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Charlotte Waelde, Catherine Cummings, Mathilde Pavis and Helena Enright

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Edited by Charlotte Waelde, Catherine Cummings, Mathilde Pavis and Helena Enright

Bringing together key insights from expert legal and heritage academics and practitioners, this book explores the existence and safeguarding of contemporary forms of intangible cultural heritage (ICH). Providing a detailed analysis of the international legal frameworks relevant to ICH, the contributing authors then go on to challenge the pervasive view that heritage is about ‘old’ tangible objects by highlighting the existence, role and importance of contemporary forms of ICH to modern society.
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Henning Berthold, Melinda Grewar, Shiona Chillas and Barbara Townley

In this chapter, we examine how intellectual property (IP) engages with business models. Business models are conceptual devices constituting and framing the process through which things become assets or objects of investment, elaborating the mechanisms of value creation and delivery and the appropriation of such value through strategic means. Changes in the patterns of production, distribution and consumption in the wake of continued digitisation have come to challenge established value-generating logics. The heterogenic character of the Creative Industries implies a multitude of business models at play which escapes the rhetoric of universalities, reflecting locally defined understandings and practices of value creation and appropriation. Some of these variations are considered in this chapter.

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Mathilde Pavis

This chapter outlines the legal framework of copyright and performers’ rights enforced in the UK, with reference to EU regulations where relevant. To this end, it reviews the various conditions for protection in relation to both types of rights today, and retraces some of main developments the intellectual property system endured to adapt to new technologies. The chapter concludes this overview by critically engaging with the distinction placed by intellectual property law between authors and performers which could be perceived as one of the most archaic features of the framework.

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Amalyah Keshet

From the perspective of a museum professional, this chapter explores the daily challenges and opportunities which copyright can pose. The chapter discusses the challenges of display, social media, digital surrogates, co-ownership, 3-D printing, manipulation and re-mixing images of works of art. Particular reference is made to fair use, orphan works, the public domain, licensing and users rights. Equally important is the sharing of professional best practices, and the chapter discusses the valuable contributions made by the Robert Rauschenberg Foundation’s Fair Use Policy Statement and Codes such as the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts. Throughout the focus is on how best, and perhaps most creatively, to manage legal risk and uncertainty in service of the aims of museums – the cathedrals of our era – in acquiring, conserving and communicating humanity’s heritage for education, study and enjoyment.

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Abbe E.L. Brown, Nicholas Gervassis and Rumbidzai Mukonoweshuro

This chapter argues for a new relationship to be generated between IP and the Creative Industries through the framework of corporate social responsibility. This complex and often controversial theme is introduced and its existing relationships with IP and in the Creative Industries are explored. It is argued, given the present focus of the Creative Industries on economics, that change is necessary for there to be appropriate regard to cultural goals and to diversity. This can be done by moving corporate social responsibility beyond its focus on supply chain and health and safety to engage more directly with IP rights – even though IP rights can be argued to be at the core of the Creative Industries and of the business of the IP owner. Building on some existing examples in the Creative Industries and from sustainability, five new pathways are introduced to create this new relationship. IP owners in the Creative Industries are encouraged to explore them.

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John Hartley

Creativity, innovation and knowledge are outcomes of group-based acts of sociality, relying on systems that no one owns or controls, on the model of language, which itself cannot be copyrighted. This chapter argues that using language rather than property as the basis for understanding copying and innovation offers new insights into creativity. Language and translation make a better model than information and transmission, shifting analysis from individuals, works and property to groups, uses and networks, or ‘knowledge clubs’. In the context of digital reproduction and social networks, we need to reconceptualise the definition of the creative economy, expanding it beyond individual property based on talent (authorship). If everyone is an author and publisher, then it is not the ownership of an idea that gives it value but its use, not the individual but the system. It is the coordination of ‘flow’ and utility that needs regulation, not the protection of rents.

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Yudhishthir Raj Isar

The commercial viability of the film and media sectors, and to a large extent of the traditional crafts, as well as a recently emergent and flourishing visual arts sector, has prevented the ‘creative industries’ discourse from acquiring purchase in India and becoming a mobilizing metaphor in the cultural arena as it has elsewhere. In addition, Indian cultural pride focuses on the ‘high arts’ and accords less importance to the industrially produced. By the same token, intellectual property issues have limited salience in India. Although some recommendations have been made pertaining to geographical indicators, traditional knowledge and the creation of a collecting societies few concrete measures have resulted. The Indian Copyright Act of 1957 has been amended, however, in accordance with international trends to broaden the scope of fair use, give greater moral rights to authors and introduce the concept of DRM.

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Irene Calboli

This chapter looks to the present and future relationship between IP and the creative industries in the context of diversity. It discusses films (including cartoons) their approaches to homosexuality, gender and discrimination and some examples of this enabling a more inclusive approach to important issues for society. In contrast, the chapter notes that the creative industries themselves often do not pursue diversity, for example the Academy Awards of 2016 and a focus on generating toys of the male, rather than female, characters in Star Wars. Against this backdrop, the chapter explores the contribution which IP can make to the evolving relationship between the creative industries and diversity. Among other examples it explores the 2017 decision of the US Supreme Court regarding the ‘Slant’ trade mark, changes within copyright law regarding some disabilities, changes in power holders as a result of new technologies and contrasting to approaches to IP – some based in utilitarianism, some in respecting cultural diversity. The chapter calls for IP to bring about new approaches to the protection of diversity, and argues that wider methodologies can assist in this.

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Susy Frankel

This chapter discusses the ways in which the creative sector utilises traditional knowledge. It explains how some of those uses exploit the knowledge without payment to, or even acknowledgement of, the indigenous peoples’ and communities that are the source of the knowledge. In such circumstances, there is a sound normative basis for the protection of traditional knowledge against misappropriation and derogatory uses. The development of international norms to achieve that protection is complex. The chapter concludes with a discussion of how, even without legal norms of protection, cooperative arrangements can be made for the benefit of both the creative sector and traditional knowledge holders. Examples from around the world are given, including in particular the use of m_tauranga M_ori (traditional knowledge) in New Zealand.