Intellectual Property and the Old Arts

Written by: Cynthia Zeenni

In an age where Intellectual Property (the "IP") has become central to economic growth and innovation, its application to traditional art forms, often referred to as the "Old Arts," raises significant questions. These art forms—spanning folk crafts, indigenous music, dance, and traditional knowledge—pre-date the modern IP framework. Their communal, intergenerational nature sharply contrasts with the individualized, time-limited protections that IP laws typically provide.

The Old Arts encompass a broad range of traditional and indigenous artistic expressions, passed down through generations. These include textile designs, handicrafts, oral stories, traditional dances, and music that reflect the cultural heritage of specific communities. Unlike modern forms of art, which often have identifiable individual creators, the Old Arts are often collectively produced and maintained by communities, evolving organically over time. This communal creation makes it difficult to apply conventional IP protections, which are designed to attribute ownership to individual creators or organizations.

Subsequently, what is the role of IP rights in the Old Arts, and how can we protect the communal and intergenerational nature of these art forms while adhering to modern IP laws that prioritize individual ownership and time-limited protections?

In this article, we will be discussing:

1. The definition of Intellectual Property and Old Arts;
2. The Intersection of Intellectual Property and the Old Arts;
3. Challenges in Protecting Old Arts;
4. The Role of International Law;
5. Digital Preservation and Intellectual Property; and
6. Understanding Copyright in Art: Layers of Protection and Usage

Defining Intellectual Property and Old Arts

Intellectual property refers to the legal rights granted to creators and inventors over their original works, providing them with control over how these works are used or reproduced. The main types of IP protection include:

• Patents: Protect inventions and grant exclusive rights to inventors for a certain period, preventing others from making, using, or selling the invention without permission.
• Copyright: Protects original works of authorship, such as literature, music, and art, giving creators exclusive rights to reproduce, distribute, and display their works.
• Trademarks: Protect brand names, logos, and symbols that distinguish goods or services, preventing confusion in the marketplace.
• Industrial Designs: Protect the visual design of objects that are not purely utilitarian, covering features like shape, configuration, and color.
• Geographical Indications: Protect names or signs used on products that have a specific geographical origin and possess qualities or a reputation due to that origin.
• Trade Secrets: Protect confidential business information, such as formulas, practices, and processes, that give a competitive edge.

"Old Arts" refer to artistic creations, artifacts, and cultural expressions that originated in ancient civilizations or have been passed down through generations. These works are deeply embedded in the cultural identity of nations or communities, often predating formal IP systems by centuries or even millennia. Examples include ancient sculptures, religious symbols, native/folk/traditional music, and traditional crafts.

The Intersection of Intellectual Property and the Old Arts

The intersection of IP and Old Arts presents unique legal challenges. Intellectual property laws are primarily designed to protect contemporary works and inventions, not historical artifacts or traditional expressions. When these legal frameworks are applied to Old Arts, complexities arise around issues of ownership, rights, and the cultural significance of these works.

In many countries, including Lebanon and Qatar, the process of intellectual property law does not effectively protect folklore or traditional music. While copyright laws in these countries typically last for 50 years after the death of the author, they are ill-suited for traditional art forms that may not have a clearly identifiable creator.

What happens when there is no identifiable author, and the work has existed for centuries? Folklore, traditional dances, and native art forms are not confined by the lifespan of a creator. This presents a significant gap in protection.

For example, Phoenician art from Lebanon or traditional Bedouin music from Qatar may not fit neatly into modern IP frameworks due to their lack of a singular author and have been passed down through generations. In cases like this, current IP law may allow outsiders to exploit these cultural expressions commercially without offering compensation or recognition to the communities from which they originate. It is essential to reshape IP law to extend perpetual protection to these works, ensuring they are not misappropriated by commercial entities or outsiders who exploit them for profit.

Challenges in Protecting Old Arts

The main challenges in applying IP protections to Old Arts stem from their communal nature, lack of clear ownership records, and evolving cultural significance. Traditional IP laws are designed to protect works for a limited time and grant exclusive rights to identifiable creators. However, Old Arts often reflect the collective identity of a community rather than individual authorship, making it difficult to assign ownership to a specific person or entity.

Additionally, the commercial use of traditional cultural expressions often leads to issues of misappropriation and exploitation. Fashion designers, music producers, and corporations frequently incorporate traditional designs, melodies, or symbols into their products without compensating or even acknowledging the communities from which they originate. This leads to the loss of cultural heritage and economic opportunity for the original creators.

For instance, if a Qatari cultural symbol or a traditional Lebanese textile pattern is used in a fashion line without permission from the community, it can strip that community of its economic and cultural rights. The communities that have maintained these cultural expressions for generations are often excluded from the profits and recognition that their traditions generate in the global market.

