Introduction

Claims for the return or restitution of cultural heritage are of central importance on both domestic and international levels of cultural heritage law. On the domestic level, for example, the historical and cultural identity of tribal and other indigenous groups may be at stake in efforts to reclaim significant artifacts from museums, art galleries, and private collections. On the international level, the recovery of stolen cultural material, whose value is estimated to be more than $3 billion annually, requires substantial diligence by customs officials and cooperation among governments, private institutions, and individuals.

Obligations to return cultural material to territories of origin date back at least to Greek and Roman times. Until recently, those obligations were addressed almost exclusively to military-related problems of plunder, the spoils of warfare, and occupation. For example, the Hague Conventions of 1899 and 1907, followed by the reparation provisions of the Treaties of Versailles and Saint-Germain after the First World War, underscored the illegality of military plunder and articulated the remedy for victim states. Twenty-five years later, during the Second World War, a leading scholar, urging moderation in dealing with the Germans after the war, referred to the Treaty of Saint Germain. Its provisions for the return of historical and cultural material took account, on a reciprocal basis, of the cultural heritage of both the victor, Italy, and the loser, Austria:

The Issues

In the following conversation, the participants, who come from several professional fields, discuss their respective understandings of culture. In the course of their remarkable discussion, they cover most of the basic issues about the concept of culture. We will have occasion throughout the book to draw on their insights.

Clyde Kluckhohn & William H. Kelly, The Concept of Culture, inThe Science of Man in the World Crisis 78–106 (Ralph Linton ed., 1980)

the lawyer: At the last meeting of this little discussion group of ours, we got into quite an argument about “culture” as a technical term in anthropology – exactly what anthropologists mean by it and whether it is any use or not. The big dictionaries and even the anthropological books here in the club library didn't help us out very much. We did gather that the anthropological conception, like all the other scientific and popular usages, carries with it an implication of human interference, of something being added to, or altered from, a state of nature. But we found ourselves wishing that we could ask questions which might clear up points which were sidestepped or simply not discussed by these formal statements. We therefore prevailed upon you gentlemen to come here and let us put you on the spot.

In this chapter, we examine the exciting cultural activity of sports competition. Before we turn to the legal framework, it will be useful to place sports in a larger context of play, games, and recreation. It also is useful to ask about the consequences of classifying a particular activity as a recreation or sport by contrast to some other form of activity. We will see that a classification we may take for granted is actually culturally conditioned.

David Parlett, The Arts of Contest, inAsian Games: The Art of Contest 23–24, 27 (Asia Society 2004) (reprinted with the permission of the Asia Society)

We might begin by asking[,] “What is a game?”…[A] glance at any substantial dictionary will uncover a long list of intuitively but not analytically related usages. They include triviality (“This isn't a game”), scheme or intrigue (So that's your little game!”), pursuit (“The game's afoot, Watson!”), object of pursuit (“Big game hunter”), prostitution (“On the game”), performance of a game (“My game's a bit off today”), and target score (“Game is 121 points”). Eric Berne's book Games People Play is a psychological study of “social transaction”; James Carse's Games Finite and Infinite is an exercise in theology. “Game theory” started life as a mathematical model of economic behavior, and has been extended to a variety of practical and academic studies, but offers little of interest to the players of real games like faro or football. About the only thing these uses have in common is some underlying concept of purposeful activity, except in ironic mode, when with equal facility they come to connote purposeless activity.

The Definitional Framework

Broadly speaking, the term “cultural heritage” refers to all of the myriad manifestations of culture that human beings have inherited from their forebears. These manifestations include, for example, art, architecture, rural and urban landscapes, crafts, music, language, literature, film, documentary and digital records, folklore and oral history, culinary traditions, traditional medicine, ceremonies and rituals, religion, sports and games, recreational practices such as hunting and fishing, and dance and other performing arts. In a narrower sense, however, the term “cultural heritage” is often limited to tangible or material objects – essentially, cultural material or objects – and intangible ideas related to such objects. We commonly associate this narrower definition with the legal concept of property whether we are referring to physical or intellectual property. Accordingly, the terms “cultural property” and “cultural heritage” sometimes are used interchangeably. Strictly speaking, however, the term “property” connotes ownership and imputes rights to owners and possessors of objects.

The multiple meanings of the term “cultural heritage” may lead to confusion, as is apparent in diverse efforts not only to protect culture itself but also to enhance its meaning in people's lives. Difficult questions arise that may challenge presumed values. Take three examples.

