Book review: Irini Stamatoudi (ed), Research Handbook on Intellectual Property and Cultural Heritage (Edward Elgar, Cheltenham 2022) 640 pp.
Péter Mezei Senior researcher, Vytautas Magnus University, Lithuania

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The Research Handbook on Intellectual Property and Cultural Heritage, edited by Irini Stamatoudi, is one of the latest volumes in Edward Elgar’s Research Handbook series on intellectual-property-related matters. This series is of vital importance for the global academic community, as well as practitioners in the field. Each Handbook offers a wide and deep outlook on the relevance of the selected topic (eg fundamental rights, exhaustion and parallel importation, media and entertainment, health sciences, etc.) for all dimensions of intellectual property law.

The book at hand follows the same path by offering a detailed analysis of the copyright and intellectual property aspects of cultural heritage. The book is robust. It includes 29 individual chapters, written by a stellar line-up of authors, as well as an Introduction and a Conclusion written by the editor of the volume. As Irini Stamatoudi clarifies in the introduction, the book aims to approach all relevant aspects of this field: national strategies regarding the preservation and/or dissemination of local cultural heritage; the role of intellectual property and cultural heritage laws to balance private and public interests; and the role of and challenges for cultural heritage institutions.1

The book focuses on the intersections of cultural heritage and intellectual property law from three main directions: whether general and specific forms of cultural heritage are protected by the different types of intellectual property; what policy considerations support the protection of cultural heritage; and, finally, what are the key issues, especially in the digital domain (in particular due to the spread of cutting-edge technologies), regarding cultural heritage.

The first dimension on the protection of cultural heritage by intellectual property law, is discussed in Part I. This part is separated into two sub-parts, where Section I.A follows a more didactic approach to analyse the issue of protectability in all domains of intellectual property law; and Section I.B includes numerous chapters on specific aspects of protectability.

In Section I.A, Irini Stamatoudi offers a useful recap of the meaning, role and substantive concepts of each individual notion of intellectual property as well as cultural heritage or property, by concluding that the two concepts, while having seriously different goals, still have essential overlaps.2 Section I.A then continues with a systematic analysis of the protectability of cultural heritage under various notions of intellectual property law. These might be grouped as supportive branches, like copyright and related rights,3 and trade secrets and unfair competition law;4 or as unsupportive, like trade marks,5 patents6 and designs.7

On the other hand, Section I.B pays close attention to special issues related to the preservation of cultural heritage. As such, these chapters evidence the practical concerns related to cultural-heritage-specific problems (undue patent granting regarding traditional knowledge;8 AI-generated art9), practices (appropriation art;10 use of online images;11 linking12) and subject matters (street art and graffiti13). Slightly surprisingly, triggering probably the only concern of the present reviewer regarding the structure of the book, Section I.B includes a chapter on the protection of traditional cultural expressions by geographical indications, which could have been more logically placed in Section I.A.14

Part II covers policy-driven discussions. Two of these papers theorize cultural heritage from the perspective of subject matter and protection. First, the issue of national cultural treasures and the related EU-legislation and domestic (Member-State-level) experiences are addressed. There, the authors reach the conclusion that while the 2014/60/EU Directive broadens the scope for the material protection of cultural heritage, this model is rather limited by both property rules (backed by the Universal Declaration of Human Rights) and copyright norms. Thus, ‘national treasures’ shall be interpreted narrowly and the classification of a certain cultural heritage as a national treasure remains subject to copyright’s internal limitations (and hence the three-step test).15 Second, the paradox of classifying cultural heritage as public domain and the subject matter of intellectual property is introduced through cases studies related to the use of the ‘traditional’ intangible cultural heritage (being a part of public domain under IP laws) rather than ‘contemporary’ expressions of such heritage (being eligible for protection under IP laws).16

In this part, we might continue reading about the human rights dimensions of cultural heritage per se, and their use for the purposes of user-generated contents, the reproduction of cultural heritage (an issue addressed by other papers in further details), and the digitization and dissemination of cultural heritage by the GLAM sector.17 Similarly importantly, a chapter discusses the similar endeavours and unique traits of the legislation related to cultural heritage by intergovernmental organizations, like UNESCO and WIPO, just to reach the conclusion that ‘[t]he dynamic, complex, and constantly evolving international law setting for the IP-CH relationship renders the achievement of consensus on universally accepted protective standards for individual and collective creativity nearly a “mission impossible”’.18 Finally, ‘best practices’ – ranging from domaine public payant and creative commons through databases and disclosure of origin to ‘prior informed consent’ (PIC) and ‘access and benefit sharing’ (ABS) agreements – are recommended to educate and sensitize both indigenous communities and users of traditional knowledge.19

