Guest Book Review: Research Handbook on Contemporary Intangible Cultural Heritage: Law and Heritage

This review is brought to you by Dr Paula Westenberger, Lecturer in Intellectual Property Law, Brunel University London. Her research interests cover the intersection between copyright law, human rights and culture, with particular focus on topics including limitations and exceptions to copyright, the use of digital technology by cultural heritage institutions, and the relationship between artistic freedom and copyright law. She is currently researching the interface between cultural heritage, artificial intelligence and copyright law.

 

The Research Handbook on Contemporary Intangible Cultural Heritage: Law and Heritage, edited by Professor Charlotte Waelde (Centre for Dance Research, Coventry University), Dr Catherine Cummings and Dr Mathilde Pavis (University of Exeter) and Dr Helena Enright (Bath Spa University), is an excellent and extremely welcome addition to the libraries of a wide and interdisciplinary range of readers dealing with intangible cultural heritage, including researchers, practitioners and policymakers, in both legal and non-legal disciplines.

The book tackles the very difficult task of discussing what, as the editors recognise in the introduction, may seem like an oxymoron: the concept of contemporary intangible cultural heritage (ICH). The editors, however, clarify the current dimensions of intangible cultural heritage, for example, in relation to digitisation and contemporary urban practices, making the discussions in this book extremely relevant.

Another concern dealt with by the editors was the framing of the title as an exploration of law and heritage. This is particularly pertinent as some heritage experts see law as part of the authorised heritage discourse (AHD), a phenomenon critiqued by various contributors in the book. The interdisciplinary team of editors, with backgrounds in law (Waelde and Pavis), cultural heritage (Cummings) and theatre (Enright), as well as the equally interdisciplinary list of contributors, comprised of distinguished experts, academics and practitioners in both law and heritage fields, alleviate this concern by thinking about ICH from such varied theoretical and empirical standpoints.

The book discusses developments in the field of ICH and law, but also challenges the legal framework for safeguarding contemporary ICH, highlighting the flaws, questioning the relevance, and proposing innovative approaches, with and without the law. Various concepts and their intrinsic difficulties are addressed in-depth by the contributors, such as contemporary ICH, human rights, intellectual property, multiculturalism, cultural appropriation, identity, authority, and the role of communities. Contributions engage with a broad geographical coverage, ranging from references to international and regional frameworks (e.g. UNESCO and Council of Europe Conventions), to local case studies (e.g. Germany, Indonesia, the Netherlands, the UK and Zimbabwe). 

This is an important book not only for the enhancement of knowledge already achieved between its covers, but also in view of its great potential for inspiring further work in the still under-studied field of contemporary ICH. 

The book is organised into three parts and comprises seventeen chapters:

Part I (“The framework of contemporary intangible cultural heritage”) sets the scene for the discussions with in-depth explorations of the legal framework of contemporary ICH from cultural heritage, human rights, and intellectual property perspectives. 

Lucas Lixinski, in Chapter 1 “Regional and international treaties on intangible cultural heritage: between tradition and contemporary culture”, analyses the difficult relationship, in terms of definition, between cultural heritage and the present, particularly in the broader context of international heritage law, where there is a strong “pull to focus on the past” (page 33). Lixinski notes, however, the promising turn towards safeguarding and social processes in the context of the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (“2003 UNESCO Convention”) and of the Council of Europe’s 2005 Faro Convention on the Value of Cultural Heritage for Society (“2005 Faro Convention”). Lixinski concludes that, rather than relying on definitions, embracing safeguarding practices may allow the “contemporary” into ICH, even if indirectly. Lixinski also discusses the tensions between universal and regional heritage protection approaches, but suggests a possible interpretation of the 2003 UNESCO Convention in light of the 2005 Faro Convention, alerting however to the selectivity of regional heritage law.

