Rights, Intellectual Property and ethical questions related to filming living heritage

The relationship between Intangible Cultural Heritage (ICH) and Intellectual Property (IP) rights has been subject to debate, research, controversy and policy development for decades (Wendland, 2004). According to the World Intellectual Property Organisation (WIPO), IP broadly refers to "creations of the mind" and includes, among others, inventions, literary and artistic works, including audio and video works, performances, knowledge and know-how, designs and symbols. 

The practice and transmission of ICH is based on intellectual activities (i.e. creations of the mind), and filming living heritage itself is a creation of the mind that encapsules numerous intellectual activities. While we are not able to address all the complex IP implications and ethical considerations in this section, we want to bring your attention to a few important aspects to consider in your process and the importance of discussing them with and amongst heritage communities, heritage practitioners and heritage professionals. 

What we share here is not legal advice as each filming living heritage project is certainly unique from a legal analysis perspective, and will require professional support from IP practitioners, but it is our hope that this endeavor will contribute to guiding best practices in this intersectional space (see questionnaire below). 

- Safeguarding ICH is different from IP protection of ICH although in many cases the term "protection" is also used to refer to the different means of safeguarding.

- Some of the elements and practices considered as ICH from a UNESCO perspective, are referred to by WIPO as Traditional Knowledge (TK) or Traditional Cultural Expressions (TCEs). According to WIPO TK "is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity" and TCEs "may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions." While some ICH elements could be a TCE or could fall under the category of TK, not all ICH does. We can say that the ICH spectrum covers more than TK and TCEs.

In some jurisdictions, TK and TCEs are considered Intellectual Property but in many cases they are not and even more importantly, in many cases heritage communities consider that this type of knowledge and cultural expressions, including crafts, rituals, performances, knowledge or practice related to nature and ways of living, culinary practices or traditional games should benefit from unique legal protections which recognise their collective rights as stewards, guardians or custodians and respects their prerogatives to control the access to, use and transmission of this knowledge, skills, practices and expressions. 

However, some IP rights can be applicable and can be obtained by either individuals (i.e heritage practitioners) or collectively (i.e. heritage community). This includes copyright, individual or collective trademarks, design rights, IP protection through geographical indications, trade secrets or even patents. Of course it is of great importance to learn from the heritage practitioners and communities whether they view their ICH as open to all, or not, whether they want to make it accessible, and if they do, to what extent, and how they view the role of IP rights. 

- The 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage ("the 2003 Convention") states in Article 3(b) that nothing in the Convention may be interpreted as "affecting  the  rights  and  obligations of  States  Parties  deriving  from  any  international instrument  to  which  they  are  parties  relating  to intellectual  property  rights  or  to  the  use  of biological  and  ecological  resources." 

Applying this to the specific case of filming living heritage as a safeguarding measure, this means on the one hand that the process of filming living heritage in itself do not create IP rights over the knowledge, practice or cultural expression that is being documented and filmed, and that, on the other hand, it cannot preclude the creators involved in the film production - such as videographers, screenplay writers, or producers (who finance the film production) from obtaining the IP rights recognised to them by law. 

From an ethical perspective this also implies that safeguarding measures should not undercut efforts to protect intellectual property or cultural intellectual property interests of heritage practitioners and communities whose ICH is being documented and made accessible through film. 

- IP rights commercialisation is an important aspect to consider with regards to filming living heritage. 

This includes rights relating to use and distribution of the filmed materials, as well as licensing and even sale (assignment of rights). These aspects are relevant not only for the final output (i.e. the audio-video production itself) but also for aspects relating to the film production process. As a general rule, the IP over a creative work, fixed in any medium, (i.e. photograph, video, audio, collection of works, etc.) stays with the author. In the European Union IP rights can be assigned or licensed. This covers only economic rights. Aspects related to economic rights are harmonized at EU level. Moral rights cannot be assigned or licensed in most EU jurisdictions but this aspect is not harmonized. 

For example, the use of copyrighted music in the film can be subject to copyright licensing, the IP rights of the videographer can be assigned by contract in exchange of a fair remuneration, with notable exceptions with regards to the moral right to be named (i.e credit), a craft practitioner who is one of the few remaining custodians of a unique craft may consider aspects of the craftership process as trade secret and may wish to keep these secret, etc. 

- Some heritage communities may have special rules and protocols for aspects related to filming living heritage. Such an example is The Sámi Film Protocol - Pathfinder Guidelines. Other heritage practitioners or communities might be in the process of developing such protocols or want to convey their views on IP rights and different aspects of filming living heritage as part of the Free Prior Informed and Sustained Process. A useful tool in the process is the 3C Rule Consent. Credit. Compensation™ that was used in projects that implied filming living heritage such as the Oma Traditional Textile Design Database© and may also be used as a contractual framework for diverse ICH-related rights issues, including IP implications. For example heritage practitioners and communities might wish to be recognised as co-authors of the film or ensure that any commercial use of the filmed material is done with their consent and the benefits arising from this commercialisation are shared. 

