Cultural Heritage: Applicability of Intellectual Property Systems

This article was originally published in the June/July 2024 issue of Landslide, by the American Bar Association, and is republished here with permission.

Innovation, creativity, and resourcefulness drive the desire to preserve and protect both cultural heritage and intellectual property (IP). Understanding the commonalities between these fields rationally gives the impression that the two could fall under a common set of laws and policies. As further discussed below, IP systems are designed and developed to balance the interests of innovators and the wider public interest to benefit from such creations. Related public versus private interests also lie at the heart of cultural heritage laws. This article provides a framework of IP and cultural heritage systems to explore briefly how cultural heritage does not easily fit under existing IP rights, although there are routes for protection available in some cases.

Cultural Heritage

Cultural heritage refers to the various manifestations of culture that have been inherited by a group or society. This includes tangible cultural heritage, which are “artefacts, monuments, a group of buildings and sites, museums that have a diversity of values including symbolic, historic, artistic, aesthetic, ethnological or anthropological, scientific and social significance,”¹ 1 as well as intangible cultural heritage, which is an amalgamation of the “practices, expressions, knowledge and skills that communities, groups and sometimes individuals recognize as part of their cultural heritage.”²

Cultural property is often limited to tangible (material) objects and intangible ideas related to such objects. This narrower definition also has ties to legal concepts of property. Under traditional understandings of cultural property, cultural activities, traditional cultural expressions, and traditional knowledge such as folklore, festivals, rituals, and oral traditions were excluded, but they are frequently included as cultural heritage. While the terms “cultural property” and “cultural heritage” are often used interchangeably, they are not identical and have complex sociopolitical and legal backgrounds.³

The term “cultural property” was originally used in international policy in the context of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. However, the term “cultural heritage” is found more often in later conventions, including the 1972 UNESCO Convention Concerning the Protection of World Cultural and Natural Heritage and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Further distinctions between the types and nature of cultural heritage have been expounded over the years.⁴

The various definitions represent an ongoing balancing of interests between stakeholders. On one side, certain nation-states favor a broad definition of cultural objects. The other end of the spectrum is typically touted by those with commercial stakes in cultural objects, as narrow definitions restrict the number of protected objects and thus limit the impact on free trade in the art market.⁵

Intellectual Property

IP generally refers to legal mechanisms that protect intangible property rights, traditionally consisting of patent, copyright, trademark, and trade secret protection. The U.S. Office of Intellectual Property Enforcement touts that America’s strong IP rights system “assures inventors, industrial designers, and creative artists that their ideas will be protected” so that they can “receive payment for the use of their creations and continue to invest in future innovations.”⁶ Added benefits are that creators are “incentivized to make their innovation available to others, and share knowledge that enables others to come up with other novel and advanced solutions.”⁷

Each form of IP and its applicability to or shortcomings with respect to cultural heritage is outlined below.

Copyrights

Copyright protects “original works of authorship as soon as an author fixes the work in a tangible form of expression.”⁸ Copyright protects the physical expression of ideas but not the ideas themselves or any factual information.

Although the bar for originality is relatively low, it is still an essential element for copyright protection. This poses issues for cultural heritage, particularly for intangible cultural heritage as many such literary and artistic productions are passed down, often unchanged, through several generations. In some cases, novelty is restricted because such art or literature has a historical or religious function.⁹ Such cultural heritage is only protected under copyright with respect to elements of the expression that are original in that particular fixation. This limited protection arguably does not reach the heart of the issue as in many cases it is the broader, distinctive style and character that is considered part of the public domain and is the object of misappropriation. New arrangements, collections, digital alteration/enhancement, and adaptations of public domain materials can be eligible for copyright protection should they be sufficiently distinct from the original.

The fixation requirement precludes the protection of intangible cultural heritage unless and until it is fixed in a tangible medium. Further, any such fixation is often documented by anthropologists, photographers, or other researchers, meaning that any such right associated with the tangible expression may not necessarily belong to the possessor of the intangible cultural heritage.

