Introduction¹

Globalization is the common word we use to describe the phenomenon of a contemporary world which is more and more interconnected and has no borders. Globalization is the result of a combination of factors. The role of technology is a fundamental feature in shaping what globalization is and what it means for society as a whole. The improvement of telecommunications, in particular Internet and the fast-growing development of transportation, has reduced production costs related to the circulation of goods and services. This allows multinational corporations and their supply chains to integrate assets located in different countries and centralize their production in low-cost regions. However, globalization is not only trade in goods. The world of the nation-states has to tackle problems which are no longer internal within the borders. Everything has become global, not only trade.

Challenges and risks for society such as environmental crisis, energy security, or terrorism are not local; private companies are no longer national, they are multinational, sometimes with annual turnovers higher than the GDP of certain developing countries, and they influence the life of the population of the states in which they operate and beyond.

At the same time, it has to be taken into account that there are also important societal values which are directly or indirectly affected by the global expansion of world trade and should be upheld to balance the excesses of globalization. Globalization without control risks becoming only standardization and unification; globalization without local concerns can endanger relevant issues such as good governance, human rights, right to water, rights to food, social, economic, and cultural rights, labor rights, access to knowledge, public health, social welfare, consumer interests and animal welfare, climate change, energy, environmental protection and sustainable development, product safety, food safety and security.

There are several sets of rules and regulations implemented at the global level that are relevant to boosting certain objectives for society as a whole, like rewarding research and development, supporting creativity and innovation, but that do not always consider the needs of the developing countries which often did not have the opportunity to contribute to the discussion which led to the adoption of those international rules. Those regulations do not always fit with a developing country’s societal needs and local characteristics, as will be described when we utilize intangible cultural heritage as a case study for our analysis.

Endeavors to protect and preserve intangible cultural heritage, against the risks of globalization, have been influenced by the emergence of the Information Society. Consequentially there have been various attempts to develop schemes recommending that heritage be archived, withdrawn from the public domain, and handed back to the exclusive control of its alleged inventors. This paper aims to investigate the relationship between intangible cultural heritage protection, intellectual property rights (IPRs) regime, and the Information Society, assessing some of the major issues at stake resulting from the interaction of, and conflict between, different evolving regimes.

Global Governance and the Excesses of Globalization: Preliminary Considerations

From Seattle in 1999 to “Occupy Wall Street” in 2011, civil society has continued to express a strong dismay and anger toward human, social, and environmental consequences of the global expansion of world trade and of the monetary and commercial translation of all interpersonal transactions. However, since the beginning of the industrial revolution, the success of the capitalist mode of production seems to be marked by its results in terms of demographic, economic, and technological development. Between 1810 and 2010, if the total income per capita is multiplied by nine, and the world population by six, and then the pace of technological innovation has grown exponentially.

However, we need to bear in mind two important caveats regarding the effectiveness and legitimacy of the industrial mode of production of goods and the commercial mode of the distribution of wealth in their global expansion. The first caveat is that the global development of the industrial mode of production of goods caused a disruption in the balance that regulates the interaction between man and the environment: climate change (Cossy and Marceau 2009), depletion of fisheries, soil erosion, and pollution are the flip side of the global triumph of the industrial revolution. As stated in the report Limits to Growth prepared by the Club of Rome in 1972, and as reformulated more recently in the UN Millennium Ecosystem Assessment (2005), “Human activity is putting such strain on the natural functions of Earth that the ability of the planet’s ecosystems to sustain future generations can no longer be taken for granted.” The fact that the current mode of development is not sustainable means that its continuation will soon result in its own end: human development has exhausted the Earth’s production, absorption, and recycling capacity. The second caveat is that the global development of commercial wealth distribution has created a paradoxical increase in inequalities: “A steady trend of increasing inequality in the world economy between rich and poor economies has taken place since 1820 and throughout the 20th century, the exception being the ‘golden age’ period of 1950–1973” (Solimano 2001).

