Cultural Protection without Intellectual Property Protection

Mike Madison has posted a short paper on SSRN titled Intellectual Property and Americana, or Why IP Gets the Blues, Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 18, pp. 677, 2008:

This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky Horror Picture Show; the town band of Chatham, Massachusetts; and the musical form known as the blues. It concludes that that the relationship between cultural persistence and law is more complex than is generally understood. The essay applies some of that more complex understanding to contemporary problems involving business models, notably the copyright dispute involving Google’s Book Search program.

This article is highly recommended, as any piece which attempts to tie the Rocky Horror Picture Show and the Blues in with a criticism of over-restrictive IP regulations would be.

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A different Kind of Restitution

There is an interesting article from Eureka California by Donna Tam in the Times-Standard on Saturday, Wiyot tribe: Return burial artifacts. The Wiyot tribe is requesting that collectors return items removed from burial sites before it was illegal to do so.

It seems at a recent local Indian Art Show, many Wiyot artifacts were offered for sale, and they may have been from the collection of H. H. Stuart, a Eureka dentist who did amateur excavation of Wiyot sites in the 1920’s. Those kind of private excavations were not prohibited by law at the time, and privately owned objects are not subject to the relevant State or Federal law, particularly NAGPRA.

These calls for restitution are not dictated by law, so long as these objects were in fact unearthed in the 1920’s, and that collection label is not used to mask recently unearthed objects, as often takes place.

Thsi presents an interesting case, because it’s a voluntary return of objects which are important to the Wiyot tribe, and it is not done under any legal pressures. Surprisingly perhaps, 1,000 objects have been returned. AS Helene Rouvier, the Wiyot Tribal historic Preservation Officer says in the piece “I would ask people to try and put themselves in the place of the Indians … How would they feel if this were their relatives?”

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Ancient Art at Risk in Utah

Nord Wennerstrom, of the National Trust for Historic Preservation has drawn my attention to a proposed oil and gas development in Utah’s Nine Mile Canyon which could affect the 10,000 petroglyphs and pictographs there:

May 1, 2008 is the deadline for contacting the Bureau of Land Management (BLM) about a proposal that could dramatically step up damage to the rock art in Utah’s Nine Mile Canyon, affectionately known as the “world’s longest art gallery” and home to more than 10,000 petroglyphs and pictographs made primarily from the Fremont and Ute Indian cultures. A massive proposed oil and gas development project (more than 800 wells!) would increase truck traffic inside the Canyon by 416% causing enormous amounts of dust, chemical dust suppressants and vehicle exhaust to accumulate on and permanently harm this international treasure.

A recently released study shows a direct link between truck traffic in the Canyon and the deterioration of the rock art panels, due to a build up of dust and harmful chemicals used to control dust on the road. The BLM, which manages much of the land in and around Nine Mile Canyon, needs to recognize the findings of this study and present plans for a new access road to the exploration site, rather than continuing to rely on the narrow dirt roads that run through Nine Mile Canyon.

We urge you to send an email to the Bureau of Land Management today at and copy the National Trust for Historic Preservation at

Let BLM know that it is imperative for them to protect the thousands of prehistoric petroglyphs and pictographs in Nine Mile Canyon. Tell BLM that it is unacceptable to allow these international treasures to be damaged by the dust and chemicals and exhaust generated by current and proposed truck traffic in Nine Mile Canyon. Ask BLM to perform a detailed evaluation of alternative routes that trucks could use to access the project area instead of the existing dirt roads in Nine Mile Canyon and its narrow side canyons. Encourage BLM to fulfill its role as the steward of the world’s longest art gallery and save our shared heritage for future generations.

If you think as I do that the BLM should seriously consider these alternative proposals, I encourage you to join me in writing a letter.

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700 Antiquities Returned to Iraq

Syria returned 700 antiquities to Iraq on Wednesday, undoing in some small measure the theft and looting which has taken place since the invasion of Iraq in 2003. Here’s an excerpt of the AP story:

The head of the Syrian Antiquities Department, Bassam Jamous, said some of the objects were from the Bronze Age and early Islamic era.

The treasures were returned during a ceremony at the Syrian National Museum attended by senior Syrian officials and the Iraqi state minister for tourism and antiquities affairs, Mohammad Abbas al-Oraibi.

Jamous did not specify the value of the artifacts or single out the most important pieces, but clay jars, coins, daggers and what appeared to be a large trunk were displayed at the ceremony.

Syrian Culture Minister Riyadh Nassan Agha also said a “priceless Iraqi piece” of important historical value had been seized two weeks ago by Syrian customs officers. He gave no details, saying only that it would be returned to Iraq later after experts examined it.

