Intellectual and Cultural Property

Between Market and Community

Fiona Macmillan

• Publisher: Routledge
• Year: 2020
• Print ISBN:
  9780367620875
• eBook ISBN:
  9780429759215
• Topic: Art
• Subtopic: Art General

This book focuses on the fraught relationship between cultural heritage and intellectual property, in their common concern with the creative arts.

The competing discourses in international legal instruments around copyright and intangible cultural heritage are the most obvious manifestation of this troubled encounter. However, this characterization of the relationship between intellectual and cultural property is in itself problematic, not least because it reflects a fossilized concept of heritage, divided between things that are fixed and moveable, tangible and intangible. Instead the book maintains that heritage should be conceived as part of a dynamic and mutually constitutive process of community formation. It argues, therefore, for a critically important distinction between the fundamentally different concepts of not only intellectual and cultural heritage/property, but also of the market and the community. For while copyright as a private property right locates all relationships in the context of the market, the context of cultural heritage relationships is the community, of which the market forms a part but does not – and, indeed, should not – control the whole. The concept of cultural property/heritage, then, is a way of resisting the reduction of everything to its value in the market, a way of resisting the commodification, and creeping propertization, of everything. And, as such, the book proposes an alternative basis for expressing and controlling value according to the norms and identity of a community, and not according to the market value of private property rights.

An important and original intervention, this book will appeal to academics and practitioners in both intellectual property and the arts, as well as legal and cultural theorists with interests in this area.

Chapter 1

Copyright and cultural production

1 Introduction

1.1 The Fall of Icarus and the burden of genius

In Saki’s The Background, the unfortunate Henri Deplis, a Luxembourger by birth and a commercial traveller by profession, receives a legacy from a distant relative.¹ Finding himself “in a small town of Northern Italy”, he decides to “patronize local art” by getting a tattoo from one Andreas Pincini, who “was, perhaps, the most brilliant master of tattoo craft that Italy had ever known”.² In return for the agreed price of 600 francs, Pincini covers Deplis’ back with a tattoo of the Fall of Icarus. Deplis is disappointed by the design as he

had suspected Icarus of being a fortress taken by Wallenstein in the Thirty Years’ War, but he was more than satisfied with the execution of the work, which was proclaimed by all who had the privilege of seeing it as Pincini’s masterpiece.³

1 Saki (H H Munro), “The Background” in The Chronicles of Clovis (London & New York: John Lane, 1912), 60–66.

2 Saki, n 1 above, at 61.

3 Saki, n 1 above, at 61.

And, as it turns out, also the tattoo artist’s final work as he dies before Deplis has paid him. At this point, any lingering disappointment on the part of Deplis gives way to a new series of problems. He is unable to pay the agreed price to Pincini’s widow, who cancels the sale to Deplis of the “work of art” and presents it instead to the municipality of Bergamo. Deplis slips away to Rome but, as Saki tells us:

[H]e bore on his back the burden of the dead man’s genius. On presenting himself one day in the steaming corridor of a vapour bath, he was at once hustled back into his clothes by the proprietor, who was a North Italian, and who emphatically refused to allow the celebrated Fall of Icarus to be publicly on view without the permission of the municipality of Bergamo. Public interest and official vigilance increased as the matter became more widely known, and Deplis was unable to take a simple dip in the sea or river on the hottest afternoon unless clothed up to the collar-bone in a substantial bathing garment. Later on the authorities of Bergamo conceived the idea that salt water might be injurious to the masterpiece, and a perpetual injunction was obtained which debarred the muchly harassed commercial traveller from sea bathing under any circumstances. Altogether, he was fervently thankful when his firm of employers found him a new range of activities in the neighbourhood of Bordeaux. His thankfulness, however, ceased abruptly at the Franco-Italian frontier. An imposing array of official force barred his departure, and he was sternly reminded of the stringent law which forbids the exportation of Italian works of art.⁴

A diplomatic fracas was followed by a controversy over the provenance of the work, followed in its turn by another over Pincini’s private life: “The whole of Italy and Germany were drawn into the dispute, and the rest of Europe was soon involved in the quarrel”.⁵ Clearly traumatized, our man Deplis “drifted into the ranks of Italian anarchists” until finally one day “in the heat of debate” a fellow anarchist spilt a “corrosive liquid” on his back completely obliterating Pincini’s last work.⁶ The fellow anarchist receives a prison sentence “for defacing a national art treasure” and Deplis is deported.⁷ His final fate is to wander “the quieter streets of Paris, especially in the neighbourhood of the Ministry of the Fine Arts” where he “nurses the illusion that he is one of the lost arms of the Venus De Milo, and hopes that the French government may be persuaded to buy him”.⁸

Many of the themes of this book are reflected in this ironic and slightly macabre story. Perhaps most obviously, the story examines the implications of the idea that the function of “genius” in converting the surface on which it is inscribed into property might also give rise to competing claims. In this story, not only has Deplis’ interest in his own body been subsumed in that created by Pincini’s work of art, but also he finds his right over his body to be circumscribed by a sort of public interest in the work that he carries on his back. His body has not only been turned into someone else’s private property, but also into a site of contested state heritage. The mixing of the human body with the work of art echoes Locke’s famous notion of the mixing of labour and found items, but this is not just about the relationship between labour and the production of capital.⁹ Not only was this labour a work of genius, it was also a work of national genius. These two claims set the work, now irretrievably mixed with the body of Deplis, off on two different trajectories. On the one hand, Deplis’ back has become the private property of Pincini and then his unhappy widow. On the other, the cultural significance of Pincini’s genius makes Deplis’ back a site of contestation involving Bergamo, Italy, Germany, France “and the rest of Europe”. In the story, Saki dilutes the possible conflict between these two trajectories, the property claim and the heritage claim, by the transfer of the property in the work (and body of Deplis) to the city of Bergamo. However, he leaves in play the heritage claim, contested between different levels of community represented by local, national and supranational entities. Saki seems to have his tongue firmly in his cheek here too: perhaps the fact that Deplis is liberated by an anarchist is intended to remind us of the contestability – if not more – of all these political structures as forms of community.

