Cultural property rights (original) (raw)
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The paper is going to focus on material dimension of culture. It presents a critical view on chosen examples of law provisions concerning the material side of culture. It depicts examples of interactions between the right to access to culture and the possible fields of limitations. In the area of access to culture we come across various examples of good practices as far as the possibility to access is concerned. We meet also many difficulties, especially from legal point of view which derive from complexity of interactions. The author would like to show how to find equality in obligations and duties between parties involved in the process of accessing some types of cultural activity. Bearing in mind the approach of the European Commission in its European Agenda for Culture, and the definition of the culture, which defines culture as a set of distinctive spiritual and material traits that characterize a society and social group, the author attempts to present the possible problems which may arise while each party is executing its rights. The troubles with making equal the parties rights, especially when focusing on material side of culture (e.g. material objects, heritage objects, heritage in general) force the national law makers to provide regimes which sometimes make the heritage conservation harder. This way the access to the culture via the access to the heritage objects is also more difficult. Law provisions which are far from being perfect do not reflect neither the need of the moment nor the rights of the citizens. The work to be presented is intended to show the necessity of providing the unified provisions concerning heritage protection in Europe as well as the access to culture activity join It is necessary to avoid the inevitable loss of heritage examples, and therefore to protect the European culture, as well as to allow not only European citizens to participate in their heritage. The problems are caused not only by law provisions which are not adopted to new circumstances. The role of obligations of different parties is prevailing. The state, the donors, the professionals involved in cultural activity and finally – the spectators and visitors, who are the final clients in the access to culture process, they are all responsible for their part of duties. The duties not only emerge on the field of their professional or legal duties, they appear as a sheer consequence of European (or any other) citizenship. The author wants to prove that the culture and the access to culture demand to all parties equal engagement and commitment. This shall be an obligation that derives from natural law even if the culture by itself is not purely natural but created by mankind.
Fordham International Law Journal, 1992
The central focus of this paper is a proposal for rebalancing protection of cultural property so as to take into account preservation of the cultural as well as property aspects of cultural property. Part I distinguishes between cultural and property aspects of cultural property and demonstrates how both aspects are important to an appropriate resolution of cultural property issues. Objects of cultural property cannot be stripped of their cultural significance. They are not merely items of property any more than children are the property of divorcing parents. Recognition of cultural significance is an integral part of determining the best means of protecting cultural property. This Part considers the property orientation of the generally accepted definition of cultural property. In addition, Part I considers subsidiary issues raised by the dichotomous nature of cultural property. Part II describes the current international legal regime for protecting cultural property and demonstrates the failure of this regime to give adequate consideration to the cultural aspect of cultural property. Part III identifies two schools of thought concerning cultural property. The first school of thought, usually identified as cultural internationalism, is primarily concerned with physical preservation of objects.2 This school articulates concerns in terms of property law principles. The arguments of acquisitive nations, 3 museums, collectors, and archaeologists, all of whom seek to protect their holding of or access to cultural property for aesthetic, scholarly, educative, or merely possessory purposes, generally belong to this school of thought. The property law principles they espouse include rights of title, possession, conquest, repose, and bona fide purchase. The second school of thought, usually termed cultural nationalism, is primarily concerned with the cultural significance of cultural property.4 Its arguments are often framed in terms of principles of human rights law. The demand is for cultural dignity and cultural self-determination. Arguments for repatriation of objects of cultural significance to source nations 6 or to peoples belong to this school of thought. This paper asserts that the disputes between these schools of thought are really disputes over which aspect of cultural property deserves greater legal protection. Although the common ground between these two camps is concern for preservation of objects of cultural significance, preservation means different things to different interests. Part IV proposes a new legal regime founded on the common ground between these schools of thought. This Part suggests two approaches to the problem of protection of cultural property working in tandem. The first is a reaffirmation of the preeminence of human rights principles in resolving cultural property questions. The second approach, from the model of environmental protection, addresses the problem by reflecting global concern. The proposal is for a program of transfers of funding and technology to protect the "best interests" of cultural property for the benefit of interested groups, as well as the world community. Part V presents an assessment of the effectiveness of the proposal in protecting both the cultural and property aspects of cultural property and the likelihood that the regime will be acceptable to the world community.
