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Folklife at the International Level: The Roots of Intangible Cultural Heritage Part I

Opening of the 39th Session of the General Conference. Opening ceremony for Room I, and Opening of the 39th Session of the General Conference © UNESCO/Christelle ALIX. Shared online with the Terms of Use that the photo may be translated, reproduced and edited freely.  

Exploring how legal measures, particularly intellectual property (IP) protections, can be used to safeguard living cultural traditions, practices, and expressions has been a longstanding aim of the World Intellectual Property Organization (WIPO), as discussed so far in this series. Yet, there exists another international organization that has for several decades taken on similar questions of how living cultural traditions, or folklife, from around the world can be sustained for future generations: the United Nations Educational, Scientific, and Cultural Organization (UNESCO). As a research interest of mine for well over a decade, this series will now shift gears into the history and issues of UNESCO’s efforts in safeguarding and promoting what it has come to term “intangible cultural heritage” (ICH). This is a relatively new category within the global cultural heritage enterprise that, in theory, is not terribly different from WIPO’s concept of “traditional cultural expressions” (TCEs), but varies significantly in terms of its application, as specifically shaped by the increasingly-widespread policy through which it – as a term and concept – emerged in the early 2000s. The same could be said for its relations to “folklore” and “folklife,” as conceptualized and used within the context of U.S. public folklore, but I get ahead of myself!

In recent years, the phrase, “intangible cultural heritage,” is used more and more to describe living cultural traditions, thanks to the popularity of UNESCO’s work in this area. Since its establishment in the aftermath of WWII, the UN organization has become a global leader in raising awareness of the importance of cultural heritage protection, and also in formulating influential cultural heritage concepts and ‘types.’ One of the more well-known ‘types’ of cultural heritage, World Heritage, arose from one of UNESCO’s most recognized international treaties: the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage. A key mechanism for achieving the 1972 Convention’s goals has been, and still is, the (perhaps, even more well-known) World Heritage List, presently consisting of 1,073 “properties,” or heritage sites, of cultural and natural significance around the globe – from the Great Wall of China and the Acropolis in Athens to Australia’s Great Barrier Reef. While examining UNESCO’s “world heritage” paradigm falls outside the scope of this series, over the past decades there has been considerable discussion and debate in the heritage studies scholarship about the processes by which World Heritage properties are selected and the politics involved, as well as its local-level impacts, points I will surely return to with respect to ICH.

As noted, the ICH concept, as utilized and applied today, stems directly from policy: namely, UNESCO’s 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, which entered into force in 2006 and enjoys the support of 177 states as of three months ago. Its widespread acceptance is a testament to growing concerns about keeping living cultural heritage vitalized – from music, dance, and craftwork to “language as a vehicle of [ICH]” – in this age of globalization and cultural homogenization, as well as the need to shift the heritage enterprise’s historical focus on all things tangible (e.g. buildings, landscapes, objects) to embracing intangible culture and, thus, cultural practices, beliefs, and expressions that are ephemeral and ever-evolving. As such, UNESCO defines ICH as the following (in Article 2 of the Convention):

The “intangible cultural heritage” means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.

In brief, the Convention provides guidance to government representatives (and other professionals with whom they may work) on how this worldwide UNESCO-ICH framework is structured and will operate via UNESCO, as well as how it should be implemented at the national level, including approaches to safeguarding and promoting ICH within national territories. Significantly, the core requirement of “States Parties to the Convention” is that they embark on an “inventorying” exercise, registering all ICH “elements” within their territories into some sort of list(s) or database format of their choosing. Here, one key similarity to the 1972 Convention and, more specifically, its World Heritage List comes to light: listing processes are central to the 2003 Convention, too. In addition to these national inventories of ICH that are (and will be) drawn up, UNESCO employs three international ICH lists (including one for best ICH safeguarding practices) for raising awareness of the importance of sustaining living heritage and promoting cultural diversity globally, beyond States Parties borders.

Nonetheless, it would be worthwhile to step back for a moment to the beginnings of UNESCO’s ICH-related efforts. Indeed, it is sometimes forgotten just how far back these efforts go, and that they are very much rooted in the exploration of legal protections for folklore (one term that was used before ‘ICH’) and, thereby, working closely with WIPO during the 1970s through to the late 1980s. At the time, questions regarding copyright protections for traditional cultural expressions, such as music, were being raised at the international level, particularly in relation to adding the category of folklore to the Universal Copyright Convention, a UNESCO treaty adopted in 1952 (and later revised in 1971). (Interestingly, Simon and Garfunkel’s recording of “El Condor Pasa,” a supposed Bolivian folk song, plays a role in this early story of ICH, which I aim to tackle in an upcoming post.)

In any case, as legal scholar Janet Blake outlines, discussions on folklore and copyright protections led to the joint UNESCO and WIPO Tunis Model Law on Copyright for Developing Countries, which was adopted by UNESCO in 1976 and included an article focused on national folklore (since, in “developing countries,” folklore was understood to be particularly  ‘susceptible to economic exploitation’). In the following years, cooperation between the two organizations resulted in the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit and Other Prejudicial Actions (1982), which according to Blake was based on the idea:

[T]hat the legal protection of folklore could be promoted at national level[s] by a model law that should allow also for protection through existing copyright mechanisms and neighbouring rights and should pave the way for sub-regional, regional and international protection of expressions of folklore.

Never formally adopted by WIPO or UNESCO, however, they did also create the Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions in 1984. Blake notes:

This draft Convention would have created an obligation on States to protect folklore and this was rejected by the industrialized States on the basis of: philosophical objections to protecting a communal heritage; the low importance for them of folklore; and the problem of protecting internationally a heritage that may be common to several States. The strategy of UNESCO since 1984 in this area has been to encourage States to develop national legislation to protect folklore. Few countries, however, have so far adopted national legislation on the basis of the 1982 Model Provisions.

Despite their paths diverging in the late 1980s, with WIPO focusing on IP protection, and UNESCO exploring broader, interdisciplinary approaches to safeguarding ICH, momentum was certainly built for UNESCO’s 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore, a crucial step towards the 2003 Convention. At its heart, the 1989 Recommendation sought to bring attention to the importance of folklore among UNESCO Member States, emphasizing the role it plays in the “universal heritage of humanity,” “bringing together different peoples and social groups,” and “cultural identity,” and that it is “fragile” and at risk of being “lost.” Moreover, ICH’s roots in the exploration of IP-type protections are certainly reflected in the 1989 Recommendation text. Under one section entitled, ‘Protection of Folklore,’ it states:

In so far as folklore constitutes manifestations of intellectual creativity whether it be individual or collective, it deserves to be protected in a manner inspired by the protection provided for intellectual productions.

Among other rights that ought to be protected, such as those relating to the privacy of the ‘transmitter of tradition,’ it suggests that UNESCO Member States:

Call the attention of relevant authorities to the important work of UNESCO and WIPO in relation to intellectual property, while recognizing that this work relates to only one aspect of folklore protection and that the need for separate action in a range of areas to safeguard folklore is urgent[.]

It is clear that a case was made for exploring IP protections separately from other safeguarding means, with UNESCO pursuing broader, interdisciplinary approaches that centered on the identification, preservation, conservation, promotion and protection of what later became termed “ICH,” core activities that are still more or less outlined and recommended today in the 2003 Convention’s text.

The story of “intangible cultural heritage” is a fascinating one, and I would not be surprised if this short introduction has raised many questions! In coming installments, I hope to address them, looking more closely at the 2003 Convention, its history, and challenging issues it brings to the surface.

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