[Guest Post] Book Review: Transboundary Heritage and Intellectual Property Law: Safeguarding Intangible Cultural Heritage

When you grow up in an Italian-American household, one of the first things you realize is the importance of food. As one of my colleagues jokingly said to me when I once observed that all my family did at breakfast was discuss what we were having for dinner, “You’re Italian- what did you expect?”. That’s true, but, when it comes to food in the Italian-American tradition, some Italians might take issue with whether some of the dishes around an Italian table in America are as Italian as the dishes around an Italian table in Italy. Take lasagne – the Italian-American version is rich with ricotta and more cheeses, while in Italy the classic lasagne al forno are defined by besciamella sauce and just Parmigiano Reggiano. Who is making the lasagne and where it’s being made raise a host of questions about who has the final say on which lasagne is authentic, who can control the making of lasagne, and even its appreciation as an authentic cultural expression of Italianness. 

Engaging with the thorny issue of how to safeguard “cultural interactions [that] transcend boundaries” (p. 8) is exactly what the edited volume Transboundary Heritage and Intellectual Property Law: Safeguarding Intangible Cultural Heritage is all about. This edited volume, with chapters by individual authors who are part of the Enredados (“tangled), p. 6) network, highlights case studies as varied as Chile and Peru’s Pisco Sour tradition (Chapter 8), colorful pieces of fabric with geometric representations of the world (molas) worn by indigenous peoples in both Panama and Colombia (Chapter 7), and “the making and sharing process of the spicy dish kimchi” (p. 87) in the Korean diaspora (Chapter 5), among other examples. Throughout, the authors engage with the tension brought on by culture’s fluidity (p. 11) in a world which is increasingly more culturally uniform (p. 13). A common theme throughout the different authors’ visions is exploring how the tension between cultural fluidity and cultural uniformity challenges the dichotomies we often hold onto in cultural heritage law and even in intellectual property law. For example, the categories of tangible and intangible property under cultural heritage law may offer a false dichotomy that is not helpful for thinking about transboundary heritage in practice (p. 7). Extending economic remedies and benefits through intellectual property rights might not substitute for the harm that is at the heart of claiming heritage between places: cultural integrity (p. 12). The chapters in this volume grapple with the complexities of heritage that exists across borders and communities and, therefore, how those complexities implicate different nations and states that are subject to international legal instruments, as well as local and regional communities. Living our lives in an entangled world means recontextualizing traditional knowledge (p. 15) and acknowledging that commercializing heritage for communities’ benefit comes with its own set of legal issues. 

Christophe Anton’s chapter highlighting the merging of cultural and intellectual property law concepts in Southeast Asia shows how one nation can make a cultural product like batik part of national heritage, even though its origins are regional (Chapter 2). When transboundary heritage becomes nationalized, regions might respond with their own intellectual property laws to combat a sort of national appropriation (p. 37). Raúl Matta’s chapter explores how food heritagization, as in Brazil and in Mexico, can result in commercialization by a state that has negative effects on local populations (p. 42). We should, Matta argues, “add the perspectives of scale and scalability to the study of heritage-making.” (p. 58) Peter Harrison’s chapter on indigenous peoples’ control and consent when traditional knowledge associated with genetic resources is part of drug discovery highlights how the Nagoya Protocol overlooks the extensive and sometimes far-reaching downstream effects of traditional knowledge, especially when that traditional knowledge has transboundary origins rooted in communities across different places (p. 65). Harrison’s conviction that we should move away from considerations of and dependence on commercial value to tell us when communities’ consent and control should end is part of his encouragement to refocus our attention on fact-dependent and case specific evaluations of which communities given consent and obtain control, and for what reasons (p. 76-80). Many of the issues Harrison raises with respect to the consent and control of indigenous peoples within drug discovery are reflected in recent discussions about disclosure in the Design Law Treaty and even in discussions of disclosure for AI-generated art under copyright law. Gyooho Lee’s exploration of the lack of traditional knowledge rights in Korea, and what other intellectual property rights and cultural heritage law concepts are used in their place, sheds important light on the use of the word “archetype” in Korean Intangible Cultural Heritage Law (p. 86). Lee’s discussion of the legal concept of archetype in Korean law, and his helpful charts and Venn diagram in the chapter (p. 97), opens new avenues for thinking about the relationship between copyright, originality, and intangible cultural heritage (p. 100). This is especially so given Lee’s exploration of how intellectual property law seems to reward variations of an archetype, while intangible cultural heritage law requires an archetype’s sameness across different iterations (p. 104). Benedetta Ubertazzi’s chapter explores the legal ramifications of transnational takings of transboundary heritage, offering a great discussion of geographical indications and culture, and of diasporas’ effects on geographical indications and trademark rights across jurisdictions (p. 116, 120). In another chapter, Ubertazzi delves even more deeply into transnational litigation over intellectual property rights, offering solutions to effectively safeguard intangible cultural heritage in transnational misappropriation cases, which may include emphasizing reputation and leaning on codes of ethics and cease and desist letters rooted in awareness-raising (p. 171, 173). Florelia Vallejo-Trujillo examines the effect that internal armed conflict in a state, such as Colombia, has had on the protection and commercialization of transboundary heritage like molas, which are made both in Panama and in Colombia. Bernardo Alarcón Porflidt’s chapter on ‘The Pisco War’ between Chile and Peru examines how each of these states’ legal regulations, management strategies, and public policies play crucial roles in the political fight to claim the drink. The detail and care with which Alarcón Porflidt outlines Chile and Peru’s approaches will surely help other scholars and legislators as they seek to take the author’s preferred cultural and social linkage approach (p. 164) to safeguarding transboundary heritage in other jurisdictions. Pamela Andanda’s chapter highlights how community codes and protocols can be used as a bridge between customary law and positive law to safeguard transboundary traditional medical knowledge (p. 183). Patricia Covarrubia’s chapter, which examines intellectual property protection for the textile arts of Aymara weavers in Bolivia, Chile and Peru (p. 205) highlights how best practices are key parts of safeguarding intangible cultural heritage under international law (p. 210) as we acknowledge that safeguarding requires a never ending plan of action (p. 214). 

The richness of Transboundary Heritage and Intellectual Property Law: Safeguarding Intangible Cultural Heritage lies in the variety of its case studies and in the international, national, and even local legal instruments the authors examine. The one organizational thing I found myself missing in the book was a Conclusion that would tie all these rich threads together. I hope the editors will consider adding a Conclusion in a second edition. From a substantive point of view, the book’s rich legal analysis of safeguarding transboundary heritage and the communities that produce it offers a blueprint for future work that focuses on companies and brands, and on how the products these brands and companies market might offer new concepts of transboundary heritage built in conjunction with or thanks to the contributions of local artisans and the traditional knowledge they share. For example, how should we think of intellectual property rights’ role in safeguarding Starbucks’ coffee as an American transboundary heritage built and marketed on the back of an Italian espresso tradition? I hope other authors will take up the baton that Patricia Covarrubia curates in this edited volume and run with its analysis to other cases of transboundary heritage in our popular culture. 

Publisher‏: ‎ Routledge

ISBN‏: ‎ 9781032384726

Published: May 2024

Extent: ‎ 244 pp