In a situation of a temporary impasse in the discussions about the “protection” of emerging forms of intellectual property and resource rights, wider notions of the protection of cultural landscapes under the 1972 World Heritage Convention or of the “safeguarding” of intangible cultural heritage as promoted in the UNESCO Convention of 2003 have come to the fore. They are often seen as more promising in gaining recognition for forms of knowledge and epistemologies that continue to be at odds with the still ruling modernisation paradigms in general, and the ethos and aims of national intellectual property systems in particular. The following section will show the paradigm shift in UNESCO treaties towards recognition of natural and “biocultural” heritage that has taken place since the 1970s. In a further section, the interplay of national heritage laws and intellectual property laws will be analysed, using examples from Asian developing countries. The section shows that many national governments seek to overcome the limitations of the soft law character of international law related to intangible cultural heritage by supplementing international law with intellectual property legislation for the “protection” of forms of intangible cultural heritage. This results in particularly strong intellectual property claims exerted by national governments to forms of culture that can lead to international disputes in particular where such cultures are shared and practised across borders. The section also shows similar claims from regional governments in countries like Indonesia, which ultimately, however, remain subordinated to national intellectual property laws. The aim is to show the many confusing overlaps between heritage and intellectual property laws, which ultimately regulate the same subject matter various described as “intangible cultural heritage” or “traditional knowledge”. While some hold hopes that this overlap will work for the benefit of communities and their cultural rights, this chapter will argue that government involvement remains strong in both heritage and intellectual property schemes and that the combination of the two frequently facilitates an appropriation process that turns local forms of heritage into national heritage under the administration of the national government.
|Title of host publication||Routledge handbook of biodiversity and the law|
|Editors||Charles R. McManis, Burton Ong|
|Place of Publication||London ; New York|
|Publisher||Routledge, Taylor and Francis Group|
|Number of pages||13|
|Publication status||Published - 2018|