Research Handbook on Intellectual Property and Cultural Heritage 1800376901, 9781800376908

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RESEARCH HANDBOOK ON INTELLECTUAL PROPERTY AND CULTURAL HERITAGE

RESEARCH HANDBOOKS IN INTELLECTUAL PROPERTY Series Editor: Jeremy Phillips, Intellectual Property Consultant, Olswang, Research Director, Intellectual Property Institute and co-founder, IPKat weblog Under the general editorship and direction of Jeremy Phillips comes this important new Research Handbook series of high quality, original reference works that cover the broad pillars of intellectual property law: trademark law, patent law and copyright law – as well as less developed areas, such as geographical indications, and the increasing intersection of intellectual property with other fields. Taking an international and comparative approach, these Research Handbooks, each edited by leading scholars in the respective field, will comprise specially commissioned contributions from a select cast of authors, bringing together renowned figures with up-and-coming younger authors. Each will offer a wide-ranging examination of current issues in intellectual property that is unrivalled in its blend of critical, innovative thinking and substantive analysis, and in its synthesis of contemporary research. Each Research Handbook will stand alone as an invaluable source of reference for all scholars of intellectual property, as well as for practising lawyers who wish to engage with the discussion of ideas within the field. Whether used as an information resource on key topics, or as a platform for advanced study, these Research Handbooks will become definitive scholarly reference works in intellectual property law. Titles in the series include: Research Handbook on Patent Law and Theory Second Edition Edited by Toshiko Takenakaa Research Handbook on Intellectual Property and Digital Technologies Edited by Tanya Aplin Research Handbook on Intellectual Property and Technology Transfer Edited by Jacob H. Rooksby Research Handbook on Intellectual Property and Investment Law Edited by Christophe Geiger Research Handbook on the World Intellectual Property Organization The First 50 Years and Beyond Edited by Sam Ricketson Research Handbook on Trademark Law Reform Edited by Graeme B. Dinwoodie and Mark D. Janis Research Handbook on Design Law Edited by Henning Hartwig Research Handbook on Intellectual Property and Employment Law Edited by Niklas Bruun and Marja-Leena Mansala Research Handbook on Intellectual Property and Cultural Heritage Edited by Irini Stamatoudi

Research Handbook on Intellectual Property and Cultural Heritage Edited by

Irini Stamatoudi Professor of Intellectual Property Law and Cultural Heritage Law, Faculty of Law, University of Nicosia, Cyprus

RESEARCH HANDBOOKS IN INTELLECTUAL PROPERTY

Cheltenham, UK • Northampton, MA, USA

© The Editor and Contributors Severally 2022

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2022937598 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781800376915

ISBN 978 1 80037 690 8 (cased) ISBN 978 1 80037 691 5 (eBook)

EEP BoX

Contents

List of contributorsviii Introduction to the Research Handbook on Intellectual Property and Cultural Heritage: Overview of the issues Irini Stamatoudi PART I

1

IP PROTECTION FOR CULTURAL HERITAGE

SECTION I.A GENERAL 1

The notions of intellectual property and cultural heritage: Overlaps and clashes Irini Stamatoudi

8

2

The protection of cultural heritage by copyright and related rights Paul Torremans

38

3

The protection of cultural heritage by trademarks Mira Burri

56

4

Cultural heritage and patent law: Alternatives for the protection of traditional knowledge and genetic resources Pedro Henrique D. Batista

5

The protection of cultural heritage by designs Bernd Justin Jütte and Alina Trapova

6

The protection of intangible cultural assets by trade secrets and unfair competition law Neethu Rajam and Jens Schovsbo

73 94

113

SECTION I.B SPECIAL ISSUES 7

Traditional knowledge, databases and prior art: Options for an effective defensive use of TK against undue patent granting Reto M. Hilty, Pedro Henrique D. Batista and Suelen Carls

8

Re-evaluating the art practice of ‘appropriation’ from a copyright law perspective154 Marina Markellou

9

Preservation and heritagisation of street art and graffiti Enrico Bonadio v

132

170

vi  Research handbook on intellectual property and cultural heritage 10

Copyright issues on the use of images on the Internet Marie-Christine Janssens, Arina Gorbatyuk and Sonsoles Pajares Rivas

191

11

Linking, framing, and browsing digital or digitised works of art Irini Stamatoudi and Zoi Mavroskoti

214

12

The protection of traditional cultural expressions by geographical indications Michael Blakeney

236

13

Copyright ownership challenge arising from AI-generated works of art: A time to stand and stare Theodoros Chiou

PART II

250

POLITICS AND POLICIES ASSOCIATED WITH PROTECTING CULTURAL HERITAGE BY IPRS

14

States’ discretion to classify IP subject matter as national cultural treasures Maria-Daphne Papadopoulou and Maria G. Sinanidou

275

15

Intellectual property, cultural heritage, and human rights Peter K. Yu

295

16

‘Best practices’ to protect indigenous knowledge? Jessica C. Lai

312

17

Intangible cultural heritage, intellectual property and the public domain Charlotte Waelde

327

18

Bridging intellectual property and cultural heritage law in the practice of international governmental organisations Andrzej Jakubowski and Hanna Schreiber

340

PART III SPECIAL ISSUES FOR CULTURAL INSTITUTIONS 19

The artist’s resale right Simon Stokes

359

20

Digitization of cultural heritage under EU copyright: Digitizing the past to enable access and innovation for the future Stavroula Karapapa

375

21

Intellectual property and cultural heritage issues for museums of archaeological materials Pınar Oruç and Uma Suthersanen

392

22

Management issues for cultural heritage institutions Konstantinos Roussos and Irini Stamatoudi

413

23

IP management for cultural heritage institutions Rina Elster Pantalony

439

Contents  vii 24

Cultural heritage, galleries and auction houses Leila A. Amineddoleh

455

25

IP issues relating to cultural heritage platforms and new business models Julia Wildgans

480

26

Born digital: Law, policy, and the preservation of videogames as digital cultural heritage Benjamin Farrand