For works created on or after January 1, 1978, the term of copyright lasts for the life of the author plus 70 years after death. For works made for hire and anonymous or pseudonymous works, copyright protection is “95 years from publication or 120 years from creation, whichever is shorter.”¹⁰ Copyright owners in the U.S. have exclusive rights to reproduction, public performance, public display, distribution, and the making of derivative works.¹¹

To foster creativity, copyright attempts to strike a balance between granting a creator a monopoly over their work and others’ access to and use of the work. Copyrights contain both economic and moral rights. Economic rights allow the owner to derive financial compensation from the works of others. Moral rights are more narrowly interpreted in the U.S. by the Visual Artists Rights Act (VARA) of 1990. VARA gives visual artists the right “to claim authorship in their work,” “to prevent the use of their name in association with a work,” and “to prevent the intentional distortion, mutilation or other objectionable modification of their works.”¹²

Protection of copyright requires an identifiable owner. In considering the protection of traditional cultural expressions, the World Intellectual Property Organization (WIPO) noted:

It is difficult, if not impossible, however to identify the creators of TCEs [traditional cultural expressions], and hence the rights holders and beneficiaries in TCEs, because TCEs are communally created and held and/or because the creators are simply unknown and/or unlocatable. The very concept of “ownership” in the IP sense may also be alien to many indigenous peoples.¹³

Further, a handful of cases in foreign jurisdictions indicate a seemingly inequitable effect of copyright ownership in tribal communities.¹⁴ In Bulun Bulun v R & T Textiles Pty Ltd, an artist incorporated sacred imagery into his artwork with prior permission from his clan.¹⁵ Slightly altered versions of the designs were incorporated into a fabric produced by the defendant. The clan argued that because the individual artist belonged to the clan, it in effect controlled the copyright in the artwork. The Australian Federal Circuit judge disagreed and found that a person who supplied an artistic idea to someone who then executes the work, on that ground alone, is a joint author.¹⁶ This decision reinforces the idea that intangible cultural heritage is not protected, only the expression thereof. At a high level, this could result in communities being required to ask permission from a copyright holder to use the expression of their traditional cultural expressions. With that said, any rights are likely relatively narrow given the nature of the originality highlighted above.¹⁷

In short, although copyright law does not provide comprehensive coverage for cultural heritage, there are viable routes to obtain protection, at least for tangible traditional cultural expressions.

Patents

Patents protect inventions. A patent allows the holder to prevent others from making, using, selling, or importing the invention during the patent term.¹⁸ This term is limited and does not exceed 20 years. Once the patent expires, the protection ends and the invention enters the public domain.

The primary requirements for patentability are listed below:

1. The claimed subject matter must be patent eligible. The categories for patentable matter are broadly defined as “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”¹⁹
2. The invention must have utility. The guidelines require that the utility be “credible, specific, and substantial.”²⁰
3. The invention must be new or have novelty. Novelty requires that the claimed invention was not known or used by others in the U.S. or patented or described in a printed publication in the U.S. or another country before invention by the patent applicant.²¹
4. The invention must not be obvious. The test for nonobviousness is “whether the subject matter sought to be patented and the prior art is such that the subject matter as a whole would have been obvious to a person having ordinary skill in the art at the time of the invention.”²²
5. The invention must be set forth in a patent application that contains a written description.
6. The written description must enable the skilled person to make and use the claimed invention across its breadth. The specification “shall contain a written description of the invention, and of the manner and process of making and using it,” in such terms as to enable any person skilled in the art “to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.”²³

Traditional knowledge of Indigenous and local communities, which falls under the umbrella of intangible cultural heritage, has connections with patent law. While traditional knowledge is typically not patentable because it is neither novel nor nonobvious, there has been a concern in the U.S. and internationally that patents have been granted for inventions that did not disclose traditional knowledge as prior art. In the U.S., the turmeric patent,²⁴ the “Neem” (Azadirachta indica) patents, and the “Ayahuasca” (Banisteriopsis caapi) patent²⁵ are all cases where holes in examination resulted in the grant of problematic patents. Various claims in all these applications were based on traditional knowledge and practices of Indigenous communities. For example, in the turmeric case, the granted patent related to the use of the plant to accelerate the healing of wounds. The patent was later challenged and invalidated after the submission of documentation, including ancient Sanskrit texts, evidencing that the claimed invention was preexisting traditional knowledge of Indigenous communities in India.²⁶