Therefore, the idea of ​​limiting the excesses of globalization while controlling the international institutions that create them, such as the International Monetary Fund (IMF) or the World Trade Organization (WTO), may be, to a certain extent, justified. As the Director-General of the WTO Pascal Lamy once stated: “for better and for worse, globalization of the issues increases, on a daily basis, the need to organize democratic, global forms of governance that are both legitimate and efficient. In other words: democratic” (Lamy 2004). In fact, for many years, the General Agreement on Tariffs and Trade (GATT) and the WTO have been highly criticized and portrayed as the least transparent and democratic of all international organizations. Indeed, most of the meetings and debates are held privately with no public access and agreements are reached at the intergovernmental level without any public participation. The lack of participation of civil society in the ongoing negotiation rounds at the WTO affects the rights of all parties to both information and participation, as was made clear ​​by the 1998 Aarhus Convention (UNECE 1998), Article 21 of the Universal Declaration of Human Rights (UN 1948), as well as Principle 10 of the Rio Declaration on Environment and Development (UNEP 1992). However, the WTO has recently begun to open up to civil society, both through the participation of Non-Governmental Organizations (NGOs) in the plenary sessions of the most important ministerial conferences, and through the establishment of a contact group dedicated to NGOs within the WTO secretariat. Additionally, the WTO website allows one to access a wide range of highly detailed information on trade issues and relevant committees. Moreover, the Appellate Body of the WTO has recently authorized the submission of amicus curiae briefs as well as the opening of public hearings (Marceau and Stilwell 2001). Thus, as responsibilities of trade institutions grow, the role of civil society in the institutions that govern international trade such as the WTO is ever increasing (Ullrich 2002; Tuerk 2003).

Hence, as noted by Thomas Zweifel, the right approach is not to oppose global sovereignty of certain international organizations, but rather to propose concrete reforms that would make them purely liberally oriented:

There are three possible reactions to this democratic deficit of international institutions. First we can decry how undemocratic international institutions are and urge caution in their use. Second, we can reject international organizations on the grounds that democracy and international relations are two incompatible concepts … Hence the third response: we can decry the lack of democracy of international institutions, but push for their reform and democratization. (Zweifel 2006).

To provide such institutions with the democratic legitimacy they currently lack, in addition to the increasing democratic transparency of their decisions, it is mostly the outer frame of analysis which should be amended (Hilf and Goettsche 2003; Howse 2003).

According to Ernst-Ulrich Petersmann, human rights should be used as a regulatory framework of the global expansion of WTO rules:

In order to remain democratically acceptable, global integration law (e.g. in the WTO) must pursue not only “economic efficiency” but also “democratic legitimacy” and “social justice” as defined by human rights [Marceau and Doussin 2009 ]. Otherwise citizens will rightly challenge the democratic and social legitimacy of integration law if it pursues economic welfare without regard to human rights …

(Petersmann 2002)

However, the difficulty and the limits of this approach lie in the fact that it affirms both that human rights should guide the process of global legal integration and that such process should be implemented by the WTO itself: “As freedom for hunger and economic welfare are preconditions for the enjoyment of many other human rights, the WTO guarantees of economic liberties and of welfare-increasing cooperation across frontiers serve important human rights functions” (Petersmann 2000). As noted by Philip Alston (2002), saying that the WTO law itself guarantees the respect of fundamental human rights, implies a refusal to evaluate the business practices of organizations such as the WTO or the IMF in terms of these same rights.

Indeed, WTO rules and principles not only prevent Members from discriminating against other Members in general, but also severely restrain their ability to adopt trade measures against another Member whose practices do not respect human rights. Likewise, the accession to the WTO is not subject to any criterion related to the respect of human rights and its rules require that each Member, once part of the Organization, can enjoy the same commercial benefits as the others, thus preventing Member States from discrimination based on the protection of human rights. Nevertheless, the GATT has an exception, which allows Members to adopt measures that restrict trade in goods manufactured by prisoners. Another interesting example is the waiver recognized for all those countries which are parties to the Kimberley Process. The Kimberly Process is designed to certify the origin of “rough diamonds” (diamonds which are unworked or simply sawn, cleaved, or bruted: Kaplan 2003) from sources which are free from conflict fueled by diamond production (i.e., are not “blood diamonds”: Feldman 2003). Although, thus far, there has been no discussion on human rights within the WTO, some of its provisions might be interpreted so as to give Members the opportunity to pursue such objectives. For example, the exceptions set out in GATT Article XX, in particular the exception on public morals, could provide a viable framework for action. On the other hand, the recent trend of signing regional trade agreements where states often choose restrictively with whom they wish to engage in such a partnership can render human rights more important in trade policy decisions and have consequences in terms of legal empowerment.

Part of this debate also includes the idea of replacing the notion of Non-Trade Concerns (NTCs). As noted by James R. Simpson and Thomas J. Schoenbaum, the integration of NTCs within the WTO decision-making process should add a regulatory reference to certain non-economic values ​​and fundamental rights to the economic criteria that have been defining globalization so far:

The excesses of globalization can be managed only by paying adequate attention to what are termed “Non-Trade Concerns” … A balance must be struck in the WTO between liberalization on the one hand, and NTCs on the other. The economic dimension of trade must be balanced with non-economic values. Simply ignoring NTCs is not an option. In our considered opinion, if this is done, the Doha negotiations will fail.

