In an intellectual property (IP) context, particularly copyright law, the conclusion that indigenous heritage is unprotected is reached seemingly without a balance of rights. This prompts questions as to the perceived (un)fairness of the prevalence of dominant, existing IP regimes and understandings vis-à-vis non-dominant stakeholder interests. In contrast, human rights law has increasingly opened up to indigenous peoples’ participation, their claims and rights. Taking a critical perspective, this chapter examines fairness in the context of IP, access to and protection of indigenous peoples’ traditional knowledge (TK) and traditional cultural expressions (TCEs), using the human rights principle of self-determination as a normative ‘fairness tool’. Drawing on both legal and library and information sciences materials, digital libraries feature as a case study. The analysis in the chapter explores four central concepts that operationalize the self-determination principle as a normative ‘fairness tool’, illustrated by exemplary cases in the sphere of taking control over or regulating access to digital indigenous heritage. The concepts are ‘privacy by design’, ‘knowledge commons’, ‘indigenous data sovereignty’ and ‘public sphere’.
Vicky Breemen and Kelly Breemen
This chapter analyses cultural heritage destruction and the role of the ICC in this area. The chapter assesses the background of cultural heritage destruction as an ICC crime and presents a normative perspective. For the latter, the chapter draws on interdisciplinary foundational law and humanities research, notably at the intersection of human rights and cultural heritage law in the context of library practice. Scrutinising the argumentation in international cultural heritage cases, the authors elaborate that an analysis of the Al Mahdi case at the nexus of cultural heritage principles and human rights from the specificity of libraries informs a legal normative argument for the protection of cultural heritage in the ICC’s work. The chapter considers these issues and the broader lessons following from this viewpoint to argue that the potential implications of cultural heritage destruction as an ICC crime warrant specific scrutiny in the case of libraries.