Because traditional knowledge as prior art is an obstacle to patentability, it can be a valuable defensive tool. However, patent examination may not always include exhaustive searches and review of traditional knowledge resources. As such, patents may be granted, and comprehensive prior art searches may only take place if or when a patent is challenged.²⁷ This system can be burdensome for Indigenous communities.

The U.S. Patent and Trademark Office (USPTO) has considered the need to create accessible databases that deal with traditional knowledge.²⁸ At the international level, the International Patent Classification serves as the primary tool for detecting technical information for patent purposes and has been expanded to better address traditional knowledge in recent years.

Disclosing traditional knowledge or other cultural heritage that forms part of an invention creates a record of prior art that will promote the progress of science. Specifically, it creates an incentive for the maintenance of traditional knowledge systems and incentivizes Indigenous peoples to continue intangible cultural heritage, which enables biodiversity in situ.

In addition, most patent applications publish approximately 18 months after filing. While traditional knowledge may not be patentable, Indigenous communities may consider filing patent applications that disclose traditional knowledge—not to try to patent traditional knowledge, but rather to create publications of traditional knowledge that may be cited against others trying to obtain patents that involve traditional knowledge. Thus, such Indigenous communities’ patent applications can be permitted to lapse after publication, as the desire is to create prior art as to others (rather than obtain a patent).

An example of an arguably more equitable partnership between Indigenous communities and Western researchers is the University of South Australia and the Chuulangun Aboriginal Corporation. The entities partnered in identifying compounds used in the treatment of inflammation available from pharmacological activities of bush medicine plants.²⁹ The patent resulting from the investigation of traditional knowledge is jointly held between the parties, which provides the Chuulangun Aboriginal Corporation more authority in controlling how the Aboriginal traditional knowledge is commercialized.

Trademarks

A trademark is a word, symbol, or phrase used to identify a particular entity’s products or services and distinguish them from those of another.³⁰ To serve as a trademark, a mark must be distinctive and capable of identifying the source of a particular good or service. Given that it is also possible to rely on common law trademark rights in the U.S., the entity starts to develop rights as soon as it uses the trademark in connection with the sale or offering of the goods or services. Stronger, nationwide rights are obtained through U.S. federal registration, as federal registration generally bestows upon a trademark owner a number of advantages, including a legal presumption of ownership, the right to bring a lawsuit in federal court, and the right to record the registration with Customs and Border Protection.

One potential barrier to using trademarks to protect cultural heritage is the requirement that the cultural heritage be used in commerce in connection with the provision of goods or services. This means that there must be some commercial purpose or use for the mark to be eligible for protection. As an example, the Zia Pueblo people of New Mexico use their sun symbol in connection with their tribal philosophy. While the symbol is used on Zia pottery and other goods, it was not historically used on products sold or offered for sale in commerce. Further, even to the extent the mark was used on goods being sold, the symbol is arguably not source-identifying and is instead ornamental. Regardless, even if the Zia aimed to commercialize the symbol, it is now considered in the public domain after being included nonconsensually on the New Mexico state flag and becoming a ubiquitous symbol of the region.³¹

The public use of cultural identifiers of specific communities is a threat to the distinctiveness of a mark, as required for protection. For example, in New Zealand, the Maori attempted to register phrases from the “Kamate Kamate” haka as a trademark, but the Intellectual Property Office of New Zealand ultimately refused the application, taking the position that the haka is not associated with one owner but with New Zealand.³² Eventually, this issue was addressed through specific legislation requiring any publication of the haka to attribute it to the source community.³³

As the disparagement clause of the Lanham Act was found to violate the First Amendment’s free speech clause, there are limits on the defensive remedies available to communities that believe their cultural heritage is being used in such a way.³⁴ Section 2(a) continues to bar registration of marks that are “immoral, deceptive, or scandalous” or that “falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols.”³⁵ The USPTO maintains an opt-in insignia database for Native American tribes, which allows the consideration of whether an application falsely suggests a connection to the participating tribes.³⁶ In theory, this allows tribes to take active steps to protect a limited subset of their IP and cultural heritage.

