THE ROUTLEDGE COMPANION TO CULTURAL PROPERTY

International journal of legal information, 1996

Built Heritage

2010

Traditional cultures embody exquisite and distinctive creativity and are of immense cultural, historical, spiritual and economic value to indigenous peoples and traditional communities the world over.

2010

International Trade in Indigenous Cultural Heritage

The developments at international level in the debate on what intellectual property lawyers refer to as traditional cultural expressions (TCE) have to be seen in the context of the decolonisation movements after World War II. Post WWII developments saw the formation of the United Nations and the emphasis on human rights in the UN Charter. With this emphasis came development programmes for Indigenous peoples and the recognition of Indigenous rights in ILO Convention No. 107 of 1957 concerning the Protection and Integration of Indigenous, and other Tribal and Semi-tribal Populations in Independent Countries. The decolonisation movements also initiated or renewed a parallel debate about the repatriation of items of cultural heritage. There was a remarkable shift in this discussion from 'cultural heritage of mankind' to cultural particularism and an emphasis on 'cultural property', as Merryman has pointed out with reference to the preambles of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, on the one hand, and the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970, on the other hand. 2 This chapter aims at adding an intellectual property perspective to the debate on international trade in Indigenous cultural heritage. It will examine the international discussion about the options for legal protection of traditional cultural expressions and expressions of folklore (EoF) and pay particular attention to the position of developing countries in international negotiations. In accordance with the author's current research, examples will be drawn in particular from Asian developing countries. Because of the crucial role of emerging economies such as China, India or Brazil in international trade talks and their interest in traditional knowledge protection, it is submitted that the role of developing countries provides

Traditional cultures embody exquisite and distinctive creativity and are of immense cultural, historical, spiritual and economic value to indigenous peoples and traditional communities the world over.

2007

Reviewed by Christina Kreps Who Owns the Past? Cultural Policy, Cultural Property and the Law has an ambitious and worthy goal, that is, "to explain the ethical, legal, and practical arguments on which current U.S. policy is based, and to make the cultural property debate comprehensible to all" (p. xiii). The book consists of 29 articles and essays organized under four main headings: I, The Laws; II, Collecting and the Trade; III, Art in Peril; IV, The Universal Museum. Section V, includes Appendices and Links. Some of the articles are updated versions of previously published pieces, while others were commissioned for the volume. Among the topics covered are: the history and development of cultural property law and policy; rights to cultural property and the ethics of collecting; threats to arts and antiquities due to illegal trafficking, looting, as well as war and development; repatriation; roles and responsibilities of museums; and international cooperation for the protection of cultural property. The editor, Kate Fitz Gibbon, provides an abstract of each article in the "Introduction" and an overview of international and national cultural property legislation in the first chapter titled "Chronology of Cultural Property Legislation." She also is the author of four other essays in the book. Written in accessible, non-technical language, Fitz Gibbon's chapter and other essays in the first section on "The Law" are useful references for newcomers to the field seeking to understand the complexities of legislation regulating the transfer and ownership of cultural property. Authors examine the "development of US and foreign cultural property law, as well as recent U.S. case law that affects the ability of both private collectors and U.S. museums to own artworks from other countries and other times" (p. xiii).

In public discussions, cultural artefacts, such as those kept and trafficked between art dealers, private collectors and museums, have increasingly become localised in the Bermuda triangle of colonialism, looting and the art (black) market as well as ownership and claims for return. In this triangle, antiquities and ethnographic artefacts disappear from the find-spot or original cultural setting and resurface sometime later, often under " mysterious " circumstances, in other cultural, mostly transnational, locations. This triangle of displaced artefacts, the various methods and routes of their travel, and the way these artefacts are claimed in order to be returned constitutes the framework of this book. 1 These contexts – colonialism, looting and contested ownership – are, of course, not identical with each other. Moreover, public ethnographic and antiquity museums cannot be equated with the art (black) market, dealers and private collectors. They share some commonalities, but many differences also exist, the major being the time factor. Artefacts that came to museums during colonialism refer to a different, hegemonic, world order that had its own regulations; these have to be acknowledged in their historical setting. Anton emphasised that the determination whether cultural goods have been transferred legally or illegally needs to take into account the conditions of time and place (2010:66). Nevertheless, this still allows one to critically assess these former acquisitions and their circumstances from today's perspective. The chapters are written by scholars from different disciplines (anthropology, law, cultural studies, art history and archaeology). They explore various aspects of how highly valued cultural goods – sacred heirlooms for some actors, mere material remains, commodities or much sought-after works of art for others – are traded and negotiated among diverging parties and their interests. The starting point of these investigations was the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Subsequent questions arose: how has this Convention been implemented since its coming into force? How has it raised awareness about cultural property and ownership? How has such cultural property, first and foremost ethnographic artefacts and antiquities from non-European countries, mostly located in museums in the North, become contested and claimed by " source nations " that had suffered colonisation or other forms of oppression.

This paper examines the protection of indigenous peoples’ intangible heritage at the international level. It addresses the problem of appropriation and commodification of traditional and artistic cultural expressions (‘TCEs’) through the multiplicity of existing international legal regimes. These include general and indigenous-specific human rights rules, UNESCO conventions and guidelines, as well as international norms of general application such as those pertaining to Intellectual Property (‘IP’). The paper adopts a sceptical approach towards the suitability of international norms and processes to address the question of indigenous heritage. Drawing upon the efforts of regional bodies and national paradigms from Australia, New Zealand, Canada and the U.S., it argues that priority in legal planning and decision-making be given to the “localization” of indigenous claims and peoples’ local empowerment.

Museum Anthropology Review, 2008

Reviewed by Christina Kreps Who Owns the Past? Cultural Policy, Cultural Property and the Law has an ambitious and worthy goal, that is, "to explain the ethical, legal, and practical arguments on which current U.S. policy is based, and to make the cultural property debate comprehensible to all" (p. xiii). The book consists of 29 articles and essays organized under four main headings: I, The Laws; II, Collecting and the Trade; III, Art in Peril; IV, The Universal Museum. Section V, includes Appendices and Links. Some of the articles are updated versions of previously published pieces, while others were commissioned for the volume. Among the topics covered are: the history and development of cultural property law and policy; rights to cultural property and the ethics of collecting; threats to arts and antiquities due to illegal trafficking, looting, as well as war and development; repatriation; roles and responsibilities of museums; and international cooperation for the protection of cultural property. The editor, Kate Fitz Gibbon, provides an abstract of each article in the "Introduction" and an overview of international and national cultural property legislation in the first chapter titled "Chronology of Cultural Property Legislation." She also is the author of four other essays in the book. Written in accessible, non-technical language, Fitz Gibbon's chapter and other essays in the first section on "The Law" are useful references for newcomers to the field seeking to understand the complexities of legislation regulating the transfer and ownership of cultural property. Authors examine the "development of US and foreign cultural property law, as well as recent U.S. case law that affects the ability of both private collectors and U.S. museums to own artworks from other countries and other times" (p. xiii).