Immaterial cultural property and the private owner: how copyright and trade law might address access and preservation

Abstract

Private owners of culturally significant works are legally entitled to refuse to permit third parties, including cultural heritage institutions (CHIs), to access those works. This situation is particularly problematic for CHIs when the cultural works at issue are immaterial works that are supported on unstable physical platforms, such as cellulose acetate film, cellulose tapes or early computer software. Ideally, these cultural works should undergo urgent digital preservation processes in order to preserve and protect the public interest in accessing its cultural heritage. If property is culturally important, a private owner's ability to withhold it from third party access may conflict with the human right to participate in cultural life, as affirmed in international human rights law. Noting however that human rights law also provides that ‘no-one shall be arbitrarily deprived of his property’, a balance between the property rights of the owner and the public interest in culture is essential. This article proposes amendments to copyright law and domestic trade law as possible ways to provide this balance. This article focuses on New Zealand law and its earliest immaterial cultural works, but the arguments could be extended to other cultural works and to other jurisdictions.