(Simpson and Schoenbaum 2003)

From this perspective, the success of the Doha Round will depend on the ability to bring together all the different partners in joint discussions on non-economic parameters.

Indeed, the right to development and other associated rights, such as the right to food, shelter, water, and so on, are all to some extent directly affected by international trade. International trade law, both within and outside the WTO, determines how global trade evolves and limits the ways in which trade policy can be used to encourage domestic policies, which, in third-world countries, allow greater legal empowerment (Scott 2002; Breining-Kaufmann 2005; Tamiotti 2009; Baxi 2009; Bates 2010). Allowing a more substantial participation of developing countries within the WTO and promoting the opening up of trade and custom barriers, for example for agricultural products, might have an extremely important impact on the issues connected to NTCs. Moreover, the rights of disadvantaged farmers in developing countries could be positively – though indirectly – affected. This is precisely why Simpson and Schoenbaum call for the expansion of the concept of NTCs to the dissemination and production of agricultural products, qualifying them global public goods:

It seems reasonable that all citizens can, and should, have an interest in assuring that they have an input into deciding how, and in what form, the public goods related to agriculture are used and maintained for future generations. That is one of every person’s fundamental rights. (Simpson and Schoenbaum 2003).

With regard to NTCs, the main issue is that developing countries do not have the same concerns as developed ones. When a country is still facing problems related to basic healthcare and hygiene, less resources will be left to address issues such as animal welfare or food safety. Developing countries will try to obtain a high level of protection of NTCs primarily in those areas where the same level of protection is granted by industrialized countries whose market they wish to access. The key challenge is how to satisfy the rights of developed nations to grant social values the degree of protection they consider appropriate, ​​while minimizing the negative effects in terms of market distortion for their trading partners. This is exactly where the WTO can prove very useful. For example, the regulation of investments and protection of IPRs on products and production processes, as well as issues related to patents derived from traditional knowledge or Chinese traditional medicine, fall within both the international legal system (Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Patent Cooperation Treaty) and the European one (European Patent Convention).

Definitional Issues: Information Society, Culture, and Social Involvement

The “intangible cultural heritage” (e.g., stories, designs, musical forms, and information) suggests a further inclusive management of traditional cultural expressions, while on the other hand it also generates crucial difficulties for policymakers. The studies on intangible cultural heritage not only have led commentators to reshape the concept of property, but have also underlined the relevance of the current wide notion of information, encompassing the practical, political, and moral impact of its proposed regulation in the context of the current Information Society, stemming from the new information technologies’ pervasive presence and role in our society (Brown 2005). Information presents some peculiar features, such as its capacity to ubiquity, which carries the danger of erasing the line between real or authentic and counterfeit, just as it weakens the links that connect units of information together in meaningful regimes.

This study aims at assessing the relationship between intangible cultural heritage and Information Society, identifying potential strategies for the protection of this peculiar type of cultural expression. As we approach this topic, it is indeed necessary to perceive “information” in an holistic way, framing it as a system of mutually influencing ties and intertwined forces. The current Information Society comprehensively manages, or at least seeks to manage, complex systems involving different variables, whose modifications uncertainly reflect and affect the whole (Davenport 1997; Samuelson and Davis 2000). This extremely interconnected and multifaceted nature entails that intangible aspects of cultural heritage require a wide range of options of protection, going well beyond the typical IPRs instrument.

As for intangible cultural heritage, it is challenging to find a widely accepted definition. From an international law perspective, the definition in the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage adopted in 2003 (hereafter, ICH Convention) is descriptive and very broad. According to Article 2(1), intangible cultural heritage “means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artifacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage” (UNESCO 2003). Moreover, Article 2(2) of the ICH Convention sets forth a non-exhaustive list of the domains in which intangible cultural heritage is manifested: oral traditions; performing arts; social practices, rituals, and festive events; knowledge and practices concerning nature and the universe; and traditional craftsmanship.