27

Private international law and cultural property and art disputes Marc Weber

28

ADR, cultural heritage and intellectual property: A continuum of dispute resolution processes Debbie De Girolamo

29

Intellectual property implications of 3D printing of cultural heritage Charles Cronin

Conclusion to the Research Handbook on Intellectual Property and Cultural Heritage: Important highlights Irini Stamatoudi

502 517

544 565

579

Index585

Contributors

Leila A. Amineddoleh, Founder of Amineddoleh & Associates LLC and Adjunct Professor at New York University and Fordham University, School of Law, US Pedro Henrique D. Batista, LL.M. (Munich), Junior Research Fellow, Max Planck Institute for Innovation and Competition, Munich, Germany Michael Blakeney, Winthrop Professor, Faculty of Law, University of Western Australia, Australia; Letizia Gianformaggio Chair of Law, University of Ferrara, Italy Enrico Bonadio, Reader in Intellectual Property Law, The City Law School, City, University of London, UK Mira Burri, Professor of International Economic and Internet Law, Faculty of Law, University of Lucerne, Switzerland Suelen Carls, PhD, Senior Research Fellow, Max Planck Institute for Innovation and Competition, Munich, Germany; IP Expert, World Intellectual Property Organization; Visiting Professor, University of Marília, Brazil Theodoros Chiou, PhD, Post-Doc Researcher at the University of Athens, School of Law, Attorney-at-law, Greece Charles Cronin, Adjunct Professor, Claremont Graduate University; Visiting Scholar, George Washington University Law School, US Debbie De Girolamo, Reader in Law, Director, Art, Business and Law LLM Programme, School of Law, Centre for Commercial Law Studies, Queen Mary University of London, UK Benjamin Farrand, Reader in Law and Emerging Technologies, Newcastle Law School, Newcastle University, UK Arina Gorbatyuk, Postdoctoral Fellow of the Research Foundation – Flanders (FWO) at Centre for IT and IP Law (CiTiP), KU Leuven, Belgium Reto M. Hilty, Director, Max Planck Institute for Innovation and Competition, Munich, Germany; Professor of Law at the University of Zurich, Switzerland, and at the University of Munich, Germany Andrzej Jakubowski, Assistant Professor, Institute of Law Studies, University of Opole, Poland Marie-Christine Janssens, Professor of Law, Head of Centre for IT and IP Law (CiTiP), KU Leuven, Belgium Bernd Justin Jütte, Assistant Professor in Intellectual Property Law, Sutherland School of Law, University College Dublin, Ireland; Senior Researcher, Faculty of Law, Vytautas Magnus University, Lithuania viii

Contributors  ix Stavroula Karapapa, Professor of Intellectual Property and Information Law at the University of Essex, UK Jessica C. Lai, Associate Professor of Commercial Law, Wellington School of Business and Government, Victoria University of Wellington, New Zealand Marina Markellou, Post-Doc Researcher, Panteion University, Greece Zoi Mavroskoti, PhD, Attorney-at-Law, Greece Pınar Oruç, Lecturer in Commercial Law, University of Manchester, UK Sonsoles Pajares Rivas, Legal Researcher at Centre for IT and IP Law (CiTiP), KU Leuven, Belgium Rina Elster Pantalony, Director, Copyright Advisory Services, Columbia University Libraries, New York, USA Maria-Daphne Papadopoulou, LLM mult, PhD, Head of the Legal Department/Hellenic Copyright Organization, Greece Neethu Rajam, PhD (Copenhagen), LLM (LSE, Lond.), Former Post-doc Fellow, Faculty of Law, University of Copenhagen, Denmark Konstantinos Roussos, Doctor of Archaeology, Research Assistant, Faculty of Law, University of Nicosia, Cyprus Jens Schovsbo, Professor, LLD, PhD, Faculty of Law, Center for Information and Innovation Law (CIIR), University of Copenhagen, Denmark Hanna Schreiber, Assistant Professor, Faculty of Political Science and International Studies, University of Warsaw, Poland Maria G. Sinanidou, Int IP LLM, Certified Mediation Advocate, Counselor at Law/Hellenic Copyright Organization, Greece Irini Stamatoudi, Professor of Intellectual Property Law and Cultural Heritage Law, Faculty of Law, University of Nicosia, Cyprus Simon Stokes, LLM; Solicitor (England and Wales); Senior Counsel, Al Tamimi & Company, Riyadh, Kingdom of Saudi Arabia Uma Suthersanen, Director, Queen Mary Intellectual Property Research Institute; and Professor of Global Intellectual Property Law, Queen Mary University of London, UK Paul Torremans, Professor of Intellectual Property Law, School of Law, Faculty of Social Sciences, University of Nottingham, UK Alina Trapova, Assistant Professor in Law and Autonomous Systems, University of Nottingham, UK Charlotte Waelde, Professor, Centre for Dance Research, Coventry University, UK Marc Weber, LLM, Attorney-at-Law, Partner at LANTER, Zurich, Switzerland Julia Wildgans, PhD student, University of Mannheim, Germany

x  Research handbook on intellectual property and cultural heritage Peter K. Yu, Regents Professor of Law and Communication, and Director, Center for Law and Intellectual Property, Texas A&M University, USA

Introduction to the Research Handbook on Intellectual Property and Cultural Heritage: Overview of the issues Irini Stamatoudi