Finally, readers might dive into the complex and multidimensional challenges a cultural institution might face regarding the use of cultural heritage expressions through the collection of papers in Part III. Indeed, this great cocktail is a mix of three ingredients: take the sectorial analysis of the challenges imposed on digital libraries,20 add museums of archaeological materials,21 and galleries and auction houses;22 then mix them with the cross-sectorial analysis of the artist’s resale right,23 management issues of cultural institutions,24 private international law and art disputes,25 and alternative dispute settlement26 and pour into a highball glass; finally, garnish with the digital challenges of cultural heritage platforms and new business models,27 video games preservation,28 and, finally, 3D printing.29 Shaken not stirred.

Needless to say, it is almost impossible to praise this book enough. For those, involved in the overlaps of intellectual property law and the cultural heritage sector, this volume offers a huge variety of food (and cocktail) for thought. Indeed, as Stamatoudi reiterated in her conclusion, the goal of the book was to address the complexity of the issue and the scarce academic resources on this field. The present reviewer can only hail the authors and the editor of this excellent book for fulfilling such promise.

  • 1

    Stamatoudi Irini , '‘Introduction to the Research Handbook on Intellectual Property and Cultural Heritage: Overview of the Issues’ ', in Irini Stamatoudi (ed), Research Handbook on Intellectual Property and Cultural Heritage , (Edward Elgar , Cheltenham 2022 ) 1 -4.

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  • 2

    Irini Stamatoudi, ‘The Notions of Intellectual Property and Cultural Heritage: Overlaps and Clashes’, in Stamatoudi (n 1) 837.

  • 3

    Paul Torremans, ‘The Protection of Cultural Heritage by Copyright and Related Rights’, in Stamatoudi (n 1) 3855

    . (Where Torremans concludes that the most recent copyright reforms of the EU create new opportunities for cultural heritage institutions, whereas moral rights do not hinder such practices.)

  • 4

    Neethu Rajam and Jens Schovsbo, ‘The Protection of Intangible Cultural Assets by Trade Secrets and Unfair Competition Law’, in Stamatoudi (n 1) 11330.

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    (Where the authors claim that ‘where conscious efforts are made, it is possible to maintain the secrecy of the information forever. [Trade secrets] are an effective tool in the absence of a suitable mechanism for protecting the diverse [traditional knowledge] like sacred rituals, practices, art, medicinal treatments, etc.’ ibid at 128.)

  • 5

    Mira Burri, ‘The Protection of Cultural Heritage by Trademarks’, in Stamatoudi (n 1) 5672.

    (Where Murri argues that trade mark protection and enforcement is an imperfect solution to shelter traditional knowledge and other expressions of cultural heritage; also questioning, ‘whether this mercantilist, property-oriented regime would help or rather harm source communities and the sustainability of their cultural heritage.’ ibid at 71.)

  • 6

    Pedro Henrique D Batista, ‘Cultural Heritage and Patent Law: Alternatives for the Protection of Traditional Knowledge and Genetic Resources’, in Stamatoudi (n 1) 7393.

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    (Where Batista reaches the same conclusion as Burri, pointing out that ‘despite the contribution of measures related to patent law to a better protection of cultural heritage, their relevant limitations make them insufficient to prevent the undue appropriation of [genetic resources] and [traditional knowledge] as well as the unauthorized access to them in violation of the rights guaranteed by the [Convention on Biological Diversity], the Nagoya Protocol and the respective national law of the countries of origin.’ ibid at 93.)

  • 7

    Bernd Justin Jütte and Alina Trapova, ‘The Protection of Cultural Heritage by Designs’, in Stamatoudi (n 1) 94112.

    (Where the authors join Burri and Batista by concluding that ‘[d]esign law seems ill-equipped to provide positive protection for [intangible cultural heritage]’, stressing that the limited scope and short duration of protection equally weaken the relevance of this field of intellectual property law for indigenous communities. ibid at 111.)

