Areas of Practice - Cultural Property
Cultural Property is a different form of intellectual property than the rest. All other forms of intellectual property start with an identifiable, at least in theory, originating author, the one who creates the work and takes an initial creative and/or possessive ownership of the work. Cultural property differs from this mold in that the one who makes it doesn't create for a personal reason but is contributing to the culture at large of which the creator is merely a member.
There aren't the usual ownership/authorship issues of intellectual property concerns with cultural property and therein lies the rub. All intellectual property laws are keyed on determining, protecting and rewarding the "author" of the work. With cultural property there is no individual author in the IP sense. So all the rules that govern who can control the work and for how long don't fit the cultural property mold. The laws on the books clash with cultural issues and legal remedies often fall far short of equitable resolutions where cultural heritage and protection are concerned.
It might help to envision what cultural property is by giving a few examples. In the British Museum there is a collection of statuary and stonework that was originally part of the Parthenon. These historic and very beautiful artifacts have fascinated and frustrated historians for centuries depending on which country the historian is from. The Greeks call the items the Parthenon Sculptures and believe that the works should be returned to Greece, their rightful home for preservation and display. The British, who call the works the Elgin Marbles after Lord Elgin who acquired the works during an expedition to Greece from the ruling Turks long, long ago have a differing opinion. They maintain that the pieces were legally acquired according to the state in charge at the time and the laws in place then. They also resolve that by statute, once art or artifacts are placed within the British Museum's collection they can never be removed for any reason. It would take an act of the British Parliament to make a change to that protective status. Both countries claim the works have cultural significance to their respective constituents and both sides have strong arguments in their favor in those claims. The works are one of the most visited exhibits in the Museum and have been for nearly the Museum's entire existence. And the Greeks have the obvious interest in preserving and restoring everything they can representative of their rightful place at the birthplace of western culture. The centuries long debate will not be resolved easily.
Cultural property does not have to be property over which an entire state seeks ownership. It can be separate cultures within states that have claims to property as well. My favorite example is the sand art of certain sects of Buddhist monks. These monks work for weeks creating intricate designs in sand on a table as part of a religious ceremony. The images are sacred to them and photography or replication of the designs is highly offensive to the beliefs and intents of the practitioners. Once the painting is completed the monks require that the piece be swept away and destroyed with no remnants except in the memories of those who've participated in the ritual. No individual monk has the right to vary from tenets of the ritual. None of the participants are the "authors" of the works they create. When confronted with the mandates of museums and art establishment types there is a dilemma. The reasons for museums are for the preservation of culture in all its forms. But what are they to do with a type of art whose very nature requires its destruction and prevents all forms of preservation? With so few practitioners creating this art there is a real danger that it could be lost forever. Preservationists or priests, whose claim is stronger?
There are nearly as many examples of cultural property conflicting with the artifices of society usually built up to deal with intellectual property as there are cultures. The lack of definitions abound as well as the lack of procedural and legal ways of dealing with conflicts.
Cultural property law is only in its infancy in most countries with the United States trailing far behind the most progressive states. For example, Italy and Greece have passed legislation that prohibits the possession of cultural heritage objects from their ancient past from being taken out of the country or possessed by individuals anymore. There are very few cultural property specific laws in the United States. One of the very few is a limited protection for Native American burial objects found in certain limited places, (Native American Graves Protection and Repatriation Act (NAGPRA)). Even the few laws that do exist have massive holes in interpretation that lead to long and complex lawsuits. (Look up references to the case of the "Kennewick Man" for an example of the complexities of the issue and the vagueness of the current law.)
I have a keen interest in the areas of copyright that deal with authors and authors' rights. Because of this cultural property fascinates me because of its lack of such an essential element. I have attempted to explore ways of addressing this fundamental difference between intellectual property and cultural property so as to use legal resources currently available in a manner that does justice to the ideals of cultural property while helping to shape the thinking and creation of new legislation in order to better address this new and vital area of law in order to serve the most judicially appropriate ends. I do not know what the future will bring to this area of law, but, I find myself keenly drawn to it and will keep abreast of any developments with great interest.