Intellectual Property and the Protection of Intangible Cultural Heritage: Emerging Themes and Challenges in Transboundary and Diaspora Contexts

As you may recall, we were organizing a session at the Association of Critical Heritage Studies which took place in China. This was held in early September, 2018 and I have now took the time to write a report on this.

The aim of the session was to examine the relationship between IP and ICH and to look at the intersection of IP and ICH policies. The five speakers had a background in IP with an interest in ICH. Papers were brilliantly presented: covering from copyright to GIs, and from patents to sui generis rights. Moreover, the papers covered different regions and or countries, which was indeed a bonus.

1. Starting the session I talked about ‘ICH Safeguarding and IP Protection: Are they sufficient to knit a future for the Aymara’s weavers’. The aim was to examine the five-year project (presented by the Aymara’s people to protect and safeguard their TK) that was supported by UNESCO. Putting aside the debate that continues to exist of whether IP or sui generis right is the best way to protect, the purpose was to look at how IP can be of use in the protection and safeguarding of Aymara’s handicraft. The case studied was selected as the Aymara’s people has managed to work very well together, considering that they are situated in Bolivia, Chile and Peru. How IP will work in a transboundary situation was discussed by examining Pisco, a GI in dispute between Chile and Peru, and how they individually negotiate this GI with other countries when signing trade agreements.
2. Prof Gyooho Lee title was ‘How to make creative transmissions possible under the intangible cultural heritage law in Republic of Korea’. Starting with a few examples of some national ICH he focused on the Pasnori (Epic Chant) which is one of the Korean ICH inscribed on the UNESCO list. Then he went on to examine the Korean Cultural Property Protection Act noting that ‘the preservation and promotion of ICH’, according to the Act, should be stipulated by separate Acts. An interesting fact was to learn that in Korea, ‘transmission’ of archetypes are to be regarded as the key factor for the government to approve cultural heritage as intangible cultural property.The differences between Intangible Cultural Property (Domestically) and Intangible Cultural Heritage (Implementing UNESCO Convention) were covered, remarking the debate on owners vs holders (individual or collective). To finish up he put forward the legal challenges such as the transparency of processes; the scope of terms; and finding the right balance between ICH and IP; to name a few.
3. Prof Pamela Andanda spoke about ‘Protecting transboundary traditional medical knowledge in southern Africa through community codes and protocols’. This paper not only covered the definitions and procedures but also covered the current IP gap in protecting & safeguarding TMK. She based her talk on case studies such as ‘the Biocultural Protocol of the Traditional Health Practitioners of Bushbuckridge’ and the ‘San Code of Research Ethics’, raising the importance of valuing prior informed consent, pointing out to ‘always to enter through the door rather than the windows’. The five values reflected in the Code of Ethics: respect; honesty; justice and fairness; care; and process, should work for every case and likewise, shall be considered in any project. At the end, as she clearly stated, we are working on cultural heritage ‘with’ a community rather than ‘on’ the community.
4. Dr Peter Harrison made powerful statements and facts about the pharmaceutical industry (which Prof Andanda was eager to discuss and exchange ideas). His presentation was on ‘Tangled Webs, Blurred Lines and Distal Horizons. Investigating the Justifiable Downstream Limits to the Positive Protection of Traditional Knowledge Associated with Genetic Resources (TKAGR): The Impact of Treating TKAGR as Intangible Cultural Heritage?’ The flowchart on the pathway of knowledge through drug discovery was very helpful as one became aware of the complexity of downstream and how this may be underestimated during negotiations. The research looks at to establish if a discovery linked to TK (no matter how distal it is) by a chain of causation is sufficient to merit a veto over its use.
5. On closing, Prof Christoph Anton talked about ‘Intellectual Property and the Business of Intangible Cultural Heritage in Asia: Cross-Border Disputes and Community Concerns’. His attention was on the economic opportunities that has flourished with ICH and how this had recovered the debates on ownership, benefits’ sharing and ‘appropriateness’. He covered the potential of IP for some ICH but also looked at the other side of the coin, that is, the limitations of IP. An interesting point put forward was that, the local plant varieties on Indonesia are owned by the community but controlled by the State. With this in mind, we all think about benefit sharing especially if this policy works in countries where there is high corruption.

If you are interested in any of this papers and debates, please contact the corresponding author:
Dr Patricia Covarrubia, The University of Buckingham, UK
patricia.covarubia@buckingham.ac.uk
Prof Gyooho Lee, Chung-Ang University School of Law, Seoul, Republic of Korea
cion2004@hanmail.net; ghlee@cau.ac.kr
Prof Pamela Andanda, University of the Witwatersrand, Johannesburg, South Africa
Pamela.Andanda@wits.ac.za
Dr Peter Harrison, University of York, UK
peter.harrison@york.ac.uk#
Prof Christoph Antons, The University of Newcastle, Australia
christoph.antons@newcastle.edu.au

 I wish you would have been there. Hangzhou, Sep 2018