Both intellectual property (IP) and cultural heritage (CH) have evolved during the years and have gained tremendously in significance as well as in economic value, despite the fact that the former mainly pertains to the private sphere whilst the latter is considered a ‘common good’.1 The relationship between intellectual property and cultural heritage has never been an easy one since it evolves in a profoundly complex setting with many institutions and actors involved (such as states, governmental and non-governmental organizations, indigenous communities, museums, libraries, archives, research institutions, educational institutions, commercial entities such as galleries and auction houses), often with very different or even divergent interests, and within fragmented legal regimes, especially when it comes to cultural heritage law. On the one hand, cultural heritage law has evolved between two main traditions, that of ‘nationalism’ or ‘retentionism’, where countries aim to keep as many cultural treasures as possible within their territories, and that of ‘internationalism’, ‘imperialism’ or ‘cosmopolitanism’,2 which in fact approaches cultural heritage as a trade commodity, that should freely circulate among countries, as it is kept and preserved for humanity as a whole irrespective of its provenance. In recent years, though, these two theories have been partly watered down and replaced by more pragmatic approaches, which aim at a synthesis rather than a segmentation. According to some of them (and depending on the case) cultural property may be inextricably linked to national identity but it may also present trade/property aspects. Through synergies 1 ‘IPR-intensive industries [in the EU] generated 29.2% of all jobs in the EU during the period 2014–2016. On average over this period, they employed almost 63 million people in the EU. In addition, another 21 million jobs were generated in industries that supply goods and services to IPR-intensive industries. Taking indirect jobs into account, the total number of IPR-dependent jobs rises to 83.8 million (38.9%). Over the same period, IPR-intensive industries generated almost 45% of total economic activity (GDP) in the EU, worth €6.6 trillion. They also accounted for most of the EU’s trade with the rest of the world and generated a trade surplus, thus helping to keep the EU’s external trade broadly balanced’. EPO and EUIPO, “IPR-intensive industries and economic performance in the European Union” Industry-Level Analysis Report, September 2019 Third edition . Christopher Heer, Dominic Cerilli, Daryna Kutsyna, “Statistics on the Value and Importance of Intellectual Property” (18 November 2020) . Both accessed 18 October 2021. Cultural heritage contributes to a country’s economy in a multifaced way and especially through tourism. See also UNESCO (2010), “Economy” https://​en​.unesco​.org/​creativity/​sites/​creativity/​ files/​cdis/​economy​_dimension​.pdf accessed 18 October 2021. 2 I. Stamatoudi, Cultural Property Law and Restitution. A Commentary to International Conventions and European Union Law, Edward Elgar Publishing, Cheltenham (UK) – Northampton (US), 2011, pp. 4seq. and 19seq.

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2  Research handbook on intellectual property and cultural heritage and co-operation, all these aspects can be brought to the forefront for the benefit of all the parties involved. International Conventions in this area tried to bridge the gaps between national laws to a certain extent.3 Also, EU law has harmonized certain aspects of it for EU countries.4 Still yet, national mentalities hold well in the area and each country has its own approach on the matter depending mainly on what it considers as being national cultural heritage and whose property this is supposed to be. This is one aspect of the spectrum. The other aspect is that many cultural heritage institutions (CHIs) possess significant cultural treasures or goods, which they need to preserve as part of their mission, bring forward, proliferate and give access to, for the public. Some of these institutions – despite the fact that some of them may be non-profit – make a living or sustain their goals through the commercial exploitation of those treasures on the basis of the production or design of copies in various forms – books, albums and so on – that are sold on the market or in their own (e-)shops. On the other hand, intellectual property laws have evolved in a trade-related environment bearing in mind – especially in the case of copyright – moral rights, too. If one also takes into account the fact that the idea for the global protection of IP was elaborated upon already in early 1800s,5 and that IP law then flourished as a response to multiple technological developments, digital technologies, the Internet, and artificial intelligence (AI),6 being some of the most recent ones, we ended up having sophisticated and elaborated rules depending on the type of the IP right. In some areas of IP, we also have more standardized and uniform provisions in a number of countries, when such provisions in the area of cultural heritage are rather sparse.7 3 See in particular the conventions that deal with the illegal removal and circulation of cultural goods, i.e., the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects; I. Stamatoudi, “Restitution of stolen and Illegally Exported Cultural Objects in the Context of the Unidroit Convention 1995” in P. Torremans (ed) Legal Convergence in The Enlarged Europe of the New Millennium, Kluwer Law International (2000), at 109. 4 Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast), OJ L 159, 28.5.2014, p. 1–10; Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods (Codified version), OJ L 39, 10.2.2009, p. 1–7; Regulation (EU) 2019/880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods PE/82/2018/REV/1, OJ L 151, 7.6.2019, p. 1–14. I. Stamatoudi, “The national treasures exception in Article 36 EC: How many of them fit the bill?” (1998) 3 Art, Antiquity and Law 39; I. Stamatoudi, “National cultural treasures and the free movement of goods in the Single Market” in E. Trova (ed), Cultural Heritage and the Law, Sakkoulas Publications, Athens, 2003, at 261. 5 E.g., the 1623 Statute of Monopolies (UK), which although it prohibited most royal monopolies, it specifically preserved the right to grant ‘letters patent’ for inventions of new manufactures for up to 14 years and the 1710 Statute of Anne, which empowered writers with renewable 14-year protection for their original works. See also the 1883 Paris Convention for the Protection of Industrial Property (covering patents, trademarks and industrial designs), the 1886 Berne Convention for the Protection of Literary and Artistic Works and the 1891 Madrid Agreement, which launched the Madrid System for the international registration of trademarks. 6 Issues of AI are still under discussion. 7 Although its origins date back to the mid-nineteenth century when the first legal instruments were drafted, still cultural heritage law is under development. See some examples during this period: The Lieber

