Cultural Relics, Intellectual Property, and Intangible Heritage

In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken together, all of these conventions, declarations, laws, and policy discussions have helped establish a new international framework for the protection of intangible cultural heritage. As part of the Law Without Borders: Current Legal Challenges Around the Globe Symposium, this article disaggregates intangible cultural heritage into its two components: intangible heritage and cultural heritage. The article explores the similarities and differences between the protection of cultural relics and that of intellectual property. It then examines eight different objectives for establishing the new framework. It also discusses four different challenges confronting the implementation of this framework: (1) the mode of protection; (2) the power to define protectible subject matters; (3) the means to identify those materials; and (4) the justifiability of international intervention. The article concludes by revisiting a crucial similarity between the protection of cultural relics and that of intellectual property - the need for enforcement and the related challenges. It suggests that countries with significant problems in both areas are likely to provide rich and fertile grounds for future research