AFP has a wire story as well, estimating that 32,000 objects were looted from 12,000 archaeological sites. Those numbers, though they are just estimates, speak for themselves. Given that Syria has returned 700 objects, this begs the question: how many more objects have been transported out of Iraq and have not been seized or recovered. I imagine many objects, especially the most valuable ones, are being hidden in anticipation of sales in the distant future, much as art seized or confiscated by the Nazis is still appearing.

As an indication of how serious the Iraq government considers those who are convicted of smuggling antiquities, despite overcrowding in Iraqi prisons, individuals detained for antiquities-related offenses were not released along with a number of other detainees under a law passed in February by the Iraqi government to ease prison populations. Many may remember that last month Marine Col. Matthew Bogdanos argued insurgents may be using the antiquities trade to fund their activities.

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"The Holocaust, Museum Ethics, and Legalism"

Jennifer Anglim Kreder has posted her forthcoming article The Holocaust, Museum Ethics, and Legalism, forthcoming from the Southern California Review of Law and Social Justice, Vol 18, 2008 on SSRN:

The Holocaust art movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims to recover a suitcase stolen from a murdered man and watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. Both claims are asserted against the Auschwitz-Birkenau State Museum in Poland, and the museum has refused to return the objects. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes. Drawing from a number of disciplines, this article demonstrates the inadequacy of the dominant frameworks influencing the cultural property field, which are grounded in property law, morality and utilitarianism, for evaluating the Holocaust-related claims. This article also demonstrates that the International Council of Museums (ICOM) Code of Ethics provides a useful construct for evaluating the claims. ICOM Principle 6.7, which calls on museums to promote well-being, should be the guiding light for museums deciding whether to return Holocaust-related objects. The article concludes that the Auschwitz-Birkenau State Museum’s refusal to return the objects is faulty ethically, counter to its mission, and reflective of the inadequacy of Poland’s approach to post-war restitution.

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James Cuno on Nationalism and Antiquities

James Cuno is developing an interesting line of argument with respect to the intersection of antiquities policy and nationalism. He has a book forthcoming called Who Owns Antiquity?, but he has a number of other smaller pieces currently available, including a section in a work I’m currently reading called The Acquisition and Exhibition of Classical Antiquities: Professional, Legal, and Ethical Perspectives (Robin F. Rhodes ed.).

Cuno also has a short article at YaleGlobal titled Who Owns the Past?

Here’s the abstract:

It’s a myth that cultural-property laws protect ancient antiquities or archaeological finds. Instead, the nationalist retentionist cultural-property laws are a dividing force, inhibiting regard for the world’s culture as a common legacy, argues James Cuno, president and director of the Art Institute of Chicago. Nations often use cultural artifacts for political claims, as tools to express a specific identity. Some governments even deny excavation permits or display requests for artifacts that reveal values that don’t reinforce a self-selected national image, and thus deny to the rest of the world the history of our common past. Worse, some nationalistic governments pervert the cultural record to spur racial, religious or ethnic violence. Culture is not a pure force, yet its power extends beyond national boundaries. As Cuno says, “An understanding that ancient and living cultures belong to all of us could contribute to greater respect for the differences among us and serve as a counterargument to the call for cultural purity that flames sectarian violence.”

Included in the article is a version of the same picture I have here, of the destruction of the Buddhas at Bamiyan on March 21, 2001. That of course is an example of the negative consequences which leaving heritage regulation to individual nations can perhaps produce. However it should be noted that the case was a rare occurrence. We don’t often see nations intentionally destroying their heritage in such a public way. Also, merely because some nations use over-restrictive policies should not perhaps dictate that all regulation is counterproductive.

Cuno is developing an extension of the line of reasoning which has been employed by Paul Bator, John Merryman and others. They have argued, quite persuasively in many cases, that over-restrictive regulation has actually proved counterproductive and has only served to further incentivize the illicit trade.

David Gill has an interesting response as well, and argues the failure has not been with the legal regime in place, but rather in the ethical standards and acquisition policies which allow Museums to evade these rules. I think he makes an excellent point.

Given the expense and difficulty of prosecution of these cases, the focus now really should be first and foremost to ensure institutions are being careful with what they acquire, and this seems to have worked. To my knowledge it doesn’t appear as if the major institutions in North America are purchasing antiquities, though some are in fact accepting donations from benefactors, and it is this acquisition by donation which is perhaps the weak link in the chain for many institutions.

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Africa, Repatriation, and Universal Museums

There have been some very interesting exchanges in recent days between Dr. Kwame Opoku and Phillipe de Montebello of the Metropolitan Museum of Art. Dr. Opoku wrote an interesting and provocative letter to museum directors entitled Is legality a viable concept for European and American museum directors.

I have been quite familiar with Dr. Opoku’s scholarly work for some time, and it’s refreshing to see him continue to use the internet to broadcast his arguments; especially as he is a powerful voice for African repatriations, which often receive short shrift when compared to similar arguments for the Mediterranean or Central and South America.

