Legal Protection of Cultural Heritage in a World of Intellectual Property Rights

Abstract

Legal Protection of Cultural Heritage in a World of Intellectual Property Rights Reto M. Hilty* 1. Introduction The discussion on the legal protection of cultural heritages and traditional knowledge1 started about 40 years ago, to some extent initiated via a certain public international legal recognition of indigenous peoples and traditional and other cultural communities.2 From then on, one can observe an increasing extension of the awareness that cultural heritage as such deserves legal protection. During those four decades certain legislative achievements on the international level have been reached, such as for instance (but not limited to)3 Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (UNESCO/ WIPO, 1982),4 – Convention on Biological Diversity (CBD, UN, 1992),5 – Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture (Secretariat of the Pacific Community),6 – Convention for the Safeguarding of the Intangible Cultural Heritage (2003),7 – The International Treaty on Plant Genetic Resources for Food and Agriculture (2001, entry into force 2004).8 These endeavors are certainly important. However, in particular with regard to the two mentioned conventions, we should not overestimate their impact. These conventions are testimonies of a growing awareness of the uniqueness of certain natural resources and of the relevance of basic cultural acquirements; therefore, such subject matters are deemed worthy of legal protection in order to preserve them. This general interest is one side of the coin. This side is comparatively broadly recognized and well developed today, particularly by means of the named conventions. The other side of the coin, however, arises from the fact that such subject matters are of considerable economic value.9 Substantial individual interests exist to commercialize the cultural heritage for the purpose of making profit. It goes without saying that, in particular, industries in developed countries have identified new business areas whilst developing countries – those countries who usually dispose of the cultural heritages in question – are confronted with a foreign exploitation of their own resources beyond their control.10 This other side of the coin has also been broadly discussed over the last decades. However, no real progress can be identified on the international level. While the Convention on Biological Diversity contains a number of provisions which seem to address some concerns of developing countries (even if they hardly ever genuinely protect their specific interests but primarily focus on cooperation and participation in a very general way), the Convention for the Safeguarding of the Intangible Cultural Heritage merely focuses on the preservation of the subject matters in question. Against this background, the discussion on possible legal remedies to protect the TS - CrossRef