Misappropriation, intellectual property, and ethics

With the progressive implementation of the UNESCO 2003 Convention for the safeguarding of the intangible cultural heritage, concern emerged over the relationship between the market and ICH. The argument was advanced that certain ICH elements should avoid the market in order to be better safeguarded. Yet, under the Convention and its Operational Directives (Ods), ICH must be compatible with sustainable development, a paradigm with economic, social, and environmental dimensions. In an effort to achieve “economic sustainability,” the Convention and Ods seek to favor commercial activity that is consistent with safeguarding ICH. Such activities can pose, however, certain perils for ICH, often expressed as “misappropriation.” This chapter explores, from a legal perspective, misappropriation both at the UNESCO ICH international scale and at the level of communities on the ground. In so doing, the author explores the uses of intellectual property rights and other safeguarding measures, including benefit-sharing agreements and codes of ethics (all of which align with the 2015 Ethical Principles for Safeguarding ICH) as potential answers to such misappropriation.