11.30 Cultural Heritage, Human Rights and Intellectual Property Law: Does Three Make a Crowd?
Cultural Heritage appears in both tangible and intangible forms and in many cases, it is difficult to separate the two. What role do intellectual property rights take in the human rights lens of intangible cultural heritage? As seen throughout much of the discussions permeating from two decades of negotiations at the World Intellectual Property Rights regarding traditional knowledge and traditional cultural expressions, there are clear disagreements as to overlapping yet distinct interests, rights, language and concepts. How can intellectual property rights be reconciled with the purpose and intent of the human rights and the recognition of cultural heritage and as a fundamental component of human rights?
In the 28th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Draft Report, reconciling rights for traditional knowledge and traditional cultural expressions the Representative of the Tulalip Tribes noted that cultural heritage pre-existed intellectual property systems and that the subject matter was quite different and should be considered as such. He asked whether the “public domain,” otherwise a concept stemming from intellectual property discourse could also be applied to cultural heritage and human rights.
This paper will examine the current intersection of intangible Indigenous cultural heritage, international human rights, and intellectual property rights in light of broader global human rights narrative, and in particular, Canada’s current narrative. In attempting to reconcile these themes, my paper will seek to answer whether it is detrimental to link intellectual property rights within the human rights framework for the protection of Indigenous cultural heritage and to answer “what does heritage change?” when rights are linked to cultural heritage.