knowledge and cultural expressions.

Finally, the International Treaty on Plant Genetic Resources for Food and Agriculture (“ITPGR”) “recognize[s] the enormous contribution that the local and indigenous communities and farmers of all regions of the world . . . have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world.” The treaty, which was adopted in November 2001, also requires member states to take measures to protect and promote farmers’ rights, which are generally defined as “rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centres of origin/diversity.” Although the ITPGR and the CBD contain different provisions, both conventions play important roles in the preservation and conservation of intangible cultural heritage. Following the signing of the ITPGR, some countries, like Costa Rica, India, the Philippines, Venezuela, and the Andean Community (Bolivia, Colombia, Ecuador, and Peru) enacted laws or directives to promote 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. The framework covers a wide array of materials, including traditional knowledge and cultural expressions. UNESCO, for instance, provides the following examples:

the oral traditions and expressions of the Aka Pygmies of Central Africa, the Hudhud Chants of the Ifugao in the Philippines; performing arts like the Royal Ballet of Cambodia; social practices, rituals and festive events like the carnival of Binche in Belgium, the Indigenous Festivity Dedicated to the Dead in Mexico, or the Vanuatu Sand Drawings; knowledge and practices concerning nature and the universe such as the Andean Cosmovision of the Kallawaya in Bolivia; traditional craftsmanship like Woodcrafting of the Zafimaniry in Madagascar, or cultural spaces such as the Jemaa el-Fna Square in Morocco or the Boyson District in Uzbekistan.

This Article examines both the theoretical and practical challenges confronting the development and implementation of the framework for protecting these materials. Part I disaggregates the term “intangible cultural heritage” into two components–“intangible” heritage and “cultural” heritage. Drawing on the similarities and differences between the protection of cultural relics and that of intellectual property, this Part argues that the different emphasis on the term “intangible cultural heritage” may call for very different protective regimes. This Part nevertheless points out that the similarities between the two components may provide significant common grounds for promoting further development and implementation of the framework.

Part II outlines eight different objectives for establishing this new framework. While some of these objectives overlap or conflict with each other, others touch on issues that are of only marginal concern to some constituencies. By focusing on each of these objectives, this Part underscores the divergent, and at times competing, interests amongst the many stakeholders within the framework. This Part also foreshadows the potential challenges for these stakeholders to achieve international consensus on the protection of intangible cultural heritage.

Part III discusses four different challenges confronting the implementation of the framework. Although this Part recognizes tribal sovereignty and the right to self-determination as key prerequisites to the development of a successful framework, it concedes that significant challenges are likely to remain even if the sovereignty and right to self-determination of traditional communities are fully respected. This Part focuses in particular on the mode of protection, the power to define protectable subject matters, the means to identify those materials, and the justifiability of international intervention.

Part IV revisits a crucial similarity between the protection of cultural relics and that of intellectual property–the need for enforcement and the related challenges. Using China as an illustration, this Part suggests that countries with significant problems in both areas may provide important insights into the development of the new framework for the protection of intangible cultural heritage. This Part points out that the enforcement challenges in this framework are likely to resemble those in the areas of cultural relics and intellectual property. This Part concludes that China, as well as other countries that have similar problems, may provide a rich and fertile ground for future research in both areas.

Read Article…