Introduction

Once largely seen as institutions catering to school visits and elite scholarship, museums have been reinventing themselves. As Western countries embrace multiculturalism and as financial support for the arts dwindles, museums have become both more sensitive to their diverse communities and alive to the challenges of fund-raising and commercial ventures. These developments have spurred reexaminations of the laws and policies surrounding museum governance – as we have seen, for example, in the return of objects to indigenous peoples and victims of Nazi-era confiscations. Museums have also been engaged in debates about controversial exhibitions and the appropriate missions they should pursue.

There is no definitive legal or even factual definition of a museum. Nevertheless, although the basic concept of a museum has changed over time, it retains the scholarly cast of the word's origin in the Greek mouseion, meaning “seat of the Muses.” It is also understood that modern museums have two basic dimensions: a physical manifestation – usually a building enclosing objects of certain kinds – and an intellectual dimension that expresses the purposes for which the objects in the building's collection are preserved and complemented over time.

Toby Lester, Oh, Gods!Atlantic Monthly, February 2002, at 37

Contemporary theories of social and political behavior tend to be almost willfully blind to the constantly evolving role of religion as a force in global affairs. The assumption is that advances in the rational understanding of the world will inevitably diminish the influence of that last, vexing sphere of irrationality in human culture: religion. Inconveniently, however, the world is today as awash in religious novelty, flux, and dynamism as it has ever been – and religious change is, if anything, likely to intensify in the coming decades. The spectacular emergence of militant Islamist movements during the twentieth century is surely only a first indication of how quickly, and with what profound implications, change can occur.

It's tempting to conceive of the religious world – particularly when there is so much talk of clashing civilizations – as being made up primarily of a few well-delineated and static religious blocs: Christians, Jews, Muslims, Buddhists, Hindus, and so on. But that's dangerously simplistic. It assumes a stability in the religious landscape that is completely at odds with reality. New religions are born all the time. Old ones transform themselves dramatically. Schism, evolution, death, and rebirth are the norm. And this doesn't apply only to religious groups that one often hears referred to as cults. Today hundreds of widely divergent forms of Christianity are practiced around the world. Islam is usually talked about in monolithic terms (or, at most, in terms of the Shia-Sunni divide), but one almost never hears about the 50 million or so members of the Naqshabandiya order of Sufi Islam, which is strong in Central Asia and India, or about the more than 20 million members of various schismatic Muslim groups around the world. Think, too, about the strange rise and fall of the Taliban. Buddhism, far from being an all-encompassing glow radiating benignly out of the East, is a vast family of religions made up of more than 200 distinct bodies, many of which don't see eye-to-eye at all. Major strands of Hinduism were profoundly reshaped in the nineteenth century, revealing strong Western and Christian influences.

Daniel McClean's contribution to this volume (Chapter 16) considers the norms of authorship and infringement in the culture of ‘high’ art. He suggests that this culture – even in its postmodern variants – is shaped by a predominant concern with the unique artefact and, as a result, obeys norms that differ significantly from those underpinning copyright law. He explains that, as a result of the fundamental discrepancies between these two systems, artists have been obliged to employ mechanisms outside copyright law to secure their interests and that copyright infringement proceedings involving ‘high’ artists sometimes fail to protect the conventions of the ‘artistic commonwealth’. He concludes by suggesting ways in which this gulf may be bridged. The chapter is a valuable addition to the literature on the relationship between art and copyright law, particularly because, while other scholars have explored issues relating to the subsistence and infringement of copyright in contemporary art in great detail, McClean reveals a fundamental conflict of preoccupation between the two cultures affecting all aspects of their relationship.

He claims that the institution of authorship in ‘high’ art culture is concerned with the ‘authorisation’ of unique artefacts. Such ‘authorisation’ confirms the existence of a physical link between artwork and creator. Surprisingly, this concern is as much a feature of postmodern artistic practice as of earlier movements in art:

Non-literal copying and literary copyright

Commenting on the resemblance between two designs with similar patterns of stripes and flowers in Designers' Guild, Lord Hoffmann explains how there can still be infringement without literal copying. He points out that:

‘It is difficult’, says Lord Hoffmann, ‘to give any answer’. The answer he does give (that the idea is ‘expressed’ in the copyright work) neatly encapsulates the challenge presented by what is called the ‘idea–expression dichotomy’ in copyright law. That dichotomy, visited and revisited from different points of view in judicial statements and in the academic literature, forms the main topic of this chapter. My aim is to consider whether linguistic description can add anything to its clarification.

The basic distinction between ‘ideas’ and ‘expression’ can be simply stated: ideas are not protected (and so cannot be monopolised by a copyright holder, remaining available for everyone to use) but the specific expression of an idea is. This is an established concept of Anglo-American copyright law, based on the contribution made by public communications to the ‘marketplace of ideas’.

