Promising Developments in Protecting Intangible Cultural Property

We have previously highlighted the inadequacy of current intellectual property laws to protect the intangible culture of indigenous populations. The collective and multi-generational ownership of assets such as traditional knowledge, legends and storytelling – often secret or sacred – fall outside the confines of traditional copyright and trademark law and leave these communities with few tools to protect their culture from exploitation. However, there are a few promising developments in both the public and private sectors.

The Legal Status of 3D Scans of Cultural Heritage

Technological advances are making it possible to create 3D scans of entire cultural sites. This scanning technology has a critical role to play in documenting sites threatened with damage or destruction from man-made or natural causes, to provide invaluable information for restoration or simply as a way to make these often remote and inaccessible sites available to the general public. However, the unresolved legal status of the technology also means that sites sacred, and sometimes secret, to indigenous populations can be shared without their consent or control.

For some background, in 2019 the Neues Museum in Berlin, after a multiyear international dispute, finally released its 3-D scans of the famous bust of Queen Nefertiti in its collection. Although the bust was clearly in the public domain, the controversy brought to light the unsettled copyright status of 3D scans of works not themselves subject to copyright protection. The resolution of the Nefertiti dispute did not have broad implications since the release of the scans was procured thanks to a requirement in Germany’s freedom of information law that applied to this state-run museum. However, the museum’s assertion of control sets a dangerous precedent that can deter dissemination of public domain work, even with no legal basis. Although no specific U.S. cases have addressed the issue, courts may follow precedent applicable to two-dimensional reproductions of public domain works and find that 3D scans of public domain works are “slavish copies,” lacking the originality required for copyright protection. See Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998), reconsideration 36 F.Supp.2d 191 (S.D.NY. 1999). Going beyond the two-dimensional, in Meshwerks Inc. v. Toyota Motor Sales USA, Inc. the Tenth Circuit held that certain digital models of cars – which required more complex creation – were not copyrightable. 528 F.3d 1258 (10th Cir. 2008), cert. den. 555 U.S. 1138 (2009). (For a view that under U.S. copyright law 3D scans do not possess the requisite originality to be copyrightable, see Emma Blumenthal, “The Copyrightability of Cultural Heritage: A Case Study of the Legal Battle over the Nefertiti Bust,” Landslide®, September 22, 2021.)

However, when it comes to 3D scans of entire cultural sites rather than single objects, the answer to the copyrightability question may be different due to the specifics of the technology involved and the necessity for human creative decisions. For example,

Both laser scanning and photogrammetry are common methods with multiple changes taking place at every stage. Selecting the right method, device, angle, positioning at the capturing stage and then selecting the right processes, measurements and interpretations in the processing stage show enough room for free and creative choices.

3D Digitisation of Cultural Heritage: Copyright Implications of the Methods, Purposes and Collaboration, JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law

Inevitably, there will be copyright disputes over 3D scans, and it will be interesting to see whether courts follow the reasoning of Bridgeman and Meshwerks, or whether the enhanced demands on human creativity required to scan an entire cultural site will lead to a different result. In any event, the legal status of the scans will have implications for indigenous populations seeking to preserve the integrity of their sacred places and for the public’s interest in preserving documentation of sites that may become altered or disappear altogether.

Actions by the Department of the Interior

In a prior insight we wrote about the Native American Graves Protection and Repatriation Act (“NAGPRA”), which requires federal agencies and museums receiving federal funds to repatriate certain Native American cultural items – human remains, funerary objects, sacred objects and objects of cultural patrimony – to the respective tribes. The law has been criticized as having weak enforcement mechanisms and an overly burdensome process regarding tribal affiliation. After extensive consultation with 71 Tribal Nations, the law is being revised by the Department of the Interior (“DOI”). 

One of the changes is the appointment of David Barland-Liles, previously an enforcement officer for the National Park Service, to the newly created role of civil penalties investigator. According to Barland-Liles:

The recommendations primarily focus on making it easier for tribes to affiliate their ties to ancestors and cultural objects, thus making it easier for museums and federal agencies to repatriate…[w]e need to shift our attention toward making connections to modern day tribes and emphasise collaboration with tribal nations…[NAGPRA] is one of the few government programmes that wants to put itself out of business. Repatriation is about remediating the angst associated with these ancestors and objects.