4 Saki, n 1 above, at 62–63.

5 Saki, n 1 above, at 65.

6 Saki, n 1 above, at 65.

7 Saki, n 1 above, at 66.

8 Saki, n 1 above, at 66.

9 John Locke, Second Treatise of Government (London: Awnsham & Churchill, 1690), ch 5.

One of the special charms of Saki’s story, at least for me, is the character of the heritage that has subsumed the body of the unfortunate Deplis. Not something old and dusty on a museum shelf or a picturesque ruin (of the sort imagined by Deplis prior to the execution of the commission), rather the idea of heritage in this story is something that is absolutely contemporary, vaguely outside the mainstream of artistic production and perhaps also outside a certain type of cultural respectability.¹⁰ The story thus puts into question – ironically, of course – certain received notions of what might be cultural heritage/property. At the same time, it absolutely confirms others. In particular, it is the very tangible nature of the disputed work (and body) that gives force to this story, even though what we might call the intangible nature of Deplis’ distress is increasingly present. However, Saki’s piss-take of both intellectual property and cultural heritage does not just remind us of the tangibility/intangibility distinction that permeates regulation in these areas. It also invokes a range of other Cartesian dualisms that are critical to the way in which the concepts of intellectual property and cultural heritage have played out in Western law and politics. The story questions the division between what is movable and what is immovable. Of course, the tattoo could be moved from its site (Deplis’ back) but the consequences would not be reasonable or pretty – either for Deplis or for Pincini’s work of art. Deplis, himself, can move within limits but only by carrying the burden of genius he bears upon his back. The Western obsession with conservation (good) as the opposite of destruction (bad) is played out as he suffers a variety of privations in the name of the former. And, even the discourse of authentic versus fake rears its head: Deplis’ tragedy is to pass, after a “political” intervention, from being the site of an authentic work of genius to a needy fake. On top of all of this, the story cocks an obvious snook at the nature-culture distinction.

10 The fact that tattoos have become part of the social mainstream now should not be allowed to obscure the fact that even in more recent times, authorized representatives of the establishment would likely have had difficulty in understanding a tattoo as an artistic work: see, e.g., Lawton LJ in Merchandising Corp v Harpbond [1983] FSR 32; cf. L Bently & B Sherman, Intellectual Property Law (Oxford: Oxford University Press, 5th edition, 2018), ch 3, section 5.

There are, of course, things that are not in Saki’s story that are important to the narrative of this book. It says little (or nothing) about the geo-political role of Western capitalist relations in shaping approaches to the regulation of cultural production, and nothing about the associated effects of the long and continuing post-colonial period. Still, by asking us to think about the limits to the framework of Western thought, it creates a nice little jumping off point.

1.2 Structure of the book

Developing the theme of the pervasiveness and significance of private property rights over what is considered to be creative labour, this book commences with an examination of the way in which Western cultural production has been saturated by intellectual property rights. Of particular importance in this respect is copyright. Starting from the relationship of authorization and constitution that will be argued exists between copyright and currently accepted concepts of the “arts”, this first chapter critiques copyright’s claim to stimulate and protect artistic creativity by locating this claim within its historical, political, economic and legal contexts. The chapter seeks to establish the proposition that intellectual property rights locate meaning and value within a market context. Chapter 2 engages with and critiques the frequent assertion that intellectual property’s system of private rights over cultural production is, or could be, adequately balanced by the notion of the public domain (or commons) in intellectual space. The chapter argues that while being a place of potential political significance, in the sense that it might offer a bulwark against the creeping propertization of everything, the value of the public domain/cultural commons has proved illusory. Not only has it been so seriously under-imagined that its political potential has not been realized, there is also concern that it, or the rhetoric that sustains it, is potentially damaging to other rights, including the right to enjoy and control cultural heritage as a community right.¹¹ The central argument of the chapter is that concepts of the public domain or the commons are not capable of defending the interests of community in cultural production.

11 See, e.g., K Bowrey & J Anderson, “The Politics of Global Information Sharing: Whose Cultural Agendas Are Being Advanced?” (2009) 18 Social and Legal Studies 479–504.

The book turns to a direct engagement with concepts of cultural heritage in Chapter 3, which investigates the way in which the highly contingent political nature of this concept is reflected in the trajectory of international law that governs it. In particular, the chapter focusses on the way in which the relevant international law instruments fail to understand adequately the relationship between heritage and community. This mutually constitutive relationship is the starting point for the analysis in Chapter 4, which considers cultural heritage through the lens of critical heritage studies. ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• List of abbreviations
• 1 Copyright and cultural production
• 2 Hyperreality and the non-propertized domain of intellectual space
• 3 Heritage, law and community
• 4 Community and cultural property
• 5 The monumental occidental tragedy
• 6 Explorations in the cultural landscape – arts festivals
• 7 Living between market and community
• Index