On 3rd June 2024, CREATe was invited to participate in a roundtable on IP, AI, and Intangible Cultural Heritage (ICH) in the UK, organised by Harriet Deacon (DAIM/Treatied Spaces at University of Hull) and hosted by the Department for Digital, Culture, Media & Sport (DCMS) in London. The opportunity for the discussion was offered by the adoption by the United Kingdom of the UNESCO 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. As its title suggests, the Convention, ratified by the UK government on 7th March 2024 and entered into force on 7th June, aims to safeguard the intangible cultural heritage, meaning ‘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’ (Art. 2(1)). One of the main obligations on States Parties for safeguarding ICH introduced by the Convention are ‘inventories’ (Art. 12), a prerequisite for the nomination of ICH elements to the Lists of the Convention. Importantly, the process of inventorying ICH needs to be led by the communities, groups and individuals concerned and requires their ‘free, prior and informed consent’ (Ethical Principles of the Convention).
Roundtable participants included experts in IP, AI and ICH from academia, government, heritage organisations, communities, creative industries and the National Commission for UNESCO in the UK. Using the upcoming UK ICH inventory as the starting point, the group discussed the challenges and opportunities offered by AI technology in relation to ICH inventorying and IP. ICH practitioners and researchers were particularly concerned about digital exclusion, losing control over their ICH, and securing compensation for the use of their ICH. Style mimicry, while not protected by copyright law, was identified as another area of concern in relation to generative AI and ICH. Participants discussed the advantages and disadvantages of several potential solutions to increase control of communities, groups and individuals over their ICH. These included a sui generis system for ICH built around the principles of consent, credit and compensation, and the use of technological protection measures to restrict (ai.txt), mislead (Glaze) or even ‘poison’ (Nightshade) generative AI models.
The interfaces between IP, AI and ICH raise complex and interesting questions, for example around the concept of ‘fixation’. While intangible cultural heritage manifestations can often be tangible, ICH is never really fixed. Rather, it is ‘living heritage’, meaning that it is ‘continuously changing, evolving and being recreated as it is transmitted from generation to generation and evolves in response to our environment’ (UNESCO ICH FAQs). As such, ICH struggles with the fixation protection criterion required by copyright law in certain jurisdictions such as the UK, or the digital fixation that happens when a generative AI model is trained on ICH manifestations. Yet, guidance on IP law is welcomed by ICH practitioners and often included in ICH toolkits such as Filming Living Heritage, which provides a basic methodology for audiovisual documentation of living heritage and links to CopyrightUser.EU for guidance on EU copyright law. IP law can assist practitioners with protecting their ICH, for example through the creation of protected databases of traditional designs and other ICH expressions. Concerned communities can also oppose the registration of trade marks that they consider to be culturally offensive. One of the ‘Absolute grounds for refusal’ of registration of a trade mark listed in Art. 7(1) EUTMR (as well as in Art. 3(3) of the UK Trade Marks Act 1994) is ‘(f) trade marks which are contrary to public policy or to accepted principles of morality’. In a recent decision, referring to Art. 2 TEU and the need to respect the rights of minorities, the Grand Board of the European Union Intellectual Property Office confirmed that a principle of morality may be ‘accepted’ by groups and communities that are not necessarily the majority in the reference territory (for more information on the decision, see this IPKat blog). At the same time, the roundtable discussed how digital fixation can be used as a disruptor for the purposes of restitution or repatriation of cultural artefacts. They mentioned the radical art duo Looty who “repatriate” cultural objects by 3D scanning them, minting the scan as an NFT, and returning it to the place of origin using Geo AR (e.g. recently they did it with the Rosetta Stone at the British Museum).
The roundtable identified several areas of future work and research, including the tension between ‘open culture’ and community stewardship in participatory data governance. This sits at the intersection of (at least) two of the new CREATe research themes: Access to Knowledge and Legal History and Cultural Memory. At CREATe, we are keen to help identify and investigate relevant research questions in these complex areas, and are already doing so. In collaboration with Creative Commons, we are about to start a new empirical research project on open business models in the Galleries, Libraries, Archives and Museums sectors. We recently delivered a successful event on Repatriations and Museums, as part of the From Scotland to the World series. The event included a panel on Intellectual Property led by CREATe Fellows Dr Pinar Oruç and Dr Andrea Wallace, with Pinar’s presentation dealing with the difficult interface between copyright and ICH. With funding from Knowledge Rights 21, we are also completing a project investigating the interaction between technological protection measures and exceptions to copyright that would normally permit uses such as research and preservation. Several projects on different aspects of AI are happening across the seven research themes, including one which led to the recent publication of the CREATe Working Paper Private Ordering and Generative AI: What Can we Learn From Model Terms and Conditions?. We are also interested in the legal landscape surrounding the use of AI technology for research on cultural heritage collections, and whether codes of best practices can help develop a common understanding and shared principles of lawful and ethical use of cultural heritage for research. One of the positive outcomes of our participation at the IP, AI and ICH roundtable is a potential collaboration with Dr Paula Westenberger (Brunel University London and BRAID Research Fellow) on her project Responsible AI for Heritage: copyright and human rights perspectives.
CREATe has direct experience with the registration of ICH manifestations. In 2015, Dr Megan Blakely designed and registered the CREATe tartan as part of her work in the original CREATe PhD cohort, when CREATe was known as the RCUK Centre for Copyright and New Business Models in the Creative Economy. In light of the UK joining the UNESCO 2003 ICH Convention and the relaunch of CREATe as the Centre for Regulation of the Creative Economy, Dr Blakely will be revisiting the CREATe tartan in an upcoming blog. Stay tuned!