Federal trademark protection offers the strongest remedy against infringement, where cultural heritage owners qualify for such protection. While the case settled, in Navajo Nation v. Urban Outfitters, Inc., the Navajo Nation sued for trademark infringement and dilution by blurring and tarnishment after Urban Outfitters used the term NAVAJO in the sale of various apparel items, despite the Navajo Nation owning trademarks for similar goods containing the term.³⁷ The incontestable status of several of the marks precluded the counterargument by Urban Outfitters that the term was merely descriptive.

Subsects of trademarks that are also relevant to cultural heritage are collective marks and certification marks. A collective mark is used by the members of a cooperative, an association, or other collective group or organization.³⁸ The benefit of this mark is that ownership does not have to be tied back to an individual or singular entity. The cost of obtaining and maintaining a collective mark can be shared, lowering the overall cost.

Unlike collective marks, certification marks are not confined to membership. They can be used by anybody who complies with the standards defined by the owner of the certification mark.³⁹ Certification marks may be a better option where traditional goods are offered by related peoples who are not members of a singular group or tribe, particularly if there is a unifying body to own and maintain the mark. For example, the Cowichan Band Council has registered certification marks related to clothing created by Coast Salish knitters using traditional materials, methods, and patterns.⁴⁰

Registration of eligible indicators can be an effective tool for possessors of cultural heritage to obtain equitable protection, raise awareness of their communities, and authenticate goods sold under the mark.

Trade Secrets

To be considered a trade secret, all three of the following elements must be satisfied:

• information that has either actual or potential independent economic value by not being generally known;
• value to others who cannot legitimately obtain the information; and
• subject to reasonable efforts to maintain its secrecy.⁴¹

Although the duration of protection for a trade secret is potentially timeless, a trade secret will no longer be protected if one of the required elements is lost.

Certain types of intangible cultural heritage, such as traditional knowledge and genetic resources, may be best protected under trade secret law.⁴² These are typically instances in which communities traditionally have kept such information secret for religious or spiritual purposes, to restrict its use within the community or to maintain it for subsequent generations, or to protect it from misappropriation by non-Indigenous communities.

Trade secret protection may hinge on the at-issue information having economic value. This could pose an issue for claiming trade secret protection of cultural heritage (including intangible cultural heritage and traditional knowledge) by certain communities. Cultural heritage is often kept secret for spiritual, ethnographic, emotional, traditional, or community-based reasons. This may raise the question whether information that has commercial value to third parties is covered even if the information has no direct economic value in the community that holds the secret. However, trade secret protection may extend to information that has potential value. As such, there may be an argument that any cultural heritage, intangible cultural heritage, and traditional knowledge held confidential may possess potential commercial value (e.g., as providing an economic advantage to the Indigenous community being a unified economic unit around the cultural heritage, intangible cultural heritage, and traditional knowledge) apart from the noncommercial value held by the community. Potential value should be concretely asserted as case law suggests such value will not be presumed.⁴³

What constitutes a “reasonable effort” to keep the information secret is another potential concern with respect to seeking trade secret protection for cultural heritage. It is generally understood that although cultural heritage can be passed from one generation to the next or within a community, it is still possible to keep it a secret so long as it is not readily accessible to those outside the community. A frequently cited example is the sacred ritual of the Zia Pueblo people, which was disclosed to the outside world after photographs were taken from an airplane flying over the site and printed in a local newspaper.⁴⁴ While the ritual had to be performed in the open air, the Zia Pueblo people had strict protocols regulating visitor attendance and restricting photography and videography. Although the Zia Pueblo people ultimately developed protocols and raised awareness with the New Mexico government for both the ritual and the sacred sun symbol,⁴⁵ here the “reasonable effort” portion of the trade secret test seems to have been met, especially when one considers E.I. DuPont deNemours & Co. v. Christopher, in which the Fifth Circuit found that similar revealing aerial photographs that exposed knowledge about the construction of a chemical plant constituted a violation of trade secret law.⁴⁶

