Response to the 2018 Sarr-Savoy Report Response to the 2018 Sarr-Savoy Report Statement on Intellectual Property Rights and Open Access relevant to the digitization and restitution of African Cultural Heritage and associated materials by Dr Mathilde Pavis and Dr Andrea Wallace 25 March 2019
© 2019 Mathilde Pavis and Andrea Wallace
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Recommended citation: Mathilde Pavis and Andrea Wallace, Statement: Response to the 2018 Sarr-Savoy Report, 10 (2019) JIPITEC 115 para 1.
EXECUTIVE SUMMARY demands are not made of its own national institutions. 1 This response challenges the recommendations made by the Sarr-Savoy Report to systematically • Third, restitution must not be conditioned digitize and make available online as “open access” upon any obligations to allow the digitization all of the African Cultural Heritage designated for of materials held in France and open access restitution. Instead, we write to acknowledge the commitments. Such decisions around digitization complex issues regarding intellectual property rights (including the waiver of any rights for open and open access policies around these materials, access purposes) are cultural and curatorial and we call on the French Government to dedicate prerogatives. Accordingly, they must be made further resources to researching and co-developing by African communities of origin, as they impact digitization solutions with African communities of how heritage may be represented, preserved, origin. Accordingly, we advise against adopting the and remembered. African communities must Report’s blanket recommendations on digitization therefore enjoy full autonomy in devising any and open access for many reasons: access strategies for restituted material and digital cultural heritage. • First and foremost, the Report’s recommendations, if followed, risk placing • Finally, attempts to truly decolonize French the French Government in a position of institutions of African Material Cultural returning Africa’s Material Cultural Heritage Heritage must carry through to the treatment while retaining control over the generation, of archival and digital materials, including those presentation, and stewardship of Africa’s Digital remaining in France. Digital heritage today is Cultural Heritage for decades to come. as important as material heritage and should be thoughtfully considered and fully integrated • Second, and related to this, the validity of within future restitution policies and collections intellectual property claims in certain digital management. The restitution of African Digital materials and the implementation of open Cultural Heritage therefore cannot be treated access policies are contested and subject to as an afterthought. With this in mind, France increasing global legal and social controversy. should consider the opportunity to aid African In France, open access to digital heritage communities in this process, both practically and collections is almost nonexistent, thus the financially, alongside other forms of reparation. French Government should refrain from taking any position that creates a double standard 2 For these reasons, we urge the French Government by requiring African Cultural Heritage to be to pursue further research and consultation with digitized and made available when the same the key stakeholders around these issues prior to
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and during the processes designed for restitution of RESPONSE TO THE 2018 African Cultural Heritage. The French Government SARR-SAVOY REPORT is uniquely positioned to explore equitable practices for how these discussions should proceed and Statement on Intellectual Property Rights and the methodology that follows. The outcomes co- Open Access relevant to the digitization developed through such an opportunity will aid and restitution of African Cultural Heritage other governments and institutions attempting to and associated materials1 tackle similar long-overdue restitution initiatives. 25 March 2019
INTRODUCTION
3 We write in response to the Sarr-Savoy Report entitled “The Restitution of African Cultural Heritage: Toward a New Relational Ethics”. We note the Report’s sensitive, informed, and nuanced review of the complex restitution process, as well as its acknowledgement of the considerable efforts and cooperation required from all stakeholders involved.
4 We seek to bring the French Government’s attention to issues regarding any intellectual property rights and open access policies designed during this restitution process. The Sarr-Savoy Report only briefly addresses this topic. The Report recommends systematically digitizing and making available online all African Cultural Heritage designated for restitution. While it suggests a dialogue with other involved institutions and parties is necessary, the Report advocates in favor of “a radical practice of sharing, including how one rethinks the politics of image rights use” and sets a firm objective for “free access to these materials as well as the free use of the images and documents”.2
5 We would advise against adopting a blanket recommendation of free and open access for digital materials. We suggest the same nuanced attention the Report pays to objects of African Cultural Heritage and their histories be paid to the digital reproductions (hereafter “digital surrogates”), documentation, and associated archival materials. We ask the French Government to consider the following context motivating this response:
• Digital heritage today is as important as material heritage and should be thoughtfully considered and fully integrated within future restitution policies.