In this regard, it is also crucial to define the multifaceted term “culture.” From an anthropological perspective, this term has a polysemantic value, that is, the fact that it may mean many things depending on different backgrounds and points of view (Arizpe 2002). For example, according to the definition adopted in the UNESCO Universal Declaration on Cultural Diversity, culture is defined as “the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and all it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs” (Arizpe 2002). In relation to intangible cultural heritage, two classes of culture should be taken into consideration. On the one side, traditional culture, describing the cultural practices which a social group acquired from the past through intergenerational passages (even if these are recent inventions) and to which the group assigns a clear status; on the other side, popular culture, alluding to those cultural performances, often commercialized, through which a sub-group of a society manifests its unique identity. As Lourdes Arizpe observes, since every member of a sub-cultural group can have an impact on the practices of the groups in which they belong, the origin of all intangible cultural elements is to be found in the intrinsic capacity of human beings able “to create original meanings and imaginaries that build social practices and representations” (2002). Intangible cultural heritage relates primarily to processes implying the gathering of people belonging to a cultural group (a village, a group, or a nation) who engender an intangible cultural performance in a cultural happening which may be more relevant than the event itself. What really matters is therefore the repetition of a continuous process of social involvement through its remarkable expressions such as “story-telling, myths or songs or other such time-capturing inventions” (2002).

The manifestations of “intangible cultural heritage,” as defined in the ICH Convention, allow one to take into account also relevant economic assets of the communities or individuals who generate, implement, and preserve them. Hence, intangible cultural heritage and specific objects deriving from such heritage can be the contents of trade. Indeed, under Article 2, what is to be protected are not merely intangible aspects as such but also tangible items originating from intangible cultural heritage. From an anthropological point of view, the participation of people of the community to such events activates societal bonds. As underlined by Arizpe:

this “activation” of bonds has a crucial role in updating the representation of the community in the eyes of all its members even if they are living elsewhere. Intangible heritage, then, in terms of the processes it involves, helps keep otherwise invisible bonds alive and updated among the members of a community.

(2002)

Consequentially the distinction between tangible and intangible cultural heritage is not clear-cut and the two concepts may sometime overlap. According to the terminology used by the World Intellectual Property Organization (WIPO), intangible cultural heritage embraces traditional knowledge and traditional cultural expressions or expressions of folklore, thus including knowledge itself, which embraces know-how, skills, innovations, practices, and knowledge comprising traditional lifestyles as well as distinctive signs and symbols related to traditional knowledge. Traditional cultural expressions encompass phonetic or verbal expressions, such as stories, narratives, signs, and names; musical or sound expressions; expressions by action, such as dances, plays, ceremonies, rituals, and performances, whether fixed or unfixed; and material expressions of art, such as handicrafts (WIPO 2011). In fact, it is crucial to prevent commercial misappropriation and to guarantee that the commercial use of intangible cultural heritage does not misconstrue its connotation, significance, and aim for the group concerned, as also highlighted in the Operational Directives for the Implementation of the ICH Convention adopted by the General Assembly of the States Parties to the Convention at its second ordinary session in 2008 and amended at its third session in 2010 (para. 117).

Development of the Information Society

Commentators (Brown 2005) assessing the necessity of protection for intangible cultural heritage have highlighted the influence of various social forces, in particular, starting from the 1990s, the ascent of what has been variously defined the “Information Society,” “Information Age,” “Knowledge Economy,” or, most recently, “Network Society.” These terms refer to new information technologies which have deeply changed global society just as thoroughly as the industrial revolution transformed the nineteenth-century world. The Information Society is characterized by various factors: the rise of new economies relying on technology-based diffused knowledge; globalization of multinational companies and public institutions, leading to a reduction of the power stemming from traditional nation-states; and the shaping of new networks that refashion labor relations, politics, and economic activity (Castells 2000).

Among the positive effects of the modern Information Society deriving from extreme and multifaceted globalization, there is the rapid emergence of IPRs as a worldwide concern, as well as the ability of advocacy groups to gather international support for heritage protection. Local cultural integrity, languages, values, and traditional expressions of culture are being superseded by cultural influences originating principally in the Western developed world. In this vein, Brown observes that the local perspective is abandoned and a global approach is taken, demanding regulation of movement of alien images and information, in the interests of “local cultural integrity.” The drawbacks of the Information Society in relation to cultural heritage are nevertheless numerous. In particular, the Information Society tends to menace the current outset of norms and institutions, while emphasizing the relevance of values and moral commitments, that is, culture. Simon Harrison (1999) remarks that in this context culture may become a “scarce resource to be defended as another form of property, either personal or collective.” Consequentially cultural heritage and expressions of culture are remodeled into a highly politicized commodity (Harrison 1999; Lash 2002).