While there are still certainly hurdles in protecting secret forms of intangible cultural heritage via a trade secret claim, it seems to be a more effective option that also has the potential to reinforce the need for the preservation of and respect for cultural heritage, particularly for Indigenous peoples.

Developing a Framework for Cultural Heritage Systems

Cultural heritage and IP regimes have developed with contradictory interests and stakeholders exacerbating the tension on both sides of the debate. Nonetheless, in each traditional form of IP, some tools protect cultural heritage, as either a defensive or an offensive form of protection—including the possibility of Indigenous communities using the patent system to create publications of nonconfidential cultural heritage. Certain areas of IP are more promising and address more common issues facing possessors of cultural heritage. The increasing public awareness of issues relating to cultural heritage has created a push for more equitable results and simulated dialogue on the interface with IP. There is a continuing need for the legal framework surrounding these issues to be developed and explored, and this article aims to advance the discussion on this need.

Endnotes

1. Cultural Heritage, UNESCO Inst. for Stat., https://uis.unesco.org/en/glossary-term/cultural-heritage (last visited May 16, 2024).
2. Intangible Heritage, UNESCO World Heritage Convention, https://whc.unesco.org/en/faq/40 (last visited May 16, 2024).
3. James A. R. Nafziger et al., Cultural Law: International, Comparative, and Indigenous 206–08 (2010).
4. There are distinctions between land and underwater cultural heritage and between cultural and natural heritage. See, e.g., UNESCO Convention on the Protection of Underwater Cultural Heritage art. 1(1)(a), Nov. 2, 2001, 41 I.L.M. 37; UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 27 U.S.T. 37. Scholars have argued that cultural property law is moving toward cultural heritage law. See, e.g., Lyndel V. Prott & Patrick J O’Keefe, “Cultural Heritage” or “Cultural Property”?, 1 Int’l J. Cultural Prop. 307 (1992).
5. For a deeper discussion of the historical terminology, see Irini Stamatoudi, The Notions of Intellectual Property and Cultural Heritage: Overlaps and Clashes, in Research Handbook on Intellectual Property and Cultural Heritage 8, 35 (Irini Stamatoudi ed., 2002).
6. Intellectual Property Enforcement, U.S. Dep’t of State, https://www.state.gov/intellectual-property-enforcement (last visited May 16, 2024).
7. Id.
8. What Is Copyright?, U.S. Copyright Off., https://www.copyright.gov/what-is-copyright (last visited May 16, 2024) (emphasis omitted).
9. See Mira Burri, Cultural Heritage and Intellectual Property, in The Oxford Handbook of International Cultural Heritage Law 459, 478 (Francesco Francioni & Ana Vrdoljak eds., 2020).
10. What Is Copyright?, supra note 8.
11. Id.
12. Moral Rights in U.S. Copyright Law, Cᴏᴘʏʀɪɢʜᴛʟᴀᴡꜱ.ᴄᴏᴍ (Jan. 8, 2023), https://www.copyrightlaws.com/moral-rights-in-u-s-copyright-law (noting that VARA specifically excludes certain copyrightable subject matter, such as posters, maps, motion pictures, and applied arts).
13. World Intell. Prop. Org. [WIPO] Intergovernmental Comm. on Intell. Prop. & Genetic Resources, Traditional Knowledge & Folklore, The Protection of Traditional Cultural Expressions: Draft Gap Analysis, WIPO/GRTKF/IC/13/4(b) Rev. (Oct. 11, 2008), https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_13/wipo_grtkf_ic_13_4_b_rev.pdf.
