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2/2020 (6)

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Data publikacji: 2020

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Interview

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 17 - 24

https://doi.org/10.4467/2450050XSNR.20.008.13011

Heritage Science – The Benefits of an Interdisciplinary Approach in Protecting Cultural Heritage

Professor Łukasz Bratasz talks to Ewa Manikowska

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Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 25 - 32

https://doi.org/10.4467/2450050XSNR.20.009.13012

Collecting Digital Designs: Reasons, Definitions, Challenges, and Implications

Natalie Kane talks to Gil Pasternak

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General Articles

Sabine von Schorlemer

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 33 - 64

https://doi.org/10.4467/2450050XSNR.20.010.13013
In recent years there has been a growing awareness of the need to preserve the digital cultural heritage, a part of which is at significant risk of being lost. In light of the pressing demands to develop informed and targeted strategies, this article analyses UNESCO’s approach towards the preservation of the digital cultural heritage. Being the lead UN agency in the field of cultural heritage preservation, the organization responded to the challenge early on, notably by adopting the Charter on the Preservation of Digital Heritage. The article thus outlines UNESCO’s competencies regarding the digital cultural heritage as well as its concept thereof, before examining the organization’s strategies for the preservation of digital cultural heritage. Furthermore, by providing an outlook on some emerging trends, i.e. increasing privatization and commercialization, future requirements are identified.
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Lucas Lixinski

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 65 - 86

https://doi.org/10.4467/2450050XSNR.20.011.13014
This article argues that digital and post-colonial engagements with heritage can be reconciled only if they happen in the terms set by the once-colonized community, and for their benefit. Further, the law can play a significant role in embedding certain ethical commitments, provided it can steer away from legal categories such as authenticity and access; categories which, despite their neutral or even cosmopolitan aspirations, function as reinforcers of a status quo that privileges colonial possession of heritage. In order to pursue this thesis, the article focuses on the ways in which the digitization of heritage was suggested – in the context of the Sarr-Savoy Report about the return of objects from French museums to certain African countries – to constitute a precondition for the return of cultural objects taken during colonialism. Drawing on that report, as well as on the responses to it, the article queries whether and how digitization can work to redress (or unfortunately, in some cases reinforce) the harms of colonialism.
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Malin Thor Tureby, Kristin Wagrell

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 87 - 118

https://doi.org/10.4467/2450050XSNR.20.012.13015
Although digitization has become a word that is almost synonymous with democratization and citizen participation, many museums and other cultural heritage institutions have found it difficult to live up to this political vision of inclusivity and access for all. In Sweden, political ambitions to digitize the cultural heritage sector are high. Yet, institutions still struggle to reconcile their previous practices with new technologies and ethical guidelines for collecting and curating material. In this article we identify, analyse, and try to find resolutions for the current gap that exists between cultural heritage practice and government policy on digitization, open access, and research ethics. By examining two Swedish examples of Holocaust collections that have not been digitized because of internal policies of secrecy and confidentiality, we attempt to demonstrate how discourses about vulnerability affect the ways in which certain archival practices resist policies of accessibility and ethical research. In order to unpack the discourses on vulnerability, Carol Bacchi’s post-structural approach to policy analysis has been used together with Judith Butler’s theories on vulnerability and resistance. In addition to understanding how cultural heritage institutions in Sweden have protected some of their collections and how this has obstructed efforts to make these collections more accessible, we also offer some suggestions on how these issues can be resolved by reimagining digitization as transformation.
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Karolina Prażmowska

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 119 - 150

https://doi.org/10.4467/2450050XSNR.20.013.13016
The digitization of cultural heritage has become a common practice among cultural and educational institutions. The Internet and the widespread of new technologies have made the heritage more accessible and facilitates cultural exchange. However, digitization both raises challenges and creates opportunities for the sustainable and appropriate treatment of Indigenous digital cultural heritage collections, as the use of new technologies may render such heritage more vulnerable to misappropriation and misuse. It is therefore vital to investigate the possibilities of Intellectual Property tools to protect, preserve, and promote such heritage. This article addresses the following questions with respect the Indigenous heritage: What is the nature of the relationship between IP protection and the safeguarding of intangible heritage?; What are the consequences of misappropriation and misuse of traditional cultural expressions for Indigenous Peoples?; and What is the impact of digitization on Indigenous cultural heritage?
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Alicja Jagielska-Burduk, Andrzej Jakubowski

