The laws governing intellectual property (IP) and cultural heritage, respectively, belong to different parts of the legal order. Intellectual property law, while usually depending on a discourse that either privileges certain types of cultural or innovative outputs or celebrates their importance for our collective life, grants private property rights over certain types of artefacts. Cultural heritage law, on the other hand, is about state, public, and/or community rights and interests over certain types of artefacts. As the positive legal order understands the world, the two sets of law have nothing, or almost nothing, to do with each other. However, the link between the two exists as a consequence of the overlapping application of these two regimes to certain artefacts, such as the heritage of Indigenous Peoples. In this limited context, community struggles allied with innovative legal scholarship and some welcome institutional and judicial activism have opened up a small space in the positivist framework that recognizes a relationship between intellectual property law and the protection of heritage. The use of interdisciplinary perspectives has been critical in this process, as they have also been in the subsequent development of this debate to encompass questions around the relationship between intellectual property rights and cultural heritage more generally. This short chapter examines questions of methodology opened up by this state of affairs. It reflects on a selection of the myriad subquestions and implications opened up by, respectively, the question of legal ordering and that of interdisciplinary and cross-disciplinary approaches.
Epistemic Communities and the “People without History”: The Contribution of Intellectual Property Law to the “Safeguarding” of Intangible Cultural Heritage