Introduction  3 In broad terms, one could argue that IP is there to serve the interests of both right-holders (authors, creators, singers, phonogram and film producers, publishers, inventors, trademark holders, designers, etc.) and the public and society at large, creating at the same time a fertile ground for a flourishing culture, which depends on incentives for further creation and production as well as on the free or cost-effective, easy and timely access to knowledge. Cultural heritage law aims to serve the interests of the cultural heritage as such, which is approached from different angles by different states. A general rule could be that – according to the view a state takes – state control can be extensive or less extensive (to non-existent), and thus private ownership restricted accordingly. Primary examples of cultural institutions found at the crossroads of cultural heritage and IP are museums, galleries, and auction houses, audiovisual and broadcasting organizations, libraries, archives, cultural digital platforms, and so on. All these have a role in the creation, production, exploitation, dissemination, and promotion of cultural property in both a conventional and a digital environment, making use at the same time of new business models and practices irrespective of whether they work for pecuniary or non-pecuniary benefit. There are two main aspects pertaining to the role of cultural institutions. The first one is their role as predominant users of IPRs. They face challenges and opportunities as custodians and managers of content that belongs to third parties or to which the state has an interest from a cultural heritage point of view. They need to preserve, enhance, and provide access to such content in a legal and at the same time efficient and effective manner. The second one is their role in the development of new or derivative content, which complements their role as custodians and providers of content and also renders them primary right-holders. It is in this context that one needs also to examine how information and communications technologies (ICTs) and cutting-edge technologies (e.g., augmented reality, virtual reality, AI) can facilitate and perhaps further extend this role of those institutions by building, for example, safe and robust tools to preserve national cultural heritage, and at the same time by facilitating development and delivery of value-added services in the cultural heritage sector. Especially in the area of AI-generated works of art, one wonders whose cultural heritage they are and to whom their Code (Francis Lieber, Instructions for the Government of Armies of the United States in the Field,1863); International Convention with Respect to the Law and Customs of War by Land (Hague II), 29 July 1899; Convention Respecting the Laws and Customs of War on Land (Hague IV), 18 October 1907; Article 238 of the Treaty of Peace between the Allied & Associated Powers and Germany, Versailles, 28 June 1919 and Protocols; Inter-Allied Declaration Against Acts of Dispossession Committed in Territories under Enemy Occupation or Control, London, 5 January 1943; Judgment of the International Military Tribunal, 30 September 1946; Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention on Cultural Property), 14 May 1954; Statutes of the International Centre for the Study of the Preservation and Restoration of Cultural Property, 5 December 1956 (as revised, 24 April 1963, and 14–17 April, 1969); Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970; Convention Concerning the Protection of the World Cultural and Natural Heritage, 23 November 1972; Recommendation Concerning the International Exchange of Cultural Property, Adopted by the General Conference at its Nineteenth Session, Paris, 30 November 1976; Recommendation for the Protection of Movable Cultural Property, Adopted by the General Conference at its Twentieth Session, Paris, 28 November 1978; European Cultural Convention, 19 July 1954; European Convention on Offences Relating to Cultural Property, 23 June 1985; Convention for the Protection of the Architectural Heritage of Europe, 3 October 1985; European Convention on the Protection of the Archaeological Heritage (Revised), 16 January 1992; Resolution 1205, Looted Cultural Property, Parliamentary Assembly of the Council of Europe, 4 November 1999.

4  Research handbook on intellectual property and cultural heritage rights belong. New business models are also extremely relevant in a digital cross-border environment, where intermediaries can also play the role of either a facilitator or an aggregator. This book aims to explore the intersection between intellectual property rights (IPRs) and cultural heritage from a variety of angles and perspectives. It is divided into three main parts. Part I (IP Protection for Cultural Heritage) is subdivided into two sections. The first section (I.A) aims to deal with the notions of cultural heritage and intellectual property as these are found and defined in the various international conventions, EU law, and national legal instruments. Some basics will also be discussed as to how cultural property cuts across various areas of IP law giving rise to both synergies and frictions at the same time. The chapters to follow will look into this issue more extensively. More specifically, they shall discuss how various types of cultural property can be or are protected by different types of IP and what are the challenges and opportunities deriving from such an interplay. In fact, the types of IPRs discussed are copyright and related rights, patents, trademarks, designs and trade secrets. The second section (I.B) goes into more specialized issues, such as whether traditional knowledge databases form an effective mechanism against undue patent granting; whether appropriation art is compatible with copyright law and the conflict between copyright law and the freedom of art; the conflict between the right to tangible property and the right to intangible property when it comes to street art, graffiti and copyright law; the challenges that the online exploitation of images sets; whether linking, framing, and browsing digital works of art is compatible with copyright law and under what conditions; the protection of traditional cultural expressions by geographical indications; and lastly, copyright ownership issues arising from the production of AI-generated works of art. Apart from the legal and factual interplay between cultural heritage and IPRs, there are also some politics involved, which sometimes transforms itself into policies either through best practices and soft law or through the introduction of new legislation. Part II (Politics and policies associated with protecting cultural heritage by IPRs) deals with a variety of issues that could come under the umbrella of politics and policies, and which are associated with the protection of cultural heritage by IPRs. These are a state’s discretion to classify IP protectable subject matter as national cultural heritage. In this regard the Greek example will be taken. The intersection between IP and cultural heritage will also be explored from a human rights perspective. There will also be an attempt to offer a general overview of best practices and examples relating to the protection of folklore, traditional knowledge, and genetic resources. The next chapter in this part will examine the role of a robust and thriving public domain for cultural heritage and the need for an effective access to content in general and art and culture in particular. This is also based on the premise that where IP protection expires, cultural heritage protection comes into play despite the fact that on many occasions these two protections coincide and in cases even when IPRs have expired, their subject matter could still be relevant from a cultural heritage point of view. This section ends with the role of governmental organizations in the area of cultural heritage and IP law. Part III (Special issues for cultural institutions) explores special issues pertaining to the role and function of cultural institutions of various types and missions. This part starts with the artist’s resale right, exploring its justification, content, operation, and significance. It then goes on to identify and explain IP issues relating to the increasing need of digitizing the collections of libraries and archives. The next three chapters are more managerial in nature as they focus on both theoretical and practical issues concerning the nexus between IP, cultural heritage, and the role of museums of the visual arts, galleries, and auction houses, as well as cultural