1 Mathilde Pavis and Andrea Wallace, ‘Response to the Sarr- Savoy Report: Statement on Intellectual Property Rights and Open Access relevant to the digitization and restitution of African Cultural Heritage and associated materials’ (25 March 2019) CC BY 4.0 (
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• The validity of intellectual property claims to 7 For these reasons, the Sarr-Savoy Report’s digital cultural heritage is contested and subject recommendations for the digitization and to increasing global legal and social controversy. management of cultural content must be critically Within the EU, national responses to the examined. We urge the French Government to subsistence of authorship in digital surrogates do so before proceeding with restitution. Further currently vary. consultation and research with the key stakeholders identified must be pursued prior to and alongside • A claim to intellectual property rights in restitution efforts. Attempts to truly decolonize digital surrogates carries the ability to mediate French institutions of African Material Cultural public access, use, and engagement, which is Heritage must carry through to the treatment of especially relevant for communities of origin. At archival and digital materials. France therefore holds present it remains unclear whether the Report a unique position to explore equitable opportunities recommends waiving any intellectual property for how restitution will proceed and be integrated rights arising or takes the position that such with the digital realm. rights fail to arise in digital surrogates of public domain works. 8 This response proceeds as follows: Section 1 provides an overview of the legal issues relevant to the • The management of intellectual property is discussion; Section 2 addresses the Report’s framing a cultural and curatorial prerogative, as is of intellectual property rights and open access, while the initial decision about whether and what Section 3 speaks to the concerns it raises. Section 4 materials to digitize. These prerogatives should concludes with recommendations, but these are not belong to the communities of origin. exhaustive.
• Open access to digital surrogates of cultural 1. Overview of Intellectual Property Rights in heritage held by French institutions is almost Digital Cultural Heritage (and Open Access) nonexistent.3 The Government should refrain from taking any position that requires restituted 9 As an initial matter, it should be stressed that cultural materials to be digitized and made the legal issues implicated by digitization are available as open access, especially when the worthy of their own report. This response does same demands are not made of its own national not attempt to accomplish this, but highlights the institutions. additional complex legal and social interrogations that are required. These include examinations of • The current practice of Western governments international and national legal measures, colonial and heritage institutions campaigning for systems of value, the complex nature of digital and leading digitization projects according to content and its production, and cultural attitudes Western values and priorities, such as open toward the treatment of heritage. access, may be appropriate for their own cultural heritage. As applied to non-Western cultural 10 First, the minimum standards required for heritage, it carries the potential to sustain the copyright protection and related rights are set via very colonial approaches the Report takes great national legislation, which is harmonized through care to denounce. international and regional agreements that bind a wide range of countries. Having said that, not all 6 The lack of attention paid to digitization plans and countries are signatory to these agreements. As intellectual property rights in the Report makes it such, they may not implement the same level of difficult to critique these issues with any specificity. intellectual property rights or associated standards Despite this, we argue the current recommendations, of “open access” recognized by, for example, French if adopted, greatly undermine the Report’s core aim law. Any restitution agreement must account for to establish “new relational ethics” in the ownership these variations. and management of African Cultural Heritage. These same aims must be extended to Africa’s archival and 11 Second, the subsistence of “rights”, specifically digital cultural heritage. It simply is not enough to “intellectual property rights”, varies according to return the material cultural heritage while retaining the digitization processes involved. Two categories any potential right to digitize, commercialize, and of digital materials are relevant for restitution control access (even by mandating “open access”) to purposes: another community’s digital cultural heritage. (a) Born-digital material describes digital items of cultural heritage that are records of particular human or technological 3 See Douglas McCarthy and Andrea Wallace, ‘Survey of expressions, especially for intangible cultural GLAM open access policy and practice’
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photographic, audio, or audio-visual records 15 Second, the digital material itself (e.g., a digital of performances, rites, or oral traditions, or photograph or audio-video recording) may attract the metadata associated with the creation and copyright or a related right independent from manipulation of the digital item. For clarity, the work it captures. Whether this is the case has we will refer to this category as digital records. been subject to much contention between experts, scholars, courts, and heritage communities of (b) Digitized material describes digital items practice. Many argue that faithful reproductions of of cultural heritage, which may or may not cultural heritage lack the necessary originality to still exist, made for archival or reproduction attract copyright protection altogether. Others take purposes in a digital format. These digital the position that rights likely subsist, but encourage items may range in quality depending on the the release of digital heritage collections via open purpose of digitization or the reproduction licenses, such as a Creative Commons CC0 dedication technologies at hand, but can include digital or CC BY license.6 Evidence shows these licenses may photographs or scans of two-dimensional be inaccurately applied when they fail to account for and three-dimensional objects and associated the status of the underlying work.7 archival materials. For clarity, we will refer to this category as digital surrogates. 