  • 8

    Reto M Hilty, Pedro Henrique D Batista and Suelen Carls, ‘Traditional Knowledge, Databases and Prior Art: Options for an Effective Defensive Use of TK Against Undue Patent Granting’, in Stamatoudi (n 1) 13253.

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  • 9

    Theodoros Chiou, ‘Copyright Ownership Challenge Arising from AI-Generated Works of Art: A Time to Stand and Stare’, in Stamatoudi (n 1) 25073.

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  • 10

    Marina Markellou, ‘Re-evaluating the Art Practice of “Appropriation” from a Copyright Law Perspective’, in Stamatoudi (n 1) 15469.

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  • 11

    Marie-Christine Janssens, Arina Gorbatyuk and Sonsoles Pajares Rivas, ‘Copyright Issues on the Use of Images on the Internet’, in Stamatoudi (n 1) 191213.

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  • 12

    Irini Stamatoudi and Zoi Mavroskoti, ‘Linking, Framing, and Browsing Digital or Digitised Works of Art’, in Stamatoudi (n 1) 21435.

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  • 13

    Enrico Bonadio, ‘Preservation and Heritagisation of Street Art and Graffiti’, in Stamatoudi (n 1) 17090.

  • 14

    Michael Blakeney, ‘The Protection of Traditional Cultural Expressions by Geographical Indications’, in Stamatoudi (n 1) 23649.

    (Where Blakeney concludes that, in the lack of a sui generis protection for traditional cultural expressions, the law on geographical indications is a second-best option for the purpose of protection of TCEs.)

  • 15

    Maria-Daphne Papadopoulou and Maria G. Sinanidou, ‘States’ Discretion to Classify IP Subject Matter as National Cultural Treasures’, in Stamatoudi (n 1) 27494.

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  • 16

    Charlotte Waelde, ‘Intangible Cultural Heritage, Intellectual Property and the Public Domain’, in Stamatoudi (n 1) 32639.

  • 17

    Peter K Yu, ‘Intellectual Property, Cultural Heritage, and Human Rights’, in Stamatoudi (n 1) 294311.

  • 18

    Andrzej Jakubowski and Hanna Schreiber, ‘Bridging Intellectual Property and Cultural Heritage Law in the Practice of International Governmental Organisations’, in Stamatoudi (n 1) 355.

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  • 19

    Jessica C Lai, ‘“Best Practices” to Protect Indigenous Knowledge?’, in Stamatoudi (n 1) 31226.

  • 20

    Stavroula Karapapa, ‘Digitization of Cultural Heritage Under EU Copyright: Digitizing the Past to Enable Access and Innovation for the Future’, in Stamatoudi (n 1) 37591.

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  • 21

    Pınar Oruç and Uma Suthersanen, ‘Intellectual Property and Cultural Heritage Issues for Museums of Archaeological Materials’, in Stamatoudi (n 1) 392412.

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  • 22

    Leila A Amineddoleh, ‘Cultural Heritage, Galleries and Auction Houses’, in Stamatoudi (n 1) 45579.

  • 23

    Simon Stokes, ‘The Artist’s Resale Right’, in Stamatoudi (n 1) 35974.

  • 24

    Konstantinos Roussos and Irini Stamatoudi, ‘Management Issues for Cultural Heritage Institutions’, in Stamatoudi (2022) 413–38; and

    Rina Elster Pantalony, ‘IP Management for Cultural Heritage Institutions’, in Stamatoudi (n 1) 43954.

  • 25

    Marc Weber, ‘Private International Law and Cultural Property and Art Disputes’, in Stamatoudi (n 1) 51743.

  • 26

    Debbie De Girolamo, ‘ADR, Cultural Heritage and Intellectual Property: A Continuum of Dispute Resolution Processes’, in Stamatoudi (n 1) 54464.

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  • 27

    Julia Wildgans, ‘IP Issues Relating to Cultural Heritage Platforms and New Business Models’, in Stamatoudi (n 1) 480501.

  • 28

    Benjamin Farrand, ‘Born Digital: Law, Policy, and the Preservation of Videogames as Digital Cultural Heritage’, in Stamatoudi (n 1) 50216.

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  • 29

    Charles Cronin, ‘Intellectual Property Implications of 3D Printing of Cultural Heritage’, in Stamatoudi (n 1) 56578.

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