All the while, the growing economic value of information has amplified the value of IPRs as the global market economy greatly relies on IPR protection regimes. IPRs have benefited from the Information Society in the sense that globalization and the global market are continually trying to extend IPRs’ scope in time, through industry’s constant lobby to stretch the terms of copyright and patent protection, and in space, through widely accepted agreements, such as the TRIPS Agreement within the WTO framework (WTO 1994; see Filippetti and Archibugi, Chapter 20 and Scherer, Chapter 21 in this volume). Conversely, new challenges and complexity derive from the peculiarities of the Information Society and related technology. For instance, the fields of software engineering and biotechnology have enlarged the application of IPRs beyond the traditional areas, asserting IPRs in domains which encompass gene sequences, life forms, and manipulation of information in databases. These social changes and forces provoking these developments must be assessed vis-à-vis the role of the Information Society with respect to intangible cultural heritage and its protection, taking into account political, cultural, and economic aspects of the matter and adopting a holistic approach.

IPRs and Intangible Cultural Heritage: Options for Protection and the Commodification of Intangible Cultural Property

The protection of intangible cultural heritage must take into account the inherent dynamic nature of the subject matter. Although different forms of protection for cultural expression and knowledge have been envisaged since the late 1800s, the first international multilateral framework on this issue was not attained until October 2003, with the adoption by the UNESCO General Conference of the Convention for the Safeguarding of the Intangible Cultural Heritage. In the effort to evaluate the desirability of using IPRs for the protection of intangible cultural heritage, significant conflicts arise between these two domains (Le Goff 1997; Grosheide and Brinkhof 2002; von Lewinski 2004; Farah and Tremolada 2014a, 2014b). The clash between IPRs and intangible cultural heritage derives from the fact that the former aims at protecting the proprietary rights and economic interests of individuals (human or corporate), whereas the latter relies on preservation of the common heritage of a specific community or group. In this vein, scholars, indigenous communities, minority groups, NGOs, and UNESCO have fought for achieving a reform of the current intellectual property regime, stressing the different rationale for protection of intangible cultural heritage. Hence, two compelling solicitations on intangible cultural heritage protection have arisen: first, the solicitation for acknowledgement of the rights of intangible cultural heritage holders associated with their traditional knowledge, and, second, concerns about the unauthorized acquisition and access by third parties of IPRs over intangible cultural heritage. On this point, two kinds of protection have been complementarily elaborated and implemented:

• Positive protection, which empowers the intangible cultural heritage holders to take action or seek remedies against certain forms of misuse by obtaining and asserting rights in the protected material; and
• Defensive protection, aiming at preventing illegitimate and adverse IPRs being claimed by others over intangible cultural heritage matters.

As pointed out by various scholars (e.g., Karjala and Kirkwood Paterson 2003), one of the side effects of affirmation of traditional IPRs in this context is the consequent commodification of intangible cultural property, that is, the translation of intangible cultural property into articles of economic worth that can be exchanged for commercial profit by such means as licenses, rental, or sale. It is crucial to assess whether this resultant reification of intangible cultural heritage is desirable vis-à-vis the aim of granting protection to collective cultural expressions. Their conversion into property has been considered exploitation and commercialization, and consequentially misappropriation, of reified intangible cultural heritage. Meanwhile, the commodification of intangible cultural property by third parties other than their legitimate custodians has been exacerbated by the dissemination of intangible cultural property through digital technology and the Internet. Generally referring to traditional cultural expressions, Mira Burri Nenova (2007) points out: “With the digitization of content and existence of the Internet as a tool for dissemination, the risk of misappropriation has increased dramatically now that any tourist can use his or her phone to photograph and record a traditional cultural expression.” She further observes: “exploiting the captured traditional cultural expression commercially can be accomplished quickly [by third parties], thereby usurping the chance to use traditional cultural expression as an asset of economic development.”

Analyzing this issue, it seems more appropriate that, in order to provide protection for intangible cultural heritage, it is necessary not to recognize new IPRs. Rather, it is crucial to campaign for a reinterpretation of existing legal regimes concerning specific aspects of the existing IPR framework, such as privacy and unfair competition law, aiming at leveling what might differently be perceived as an unfair playing field (Farah and Tremolada 2014a, 2014b). This approach allows the claimants not to frame their legal rights in relation to existing classes of IPRs, thus eluding the charges of misuse and reification that have clung to such claims in the past. In fact, there have been several calls for differentiated and more coherent legal protection of the cultural heritage. At the same time, it has been stressed how the extension of IPRs over cultural heritage would generate a number of problems related to the very core of democratic conception of free speech and free expression, as carried out in both patent and copyright notions of public domain.