Introduction  5 heritage institutions in general. Chapter 25 deals with IP issues relevant to cultural heritage platforms and to new business models (such as Europeana, Google Arts, Creative Commons, etc.). Chapter 26 deals with the law, policy, and the preservation of videogames as digital cultural heritage, while Chapters 27 and 28 discuss private international law and alternative dispute resolution issues relating to cultural property and art disputes respectively. Chapter 29 explores issues pertaining to the intellectual property issues that arise regarding the 3D printing of cultural heritage and the separation of the intellectual expression of cultural artifacts from the tangible media in which it is fixed. At the end conclusions are drawn, placing the emphasis on highlights of the discussions included in this book. The idea for this book occurred to me not only because this was a specialization which I catered for, for years, both academically but also in practice from the post of the Director General of the Hellenic Copyright Organization8 (2007 to 2018) and as an advisor and member of many advisory committees to the Greek Ministry of Culture on cultural heritage matters (1999 up to date), but also by reason of the fact that the academic materials in the area were scarce, which was a disappointing conclusion to draw if one realizes that the needs were inversely proportional to the existing writings. The intersection between IP and cultural heritage – as explained above – is not only complex, but also sensitive, as it involves issues of morality, ethics, and public policy. From that point of view, it merits a considerable amount of research. I would primarily like to thank the publishers for giving me the chance to explore this field further. I would also like to thank the contributors for their willingness and enthusiasm with which they responded to my call. If it was not for them, this book would not come to existence. Last but not least, I would like to thank Dr Maria Papavassileiou and Dr Konstantinos Roussos for helping me out with the logistics of this project.

8 The HCO belongs to the Greek Ministry of Culture and Sports and is the competent authority in Greece for copyright matters.

PART I IP PROTECTION FOR CULTURAL HERITAGE

Section I.A General

1. The notions of intellectual property and cultural heritage: Overlaps and clashes Irini Stamatoudi

1. INTRODUCTION Intellectual property is an area of law that has primarily evolved as a response to the printing press and the Industrial Revolution and then to the technological and digital developments that followed. Yet, it has also been used as a vehicle in certain circumstances to accommodate the protection of more traditional subject matter that could not necessarily fit in some other area of law. Certain jurisdictions, for example, have based the legal protection of traditional cultural expressions/folklore, genetic resources and traditional knowledge on IP or IP-like or even IP-inspired regimes. Although many of the legal principles governing intellectual property rights have evolved over centuries, it was not until the 19th century that the term intellectual property began to be used, and not until the late 20th century that it became commonplace in the majority of the world. The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origins of copyright and patent law respectively. In ancient Greece, copyright was not protected, and creators mostly earned their living from subsidies received from the state or rich patrons (Mecenases). Claims sounding in moral right, especially the creator’s right to have authorship of his work attributed to him, found pronounced social recognition, but remained without legal sanctions.1 Intellectual property rights (IPRs) refer to the legal rights granted with the aim to protect the fruits of the human intellect in the field of industry, literature, art and science. These rights include industrial property rights (e.g., patents, industrial designs, trademarks, etc.) and copyright (rights of the authors or creators) and related rights (rights of the performers, sound and film producers, broadcasting organizations, etc.). These legal rights are usually absolute and exclusive rights, i.e., they belong to their right-holder and can only be exercised by him. That means that any use (on most occasions commercial use only) of subject matter that is protected

1 I. Stamatoudi, “Greece” in L. Bently (ed) International Copyright Law and Practice, Matthew Bender, US (loose-leaf), 2021. See also Marianina Olcott, “Ancient and Modern Notions of Plagiarism: A Study of Concepts of Intellectual Property in Classical Greece,” Journal of the Copyright Society of the U.S.A., 2002, vol. 49, p. 1047. Note that the ancient city-state Sybaris, a Greek colony in Southern Italy, had a law entitling the creator of a new and tasty dish to use this dish exclusively for one year. See Athenaeus, The Deipnosophists (trans. C.B. Gulick, Loeb Classics, 1963), vol. 5, p. 349. See also Stanford Encyclopedia of Philosophy, “Although there is no known Roman law protecting intellectual property, Roman jurists did discuss the different ownership interests associated with an intellectual work and how the work was codified—e.g., the ownership of a painting and the ownership of a table upon which the painting appears. There is also reference to literary piracy by the Roman epigrammatist Martial. In this case, Fidentinus is caught reciting the works of Martial without citing the source” https://​ plato​.stanford​.edu/​entries/​intellectual​-property/​.

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The notions of intellectual property and cultural heritage  9 by IPRs is not allowed without the right-holder’s consent and without paying a fee unless such use is permitted on the basis of an exception or limitation or as a matter of a balancing act between the clash of two, for example, fundamental rights, which (balancing act) however is ultimately judged by the courts. IPRs – through the granting of a legal monopoly/exclusivity to the right-holder – (a) give statutory expression to the moral and economic rights of creators and inventors in their creations and inventions respectively and the rights of the public in having access to those creations and inventions. These rights are limited in time (with the exception of trademarks) so that the balance between the two (i.e., the rights of authors and inventors and those of the public at large) are balanced; and (b) promote, as a deliberate act of government policy, creativity, innovation and the dissemination and application of their results and encourage fair trading, which contributes to economic and social development. These are intangible rights and should therefore be distinguished from the physical or digital carrier on which they are embodied (e.g., one should distinguish between the book as paper and ink and the story in it attracting copyright protection). According to the principle of territoriality applying to IPRs by reason of the international conventions in the area, the scope of protection of an IP right is limited to the territory of the state where the right is granted.2 This means that although IPRs differ from country to country (e.g., copyright laws are different in the US and in Greece) or country to region (e.g., Canadian patent and European patent), and are independent from each other, they co-exist alongside each other on the same immaterial good. Thus, IPRs are absolute and exclusive (property) rights, on intangible subject matter, limited in time, and with the aim, on the one hand, to safeguard the interests of the right-holders (both pecuniary and non-pecuniary), while on the other hand, to encourage fair trading and incentivize further creation and innovation for the benefit of society, culture and the economy. They also aim at regulating access to knowledge and information either through mechanisms of disclosure (as is the case with patents) or after the expiration of an IPR’s duration. To these the application of exceptions and limitations should also be added as they enable uses of protected subject matter that otherwise would be covered by the exclusive right. On the other side of the spectrum is cultural heritage law, which is an area of law which developed as a response to the need to protect a state’s cultural heritage originally as part of its national culture. This is also the reason why the first laws on cultural heritage are national laws, while only later the need emerged for international legal instruments that would respond to the need of protection of cultural treasures in times of war as in times of peace. A number of important legal instruments emerged in this respect, placing the emphasis on the protection of cultural treasures during war,3 the prevention of the illegal movement of cultural goods,4 the 2 This principle is embedded in all national legal systems in compliance with the TRIPs Agreement and EU law. See G.B. Dinwoodie, ‘Developing a Private International Intellectual Property Law: the Demise of Territoriality’, in William & Mary L. Rev. 2009, 711ff.; A. Peukert, Territoriality and Extraterritoriality in Intellectual Property Law, in G. Handl – J. Zekoll (eds), Beyond Territoriality: Transnational Legal Authority in An Age of Globalization, 2011, 194ff.; P. Torremans, Copyright territoriality in a borderless online environment, in J. Axhamn, Copyright in a borderless environment, Norstedts Juridik. Stockholm, 2012, 23ff. 3 E.g., 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. 4 E.g., the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; 1995 UNIDROIT Convention on Stolen