Fiona Macmillan, in Chapter 2 “Contemporary ICH: between community and market”, discusses the concept of the authorised heritage discourse, and the difficulties of state-based international law in recognizing communities. Macmillan acknowledges, however, some signs in more recent international cultural heritage law towards “recognizing that the central function of cultural heritage law should be to provide community with the means to express its identity and the collective claims that flow from that identity” (page 52). Macmillan discusses the protection of ICH through a process of listing, and also notes the possible overlap between ICH as a contemporary phenomenon and the type of cultural practices protected by intellectual property. Macmillan argues that “unconstrained by any legally imposed attempt at balance or restraint, the transcendence of total market thinking in the neo-liberal period has prioritized private property rights and their market exploitation over the demands of the contemporary cultural heritage community” (page 53). Macmillan thus concludes that the 2003 UNESCO Convention should be offering protection against such private appropriations of cultural heritage.

Yvonne Donders, in Chapter 3 “Protection and promotion of cultural heritage and human rights though international treaties: two worlds of difference?”, investigates the links between cultural heritage and human rights by comparing international and European regional treaties in each field in relation to their nature, scope, application, working and monitoring. Donders concludes that even though there is a clear link between human rights and cultural heritage as concepts or values, there is a different character of protection in the respective international legal instruments. One such important difference, as Donders shows, is that human rights treaties impose not only mutual obligations between States but also “vertical” obligations for States to respect and protect rights of individuals and communities in their jurisdictions, while cultural heritage treaties have a more contractual nature as “horizontal” agreements between States without creating substantive rights. Donders argues, however, that the technical differences between the treaties should “not lead to the protection of human rights and cultural heritage drifting apart” (page 76) and proposes that States should make these treaties run in parallel in their national implementations.

Sarah Harding, in Chapter 4 “Contemporary ICH and the right to exclude”, argues that appropriation of ICH can be considered cultural destruction in some circumstances, and as such a human rights violation. Harding recognises, however, the problematic assumption, particularly in the context of contemporary ICH, “that all intangible cultural output of minority and oppressed cultures is property, and that all uses of such material by outsiders is misappropriation” in view of the risk of “stifling cross-cultural communication and understanding” (page 104). Harding concludes that, from a human rights perspective, it is not a right to exclude that is central to basic human rights, but rather the rights of cultural membership, to engage in cultural practices and to participate in maintaining cultural identity.

Part II (“Debates within contemporary intangible cultural heritage”) expands on relevant debates in the field of contemporary ICH.

Abbe E. L. Brown, in Chapter 5 “ICH, cultural diversity and sustainable development”, analyses States’ obligations and some developments in policy and national legislation, also discussing the meaning of sustainable development and reflecting on examples of contemporary ICH. Brown notes the lack of clarity regarding the relationship between culture and sustainable development, in particular regarding ICH, cultural diversity and sustainable development, which the resolutions, operational directive and guidelines discussed in the chapter have sought to address. However, Brown concludes that while the role of culture in sustainable development is now much more recognised, clarity will always be a challenge concerning the relationship between ICH, cultural diversity and sustainable development. To achieve a goal of sustainable development, the chapter acknowledges the need for legislation, but recognises it can have a limited impact, thus also suggesting that “[i]t is policy work, education, programmes and funding, and the building of new attitudes (or indeed cultures) which can lead to greater delivery and enabling of sustainable development through ICH and cultural diversity” (page 135).

Charlotte Waelde, in Chapter 6 “ICH and human rights: ICH, contemporary culture and human rights”, discusses reasons why the UK does not recognise ICH in formal policy-making, and provides examples of both traditional and contemporary ICH in the UK. Waelde argues that, by not having signed up to the 2003 UNESCO Convention and by not formally recognising ICH in its laws, the UK is in breach of its human rights obligations, particularly in relation to the rights to culture and to participate in cultural life. Waelde also notes the richness of new and emerging practices of ICH in the UK, arguing that formal recognition of ICH should go beyond indigenous communities and groups to encompass such practices. The chapter also concludes that the UK’s policy-making focus on the cultural industries (and preference towards reifying the tangible outcomes of such industries) results in the fact that “the concept of ICH with its value-laden processual nature has no policy meaning in the UK” (page 164), and that although there were some signs of change, this was still not in a coordinated fashion.