Software is the output of creative efforts by programmers, which differs in a number of ways from other protected works. In this chapter, I will discuss the technical and cultural differences between software and other works that may be protected by copyright or intellectual property more generally, and will thereby endeavour to demonstrate that concepts of infringement which may apply to other works do not readily transpose to software.

I try to show those characteristics of software which differ significantly from other works sufficiently to justify at least a significant review of the types and scope of protection that should be provided legally, economically and technologically. Most of these differences in characteristics are quantitative, and can be captured in the idea that software has transient value, and is always evolving to improve based on past use, and to meet new needs of old and new users. This impermanence means that software is almost always a ‘work-in-progress’, rather than a finished product. The process of that progress may be more important (in terms of creativity, invested effort and value, worth protecting) than any particular ‘snapshot’ of the software at any particular moment. Against this background, novel approaches to ownership and enforcement have emerged, such as open source, as well as copyleft. These have been accompanied by novel business models for recovering costs and making money from the generation of software goods and services.

Introduction

Dr Paul Clough's contribution to this volume (Chapter 12) examines ways of measuring text reuse in respect of material produced by news agency services. It describes the METER project, a project which involved quantifying and measuring the probable reuse of Press Association (PA) material or ‘copy’ in specific stories by members of the British national press. The project used both manual techniques and computational models of measurement, although clearly the real interest is in developing the latter. These computational or automated methods of measuring text reuse could prove useful not only in the sphere of news agency services, but also in other contexts, such as copy detection.

As a UK copyright academic, I found Dr Clough's research interesting in, broadly speaking, two main ways. First, I was struck by the similarities and differences between the concept of text reuse and that of UK copyright law. Second, I was interested in the role computational models of measuring text reuse might have in the copyright sphere.

Translating the concept of text reuse into copyright law

I will start by drawing some comparisons and contrasts between text reuse and UK copyright law. The concept of text reuse does not neatly translate into copyright law terms. First of all, text reuse is confined to written works or documents and ignores other types of media, such as film, music and artworks, which do fall within the purview of copyright law.

Introduction

This chapter is about the tension between concepts of authorship and piracy in contemporary art and in copyright law. On the one hand, it questions how far copyright (which regulates the reproduction of cultural media) applies to the contemporary art system (which is based upon the production and distribution of unique, ‘original’ artefacts) either as an incentive for artists to create artworks or as a source of authorial protection.

It suggests that the ‘high’ art system, which emphasises the authenticity and provenance of unique artefacts, has generated an alternative system of authorship and enforcement for artists to that found within copyright law where infringement actions best suit authors whose work is linked to reproductive cultural media, such as music, literature and film. Discussing movements such as Pop art, Minimalism, Conceptual art, Appropriation art and their descendants, it considers key aspects of artistic authorship, including the authority of artists to designate an apparently limitless array of objects as artworks (including copies) and to delegate control to others in the artwork's creation and execution. It argues that the institution of authorship within contemporary art (and in particular, the desire of artists to control their work after sale) has created its own system of ‘administrating aesthetics’ in which authorisation by the artist and his or her estate of the work is fundamental, rather than enforcement of exclusive rights to copy.

In Maurice Shadbolt's novel, The House of Strife, the protagonist Ferdinand Wildblood finds himself fleeing London for Blackguard Beach in New Zealand, in the year 1840. Wildblood's crime was plagiarism and the destination is more than ironic. As a hack writer, Wildblood had been asked to edit a manuscript by a man called James Dinwiddie which tells a blood-curdling tale of murder, mayhem, battle and bravery, lust and lasciviousness in the far-flung colony of New Zealand. Finding the writing style impenetrable and the storyline highly improbable, Wildblood rewrites the work, under the pseudonym of Henry Youngman. The story is a runaway success and Youngman becomes the toast of London. But Dinwiddie catches up with Wildblood and, in fear for his life, Wildblood jumps aboard the first ship for New Zealand. While in New Zealand, Wildblood becomes caught up in the Maori wars initiated by the young Maori chief, John, or Hone, Heke. After numerous hair-raising adventures, Wildblood returns to spend his twilight years in London. But at the point of finishing his first-hand, original, account of what will become known as the ‘Flagstaff Wars’, he is tracked down in his gentleman's club by Dinwiddie and meets his mysterious, uncertain, fate at the hands of his nemesis.

Wildblood has perpetrated a literary ‘crime’ against the ‘original author’, for which he pays dearly. In fiction, then, a rough justice is meted out against literary offenders. In real life too, plagiarists may be punished by institutional sanctions or social stigma.