There are two dimensions to consider. 
On the one hand the IP rights resulting from a Filming Living Heritage Project, the main one being copyright and neighboring rights over the audiovisual work, and on the other hand, the IP rights related to creative works, designs, symbols, products or knowledge used in the audiovisual production process. In both cases copyright, trademarks, patents, industrial design rights, geographical indications, certification and collective marks, and trade secrets may be relevant.

Copyright gives creators the exclusive right to control or prevent the use of the work by others and includes the right to publish, to copy, distribute, translate or adapt the work. This means that in case of a filming living heritage project, as a general rule, authors involved in the production at different stages such as the videographers, screenplay writers or researchers, hold copyrights over their creative works, unless they have assigned it to someone else. These rights can be assigned or licensed to the heritage communities, heritage practitioners or the organization that commissions them via different types of contracts. As a rule, in case of an employment agreement or work-for-hire agreement, copyrights are transferred to the employer/beneficiary by contract. When no agreement is concluded, the IP stays with the creator. 

Because the IP system is not designed to protect ICH, it is important to consider the IP implications of filming living heritage carefully and discuss them with the heritage communities and heritage practitioners. This material by UNESCO, Introduction to intellectual property and Intangible Cultural Heritage provides a good basis for understanding how the different IP tools function.

Some key tips: 

- Map the potential IP rights of the project as part of the Free Prior Informed Process - an IP mapping will help all the parties involved to engage ethically and with the best interests at heart; If this is challenging, ask for support. If you feel this is a topic worth addressing, let us know by filling out this questionnaire (could link to the questionnaire here also)

- Discuss who owns the IP, who should have the right to control the use and distribution of the audiovisual material, and why is this important;

- Discuss the potential risks for heritage practitioners and communities who do not hold copyrights over the audiovisual works that document elements of their ICH, such as disenfranchising, exposure to cultural misappropriation, or divulgation of trade secrets if the case;

- Discuss with the heritage community or the heritage practitioner if they have or are part of an organization that can manage their IP rights, or if they are even interested in IP rights related to the project at all;

- Consider that the Free Prior Informed and Sustained Process includes the Right to say NO and this can be exercised in relation to any aspect of the filming living heritage process;

- Be aware of the inequity of the IP system which treats very differently the "new" creations of the mind that are based on ICH which are protectable through IP rights, from the ICH practice itself which is not per se protectable under the IP system. 

- The objective of the filming living heritage project has great relevance for the analysis of IP implications. For example, in the case of a video narrating the story and documenting the practice of a craftsperson who is one of the few remaining people that still masters a very specialized craft, the video is considered a new and creative work and its author will have copyright over the creative work while the craftsperson does not have any IP rights over the craft knowledge itself. They could at best protect secret steps or aspects of the crafting process as trade secrets. But in case the aim of the documentary and the intention of the craftsperson is to disseminate the knowledge to the public with the goal of safeguarding it through knowledge transmission, then trade secret protection becomes irrelevant. 

- A fair and ethical data collection and data management process is crucial. Consider setting up a data life cycle strategy to ensure the data is kept in a FAIR and CARE manner, based on the principles of Shared Stewardship (Smithsonian) and data sovereignty (AIATSIS, 2020). Data sovereignty addresses questions such as: Who decides what data is collected? How is the data stored? Who decides on the access to the data? What about IP rights in relation to the data collected? How is the data used in research, policy and practice? How is the heritage data - such as audio recordings, video footage and metadata -  interpreted, conserved, curated and circulated or reused? What does the (cultural) metadata contain? Ideally this information should include provenance (which heritage community or heritage practitioners is the source of this data), protocols and purposes (context about the use and goals of the data/knowledge of the ICH-practice) and permissions (information related to data re-use such as licenses and limitations).

In the following fictional examples we try to make a brief analysis of the IP implications and ethical considerations to underline the importance of the Free Prior Informed and Sustained Consent Process and to show that complexity can be resolved through dialogue and multidisciplinary expertise. The assessments below are meant to be food-for-thought exercises. They do not exhaust the IP implications in each example and are not intended to replace professional legal advice.

Example 1: Inventorying 

A cultural organization in charge of inventorying the Intangible Cultural Heritage for the implementation of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage is realizing videos of ICH elements as part of the inventorying process, by involving an independent visual anthropologist. The videos are presented in the online ICH inventory, accompanying the other information on the ICH element.