De Montebello responded to the open letter with the following:

I read with interest Dr. Kwame Opoku’s article EUROPEAN AND AMERICAN MUSEUM DIRECTORS AND THE LEGALITY CONCEPT? and glanced at the photo that accompanied it.

What a haunting, strange-looking object. There is no caption accompanying
the photograph so I looked in books and found that this was a product of
ancient Nigeria, the Nok culture. I also discovered that more than 2,000
years ago as well an Ife culture in Nigeria produced sculpture that I found
simply divine. As beautiful as anything produced at any time in the West.

Then I went to our African galleries and found — as must our audience of
some 4.5 million visitors a year — that Nigeria seemed to have produced no
art before the much later Benin period, well represented at the Metropolitan
Museum. Why is that? Simply because the Metropolitan Museum does not own
either a Nok or an Ife object. Their export and acquisition are strictly
forbidden, therefore the Metropolitan Museum has refrained from their

We have tried for years to convince the Nigerian authorities to place one
object from each of these great cultures on loan to the Metropolitan for the
benefit of our audiences, but unfortunately, to no avail.

Dr. Opoku believes all Nok, Ife, and Benin pieces outside of Nigeria should
be returned to Nigeria; that all works produced on its territory should
remain there.

How this advances broad knowledge of the rich cultural history of Nigeria is
a mystery to me.

He’s advancing a kind of internationalist perspective here. It strikes me as a bit unfair to say that if wrongfully acquired objects are returned, then all objects would have to be returned. However, some policies certainly do have as a consequence, the possibility of restricting the movement of objects. The difficulty here stems from his argument. He’s taking a grain of truth and extrapolating it to an almost illogical extreme. This happens all the time in policy and political debates, not just with respect to cultural heritage. Unfortunately much of the international law-making apparatus on the international level is incapable of successfully bridging these kinds of differences of opinions. As a result, partisans tend to push toward the margins rather than forge workable compromise.

Dr. Opoku responded with a letter which he forwarded to me, and probably others, including the Museum Security Network.

If the Metropolitan Museum has not been able to convince the Government of Nigeria to loan one object of each of the great cultures of Nigeria, there must be some reason which must have been explained by the Nigerian authorities. One cannot comment on this point without first studying the relevant correspondence.

The statement that “Dr. Opoku believes all Nok, Ife, and Benin pieces outside of Nigeria should be returned to Nigeria; that all works produced on its territory should remain there“ is surely incorrect and the maker of the statement knows it. As a person of culture who has spent a considerable part of my life visiting various museums all over the world, I reject very strongly this statement. It is an attempt to attribute to me an extreme position which can be easily dismissed instead of dealing with the serious arguments presented in detail (some would even say too much detail) in my various articles which are freely available on the internet.

Finally, Tom Flynn noted these exchanges and provided the following pointed analysis:

The problem here is the nature of the dialogue, which is not really a dialogue at all, but a series of embittered volleys that merely consolidates the entrenched positions of both parties. Dr Opoku continues to write uncompromising attacks on museum directors. One can understand his growing impatience, given the unwillingness of most museum directors to address what are clearly very serious issues passionately articulated. Moreover, when he does get a response, as was the case here, he is treated with the sort of patrician disdain that has become the lingua franca of leading museum directors across Europe and North America.

I regret I’m pressed for time today and don’t have time to dive into the substance of these arguments, however all these links are highly recommended.

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Upcoming Event: Protection of Works of Art During Conflict

There appears to be a very interesting event taking place in London on May 8:


Kevin Chamberlain CMG, barrister
Anne-Marie Carstens, Oxford University

Thursday 8 May 2008
13.00-14.30 (With lunch reception 12.30-13.00)

Sponsored jointly by Clifford Chance and the British Red Cross

The meeting will discuss whether existing protection is adequate and the
proposals for new legal protection.
This is a free seminar. All members are welcome to attend but
registration is essential. The seminar will take place at
Chatham House, 10 St James’s Square, London, SW1Y 4LE.
Please contact Alis Martin to register stating your name, affiliation
and phone number:


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Another Major Theft in Switzerland (UPDATE)

A work by Swiss artist Ferdinand Hodler has “gone missing” on its way to an exhibition in Bern. The work had been collected by a transportation company but never made it to the exhibition at the Bern Museum of Fine Art. It was to be included in an exhibition entitled “A Symbolic Vision,” a collection of Hodler’s works.

Swiss police are treating the matter as a major art theft, after two other high profile robberies occurred in the past few months: Two Monets and two Degas‘s, worth a combined 180 million francs ($163 million), were stolen from the Emil Buehrle private art collection in Zurich in February, and a few days before that, two Picassos on loan from Germany, worth an estimated 4 million francs, were stolen from an exhibition near Zurich. No further details have been released on the Hodler incident.