Intellectual Property Rights, Human Rights and Intangible Cultural Heritage

In the current global context, the protection of intangible cultural heritage lacks a definition of the applicable legal framework and questions the adequacy of intellectual property rights in ensuring a protection in light of specific cultural and geographic peculiarities The ability to protect and safeguard the intangible cultural heritage is of vital importance to some communities, which have, therefore, the need to maintain control over these expressions, whose use by external subjects has often detrimental effects on their identity, spirituality and general well-being. The misuse and misappropriation of intangible cultural heritage, therefore, do not merely constitute phenomena causing an economic damage, but rather they are tantamount to a kind of violation of human rights and of the identity of the community. In this respect, a controversial aspect concerns the commodification of intangible cultural heritage resulting from the application of the intellectual property rights regime. This study aims to feed into and inform the ongoing debate raised by legal literature about the methods by which the current intellectual property rights guarantee the protection of intangible cultural heritage. Taking into account emerging issues in the field of copyright and patent law, this paper will argue that the current applicable intellectual property framework, without a many-faceted remodeling, is neither a sufficient nor satisfactory mechanism, given its inadequacy in ensuring the protection of intangible cultural heritage.

By Paolo Davide Farah and Riccardo Tremolada

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