Who may own rights?

- The cultural organization (copyrights, trademark - the logo of the organization if it is registered as a trademark)

- The heritage community to whom the ICH elements are linked to (they may have some pre-existing IP rights or may participate and have rights as a result)

- The visual anthropologist 

- The author or authors of the texts and other information accompanying the ICH element 

What rights can result from the ICH inventorying process through video?

- Copyrights over the videos

- Copyrights over the texts and other information, including photograph and graphics, accompanying the ICH element

- If the videos are displayed together in the form of a collection or a database, with a unique content arrangement, the inventory itself can be protected by copyright as a collection 

- Rights of all the creators to be acknowledged as authors (moral rights)

- Rights to access and use all audio-video documentation material, even what was not used for the video

Some IP implications from the perspective of different participants

- If the cultural organization wishes to control what happens to the video and the accompanying creative material, agreements need to be made with the independent visual anthropologist and authors of the texts and other information accompanying the ICH element for assignment of IP rights

- If the videos are easily accessible and contain information with potential commercial applications, such as traditional medicinal or agricultural knowledge, knowledge of natural resources, music and oral traditions, rituals and performances, food recipes and more, it is important that appropriate legal protection measures are taken so that this does not damage the heritage community or heritage practitioners and risk unfair exploitation of their ICH

- If sensitive or very valuable for the heritage community is being documented in the process, it may be important to sign confidentiality agreements with the visual anthropologist and others involved

Example 2: Promotion or presentation through awareness raising and/or education 

A museum is preparing a new temporary exhibition. The Focus of the exhibition will be on parades and processions. The museum hires a filmmaker to prepare video materials to be included in the exhibition.

Who may own rights?

- The museum

- The heritage community to whom the ICH elements are linked to (parades and processions)

- The individuals participating in the parades and processions

- The visual filmmaker

- The exhibition curator, and other creators involved in the preparation of the exhibition (photographer, text writer, costume designer, etc.)

What rights can result from the ICH promotion through video materials?

- Copyrights over the videos

- Copyrights over the texts and other information, including photograph and graphics in the exhibition

- Related rights of the participants in the parades and processions

- Rights of all participants to be acknowledged 

- Rights to access, use and commercialize all audio-video documentation material, even what was not used for the video, and rights to reuse the video materials from the exhibition for other purposes 

- Design rights for costume designs worn in the parades and processions

Some IP implications from the perspective of different participants

- When the filmmaker is hired by the museum, the work-for-hire agreement indicates that all IP rights of the filmmaker will be transferred to the museum

- The exhibition name can be protected as a trademark

- Exhibition displays and interactive installations can be protected by industrial design if they fulfill certain conditions

- The exhibition can generate economic benefits when an entry fee is applied. It is important to discuss equitable sharing of benefits with the heritage community or heritage practitioners 

Example 3: Research 

A researcher is studying the making process, design and use of materials in crafting shoes. To this end, the researcher is filming a series of shoe-crafters with different cultural backgrounds and in different geographical areas, with a view to doing comparative research. It is yet undecided whether the findings of this research might be commercialized afterwards.

 Who may own rights?

- The researcher

- The heritage practitioners (trademarks, industrial designs, trade secrets)

- Authors of previous research made on the same topic 

- The businesses of the shoe-crafters (if they have or are employed by registered companies who own trademarks, design rights, trade secrets, etc.)

What rights can result from the ICH video documentation and comparative research?

- Copyright over the audio-video material

- Industrial design rights for the look and feel of a new pair of shoes 

- Copyright in the work (the findings of the comparative research)

- Rights of all the creators to be acknowledged as authors (moral rights)

- Rights to access and use all audio-video documentation material, even what was not used for the video and which may contain information with potential commercial value 

Some IP implications from the perspective of different participants

- If the shoe designs created by the show-makers are novel/original, they can be protected by industrial design. Publication of the video materials before the design application has been made can lead to the loss of design rights

- Based on conventional research methodologies, the researcher will have exclusive rights over the research outcome, but the shoe-crafters could request to be identified as co-authors and maintain rights to control the use, distribution and potential commercialization of the research. Shoe-crafters have an essential role in the research.

- It is important that aspects related to commercialisation of the research are discussed based on the 3C Rule: Consent. Credit. Compensation of the heritage practitioners. Do they agree with research being conducted for commercialisation purposes? Can this be detrimental to their practice and livelihood? How should the benefits resulting from the commercialization of the research be shared? 

- Trade secrets and confidential information might be involved related to particular processes and techniques of shoe-crafting, tips and tricks of the craft, sourcing of materials