Intangible Cultural Heritage, Intellectual Property and the Public Domain

The purpose of this contribution is to examine ‘the public domain’ with particular reference to the use of the concept of misappropriation within the context of ICH and commercialisation of ICH. This discussion will add to the academic debate on the complexities that can and do arise when the regimes of IP and ICH collide. The differences in philosophical underpinnings and economic objectives of the IP and ICH regimes have been repeatedly highlighted by scholars.

[IP] is based on the individualism of private law and intrinsically future-oriented in its focus on innovation. Heritage law instead has no economic objectives, being based on public law and thus centring on public (rather than individual) interests and conceiving heritage as defined by a relationship with the past (Lixinski 2020). The two regimes are particularly at odds relative to the actual object of their protection: while IP instruments aim to protect the products of a given cultural practice, the ICH Convention focuses on the social and cultural processes themselves (Bortolotto 2007).

The argument is that while the aim of using the IP concept of misappropriation within the context of ICH at the conceptual level may be to stop third parties taking from ‘the public domain’, the effect can be to threaten the processual nature of ICH through ascribing to ICH, by implication, a quasi-property right. While this elision of concepts can cause challenges at the regulatory level, on a practical level IP can be used as a tool by communities without commodifying their ICH. This will be illustrated by reference to thinking about the public domain as it emerged and developed within the project team during a British Academy funded interdisciplinary project ‘Celebrating local stewardship in a global market: community heritage, intellectual property protection and sustainable development in India (HIPAMS for short (Heritage Sensitive Intellectual Property and Marketing Strategies)). The central research question for the project was: how can marketing and intellectual property help marginalised communities harness their intangible cultural heritage to contribute to sustainable livelihoods? Two sub-questions with the linking thread of the public domain emerged: would claiming IP rights in (contemporary) ICH artefacts have implications for the processual nature of ICH? and, how might IP help communities address misappropriation?