Megan Blakely (University of Glasgow), “From Museums to Murals: Community Participation and Copyright in Public Art”
It is notoriously difficult to design and attach suitable legal rights to intangible cultural heritage (ICH), due to its nature as an evolving, living heritage. This article investigates the effects of domestic government intervention relating to Celtic-derived ICH in order to trace the relationship between formal proprietary rights, commodification, and cultural branding. Further, the converse effect of the resulting propertisation and commercialisation on these intangible cultural heritage practices will be examined, and intangible cultural heritage as a living, evolving practice by communities and legal methods, specifically related to intellectual property, will be emphasised. As the majority of existing research and legal protection efforts focus on knowledge production in developed countries (e.g., the Agreement on Trade-related Aspects of Intellectual Property) and culture production in developing countries, the focus here will be on cultural production and legal protection in developed countries – specifically countries with Celtic-derived cultures and recent or current geopolitical ties with a union, through the lens of comparative case studies.
The case studies comparison explores how intangible cultural heritage can become propertised into exclusionary monopolies through automatic legal mechanisms of international and domestic intellectual property law and, further, whether this effect is intended by legal regulation and beneficial to cultural practices. The article proceeds by examining three relevant instances wherein countries applied diverse regulation to ICH and overlapping intellectual property: (1) Scottish tartan regulation, starting from the historical context, subsequent self-regulating community tartan registers, and the 2009 governmental intervention with the establishment of a governmental tartan register, subsuming the community groups’ role in self-regulating tartan; (2) Welsh language and festival revival, with a focus on how the ground-up ICH revitalisation – such as the Eisteddfod Genedlaethol Cymru, a traditional festival celebrating Welsh language and traditional culture, as well as contemporary ICH manifestations – influences and, in rarer cases, drives law and policymaking related to historically influenced, evolving cultural practices; and (3) Irish efforts to promote tourism through cultural branding and financial incentives to citizens during The Gathering, creating unique intellectual property from community ICH, including trademarked colour and font as well as standardised marketing packs for ‘what it means to be Irish’. It is of note that none of these countries are currently parties to the 2003 Convention for the Safeguarding of Intangible Cultural Heritage nor the 2005 Faro Convention on the Value of Cultural Heritage for Society, so these efforts at ICH regulation are operating without the benefit of organised international listing and consultation under the treaties. However, Ireland is will join the 2003 Convention in 2016.
ICH is reflective and responsive to the identity of collective groups. These are cultural practices, not usually the creative, original artistic or literary work of an identifiable author and, thus, are outside the scope of intended copyright protection. Nonetheless, as copyright protection arises automatically upon fixation, ICH can be carved out, intentionally or not, to the new exclusive owners of the ICH, backed by legal authority. The effects of authority on ICH can be seen in myriad cultural practices. For instance, in Wales, consider the authority to implement minority language bans, leading to a lack of copyrightable literary and artistic works from that cultural group during that period. Conversely, new IP rights may be automatically assigned to a non-practicing individual during attempts to protect and document ICH. While many of these practices far too old and collective for copyright, they can still gain limited protection due to the required fixation. It is under-explored examples like this that make the closer study of the interplay of authority, IP and ICH worthy of further examination
While past ICH protection efforts have focused primarily on developing countries, these examples raise wider concerns about the social and economic impact of the subtle erosion or, conversely, the ossification of living heritages. Some alternatives are also considered within the intellectual property regime, such as geographical indications and related sui generis protections, while highlighting the challenges of reconciling the domestic regulation of diverse ICH in an increasingly propertised legal framework.
Next, the article will draw from the similarities in these examples to further explore the particulars of the process by which intangible cultural heritage becomes sufficiently tangible for intellectual property protection and how this saleable form is encouraged actively through financial reward and passively through automatic legal processes. This heighted ‘tangification’ can result in the practicing communities’ detachment from commercialised versions of ICH, homogenisation through globalisation, and stagnation through legal fixation. This is especially worthy of note as the process results in a more subtle erosion of ICH in developed countries rather than the more urgent safeguarding issues in some developing countries. Lastly, the article recommends an evidence-based approach to determining whether intellectual property is not only properly creating incentives through exclusive monopolies but whether these enclosures are proper and beneficial to ICH. This article aims to emphasize the unifying power of ICH as opposed to furthering the gap between cultures perceived to be ‘knowledge producing’ or ‘culture producing’, as well as highlighting the challenges of reconciling the domestic regulation of diverse ICH in countries typically less geared at ICH safeguarding. Moreover, more ubiquitous global ICH recognition and protection, rather than geopolitically divided foci, would benefit both creative intellectual production as well as cultural practice.