The perils affecting intangible cultural heritage and its expressions cannot be underestimated. It is sufficient to recall issues such as the employment of indigenous knowledge to generate a commercial product, such as a valuable drug, or the use by outsiders of tribal names or other identifiers, sacred symbols or images, or artistic designs generally (Burri Nenova 2007). If the community where the heritage generates intends to maintain secrecy in its rituals, employing unfair means to gain information about them breaches the underlying concept of privacy. Another hurdle pertains to the use of these names, symbols, or designs by authentic members of the community but in ways that are manifestly in conflict with the community’s traditional use. Additionally, individuals external to the community may be confused as to whether an item is authentic, negatively affecting the community’s ability to profit from commercial sales. Finally, a related issue is the “disturbance of an embedded landscape” (Karjala and Kirkwood Paterson 2003) in which cultural heritage is so intrinsically connected to nature that it cannot be used without either severing it from its authentic environment or reducing the usefulness of the heritage itself. In this vein, Karjala and Kirkwood Paterson note:

from this notion it follows that local ecological knowledge should belong to the community as a whole and be considered inalienable. The sensitivity of these embedded landscapes argues for the right of indigenous people to restrict research on indigenous knowledge or biological resources where integrity of natural or cultural patrimony is threatened.

(2003)

Experience in the context of protection of intangible cultural heritage has revealed that no single all-embracing, umbrella solution which fits with all the needs of communities in all countries is likely to satisfy all issues that such protection targets. Conversely, valid and serviceable protection should imply a plethora of varied and manifold options for protection, reinforced by an internationally recognized range of core principles. The outlining of these objectives in the international arena would frame the protection regime at the domestic level as well, allowing for ad hoc implementation and greater flexibility vis-à-vis the diverse needs of intangible cultural heritage holders from different countries.

The protection of intangible cultural heritage and related expression is today a multifaceted matter, whose complexity is exacerbated by lack of consensus on the definition of the subject matter, the raison d'être for protection, and the methods for achieving it. Nevertheless, this complexity should not lead to an impasse in trying to frame and outline some form of protection. Evaluating the existing IPR regimes, one can note their deficiencies as well as their general inappropriateness in relation to the claims for greater legal protection in respect of intangible cultural heritage. IPRs seem to be an unsatisfactory foundation on which to build a viable cultural heritage legal edifice. Rather than try to fit the justifiable claims of traditional communities into legal property rights categories that were not designed to accommodate their essential characteristics, our proposal is to focus on those aspects of communities’ claims that can be addressed outside the IPR regimes of patent and copyright. We have found that traditional concepts of Western law, privacy, trade secrets, trademark, and contracts can take us a long way in the desired direction. At the same time, it is undeniable that the current IPR system can be relevant for the protection of some expressions of intangible cultural heritage, although this alone is not sufficient. It is thus crucial to elaborate a sui generis system of protection capable of meeting the heterogenic needs of respective communities, each with their own peculiarities, cultures, and resources, and to create legal rights that not only protect against the perceived abuse of cultural heritages, but that also protect, at least in principle, anyone who can satisfy its requirements. Cultural heritage rights developed on this basis will have enhanced credibility and compatibility with existing property rights and liability systems.

Moreover, some communities may oppose any commodification (or reification) of their cultural heritage, and thus perceive the application of IPRs over their intangible cultural heritage as inferring such commodification. Some commentators warn that the assertion of property concepts in intellectual property to intangible cultural heritage may prompt a transformation even of the social relations underlying the creativity processes in traditional communities where the heritage is generated. The extreme cases are arguments such as that IPR claims by individuals could deeply modify the relations of exchange and reciprocity vital to the communal genesis of intangible cultural heritage (Anderson 2009).

Taking a middle course, an alternative future framework could be expected, where specific types of IPR or sui generis protection might be shaped to furnish some means of legal protection for cultural heritage and related expressions, while also strengthening underlying traditional practices and social relations. In order to pursue this scenario, the International Institute for Environment and Development remarks that the protection of intangible cultural heritage would need to embrace various aspects of the communities where the heritage is created, and be grounded in a more integrated comprehensive approach, also taking into consideration customary principles and practices of those communities (Swiderska et al. 2009). Intangible cultural heritage results from social relations, and its protection must take into account that it represents a process which is subject to continuing evolution, stemming from heterogenic considerations and aspirations in human development, and pursuing a plethora of societal functions.

Tort of Cultural Misappropriation in the Context of the Information Society

The application, interpretation, and enforcement of protection against misappropriation of traditional knowledge, along with determination of equitable sharing and distribution of benefits, should be conducted with appreciation for the customary practices, laws, norms, and understandings of the holder of the heritage, comprising the sacred, spiritual, or ceremonial features of the traditional genesis of the heritage as influenced and modified by the inner peculiarities of the current Information Society.