10  Research handbook on intellectual property and cultural heritage safeguard of underwater cultural heritage,5 the international recognition of natural and cultural sites all over the world,6 and the safeguard of intangible cultural heritage and the protection and promotion of the diversity of cultural expressions.7 Regional law has also been enacted in this area, which to a certain extent has incorporated some of the relevant international conventions, with the prime example being the law of the European Union.8 The reference to international legal instruments and EU law in this chapter is indicative (per the needs of the discussion) and not exhaustive. The aim of this chapter is (a) to provide a primer (or a useful summary) of the basic notions of intellectual property (IP) and cultural heritage (CH) so as to set the framework within which discussion will develop in the next chapters of the book, and (b) give a small overview of the most characteristic overlaps and clashes between IP and CH law as well as a small insight/ indication as to how these two areas of law may work complementarily to each other.

2.

THE NOTION OF INTELLECTUAL PROPERTY (IP)

The basic characteristics of intellectual property rights have been set out in the first section of this chapter. This section aims to move on to the specifics of each type of IP. Although the scope of IP is very wide and encompasses far more types of IP than the ones that will be discussed in this section, we shall only refer to those that are relevant for the purposes of this book. 2.1

The Notion of Copyright and Related Rights

Copyright is a legal term referring to a set of legal provisions aiming at the protection of the rights of authors and creators over their literary and artistic works. A prerequisite for copyright protection is originality. A work is not protected unless it is original. Some jurisdictions (usually common law jurisdictions) provide for additional prerequisites such as classification (i.e., a work needs to be classified in one category of protected subject matter), fixation (i.e., a work needs to be fixated on some kind of medium: tangible or digital), and so on. Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts, news information or simple facts and data as such. Other type of work such as official texts expressive of the authority of the state (notably legislative, administrative, or judicial texts) may also be specifically excluded from copyright protection by law. Copyright may or may not be available for a number of objects such as titles, slogans, or logos, depending on whether they are considered creative/original.

or Illegally Exported Cultural Objects; 2017 Council of Europe Convention on Offences Relating to Cultural Property (the Nicosia Convention). 5 2001 The Convention on the Protection of the Underwater Cultural Heritage. 6 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage. 7 2003 The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage and the 2005 Convention for the Protection and Promotion of the Diversity of Cultural Expressions. 8 Art. 36 TFEU; EU Directive 2014/60 on the return of cultural objects unlawfully removed from the territory of a Member State; EU Regulation 116/2009 on the export of cultural goods; EU Regulation 880/2019 on the introduction and the import of cultural goods.

The notions of intellectual property and cultural heritage  11 According to the Berne Convention, which precludes any formalities as a prerequisite for copyright protection, copyright protection is obtained automatically without the need for registration or other formalities. Yet, some countries have a system in place to allow for the voluntary registration of works. Such voluntary registration systems can help solve disputes over ownership or creation, as well as facilitate financial transactions, sales, and the assignment and/or transfer of rights.9 Other countries provide for the voluntary registration with an organization in order for one to acquire a certified date without that being, of course, a prerequisite for protection.10 It just works as a rebuttable presumption that a work existed on a particular date and was deposited by its potential right-holder. Article 2 of the Berne Convention states that: “The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.” The Convention lists the following examples of such works: ● ● ● ● ● ●

books, pamphlets and other writings; lectures, addresses, sermons; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science; “translations, adaptations, arrangements of music and other alterations of a literary or artistic work,” which “shall be protected as original works without prejudice to the copyright in the original work”; and “collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations” – again, the Convention provides that these “shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.”11

● ● ● ● ● ●

Computer programs and databases are also protected by copyright.12 Yet, there are also works that are not expressly referred to in international conventions, regional (such as EU) legislation or national law and are still protected by copyright to the extent they are original. Such examples can be multimedia works, websites, virtual reality shows, augmented reality works, 3D printing, and so on. It is also currently explored whether artificial intelligence works may also be protected by copyright or by a right akin to it.

The US system requires for US works registration with the Library of Congress. See, for example, the system operated by the Hellenic Copyright Organization (Greece). 11 WIPO, Understanding copyright and related rights, 2016, p. 7 https://​ www​ .wipo​ .int/​ edocs/​ pubdocs/​en/​wipo​_pub​_909​_2016​.pdf. 12 Added to the list of protected works under Berne on the basis of article 10 TRIPs Agreement. 9