The Applicable Law to Cultural Property
International Journal of Liberal Arts and Social Science, 2016
Importance of cultural assets for humanity, requires to be passed on to the next generations. This situation requires to physical protection along with its protection within the place it belongs. Unfortunately, cultural assets changed hands for centuries as legal or illegal ways, destroyed and destructed. Once in Emperor Times the cultural assets were moved from the colonies to the emperor centers and today it continues as illegal cultural assets trade. Therefore, precautions of protecting the asset in source country, are inefficient once the artifact is outside of the country, and cultural assets are facing the variety of procedures in different law systems in international platform. In this study, the applicable law to conflicts with foreign element regarding cultural assets which changing hands in the international area, will be examined. As is known, general principal in private international law, real rights to lex rei sitae (also called as lex situs) meaning the wherever the goods is that place law will be applied. This principal, is able to applied most legal systems today. So, is it that cultural assets should be bound to strict lex rei stae rule without an exception? It should be strongly noted that, due to the cultural assets are different than ordinary trade goods and the effect of international court decisions can be effective on illegal art trade, requires the handling of the applicable law in a different understanding.
Legal Protection of Cultural Creation
Journal of Law, Policy and Globalization, 2017
Intellectual property rights are an important issue in the international trade related to its position which is able to provide a strong position for a developed industrial country. The type of research is a socio-juridical to find answers related to the development of the copyright concept and other rights concerning the cultural creation. To assess the response rate of the State and the community on occupational symptoms and cultural claims, this research was also developed on quantitative research. The results show that the essence of the protection of cultural creation has a meaning as a result of the humanity values expression that puts human welfare in the prime position which can be obtained through the legal protection of the cultural creation. The expression of human values is born as a form of fulfillment of the principle of justice, played by the State provides a protective effect by law. The protection of cultural creation optimally gives the effect of respect to the cul...
In order to investigate the connection between human rights, rights to culture and intellectual property rights, this chapter focuses on three issues. First, the chapter considers the nature of the rights to culture and the extent of the protection of cultural rights in international legal instruments. Secondly, the chapter considers whether there should be a right to culture and/or cultural self-determination. Thirdly, assuming that legal regimes should recognise some concept of a right to culture or cultural self-determination, the chapter turns to an examination of the nature of that right. This part of the chapter concerns itself, in particular, with the question of the relationship between cultural property and intellectual property. It is not premised on the idea that the mere fact that there may be good, if different, reasons for protecting both cultural property and intellectual property - reasons falling short of a justifiable claim to the status of “human rights” - suggests the necessity of a connection in legal form between cultural property and intellectual property.
2019
Dissemination of knowledge and creativity inducing systems of reward and are often what defines the right to take part in cultural life. The intellectual property system, specifically copyright, often clashes and dances with this prerogative. Is public knowledge really free, or does it necessarily need a mutually exclusive relationship with reward? This paper looks into exhausted examples such as the use of technological protection measures (TPM), where right to take part in cultural life struggles to coexist with the current copyright system. Firstly, it tries to answer how the right to take part in cultural life is affected by intrusive TPM in digital media content and the related impending issues; Then, it establishes the boundaries for Member States to enact TPM legislation, when considering exceptions and limitations and the current EU aqcuis. Finally, it goes into the multiple interests at stake, and how far into them can the EU legislator intervene to promote both copyright claims and cultural rights.
THE ROUTLEDGE COMPANION TO CULTURAL PROPERTY
The Routledge Companion to Cultural Property contains new contributions from scholars working at the cutting edge of cultural property studies, bringing together diverse academic and professional perspectives to develop a coherent overview of this field of enquiry. The global range of authors uses international case studies to encourage a comparative understanding of how cultural property has emerged in different parts of the world and continues to frame vital issues of national sovereignty, the free market, international law, and cultural heritage. Sections explore how cultural property is scaled to the state and the market; cultural property as law; cultural property and cultural rights; and emerging forms of cultural property, from yoga to the national archive. By bringing together disciplinary perspectives from anthropology, archaeology, law, Indigenous studies, history, folklore studies, and policy, this volume facilitates fresh debate and broadens our understanding of this issue of growing importance. This comprehensive and coherent statement of cultural property issues will be of great interest to cultural sector professionals and policy makers, as well as students and academic researchers engaged with cultural property in a variety of disciplines.
J. CELANI, A. DE LUCA, G. PAILLI, L. PALANDRI, A. PESSINA, M. TARANTINI (a cura di), The Italian Law of Cultural Heritage. A Dialogue with the United States, Tutela & Restauro Monografie 1, 2024
A brief presentation of the historical roots of Italian cultural heritage laws and their civic significance in relation to the political situation
"‘Who Owns Ancient Art and Cultural Heritage?’ This rather flamboyant – and to a certain extent, misleading – question has been hotly debated by academics and interested parties for almost three decades. During this time, various arguments have appeared in favor of individual, collective, or national viewpoints, construed in Western priorities and conceptual frameworks, together with the relevant issues of collecting, looting, ethics, politics, and legal frameworks."