[Guest Book Review] Technology, Intellectual Property Law and Culture: the Tangification of Intangible Cultural Heritage

This is a review of Technology, Intellectual Property Law and Culture: the Tangification of Intangible Cultural Heritage, written by Megan Rae Blakely. 

The book takes a deep dive into the obscure and rather difficult to define world of ICH and its overlapping with IP law, which makes their relationship all the more difficult due to the uncertainty following the very definition of ICH. According to the UNESCO’s 2003 Convention for the safeguarding of Intangible Cultural Heritage, which is mentioned throughout the book, ICH can encompass a vast range of oral traditions and practices, traditional craftsmanship, rituals, dances, social practices, performing arts, festive events and knowledge and practices regarding nature and the universe. From the first wave of ICH, to the second one – the “invented traditions” after governmental intervention occurred in most cases, it is apparent that ICH entails an inherent difficulty of deciding what to include as such in a relevant register, such as the ones proposed by the 2003 convention. This difficulty ignites the journey the author chooses to embark on to make a distinction and to highlight the co-existence of ICH and IP law.

Through the book’s 8 chapters, the author starts the journey into the nebulous existence of ICH, with the issue of its tangification and the 4-part process that it entails. Tangification is crucial in the co-existing and overlapping relationship of ICH and copyright law, which requires fixation and originality thresholds to have been met in the majority of jurisdictions. The 4 steps to the above-mentioned process are: a) the ICH receiving corporeal form (i.e. being fixed); b) propertisation; c) commodification; d) commoditisation. The author is critical of the benefits of attaching IP rights, such as copyright law to ICH, to safeguard its existence and continuation, as well as elevate its theoretical and hard to grasp intangible nature to a more practical and “legally-friendly” status, without overlooking the disadvantages that stem from the ICH becoming a generic product to be sold on a global market.

In addition, chapter 5 will be of particular interest to any legal scholar and/or practitioner with a keen interest in IP law development and ICH in the UK, as the chapter includes three case studies entailing examples of the interaction between IP law and ICH in Scotland, Wales and Ireland. These three examples and countries are selected by the author especially due to the interdisciplinary opportunity they provide to examine the legal scope of ICH through a historical lens, but also due to their geographic proximity, their shared legal and cultural history, as well as the limited sovereignty they have or had regarding their legislative powers. Scotland and Wales do not have any devolved power over IP legislation, which remains within the legislative power of Westminster, and Ireland was governed by UK legislation until 1921 and later on shared a common EU legislative path with the UK, until recently. 

Lastly, in the final chapters of the book the author highlights the importance of the stance and behaviour of the contemporary cultural guardians, that is the Galleries, Libraries and Museums (the GLAM sector), which might be considered as the gatekeepers to tangible and more often than not intangible cultural works, when they might not be the most well suited to do so in the case of ICH. The last chapter, which is the most interesting in my opinion, dives into the digital and virtual words of the modern era, where a third wave – according to the author – of ICH adoption arises from the liberty awarded in creating new cultural works within online communities. In a digital environment the tangification process of ICH can be accelerated since the cultural works are immediately fixed, easily become commodities and then they can even become generic products, loosing thus their unique identity. Furthermore, where new cultural creations are easily fixed for copyright purposes the rights to the works might already be owned by companies through contractual agreements, with all the negative implications for ICH.

The book constitutes an insightful examination of the divide between “knowledge producing” countries with a more IP law focus belonging to the developed side of the world and “culture producing” developing countries rich in ICH, which in the end can be bridged through better international cooperation and inclusion of both ICH and IP law issues into legislation and policy discussions. Fortunately, even though by the end of the final edit of the book there were 182 countries that have ratified the 2003 UNESCO Convention, by the time of publication, in June 2024, the UK became the 183rd country to ratify the Convention, coming a step closer to meaningful protection and development of ICH nation- and world-wide.

Published: June 2024

Format: Hardback, Paperback, E-book

ISBN 978-0-367-43975-0 

Routledge

Taylor & Francis Group