16 This doctrinal uncertainty carries significant weight for digitization campaigns to enable the access and 12 An extensive ongoing debate surrounds the dissemination of knowledge, hence the critical nature intellectual property protection available to digital of the issue for the heritage sector. On the one hand, records and digital surrogates (hereafter “digital digital heritage collections are costly to produce, heritage collections”). And, internationally, there maintain, and make available to the public. Claiming is a lack of consensus on whether intellectual copyright can therefore enable cultural institutions property rights subsist in such content and, if so, to support digitization efforts by recouping the costs who owns them. This uncertainty cannot be resolved associated,8 or at least prevent third-parties (e.g., by establishing a blanket “open-access” policy for commercial organizations) from freeriding on their digitized African Cultural Heritage. investment.9 Other considerations might also impact whether heritage institutions claim or disclaim 13 To further complicate the matter, not only might copyright in digital heritage collections.10 On the layers of intellectual property rights subsist in these other hand, claiming copyright in digital surrogates digital heritage collections, but the heritage sector of public domain works essentially diminishes the overwhelmingly adopts inconsistent and subjective public domain and privatizes its contents,11 which definitions of “open” when enabling access. These policies are designed according to each institution’s needs and desires, revealing a wide spectrum of 6 Creative Commons, ‘CC0 “No Rights Reserved”’
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is of increasing importance today in an information from a collection. society. 20 A precondition of moral rights is that copyright must 17 Heritage institutions, experts, and policymakers first subsist in the work. It is important to stress can be found on either side of this debate. To satisfy that France defines moral rights to be perpetual, increased expectations to digital access, institutions inalienable, and imprescriptible. As such, moral have adopted “open access” policies ranging rights survive copyright and continue to apply to from simply making collections visible online to many heritage collections passing into the public disclaiming copyright altogether and releasing domain.14 A number of African countries, and, high-resolution digital surrogates to the public notably, many that were previously colonized or domain. Many institutions restrict reuse of digital occupied by France, have implemented similar heritage collections to personal or non-commercial moral rights regimes. This is the case in Mali,15 purposes, a premise that is noncompliant with the Chad,16 Cameroon17 and Madagascar,18 to cite a few Open Knowledge International definition of “open” examples of the Sarr-Savoy Report. Regardless of a allowing free use of open data and content by anyone work’s origin, French courts have declared moral for any purpose.12 rights enforceable during cross-border litigation held in France.19 Moral rights therefore have strong 18 The situation of copyright in digital surrogates implications for digitization and open access. made in the European Union (EU)13 or Africa can vary considerably from one country to the next. 21 Finally, other rights may subsist via related or sui Rights defined by geographic boundaries will apply generis rights due to national or regional legislation. according to the location in which digitization For example, some African countries grant sui generis occurs. At present, we assume digitization will occur protection in traditional knowledge or traditional according to processes defined by the institutions cultural expressions.20 These rights will reside of possession. This would implicate French and EU with the country or communities of origin and add law, with a digital copy generated and retained by another layer for consideration. the institution and deposited in the open access portal, while the material African Cultural Heritage 22 Consequently, “open access” policies will be is returned to the country or community of origin. contingent upon the various layers of protection discussed above. The next section examines the 19 Moral rights must be considered as they may Report’s minimal recommendations made in this also pose a legal obstacle to digitization. This can respect. manifest in two ways: first, with regards to moral rights in the material cultural heritage located in France, digitization requires consent from authors of the communities of origin; second, where digitization has occurred, moral rights may arise in the digital materials attracting copyright. Under 14 See Mathilde Pavis, ‘ICH and Safeguarding: Uncovering French law, these rights provide authors with legal the Cultural Heritage Discourse of Copyright’ in Charlotte Waelde and others (eds), Research Handbook on Contemporary protection regarding the attribution (or paternity), Intangible Cultural Heritage Law and Heritage (Edward integrity, disclosure, and withdrawal of the work. In Elgar 2018). practice, this means that an author or their estate 15 Loi n° 08-024 du 23 juillet 2008 fixant le régime de la could: object to the digitization or distribution of propriété littéraire et artistique en République du Mali, digital heritage collections; request that a work Articles 12 and 16. be attributed, anonymised or pseudonymised; or 16 Loi n° 005/PR/2003 du 2 mai 2003 portant Protection du require the withdrawal of a work (physical or digital) Droit d’Auteur, des Droits Voisins et des Expressions du Folklore, Articles 3, 22, and 23. 17 Law No. 2000/011 of December 19, 2000, on Copyright and 12 Open Knowledge International, ‘The Open Definition’ Neighbouring Rights, Article 14.