Anita Vaivade, in Chapter 7 “ICH as a source of identity: international law and deontology”, discusses the concept of “identity”, noting this is a term which is missing from most major international conventions on cultural heritage. Vaivade concludes that the international interpretation of cultural rights “provides a nuanced view on the evolving nature of cultural identities and heritage, and their close interconnection” (page 192) and that “the efficiency of internationally adopted principles and rights in relation to ICH and identity is strongly dependent on their further development in national policy-making and legislation” (page 193).

Laia Colomer, in Chapter 8 “ICH and identity: the use of ICH among global multicultural citizens” examines how adults who experienced a cross-cultural childhood and have a multicultural identity (adult Third Culture Kids or TCKs) have a distinctive way of using traditional ICH. Colomer analyses concepts such as that of globalisation, and draws from research in the form of a survey and interviews with selected participants. The chapter concludes, inter alia, that “[c]uisine, as a matter of ICH, works for multicultural citizens because it has a multiple cultural nature, which couples with multicultural identities or multiple cultural identities as such of adult TCKs” (page 215). 

John Schofield, in Chapter 9 “ICH and authority: lawless ‘DIY’ approaches to contemporary ICH”, explores what he calls “heritage after dark” by investigating case studies in musical night life such as the Berlin Techno scene and small independent UK music venues known as the “Toilet Circuit”. Schofield argues that the examples investigated show “that heritage places and associated practices can exist perfectly well without close heritage-legislative control, and in fact thrive through their anarchic or free-spirited independence” (page 232), noting however that this “freedom” also brings challenges. The chapter concludes that while this kind of heritage is not strictly “lawless”, DIY measures may be more suitable.

Megan Rae Blakely, in Chapter 10 “ICH and authority: the Welsh language and statutory change”, analyses the Welsh language as a case study and the threat it faced through pressure from British authorities for the use of English, as well as how, in the face of such threat, Welsh language and culture was reclaimed becoming a form of political resistance. Blakely concludes that “ICH in the form of language and rituals can be powerful tools for social and legal change” which “may explain why they can be appealing targets for legal regulation by authorities and why advocates for ICH promote safeguarding passionately” (page 249). The chapter also concludes on the role of Welsh communities in the active involvement in legal developments concerning Welsh language, and that “the practice of ICH, as a living expression strongly influences authority as it can foster a strong sense of identity as well as enrich and improve quality of life, and authority can function as a support rather than as a restriction on ICH expression” (page 251).

Janet Blake, in Chapter 11 “ICH and safeguarding: legal dimensions of safeguarding the ICH of non-dominant and counter-culture social groups”, explores the highly political nature of ICH recognition and safeguarding decisions and the complexity of the cultural communities concerned. A central question is “which and whose cultural practices and forms should be regarded as ICH” (page 272). Blake notes a potential bias towards certain cultural forms being officially recognised as ICH, while other more popular and vernacular forms are not. The chapter concludes by linking this issue to debates over national identity.

Catherine Cummings, in Chapter 12 “ICH and safeguarding: museums and contemporary ICH (let the objects out of their cases and make them sing)”, considers the role that new museum practices and community involvement play in supporting and implementing contemporary ICH and the 2003 UNESCO Convention. Cummings argues that museums are not only concerned with the past but also with the present and future, having reinvented themselves for contemporary audiences, and examines how can museums be active social spaces for promoting and safeguarding ICH. The chapter argues that tangible and intangible cultural heritage are not mutually exclusive, but rather interdependent, supplementary and permeable. Cummings concludes that museums are highly political, and that “shifts in museum practice show that there are definite intentions to address traditional and contemporary ICH” (page 294). The chapter also recognises the challenges in implementing ICH in the museum, noting the role that communities play and how “curators have had to relinquish some of their authority … and may need training in methods of collaboration and in the co-creation of heritage with the communities” (page 295), concluding that the shifts in museum practice emphasise community involvement.