14. See, e.g., Milpurrurru v Indofurn Pty Ltd (1994) 130 ALR 659 (Austl.).
15. (1998) 41 IPR 513 (Austl.).
16. Id.
17. See Antik Batik v. IM Prod., Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Paris, 3e chambre 4e section, Dec. 3, 2015, 15/03456. (Fr.).
18. Patent Act, 35 U.S.C. §§ 1 et seq.
19. Id. § 101.
20. Patent, Legal Info. Inst., https://www.law.cornell.edu/wex/patent (last updated Jan. 2024) (construing Manual of Patent Examining Procedure (MPEP) § 2107 (9th ed., Rev. 07.2022)).
21. 35 U.S.C. § 102(a).
22. Patent, supra note 20; 35 U.S.C. § 103.
23. 35 U.S.C. § 112.
24. U.S. Patent No. 5,401,504.
25. U.S. Plant Patent No. 5,751.
26. Manuel Ruiz, The International Debate on Traditional Knowledge as Prior Art in the Patent System: Issues and Options for Developing Countries, Ctr. for Int’l Env’t L. 1 (Sisule F. Musungu ed., Oct. 2002), https://www.ciel.org/wp-content/uploads/2015/03/PriorArt_ManuelRuiz_Oct02.pdf.
27. Id. at 6.
28. See, e.g., Letter from Robert W. Saifer, Dir., Int’l Liaison Staff, USPTO, to Dr. R. A. Mashelkar, Dir. Gen., Council of Sci. & Indus. Research, Gov’t of India (Aug. 27, 1999).
29. Austl. Patent No. 2,010,317,657; see also Ruiz, supra note 26, at 472.
30. Lanham (Trademark) Act, 15 U.S.C. §§ 1051–1141n.
31. Catherine Saez, Indigenous Knowledge Misappropriation: The Case of the Zia Sun Symbol Explained at WIPO, Intell. Prop. Watch (Nov. 12, 2018), https://www.ip-watch.org/2018/12/11/indigenous-knowledge-misappropriation-case-zia-sun-symbol-explained-wipo/.
32. N.Z. Trademark Application Serial Nos. 814421, 814531, 814532 & 814533 (filed Oct. 21, 2009).
33. Haka Ka Mate Attribution Act 2014 (N.Z.).
34. Matal v. Tam, 582 U.S. 218 (2017). For a discussion on the Matal decision’s impact on the REDSKINS trademarks, see Josh Escovedo, After Nearly 30 Years of Controversy, the Washington Redskins Will Retire the Redskins Team Name and Trademark, JDSupra (July 20, 2020), https://www.jdsupra.com/legalnews/after-nearly-30-years-of-controversy-59341.
35. 15 U.S.C. § 1052(a).
36. Native American Tribal Insignia, USPTO, https://www.uspto.gov/trademarks/laws/native-american-tribal-insignia (last updated Dec. 9, 2023).
37. 935 F. Supp. 2d 1147, 1153 (D.N.M. 2013).
38. 15 U.S.C. § 1127.
39. Certification Marks under the Law, Justia, https://www.justia.com/intellectual-property/trademarks/categories-of-marks/certification-marks (last reviewed Oct. 2023).
40. George P. Nicholas & Kelly P. Bannister, Copyrighting the Past? Emerging Intellectual Property Rights Issues in Archaeology, 45 Current Anthropology 327, 341 (2004), https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1271&context=aprci.
41. Trade Secrets/Regulatory Data Protection, USPTO, https://www.uspto.gov/ip-policy/trade-secret-policy (last updated Jan. 18, 2023).
42. See Stamatoudi, supra note 5, at 27–28.
43. See, e.g., Religious Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306 (9th Cir. 1989) (finding that the Church did not plead in its original filings that the scriptures had economic value in refusing appeal grounds).
44. See Neethu Rajam & Jens Schovsbo, The Protection of Intangible Cultural Assets by Trade Secrets and Unfair Competition Law, in Research Handbook on Intellectual Property and Cultural Heritage, supra note 5, at 13, 121.
45. See Saez, supra note 31.
46. 431 F.2d 1012 (5th Cir. 1970).