Museums, archives, libraries, anthropologists and ethnologists play an invaluable role in preserving the rich cultural heritage of our planet. By recording and providing access to the music, art, knowledge and traditions of indigenous communities, these institutions help to spread a broader understanding and respect for different cultures. However, some traditional communities are beginning to express concern that the activities of museums and cultural professionals sometimes do not adequately address their rights and interests; and that documenting and displaying, say, a traditional song or tribal symbol makes them vulnerable to misappropriation.
How can museums find a balance between preserving and protecting cultural documentation? And how can the general public gain greater access to the rich collections held in archives and museums? Traditional communities and cultural institutions have begun to seek intellectual property (IP) information and advice on these issues. Greater clarity on how to identify relevant IP issues and options can benefit all stakeholders. This article outlines several key issues and describes WIPO’s activities to address them.
The ethnographic collections of museums and other institutions often contain invaluable, even unique, records of ancient traditions, lost languages and community histories that are vital to indigenous peoples’ sense of identity. The treatment of sensitive and sacred materials in such collections can be a source of particular concern. Indigenous peoples also cite numerous instances where commercial users have utilized cultural heritage collections without seeking the consent of the community concerned, let alone acknowledging the source or distribution of commercial benefits. Some popular world music albums, such as Return to Innocence, have included samples of traditional music that were originally recorded and made public for heritage preservation purposes.
According to expert Henrietta Formille (Center for Indigenous History and Art, University of Western Australia), the essence of the problem from the perspective of indigenous people is that “the information collected about us simply does not belong to us.”
This raises questions about the role of intellectual property 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, catalogs, journal books and postcards, etc. Intellectual property issues become more relevant when they create digital libraries of their collections.
Traditional cultural materials
The “public domain” nature of traditional cultural expressions (folklore), which has been the subject of criticism, especially by indigenous peoples, raises interesting and complex issues. For example, while intellectual property law may consider a traditional song to be in the public domain, a recording of that song creates intellectual property rights in the recording. Who owns these new rights, and how can they be managed in a way that takes into account the interests of the community that has been entrusted with the custody of the song under customary laws?
Additional questions to consider include:
What intellectual property rights do researchers and cultural institutions have? And how can these rights best be managed in the interests of cultural preservation, promoting cultural diversity, fostering creativity and cultural exchange, and facilitating public access to and enjoyment of diverse cultural expressions?
What existing intellectual property rules and practices can help researchers and cultural institutions fulfill their objectives?
These questions often arise in practice. The Tulumne Tribe of California recently used copyright laws to stop the sale of CDs and videos of their sacred dances. There are other cases where the recording of a work of traditional art and the use of intellectual property rights to that recording helped protect the original work from misuse