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 151 - 176

https://doi.org/10.4467/2450050XSNR.20.014.13017
Since at least the 1990s, museums have expanded to cover a variety of societal functions, often enabling inclusive and participatory spaces for critical dialogue about the past and the future, and bridging together various narratives and cultural experiences, contributing to social cohesion and reconciliation. The new functions of museums, involving novel technological forms of display and communication, pose several legal questions concerning the management of such institutions, their resources, and exhibitions, including issues of copyright and other intellectual property rights. While referring to a recent case concerning an alleged infringement of the moral rights of the authors of the permanent exhibition of the Museum of the Second World War in Gdansk (MWII), this article examines the scope of copyright protection in new, so-called, “narrative” museums under Polish law. First it briefly scrutinizes main facts and circumstances of this case. Secondly, it discusses the current legal framework on the copyright protection of museum exhibitions under Polish law. Next, in light of the judgment rendered in the MWII case, the standard of legal protection of moral interests resulting from a museum exhibition’s design and its scenario (script) is explored. Finally, the article concludes with a set of observations concerning the extent to which copyright law may serve as a tool for protecting the integrity of museum exhibitions and their original conceptual design.
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Claudia S. Quiñones Vilá

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 177 - 198

https://doi.org/10.4467/2450050XSNR.20.015.13018
This article examines the recently proposed ICOM museum definition and its detractors in order to trace the history of museums and their social purpose as they move from a traditional past into a tumultuous present and uncertain future. As countries begin to reframe the role of arts and culture in shaping a world affected by a global pandemic, museums will need to address not only practical measures – such as social distancing guidelines and limited visitor numbers – but also how these institutions are situated within the greater social context. Technology is particularly useful for museums to share their collections with audiences and transcend geographical boundaries, and it also allows these institutions to reposition themselves as relevant within the ongoing cultural heritage dialogue and context. However, it is debatable whether online and digital offerings classify as museums. Even if there is no consensus on the textbook definition of museum, pinpointing common traits will help establish their evolution and role for current and future generations. Embracing digitization, virtual museums, and other non-traditional frameworks allows for a more expansive and inclusive conception of museums, taking into account their dual role: as custodians of public knowledge and spaces for education and development.
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Armando Perla

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 199 - 222

https://doi.org/10.4467/2450050XSNR.20.016.13019
The museum as an institution can trace its origins to the colonization process. Many are still undemocratic and exclusionary institutions by nature. This article explores how digital collections, digital storytelling, and ethical guidelines for museum professionals working with historically marginalized communities can contribute to democratize museum practice and theory. Making use of two case studies: 1) the creation of the Canadian Museum for Human Rights’ (CMHR) oral history collection; and 2) the planning of the Swedish Museum of Movements’ (MoM) ethical guidelines – this piece proposes a shift from theory to practice in human rights museology to help institutions be more attuned and responsive to the communities they intend to serve. Both case studies demonstrate that implementing human rights museology in national museums is not an easy task and still faces multiple challenges. Yet, they also indicate that this concept can be more productively informed through practices developed by the marginalized groups which have been historically excluded from taking part in the decision-making processes in museums.
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Ewa Manikowska

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 223 - 250

https://doi.org/10.4467/2450050XSNR.20.017.13020
In this article I discuss both the recent threats as well as opportunities posed by social media to the activities of museums, taking into account social media’s importance as an evolving space of both social outreach and social activism. Recalling the controversies around the U.S. and UK museums’ social media responses to George Floyd’s death, I argue that museums run the risk of politicization and entanglement in controversial issues which are not necessarily linked to their profile and mission. I analyse museums’ social media guidelines, good practices, and mission statements, and posit that they play a fundamental role in integrating the new realm of the Web 2.0 into traditional museum activities. My main case study and example of good practice is the Auschwitz-Birkenau Memorial and Museum. It has constantly embedded general ethical and educational principles and guidelines of Holocaust commemoration and education into its more than 60-years’ experience in dealing with and taming political and cultural controversies surrounding this memory site of universal importance, and this embeddedness lies at the core of its social media activity. Defined as an “online community of remembrance”, it consists of well-thought-out initiatives which aim at informing the public about the everyday history of the camp, involving itself in the current commemorations and anniversaries, and rectifying simplifications and misinformation about Auschwitz and the Holocaust. I also analyse the fundamental role played by the official social media profiles in managing the crisis which arose at the beginning of 2018 with the amendment of the socalled “Holocaust Law” in Poland.
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Legal Commentaries