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12  Research handbook on intellectual property and cultural heritage Works are not protected by copyright unless they are original. The criterion of originality is rarely defined in the laws. It usually derives from case law and differs essentially between the two large copyright traditions: the common law and the continental law traditions as well as between countries belonging to one or another. Under the common law tradition, the originality criterion is rather low, varying between skill, labour and judgement (UK) and the ‘sweat of the brow’ principle (US). In the civil law tradition, the originality criterion is rather high, usually requiring that the work reflects the author’s personality. In the EU, for example, a work is original if it is its author’s own intellectual creation, i.e., the author has made free and creative choices and has stamped the work with his personal touch.13 Copyright is an absolute right in the sense that its holder is the exclusive owner of the rights in the work and can exclude third parties from using her or his work without her/his authorization. There are two types of rights under copyright: ● economic rights, which allow the rights owner to derive financial reward from the use of his works by others; and ● moral rights, which protect the non-economic interests of the author in his work. Thus, a rights owner can prohibit or authorize (sometimes – depending on the right and the jurisdiction – he only has a right to receive remuneration for the use of his work) any of the following acts:14 ● its reproduction in various forms, such as printed publication or sound recording, and distribution to the public; ● its public performance, such as in a play or musical work; ● its recording, for example, in the form of compact discs or DVDs; ● its broadcasting, by radio, cable or satellite; ● its translation into other languages; ● its adaptation, such as a novel into a film screenplay; ● import and export; ● resale right for works of the visual arts; ● its communication, and making available to the public/on demand right (the latter for internet uses only where the public can access the work whenever and from wherever one wishes). The Berne Convention provides for minimum moral rights protection: (a) the right to claim authorship of a work (right of paternity), and (b) the right to oppose changes to a work that could harm the creator’s reputation (right of integrity). Yet, a number of (essentially civil law) jurisdictions have extended this protection by (a) adding to the list of moral rights, such as15

13 I. Stamatoudi, “Originality under EU Copyright Law” in P. Torremans (ed.), Copyright Law: A Handbook of Contemporary Research, Edward Elgar Publishing, Cheltenham (UK) – Northampton (US), 2017, 57. 14 This list may differ between jurisdictions. 15 This enumeration may differ between jurisdictions not only concerning the nature of the rights but also their content.

The notions of intellectual property and cultural heritage  13 the right of publication,16 the right of withdrawal/repudiation for literary and scientific works,17 and the right to have access to a work;18 (b) extending the scope of the right of integrity by not providing the additional requirement concerning the harm to the creator’s reputation; (c) rendering the moral rights provisions ius cogens (compulsory), meaning that one may not transfer or waive them;19 (d) extending their duration beyond the one for the economic rights.20 Moral rights are not usually subject to exceptions or limitations, despite the fact that even in those jurisdictions that cannot be waived, one may limit them by providing express authorizations in writing, for particular and restrictively defined acts.21 Yet, the economic rights of authors are subject to exceptions and limitations for the benefit of research, education, the press, less privileged groups (such as people with disabilities), and society at large.22 It seems that these provisions aim to restore the balance between the rights of the authors (to be able to make a living out of their works, control their exploitation and therefore have an incentive for further creation) and those of society (to have access to works and other materials, especially under certain circumstances without the need of authorization and the payment of a fee23). Some of these exceptions are the exception for the reproduction of works for private purposes, the right of quotation, the panorama exception, exceptions for teaching and research, for the benefit of the press, for caricature and pastiche, for people with disabilities, etc. All these exceptions are subject to the three-step test, i.e., (a) the reproduction of a work can only be permitted in ‘certain special cases’, (b) it should not conflict with the ‘normal exploitation’ of the work, and (c) it should not unreasonably prejudice the ‘legitimate interests’ of the author. According to the Berne Convention, copyright lasts for a minimum of 50 years from the death of the author, while in the EU the duration extends to 70 years after the death of the author, calculated from 1 January of the year following the event of the death. Other jurisdictions, such as the US, provide for a longer protection in certain instances. The initial owner of copyright in a work is usually its author (a number of jurisdictions provide that the author can only be a natural person), although there may be presumptions in the law which vest rights in certain instances to other parties such as employers or other entrepreneurs. National law usually provide for special provisions for special types of works, such as audiovisual works, computer programs, databases, etc. They also provide for tailor-made

An author’s right to decide if, when, and where to publish his work. An author’s right to withdraw a literary or scientific work from the market (compensating his publisher) in case of change in convictions or beliefs. 18 An author’s right to have access to works of unique embodiment (usually works of the visual arts) in case he has been alienated from them by reason of sale or donation (causing the least possible nuisance to their owner). 19 Usually, moral rights cannot be transferred. Yet, in some common law jurisdictions they need to be asserted as part of the copyright protection. 20 For example, in Greece, the right of paternity and the right of integrity last forever and can be exercised – after the expiration of copyright – by the Minister of Culture. 21 See, for example, article 16 (entitled “Consent of the Author as Exercise of the Moral Right”) Law 2121/1993 as amended (Greece). 22 P. Samuelson, “Justifications for Copyright Limitations & Exceptions” https://​www​.law​.berkeley​ .edu/​files/​Justications​_for​_Copyright​_Limitations​_and​_Exceptions​_​-​_Pamuela​_Samuelson​.pdf. 23 Yet, there are exceptions where an act may be exempted but a fee may need to be paid. See, for example, the EU exception on compensation for the purposes of private reproduction. 16 17

14  Research handbook on intellectual property and cultural heritage provisions for the transfer or licensing of rights of special types of works (print publications, (re-)use of photographs, audiovisual works, etc.). Apart from authors, copyright law also protects related rights holders. These are entitled to protection because they invest in the production, promotion, or dissemination of a work not only with money but also with expertise or through their acting or interpretation of the work. Therefore, their efforts and investment should not be open to free-riding. Depending on the jurisdiction24 these are usually: ● ● ● ● ● ●

performers or performing artists; producers of audio and/or video media; broadcasting organizations; publishers of print materials; database makers; people publishing for the first time unpublished creations in which copyright protection has expired; ● publishers of press publications for the online use of their press publications by information society service providers. Related rights are independent from copyright and do not prejudice copyright. Their scope of protection is more limited compared with copyright, but many copyright provisions usually apply to them per se. In the EU performers are also entitled to a limited moral rights protection, i.e., to a right of paternity and a right of integrity. Most related rights usually last for 50 years running from a triggering event, although there are special provisions for some of them such as the sui generis right for databases,25 the right in previously unpublished works,26 and the right for the online press publications.27 Given the fact that right-holders cannot always collect royalties themselves (as this would not be cost-effective and would also be highly impractical) for the use of their works, they authorize (through an assignment, licence, or any other contractual arrangement) such rights to collective management organizations (CMOs) or other similar entities (e.g., independent