The Role of International Law

International law plays a crucial role in protecting the Old Arts or "traditional cultural expressions" (the "TCEs"), yet existing IP laws, including those under the World Intellectual Property Organization (WIPO), tend to focus on individual creators and fixed forms of work, making them ill-suited to protect the communal and often anonymous origins of traditional cultural expressions. While efforts like UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage exist, enforcement remains challenging, and local communities often struggle to assert their rights in the face of commercial exploitation.

Given this context, incorporating the Old Arts and TCEs into copyright law remains problematic, though there is potential for partial protection. Current regimes for protecting musical performers, for instance, could be applied to the Old Arts and TCEs, particularly in cases of unauthorized recording and exploitation of traditional performances. Article 15.4 of the Berne Convention provides a framework for protecting unpublished works of unknown authorship, yet its impact is limited due to its optional nature, the lack of community-specific protections, and its 50-year limit from when a work is made public.

While modern copyright law does protect contemporary adaptations of traditional works as “derivative works,” it fails to address key issues surrounding sacred knowledge, community attribution, and the eventual public domain status of these variants. Moreover, copyright exceptions for education, museums, and archives, which vary by country, further restrict the protection scope.

A discourse has emerged questioning whether simply amending the Berne Convention could address these gaps. While such amendments would provide remedies like injunctive relief and damages in many countries, they still fall short in terms of long-term protection and community rights.

Despite these challenges, the Old Arts and TCEs can sometimes be safeguarded by existing IP systems such as geographical indications, appellations of origin, and trademarks. Contemporary adaptations of folklore can be copyrighted, and performances of traditional songs may be covered under the WIPO Performances and Phonograms Treaty and the Beijing Treaty on Audiovisual Performances. Moreover, WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore is actively negotiating better international protections for TCEs and Old Arts, seeking to address these persistent gaps and ensure broader safeguarding of cultural heritage.

Digital Preservation and Intellectual Property

The digital age adds another layer of complexity to the intersection of IP and Old Arts. Digital preservation allows ancient works to be scanned, reproduced, and shared with a global audience, ensuring their survival for future generations. However, the creation of digital copies also raises new IP questions. Who owns the rights to these digital reproductions? Can institutions claim ownership over digital versions of works that are otherwise in the public domain?

Some museums and cultural institutions have attempted to assert copyright over high-resolution digital scans of ancient artifacts, leading to debates about whether digital preservation constitutes a new form of intellectual property or if these reproductions should remain freely accessible to the public.

Understanding Copyright in Art: Layers of Protection and Usage

When discussing the use of famous artworks, many people assume that if a painting or sculpture is old enough, it can freely be used for commercial purposes. However, copyright law introduces layers of complexity, especially when it comes to the reproduction of these works.

In Lebanon, copyright protection lasts for 50 years after the author’s death. After that, the work enters the public domain, meaning it can be freely reproduced. A notable example is Gibran Khalil Gibran, the renowned Lebanese-American writer and artist, whose works entered the public domain in Lebanon in 1981. As a result, individuals and organizations are free to reproduce and adapt his works without the need for permission or payment of royalties.

However, this principle does not extend to photographs or reproductions of these artworks. If someone plans to use existing images of old artworks, especially those taken by third parties, they must exercise due diligence. For instance, many museums have specific policies indicating that their photographs are copyrighted, even if the artworks themselves are in the public domain. Therefore, using such images for commercial purposes without obtaining the necessary permissions can lead to copyright infringement claims.

Conversely, contemporary artworks still under copyright protection cannot be reproduced without permission from the rights holder. For instance, if someone wants to use a photograph of a contemporary artist's work, they must seek permission from both the artist and any photographers who captured the artwork. This requirement holds true even if they have a license to use a photograph of the artwork, as that license does not extend to the underlying artwork itself. Failure to obtain the necessary permissions can lead to copyright infringement claims.

Conclusion

In conclusion, the protection of the Old Arts within the framework of modern Intellectual Property laws remains a complex challenge. Traditional art forms, rooted in communal creation and passed down through generations, do not fit neatly within IP systems designed for individual ownership and time-limited protection. Current IP laws, as well as international conventions, provide limited safeguards, leaving the Old Arts vulnerable to commercial exploitation without recognition or benefit to the originating communities.

To address this gap, it is essential to reshape IP law to offer more meaningful protection for traditional cultural expressions. One potential solution is to implement a compensation mechanism that directly benefits the specific countries or nations from which these traditional arts originate. By compensating the nation or community responsible for the creation and preservation of these cultural expressions, we can ensure that they share in the economic benefits generated by the commercial use of their heritage. This compensation could take the form of royalties, licensing fees, or other financial benefits that are channeled back to the community, allowing them to retain both cultural and economic ownership of their traditions.

Such an approach would not only preserve the integrity of the Old Arts but also provide a fair and sustainable means for these communities to benefit from the global appreciation and use of their cultural heritage.