Private Law Theory

ABSTRACT
This chapter addresses the ways in which intellectual property can be used to redress cultural harm. It argues that intellectual property offers the strongest form of protection, but it easily commodifies and ossifies heritage. The chapter looks at how copyright (including moral rights), trademarks, trade secrets, appellations of origin, and industrial designs can be (and have been) used to protect certain manifestations of heritage. The chapter also discusses issues related to the propertization of the ‘cultural commons’ and the public domain. It argues that cultural flows are a necessary part of cultural life and heritage, and are responsible for the maintenance of living cultures, and that intellectual property stifles these flows. Therefore, intellectual property should be used only in certain situations, where cultural harm is serious and needs to be redressed.

Lixinski, Lucas, Intellectual Property and Intangible Heritage (October 18, 2013), Chapter 6 in Intangible Cultural Heritage in International Law (Oxford University Press, 2013).