24 The EU provide for specific types of right-holders such as database makers and publishers of press publications for their online use of their works. 25 Article 10 EU Database Directive. This right runs for 15 years from the date of completion of the making of the database calculated from 1 January of the year following the date of completion. In the case of a database which is made available to the public in whatever manner before expiry of this period, the term of protection by that right shall expire 15 years from 1 January of the year following the date when the database was first made available to the public. Any substantial change evaluated qualitatively or quantitatively, to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions, or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection. 26 Article 4 EU Term of Protection Directive: “Any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, shall benefit from a protection equivalent to the economic rights of the author. The term of protection of such rights shall be 25 years from the time when the work was first lawfully published or lawfully communicated to the public.” 27 Article 15(1) EU Digital Single Market Directive. This right expires two years after the press publication is published. That term is calculated from 1 January of the year following the date on which that press publication is published.

The notions of intellectual property and cultural heritage  15 management entities) that collect them on their behalf and distribute them to their members/ right-holders.28 CMOs operate on prescribed rules on transparency and governance, as these are set by the EU Directive on Collective Management and have been transposed into the national laws of EU Member States.29 Copyright laws contain provisions on the enforcement of rights varying from out-of-court enforcement (by police, custom authorities, municipalities, tax police, port police, etc,) to administrative, civil, and penal sanctions (the two latter can be pursued in the courts). Alternative dispute resolution is also possible.30 Concerning the intersection between copyright and CH, we pinpoint to the most common and interesting issues arising. Many artists, especially those using new technologies or even artificial intelligence, are not entirely sure who owns copyright.31 Issues also arise with regard to the protection of works qualifying as appropriation art, street art and graffiti.32 On top of this, we also have issues with those jurisdictions where works – especially works of the visual arts – may qualify as national cultural heritage because of their importance, rarity, connection to national history as well as for other reasons. In these cases, national laws may impose restrictions on the transfer of ownership and use of those works for the sake of cultural heritage preservation.33 Copyright law is particularly relevant for cultural heritage institutions (perhaps the most relevant compared with any other type of IP right), which possess in their collections or have acquired by purchase, loans or donations, any types of works of the visual arts, such as paintings, sculptures, collages, photographs, video art as well as books, archives, databases, documents, archival materials, documentaries, and so on. Copyright becomes relevant when these institutions wish to take action pursuing their vision and aims: make their collections available to the public, digitize them,34 use them in tourist or art guides, in albums, in virtual

According to article 3 of the EU Collective Rights Management (CRM) Directive: (a) ‘collective management organization’ means any organization which is authorized by law or by way of assignment, licence or any other contractual arrangement to manage copyright or rights related to copyright on behalf of more than one right-holder, for the collective benefit of those right-holders, as its sole or main purpose, and which fulfils one or both of the following criteria: (i) it is owned or controlled by its members; (ii) it is organized on a not-for-profit basis; (b) ‘independent management entity’ means any organization which is authorized by law or by way of assignment, licence or any other contractual arrangement to manage copyright or rights related to copyright on behalf of more than one right-holder, for the collective benefit of those right-holders, as its sole or main purpose, and which is: (i) neither owned nor controlled, directly or indirectly, wholly or in part, by right-holders; and (ii) organized on a for-profit basis. 29 Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market OJ L84/72/20.3.2014 (CRM Directive). 30 See Chapters 27 and 28 on issues of private international law and ADR respectively. 31 See Chapter 13 on copyright ownership challenges arising from AI-generated works of art. 32 See Chapters 8 and 9. 33 See Chapter 14 on states’ discretion to classify IP subject matter as national cultural treasures. 34 See Chapter 20 on digitization of cultural heritage under EU copyright. 28

16  Research handbook on intellectual property and cultural heritage tours, in cultural heritage platforms (e.g., Europeana, Google Art),35 in social media,36 provide links to third party sites,37 use them as the basis for immersive performances, gamification and video games,38 for projects of virtual or augmented reality, or which want to commercialize them through (e-)shops (by reproducing copies or producing derivative works or collections of works, posters, photographs, etc.), or solely upload them on their site. As was demonstrated above, any ‘dealing’ with protected subject matter (and we have seen that there are a great variety of things that may be protected by copyright and/or related rights) requires the authorization of its right-holder unless an exception or limitation applies, or the material is subject to open initiatives such as Free and Open Source Software (FOSS) and Creative Commons (CC). There are currently exceptions and limitations that are relevant for non-profit and cultural heritage institutions for the purposes of preserving materials, using them in catalogues and books, digitizing orphan works and out of commerce works in their collections and so on. Some of them are discussed in the chapters of this book. Yet, an institution cannot rely solely on exceptions and limitations or open initiatives to pursue its goals. It needs to take positive action to ensure that it has all the necessary rights and licences to conduct its operations and that its employees, collaborators, and suppliers work under a clear understanding with the institution as to who holds rights in what as well as the extent and scope of those rights. Copyright is also relevant when institutions wish to use third party rights for campaigning, advertising purposes, for creating content, for the making of copies from images of artefacts in their collections (e.g., create a mug with details from a painting), use photographs taken by third parties, link to third parties’ content on the Internet and so on. These are the instances where the institutions need to make sure that they do not infringe third party rights. Relevant chapters in this book will explore issues of management of protected subject matter shedding light on the variety of the issues emerging.39 Last but not least, there is also the issue whether copyright or related rights can be used as a vehicle to protect cultural heritage material such as traditional cultural expressions (TCEs) and folklore.40 The main characteristics of TCEs are that they may be considered as the forms in which traditional culture is expressed. They form part of the identity and heritage of a traditional or indigenous community and are passed down from generation to generation. They