Cultural property overlaps with intellectual property in some places, but not in others. Cultural property includes ideas, but also includes other intangibles such as languages and religious ceremonies, as well as many tangible things such as works of art and craft, buildings, ancestral remains, sunken ships and their cargo, unique local products, and even natural sites traditionally used for particular purposes.
Emotions can run high over cultural property; beyond feeling that it’s “ours,” we feel that it’s “us.”
Nevertheless, a large body of emerging cultural-property law is also driven by economics, and this is why: Among the (relatively) rich and powerful, the old imperialist attitudes (“if you’re so smart, why aren’t you rich?” or “if your culture has anything to offer, why did you lose the war?”) are dying out. I, for one, am glad to see it go. Now these dominant folks increasingly realize that historically poor and conquered cultures can still have a lot of cool stuff – effective medicines, beautiful artwork, transcendent music, delicious and nutritious food, fascinating folklore, powerful spirituality, etc. The (again, relatively) rich and powerful people want this stuff. If they can’t (or don’t want to) buy it from the rightful custodians, they buy it from thieves, or they buy imitations made somewhere else. The people who created it in the first place protest that:
- Some of the same kinds of people who took over our land are now taking away elements of our heritage that may be irreplaceable, and/or
- Somebody somewhere is making a lot of money from things we spent generations developing, and in the meantime we’re still poor.
Many governments and international treaty organizations are trying to formulate laws to control this kind of thing (often because some of these groups used money they made from legitimate sales to buy publicity and political clout), but it isn’t easy. Intellectual-property models often don’t fit cultural property very well because they were designed to protect new work by individuals or small groups. Cultural property tends to be old, and while its current use may be restricted to some subgroup such as a clan or healers’ society, “ownership” can sometimes be hard to define or can vary widely among the customs of different minority cultures subject to the same national government.
Other cultural property laws are non-economic; their goal is the preservation of historical things (ranging from buildings to cultivated-plant strains to stories and languages) for the information and enjoyment of future generations. Some of the preservation laws overlap with the economic laws – for instance, one of the policies behind antiquities export regulations is that your descendants shouldn’t have to go to another country to see their own country’s important historical artifacts. Benign as preservation efforts seem in the abstract, their application to specific pieces of cultural property often sparks controversy. Some examples of typical objections are:
- “Hey! I bought this land. What do you mean, I can’t make some quick money by bulldozing this (building, sculpture, historical or ceremonial site, cemetery) and putting in a (condo complex, shopping mall, strip mine, radioactive-waste dump)? If you want to keep this place as it is, buy it – for the price the developers are offering.”
- “So these people want to videotape me (telling my stories, practicing my ancestral ways). They look and talk just like the people who wouldn’t let folks like me into (restaurants, stores, good schools, unions, fancy parties) back when I was young. Now they want to squeeze all the knowledge out of me before I die so they can get rich or famous. To heck with ’em.”
- “We can’t raise anything on this land, and none of us ever had a chance at an education. Our one piece of luck is that we know where to dig up old pots and spearheads. Tourists will pay good money for it, and we need that money for food. The people who made that stuff don’t need it anymore. Why should I give it away to the government when I already pay more taxes than I can afford?”
The challenge in cultural property law is to find a balance – between preservation and progress, between individual rights and the common good, between future generations and those alive today. Every minute of talking has to be preceded by an hour of listening. And, while it would be great to make everyone happy, sometimes a fair distribution of unhappiness is the best that can be done. But those who work throught the controversies with patience and flexibility can end up with two rewards: a valuable piece of property, and a group of people who better understand each other’s cultures and can pass that understanding on.