Who Owns the Orphans? Traditional and Digital Property in Visual Art
Higher Education Institute
Queen Mary, University of London
The project investigates the regulation of non-attributable or abandoned visual art (orphan works), as expressed by traditional and digital media, within the context of legal, business and customary practices.
Intellectual property and cultural laws govern the manner in which society and governments accord cultural and business value and recognition to "authors and owners" of recorded and non-recorded visual art. While the legal notion of authorship dictates business practice, there is no coherent legal landscape in relation to traditional cultural expressions which have no "author". Indeed, there has been little policy assessment of whether the current legal regulation of ownership of visual art, especially cultural expressions, reflects the beliefs and practices of two important communities which hold substantial vested interests in visual arts.
The first group is the indigenous and ethnic communities who view visual art as part of their traditional cultural expressions. Traditional cultural expressions encompass a wide variety of values, traditions, beliefs, knowledge, forms of artistic expressions, and products that originate from indigenous and other communities throughout the world. Such expressions usually take the form of expressions by action, visual expressions, verbal expressions or musical expressions. Over the past few years, ethnicity trends combined with today's digital culture have prompted a significant increase in both the commercial and non-commercial exploitation and branding of traditional cultural expressions. Traditional images or objects are increasingly being used to brand products, people, communities, corporations, and disciplines. Examples include indigenous art being copied onto carpets, T-shirts and greeting cards, indigenous images being registered as trade marks and used commercially, and traditional designs being worn as tattoos by celebrities. These practices raise issues of ownership, attribution, authorisation and exploitation. Who owns traditional cultural expressions, who can authorise their branding, and in which situations is such an authorisation required? Ownership issues over traditional cultural expressions may arise, for example, in situations where paternity is lost, contested, or where such expressions have been produced within a community, and where it is not possible to identify a specific author or authors, but where the paternity and ownership are vested in the community as a whole. In addition, the use of traditional cultural expressions for branding purposes can harm cultural image and be seen as offensive or detrimental if the traditional cultural expressions are distorted, falsely attributed, used in an offensive or derogatory manner, or where expressions of a sacred nature are disclosed without prior permission. When is borrowing from a traditional culture legitimate, and when is it inappropriate or offensive? On the other hand, brands are a multi-faceted tool and can also be used to the advantage of the holders of traditional cultural expressions, for the purpose of identification, authentication, and commercial exploitation of their products. The challenges of multiculturalism require cultural policies to maintain a balance between the protection and preservation of cultural expressions, and the free exchange of cultural experiences. The questions to know who owns and manages traditional cultural expressions and can authorise their dissemination and exploitation are important political, economic and legal questions, that are essential for the newly recognised stakeholders of traditional cultural expressions.
The second group is represented by the visual art industry who view visual art as a finished business commodity to be distributed and traded in the art and cultural market. The valuation, exploitation and sharing of profits of the visual art is highly dependent on the provenance, authorship and/or ownership of the work. Digitisation of a work adds a further dimension as it increases the exposure and the earning capacity of a work, and ensures global access to humanity's rich culture. There are several initiatives by museums, libraries and archives to create such digital collections. However, if the work is classified legally as having no author, business policy often dictates the removal of images from public access, exhibitions and on-line digital libraries in order to minimise the administrative, legal and financial liability of these institutions. This area of non-attributable or abandoned works of visual art i.e. "orphan works", will be the focus of the research.