Antoinette Maget Dominicé, Dario Henri Haux

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 251 - 260

https://doi.org/10.4467/2450050XSNR.20.018.13021
The German Federal Court of Justice recently ruled (27.08.2020 – III ZB 30/20) that Facebook must grant parents direct access to the account of their deceased daughter. At the same time, the parents are prohibited from actively using the account. In this way, the judges established binding standards for the use of social network accounts of deceased users. Beyond inheritance and data protection law, the judgment provides an opportunity to prompt ongoing discussions about sustainable ways of safeguarding, as well as providing access to, digital content. Against the backdrop of a jurisprudence sensitized to the humanities, the two authors encourage a reflection on “spaces”, “containers”, and more generally on the significance of digital media for our everyday lives and future generations.
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Ewa Gwardzińska

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 261 - 278

https://doi.org/10.4467/2450050XSNR.20.019.13022
The protection of industrial property rights in the digital economy era is of particular importance because the digital economy increases the risk of trading pirated and counterfeit goods. The aim of this publication is to present the role of customs authorities in trademark protection of a product upon its entry into the EU common customs area. Customs authorities usually work as the first line of defence in the protection of property rights against an illegal entry which could further enable their retail distribution. Actions taken by customs authorities often require cooperation with the police, the border guard, the road traffic inspectorate, and foreign customs authorities. Customs authorities of individual Member States, including Polish customs officers, implement uniform EU customs law, which regulates the general rules and procedures applicable to goods (but not to services) lawfully introduced into the EU customs area. Cultural objects are here treated as items not subject to the principle of free movement of goods – they require clearance by cultural authorities and customs services.
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Katarzyna Chałubińska-Jentkiewicz

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 279 - 292

https://doi.org/10.4467/2450050XSNR.20.020.13023
Access to audio-visual and digitized heritage is crucial for the economy and overall well-being. It also offers important avenues for the development of creativity and intercultural dialogue, shaping people’s identity and contributing to cultural diversity. Yet the rise of the digital sector has also been accompanied by the proliferation of cyber or computer-related crime. Therefore, the harmonization of cybercrime legislation has widely been discussed in different international fora. At the same time, the protection of digital content has become a highly important issue in the context of the expanding policies aimed at ensuring public, open access to digitized resources for non-commercial, educational, and cultural purposes. This article offers an overview of these topical questions, with specific reference to the EU Digital Single Market.
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Varia

Li Weifang

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 293 - 312

https://doi.org/10.4467/2450050XSNR.20.021.13024
It is generally accepted that stolen cultural objects shall be returned, but it is still a more complex and comparatively ambiguous matter when it comes to solving cases left over by history. The Six Stone Horse Reliefs are one of the most influential works of art in Chinese history, but unfortunately the beginning of 20th century witnessed the political and social upheaval of China, which resulted not only in people’s suffering but also in the loss of the cultural relics. The Six Stone Horse Reliefs were stolen and broken in China. Two of the six stone horses, called Sa Luzi and Quan Maogua, were illegally shipped to the United States and today are exhibited at the University Museum of Pennsylvania. While referring to the example of the Six Stone Horse Reliefs, this article puts forward the argument for using soft-law instruments to break through the shortcomings of existing international treaties and the limitations of domestic law.
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Sophie Vigneron

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 313 - 338

https://doi.org/10.4467/2450050XSNR.20.022.13025
This article analyses three cases of repatriation of human remains by French public museums in order to critically examine the difficulties in the changing institutional practice. It critically  ssesses the statutory and administrative processes that have been used to repatriate human remains and identifies the difficulties that have been and are mostly still encountered. Firstly, it evaluates the public/private conundrum of ownership of human remains in French law, which explains why Parliament had to intervene to facilitate the repatriation of remains in public museum collections, whereas a private society could repatriate the skulls of chief Ataï and his doctor to New Caledonia without legal difficulties. Secondly, it reviews the need for parliamentary intervention for the repatriation of the remains of Saartjie Baartman to South Africa and several Mokomokai to New Zealand. Finally, it criticizes the administrative deadlock that has prevented the development of a repatriation practice that could have b en established after the successful repatriation of the remains of Vamaica Peru to Uruguay. Unfortunately, the process has remained opaque and ineffective, owing to a variety of factors; in particular the ambiguity regarding the role of the Commission scientifique nationale des collections, which is set to be abolished and whose role will be undertaken by the Haut conseil des Musées de France, and a lack of political, financial, and structural support from the Ministry of Culture. Until these shortcomings are addressed and clear criteria for repatriation are drawn up, it is unlikely that France will develop a coherent, transparent, and effective process for the repatriation of human remains.
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Zhao Zhiyong