Mathilde Pavis, in Chapter 13 “ICH and safeguarding: uncovering the cultural heritage discourse of copyright”, investigates the copyright framework as a safeguarding tool for contemporary ICH aiming to bridge gaps left by the 2003 UNESCO Convention. The chapter adopts a comparative approach by looking at the UK, the US, Australia and France. The chapter concludes that while copyright may be used as a heritage safeguarding mechanism, it is unsuited for the protection of contemporary performances at it currently stands. Pavis acknowledges that copyright law shares concerning similarities with the authorised heritage discourse, but suggests that there exist, within copyright law, tools to react and resist to these patterns, noting the strategic role that judicial interpretation can play.

Part III (“Contemporary intangible cultural heritage and its uses”) concludes the book with case studies on uses of contemporary ICH in different countries, as well as offering a perspective on ICH and Trade.

Lucky Belder and Aydan Figaroa, in Chapter 14 “Living cultural heritage in the Netherlands: the debate on the Dutch tradition of Sinterklaas”, discuss the controversial racial issues conveyed by this tradition, particularly in relation to the “Zwarte (Black) Piet” character. The chapter focuses on the position of communities in safeguarding this tradition and discusses the Court of Amsterdam case in which the presence of Zwarte Piet in an official celebration has been objected against. The chapter also places the issue in the context of post-colonial debates. 

Joëlla van Donkersgoed and Jessica Brown, in Chapter 15 “ICH as the prime asset of a cultural landscape and seascape: a case study of the Banda Islands, Indonesia”, discuss the ICH in the cultural landscape and seascape of the Banda Islands, and its potential role in the process of their nomination to the World Heritage list. The chapter shows how nature and culture are, and have historically been, intrinsically connected in the Banda Islands, concluding that “cultural landscapes should be understood as a continuous process reflecting human action over time, linked inextricably with the natural environment” (page 377). The chapter also draws conclusions on the importance of community participation in nomination and management processes of a potential World Heritage site.

Njabulo Chipangura, in Chapter 16 “Cultural heritage sites and contemporary uses: finding a balance between monumentality and intangibility in Eastern Zimbabwe”, analyses heritage conservation in view of contemporary community cultural practices at Ziwa and Matendera National Monuments. Chipangura argues that the authorised heritage discourse in relation to these sites marginalises the communities’ intangible concerns by prioritising experts’ scientific works. The chapter concludes that “[w]hitin communities, monuments have bigger biographies that transcend beyond their physical aspects” and that the ICH “in the form of rituals, continuous use, taboos and festivals has propelled the survival of these sites since time immemorial” (page 397). The chapter also draws conclusions on the importance of communities’ involvement in the management of these sites.

Valentina Vadi, in Chapter 17 “ICH and trade”, addresses whether international law adequately protects ICH with regard to economic globalisation, and looks at the pitfalls of the 2003 UNESCO Convention. The chapter also examines the “clash of cultures” between international economic law and ICH safeguarding legislation. Vadi remarks on the importance of ICH for human subsistence, resilience, flourishing and identity, and argues that the 2003 UNESCO Convention is characterised by substantive overreach but, procedurally, it underachieves. Vadi criticises the 2003 UNESCO Convention for failing to ensure adequate safeguarding of ICH and to provide a meaningful forum for dispute resolution. The chapter also concludes that activities regulated under WTO agreements can affect the aims and objectives of the 2003 UNESCO Convention and that “intangible heritage trade disputes are characterized by the need to balance the protection of intangible heritage and the promotion of free trade” (page 415).

Published by: Edward Elgar Publishing

Published in: 2018

Formats: Hardback and eBook

Extent: 434 pages (including index)

ISBN 9781786434005 (hardback) / ISBN 9781786434012 (eBook) 

Price: GBP 145.00 (hardback); GBP 48.00 (eBook)