Copyright and Heritage: Relation, Origin, Temporality

If there is one feature that frames the conceptual and normative foundations for both copyright law and cultural heritage it is the principle of origin. For a copyright to subsist the law requires an original expression that establishes the origin upon which it recognises the author and subsequently actualises the existence of property rights over that expression. For the cultural heritage, it is the origin of in/tangible manifestations and expressions that becomes the principle according to which belonging, identity, and tradition are recognised and established. While the concept of cultural heritage has arguably been comparable to the notion of ‘cultural property’, this nevertheless indicates that ‘heritage’ still negotiates its status within the various discourses that enclose and view cultural expressions, resources, artefacts through the perspectives of property and ownership – the principles associated with the very legal tradition that copyright law originates from. The approach of studying the relationship between copyright law and cultural heritage is often considered through the prism of proprietary notions and the distinctions they entail: private/public, individual/collective. The questions about the way and extent to which they contrast, or for that matter overlap, are pertinent when contextualising their subject matter. Indeed, the protection and promotion of culture, understood here in its broadest sense, remain to inform the justifications for their normative construction. However, what fundamentally embodies their existence is the understanding of origin as a temporal quality, which gives rise to their narratives, histories, memories, preservation (of themselves and their subject matter). As the French philosopher Michel Serres notes: the time moves ‘along a line of origin…[which] is not a point, [but] ‘a long sequence of founding circumstances.'(1) This paper approaches time as an inherent principle of both copyright law and cultural heritage in conceptualising and comparing their subject matter. More specifically, it argues that it is their use and understanding of time – as a measure and function – that provides an alternative approach to question how time is subsumed into normative conceptions, how it is used to regulate and impose, how it gives rise to property rights, how it informs narratives and their ‘timelessness’. While copyright is a temporal category that only temporary preserves, the cultural heritage builds itself by the very transmission of notions, ideas, skills, knowledge, and artefacts that further solidify the foundation of its continuance. Their value is not only related to the temporal significance, or preserving the facts that contextualise and provide evidence for cultural development, but also of recognising their inherent relation to time (future and past) as a trace that informs understanding of a particular system, civilisation, legal practice or mode of thinking. (1) Michel Serres, Rome: The First Book of Foundations (Bloomsbury, 2015) 220.