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 339 - 354

https://doi.org/10.4467/2450050XSNR.20.023.13026
For a long time, the concept of the human body has been governed by civil law. Today, this way of treating it is no longer certain. The human body can also be understood as an integral part of cultural heritage. On one hand, this is a question of the holder of the element of the intangible cultural heritage (ICH). On the other hand, it concerns the human body beyond the living person, protected as tangible heritage or cultural property. This article analyses these diverse dimensions of the human body under Chinese legislation on the protection of cultural relics and for the safeguarding of intangible cultural heritage, taking into consideration the respect for human dignity. In this regard, it offers a cross-cutting overview of the ethical and legal challenges surrounding the management and regulation of human remains.
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Pierre-Alain Collot

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 355 - 376

https://doi.org/10.4467/2450050XSNR.20.024.13027
Despite the incremental development of the heritage dimension of local urban planning plans, as well as an ever-more substantial relationship between immovable cultural heritage law and urban planning law, these two elements remain susceptible to raising confusion, occasionally contradicting one another frontally. The French Act of 7 July 2016 on Freedom of Creation, Architecture, and Heritage had the initial ambition of harmonizing and simplifying the mechanisms for the protection and enhancement of immovable cultural heritage, including under urban planning law. Yet the Act of 23 November 2018 on Housing Development, Urban Planning, and Digital Technology has further contributed to weakening the heritage protection mechanisms and bestowed a priority on the construction of new buildings over the conservation and enhancement of old neighbourhoods and buildings.
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Debuts

Aleksandra Guss

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 377 - 406

https://doi.org/10.4467/2450050XSNR.20.025.13028
Digitization in the narrow sense means the conversion of analogue data into digital form. Looking more broadly through the prism of the protection of cultural heritage, digitization of its objects means not only the conversion of analogue objects into their digital version, but is also related to the processing of the obtained material, file management, and finally, but not always, the sharing of digital documentation. It is not a simple procedure because it has many limitations, including those arising from issues of the copyright protection of digitized works. The aim of this article is to present the challenges related to copyright in relation to the digitization of cultural heritage in the light of Polish law and policy. Poland is one of the countries where the process of digitization of cultural heritage is developing dynamically, both through government programmes and grassroots digitization movements. However, there is no separate regulation in the Polish legal system devoted to the digitization of cultural heritage resources. This makes it difficult to ensure the digitization of a significant part of collections due to the limitations resulting from copyright and their relation to works that can potentially be transferred into the digital space.
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Events and Conferences

Karolína Menšíková

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 407 - 409

The Documentation Centre for Property Transfers of the Cultural Assets of WWII Victims, with financial support of the Ministry of Culture of the Czech Republic, organized the 7th International Conference focused on the topic of the “Terezín Declaration – Ten Years Later”. The conference took place in the Museum of Decorative Arts in Prague on 18-19 June 2019.
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Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 410 - 412

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New Books

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 413 - 420

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Call for Papers

Santander Art and Culture Law Review, 2/2020 (6), 2020, s. 421 - 423

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Pliki do pobrania

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Słowa kluczowe: UNESCO, digital cultural heritage, Charter on the Preservation of Digital Heritage, digital heritage, digital surrogates, restitution, colonialism, international law, Holocaust collections, vulnerability, digitization, research ethics, cultural heritage and digitalization, digitization, Indigenous heritage, cultural appropriation, Intellectual Property, curators’ moral rights, Museum of the Second World War in Gdansk, museum exhibition, creative work, copyright, museum, technology, cultural property, cultural heritage, digital, oral history, ethics, human rights museology, digital storytelling, collecting, museums, social media, museum education, museum ethics, Holocaust commemoration, social activism, digital inheritance, digital heritage, access, law & humanities, German Federal Court of Justice, trademark, follow the money, digitization process, cultural objects, cyber threat, digital content, digital heritage, consumer rights, intellectual property, soft law, China, return of cultural property, United States, codes of ethics, human remains, repatriation, France, Maori, Commission scientifique nationale des collections, human body, property rights, cultural heritage, cultural property, China, cultural heritage, urban planning law, architectural quality, urban renewal, digitization, cultural heritage, copyrights, digital heritage