A typical feature of the Information Society, as Michael F. Brown remarks, is its tendency to carve out the performative content, that is, images, sounds, practices, and information, from their original context and relocate them elsewhere. This phenomenon, generally referred to as “cultural appropriation,” has triggered a debate addressing the movement of cultural elements from the politically weak to the politically strong actor on the global stage. Conversely, appropriation of cultural expressions by the weak (e.g., the manifest violation of copyright on popular music and film widespread in the developing countries) is either overlooked altogether or praised as an act of cultural resistance (Coombe 1998). Cultural appropriation is detrimental and disrespectful of the cultural values of the source community where the heritage originates, which rarely has sanctioned the imitation of its cultural expressions by outsiders. Moreover, it exposes that social group to material harm, not granting its legitimate economic gain, or by menacing shared understandings crucial to its social health.

Cultural expression has been targeted by misappropriation, modern-day cases of which encompass, inter alia, the employment by non-indigenous people of native symbols, songs, dances, words, and other forms of cultural expression (Coombe 1998). Cultural misappropriation is thus far beyond deprivation of mere economic gain, representing rather a sort of human rights abuse or, at least, an offense to the community’s self-respect and identity. The tort of misappropriation is centered on economic rights and losses, whereas cultural appropriation claims go beyond these objectives and cannot be contended with merely economic remedies. In this vein Carlos Correa proposed a misappropriation regime which would allow national laws to determine appropriate measures to avoid misappropriation (including the obligation to stop using knowledge or to pay compensation for such use). In his view, “this regime should have three important points: documentation of traditional knowledge, proof of origin or materials, and prior informed consent” (Correa 2002).

Implicit support to protect against misappropriation is found in two United Nations documents: Decision V/16 of the CBD’s Conference of the Parties, and the Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples. Specifically, Paragraph 17 of Decision V/16 of the CBD’s Conference of the Parties states:

Request[ed] Parties to support the development of registers of traditional knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity through participatory programmes and consultations with indigenous and local communities, taking into account strengthening legislation, customary practices and traditional systems of resource management, such as the protection of traditional knowledge against unauthorized use.

On the other hand, the Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples, elaborated in 1995 by the Special Rapporteur of the former UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, provides in paragraphs 26 and 27 the following:

National laws should deny to any person or corporation the right to obtain patent, copyright or other legal protection for any element of indigenous peoples’ heritage without adequate documentation of the free and informed consent of the traditional owners to an arrangement for the sharing of ownership, control, use and benefits. National laws should ensure the labelling and correct attribution of indigenous peoples’ artistic, literary and cultural works whenever they are offered for public display or sale. Attribution should be in the form of a trademark or an appellation of origin, authorized by the peoples or communities concerned.

Similarly, the WIPO (2011) draft provisions for the protection of traditional knowledge contain a provision on protection against misappropriation. Article 1 (2) (Protection against Misappropriation) states:

Traditional knowledge shall be protected against misappropriation. Any acquisition, appropriation or utilization of traditional knowledge by unfair or illicit means constitutes an act of misappropriation. Misappropriation may also include deriving commercial benefit from the acquisition, appropriation or utilization of traditional knowledge when the person using that knowledge knows, or is negligent in failing to know, that it was acquired or appropriated by unfair means; and other commercial activities contrary to honest practices that gain inequitable benefit from traditional knowledge.

Intangible cultural heritage holders should also be safeguarded vis-à-vis other acts of unfair competition, inter alia, those named in Article 10-bis of the Paris Convention for the Protection of Industrial Property, such as false or misleading representations that a product, service, or expression is supplied with the approval of traditional cultural heritage holders, or that the commercial exploitation of products, services, or cultural expressions profits holders of cultural heritage (Bodenhausen 1968). Proper attention must be given to acts susceptible of creating confusion with a product or service of intangible cultural heritage holders, as well as to false allegations in the course of trade which discredit the products or services of traditional knowledge holders.

In the light of the above, while respect is particularly hard to impose by legislative measures, legal safeguards can be developed to foster protection for minorities from evident discrimination. Hence, analyses of cultural appropriation focus on the issue of material damages and promotion of legal reforms aiming at compensating communities for such offences and, when possible, at preventing them in the first place. Redressing civil wrongs related to intangible cultural heritage raises further issues concerning intellectual property, tort law, and debate on the notion of cultural ownership (Wüger 2004).

The Information Society Conundrum and the Convention for the Safeguarding of Intangible Cultural Heritage

The ICH Convention represents a fundamental effort toward the protection of intangible cultural heritage and related expressions. The Convention envisages a wide range of legal tools “aimed at ensuring the viability of intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, and transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage” (Scovazzi 2010, 2012; Zagato 2008; Blake 2002; Lankarani 202). The ICH Convention is to be evaluated in the context of UNESCO’s endeavors to promote global information democracy and to assure the right of sovereign nations to defend their cultures against unwanted external, and possibly harmful, influences.

