Archives and Museums: Balancing Protection and Preservation of Cultural Heritage
Museums, archives, libraries, anthropologists and ethnologists play an invaluable role in preserving the rich cultural heritage of our planet. By recording and making available the music, arts, knowledge and traditions of indigenous communities, such institutions help to spread a broader understanding and respect for different cultures. However, some traditional communities are beginning to voice concerns that sometimes activities by museums and cultural specialists do not take adequate account of their rights and interests; and that documenting and displaying, say, a traditional song or a tribal symbol, make them vulnerable to misappropriation.
How can museums strike a balance between the preservation and the protection of cultural documentation? And how can the wider public have greater access to the rich collections housed by archives and museums? Traditional communities and cultural institutions have begun to seek intellectual property (IP) information and advice in relation to these questions. Greater clarity on how to identify relevant IP issues and options could benefit all stakeholders. This article outlines a few of the key questions and describes WIPO activities aimed at addressing them.
The ethnographic collections of museums and other institutions often include invaluable, even unique, records of ancient traditions, lost languages and community histories, which are vital to indigenous peoples’ sense of identity. The handling of secret and sacred materials within such collections can be a source of particularly acute concern. Indigenous peoples also cite numerous cases in which commercial users have exploited cultural heritage collections without seeking the consent of the relevant community, let alone acknowledging the source or sharing the commercial benefits. Some popular world music albums, such as “Return to Innocence,” included samples of traditional music that had originally been recorded and made publicly available for heritage preservation purposes.
In the words of expert Henrietta Fourmille, (Centre for Indigenous History and the Arts, University of Western Australia), the crux of the problem from an indigenous perspective is that the “information collected about us is simply not owned by us.”
This introduces questions about the role of IP law, policy and practice in activities aimed at preserving cultural heritage. Such questions arise for museums, libraries, archives and galleries in relation to their collections of original works, as well as derivative databases, catalogues, coffee-table books and postcards, etc. IP issues become more pressing as they set up digital libraries of their collections.
Traditional cultural materials
The “public domain” character of traditional cultural expressions (folklore), which has been the subject of criticism especially by indigenous peoples, raises interesting and challenging issues. For example, while a traditional song may be treated by IP law as in the public domain, recording that song creates IP rights in the recording. To whom do these new rights belong, and how should they be managed in ways that take into account the interests of the community in whom the custody of the song had been entrusted under customary laws?
Further questions to consider include:
- What IP rights do researchers and cultural institutions hold? And how can these rights be best managed in the interests of safeguarding culture, promoting cultural diversity, fostering creativity and cultural exchange, and facilitating the public’s access to and enjoyment of diverse cultural expressions?
- Which existing IP rules and practices can assist researchers and cultural institutions in fulfilling their mandates? (This might include tailored licensing approaches, or use of specific copyright and related rights exceptions and limitations.)
These issues arise frequently in practice. The Toulumne tribe of California recently used copyright laws to stop the sale of CDs and videos of its sacred dances. There are other cases in which recording a piece of traditional art, and exercising IP rights in that recording, has helped to protect the original work against misuse (see box).
But exercise of IP rights may not always be the answer. The point is to step back, identify objectives and determine an overall strategy which takes into account the range of IP-related issues and options.
|Using a researcher’s records to protect indigenous rock art|
In Australia in 1997, t-shirts began appearing in the market depicting images from indigenous rock paintings found in the Deaf Adder Creek region. These rock art paintings have special cultural significance to Australian indigenous life and custom.
The indigenous custodial group had no remedy under copyright against the t-shirt manufacturers, as the original artist was unknown, and the paintings were so old that any copyright would have expired. However, drawings and photographs of the rock art images had been published by a researcher funded by the Australian Institute of Aboriginal Studies, Eric Brandl, in 1973, thus creating new copyright. It was from this publication that the t-shirt manufacturers had apparently copied the images. With the help of the Institute and the Brandl family, the indigenous group was able to get the t-shirt company to stop production, claiming infringement of copyright in Brandl’s drawings and photographs.
To read the full case study, compiled for WIPO by indigenous lawyer Ms.Terri Janke, see Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions, (WIPO Publication No. 781).
WIPO is working with the stakeholders to respond to a widely-expressed need for technical information on these issues. A current project aims to develop a set of IP‑related “good practices”, practical guidelines and other resources for cultural specialists, indigenous communities, creators and users. Such resources may also benefit institutions establishing inventories of intangible cultural heritage, as provided for under the recently-adopted United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on Safeguarding Intangible Cultural Heritage. The UN Permanent Forum on Indigenous Issues has recommended development of these kinds of resources.
Many institutions already have policies on research, collection and preservation, as well as codes of ethics. Indigenous declarations also address these questions. Few existing resources, however, address IP issues in detail, nor questions related to the treatment of traditional knowledge and cultural expressions. A first step in WIPO’s project, therefore, is to gather and publish, in a searchable online database, examples of existing materials, including relevant copyright provisions.
Clarifying IP issues and options in relation to safeguarding cultural heritage should help strengthen synergies between the protection of cultural documentation and its preservation, while contributing towards the respect for traditional cultures. All stakeholders stand to benefit from equitable and secure access to the collections of museums and archives, facilitating a wider exchange of cultural expressions between the peoples and communities of this culturally rich and varied world.