In another action by DOI, in November 2021 Secretary Deb Haaland issued an order declaring the word “squaw,” often used to refer to Native American women, a derogatory term and created a task force to look into alternate names for the roughly 600 geographic sites in the United States that include that term in their name. Working in consultation with Native American groups, proposed new names have now been published for public comment.

TK Branding and Licensing

We have pointed out that neither NAGPRA nor the Indian Arts and Crafts Act protect intangible cultural heritage. While U.S. trademark law can provide some protection for names and logos associated with Native Americans, this protection does not extend to traditional knowledge. Efforts have been underway for several years to develop special Traditional Knowledge (TK) licensing systems that attempt to “repatriate” tribal digital heritage “taken” by ethnology museums and others in the name of educating the public. This movement, which parallels the repatriation of tangible property by museums, relies on context-specific licenses tailored to the specific cultural property. For example, the American Folklife Center of the Library of Congress has created audio recordings of spoken words of the Passamaquoddy tribe captured in the 1890s by American anthropologist Jesse Walter Fewkes using Thomas Edison’s wax cylinder phonograph. The recordings are available, but the contents are subject to labels requiring attribution, identifying what may be used for educational purposes and prohibiting commercial use. The TK labeling system ensures that the Passamaquoddy tribe will retain cultural authority over the recordings with the ability to control the dissemination and use of sensitive and sacred assets.

Even though there are different kinds of Creative Commons licenses, they are universal and do not allow for local differentiation. In 2010 an organization called Local Contexts was formed. According to Jane Anderson, one of its founders:

Combining both legal and educational components, Local Contexts has two objectives. Firstly, to support Indigenous decision-making and governance frameworks for determining ownership, access to and culturally appropriate conditions for sharing historical and contemporary collections of Indigenous material and digital culture. Secondly, to trouble existing classificatory, curatorial and display paradigms for museums, libraries and archives that hold extensive Indigenous collections by finding new pathways for Indigenous names, perspectives, rules of circulation and the sharing culture to be included and expressed within public records.

Rivers Participate in Sydney Biennale

We have previously discussed the concept of juridical personhood for the purpose of standing to sue and environmental personhood as a potential way to fill gaps in traditional IP systems that leave indigenous cultural property, especially land-based intellectual property, vulnerable to exploitation. In 2008 Ecuador provided legal rights for elements of nature in its constitution, and one of its rivers, the Vilcabamba, successfully sued local authorities over its polluted state. Other countries in Latin America and elsewhere have provided similar legal protections. In 2017, for example, the Whanganui River in New Zealand, considered by the Maori people as an ancestor, was recognized as a legal entity, and in 2021 the Magpie River in Quebec was granted legal personhood by local authorities with nine legal rights, including the right to sue. In February 2022 Lake Mary Jane, together with other bodies of water, filed a suit in Florida state court to protest a planned development alleging that it would “adversely impact the lakes and marsh who are parties to this action.”

In 2010 the Global Alliance for the Rights of Nature was formed to reorient the relationship of humans to nature in part by creating “…a system of jurisprudence that sees and treats nature as a fundamental, rights bearing entity and not as mere property to be exploited at will.”

Putting aside the many complex questions that surround the concept of granting legal rights to rivers and other elements of nature, artists are advancing the concept. Bodies of water, represented by legal custodians, are participating in the Sydney Biennale, which opened on March 12, 2022. Through their indigenous custodians, the rivers are telling their stories, interacting with other Biennale participants. The Biennale’s Curatorial Statement puts it this way:

Indigenous knowledges have long understood non-human entities as living ancestral beings with a right to life that must be protected. But only recently have animals, plants, mountains and bodies of water been granted legal personhood. If we can recognise them as individual beings, what might they say?

…Rivers are the sediment of culture. They are givers of life, routes of communication, places of ritual, sewers and mass graves. They are witnesses and archives, our memory. As such, they have also been co-opted as natural avenues for the colonial enterprise, becoming sites of violent conflict driven by greed, exploitation and the thirst to possess.

Another interesting work in the Biennale is a mural, entitled Yuma, or The Land of Friends, by Carolina Caycedo, an LA-based artist-activist, whose parents are Colombian. Caycedo has been fighting against further damming of the Magdalena River in Colombia. Her mural is a biting commentary on satellite imagery, which captures the objective aspects of the river’s condition but fails to represent the human suffering.

Lutzker & Lutzker will continue to report on developments that support the efforts of rightful stakeholders to preserve their intangible heritage.