One of the main flaws of this legal instrument is that its terminology, language, and envisaged measures are shaped on the very Information Society practices they are manifestly tackling and challenging. As Michael F. Brown observes, the convention “portrays intangible heritage as an objectified resource amenable to modern management techniques” (Brown 2005). He further argues that, in such a legalistic vision, heritage cannot be protected until it is thoroughly documented. Accordingly, the ICH Convention promotes the preparation of “one or more inventories of the intangible cultural heritage present in [each nation’s] territory.” This nevertheless requires a monumental documentation effort which seems unlikely to be feasible, in particular considering vast or outstandingly multi-ethnic states such as Peru, China, India, and Papua New Guinea. Assessing the efficacy of documentation in the preservation of intangible expression of cultural heritage, commentators agree on the fact that, in spite of the several national initiatives aiming at using electronic resources to address the loss of local cultural expression, numerous doubts arise on the desirability and adequacy of such “technocratic and top-down approaches.” In particular, one shortcoming is the frailty or ephemeral nature of digital media forms, which continuously undergo change (Stille 2002). Furthermore, the Information Society and its major social force and tool, the Internet, advocate for a concept of knowledge that must be recorded by outsider individuals in order to preserve it from loss, in contrast with the protective and secrecy-oriented attitude of many traditional communities (Harding 2000; Brown 2003), who fear that documentation of their non-physical intangible heritage merely facilitates its exploitation, rather than protects it.

On the other hand, the WIPO has supported the technique of online “prior art databases” to counteract the drawbacks of the Information Society vis-à-vis the necessity to provide protection for intangible cultural heritage through IPRs (WIPO n.d.). The underlying rationale of the databases is to disclose and publish traditional pharmacopoeias in order to prevent patent applicants from claiming they have discovered something novel.

Concluding Remarks

Numerous doubts arise from our assessment of the relationship between the Information Society, intangible cultural heritage, and its potential protection through IPR regimes, either as currently constituted or as modified to create a sui generis system providing effective protection to this peculiar type of cultural expression. Commentators have striven to strike a balance between heritage as a resource for all of humanity and as something that properly belongs to, and remains controlled by, its communities of origin (e.g., Brown 2005). Modern policies generally consider cultural heritage to be common heritage of all humankind, while contrastingly attempting to subtract much of this heritage from the global commons and privatize it in the communities where it is generated, and where it may be regarded as communal property. Issues regarding the role of IPRs and their rationale come into play at this stage in the matter. The underlying policy grounds for conceding exclusive IPRs stems from the public goods issue, that is, that the unsuccessful attempt to safeguard intellectual creativity would result in fewer inventive and socially advisable works being created and disclosed to the public, since the initial effort required for producing cultural expressions is much greater than that for merely copying cultural expressions already existing. On the other hand, an overly strong or long protection would have a detrimental effect on the social availability of desirable works, because later authors and inventors depend and build upon works that have come before them (Arizpe 2002). The final objective of the IPR regime is to equilibrate these two forces, in order to take full advantage of the works made available to the public.

A public domain characterized by cultural internationalism can only thrive if minority cultures withstand cultural globalization and a finer equilibrium of openness and discretion is pursued. In this vein, Tyler Cowen defined the notion of the “paradox of diversity” thus: “[T]he world as a whole may be more diverse if some societies refuse to accept diversity as a value. Those cultures will continue to generate highly unique creations, given their status as cultural outliers” (Cowen 2002). Vice versa, generalized diversity may lead to further uniformity because of the cultural mixture that it ineluctably brings forth (Coombe 2003).

As we have shown in our analysis, the protection of intangible cultural heritage has mainly been centered on the role of IPRs, in particular focusing on the expansion of IPRs and sui generis regimes to traditional communities. The desirability and adequacy of the proposed solutions vary, and the complexity of this matter is increased by the difficulty faced when attempting to specify what amounts to intangible culture in the first place, especially in light of the continually changing content of heritage. Heritage protection and preservation should constitute a measure to promote societies in which minority communities have a voice in decisions about their future, and where they can attain the same prosperity available to everyone else. To this end, cultural heritage is as crucial to their well-being as public health, education, human rights, and self-government. The complex modern Information Society cannot avoid adopting a comprehensive approach vis-à-vis the multifaceted issues which characterize the matter of intangible cultural heritage, taking into account that the fragile equilibrium between technology innovation and cultural expression can be achieved by legal instruments, provided that the balance is continuously fine-tuned.

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