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2. Report’s Discussion of Intellectual Property (Galleries, Libraries, Archives, and Museums)21 Rights in African Cultural Heritage and Open movement and its desire to make works in the public Access domain accessible to generate new knowledge and creative reuses. This recommendation is laudable 23 As mentioned, the Sarr-Savoy Report takes great for its commitment to the democratic principles care to lay out the history and responsibility of supporting free access and reuse of the public France in relation to exploited African cultures and domain.22 the challenges that underlie physical restitution and its administrative processes. Thus, a foundation has 27 With this in mind, it should be acknowledged that already been laid for an informed application of the intellectual property is a Western construct which Report’s recommendations concerning memory carries its own colonial bias.23 It follows that the work and reparations around archival materials and public domain and “open access” are components digital heritage collections. of this colonial thinking. We should therefore resist casually exporting our associated understandings of 24 We argue these interrogations are similarly crucial “sharing” to non-Western heritage. Here, two points when examining the management of archival are important to make. materials and digital heritage collections. The Report does not clarify a number of terms key to 28 First, we assume from the Report that digitization undertaking this initiative. The relevant portion has is expected to occur in France prior to any physical been included and annotated to aid the discussion. restitution. As addressed above, this is likely to On pages 67-68, the Report states: trigger the application of French and EU intellectual property law. At present, the very decisions made b. Sharing of Digital Content about these digitization processes will and are proceeding under host communities’ oversight, A large number of photographic cinematographic, or sound precluding alternative African conceptions of how documents concerning African societies once held by former its cultural heritage might be represented and then colonial administrations have recently been part of the presented to the public. Accordingly, there is a real intensive campaigns for digitization projects (such as the risk of digitally imposing Western perspectives of “iconothèque” in the Musée du quai Branly-Jacques Chirac). how intellectual property should be exploited (or Within the framework of the project of restitutions, [1] these not) and how access should be extended to Africa’s digitized objects must be made part of a radical practice of cultural heritage. sharing, including [2] how one rethinks the politics of image rights use. Given the large number of French institutions 29 A claim to intellectual property carries the ability to concerned and the difficulty that a foreign public has for exclude others from accessing the digital heritage navigating through these museums, [3] we recommend the collections’ embodied knowledge. It also fortifies creation of a single portal providing access to the precious the circumstances precipitating an “impeded or documentation in the form of a platform that would be blocked memory”24 by awarding the rightsholder open access. After a dialogue with the other institutions and with control over access and reuse. Notably, the parties involved, [4] a plan for the systematic digitization of Report explores the juridical effect of 19th-century documents that have yet to be digitized concerning Africa courts legitimizing the “right to pillage and plunder should be established, including the collections of (Ethiopian, what had belonged to the enemy” and “the right to Omarian, etc) manuscripts from the Bibliothèque nationale appropriate for oneself what one had taken away de France. [5] It goes without saying that questions around from the enemy”.25 As applied here, the law and the rights for the reproduction of images needs [sic] to be its formalities have the similar ability to legitimize the object of a complete revision regarding requests coming French systems of intellectual property to Africa’s from African countries from which these works originated Digital Cultural Heritage, which appropriate for including any photographs, films, and recordings of these communities of possession certain rights connected societies. [6] Free access to these materials as well as the free to the very heritage designated for restitution. use of the images and documents should be the end goal. Instead, we must ensure any intellectual property rights arising during digitization are not subjected to 25 Below we have set out the questions raised by these recommendations and taken guidance from the 21 OpenGLAM, ‘Home’
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the same historical annexation and appropriation of 33 But this rethinking might also apply to objects not cultural heritage that this Report seeks to dismantle. designated for restitution during the digitization of African Cultural Heritage (and the heritage of 30 Second, intellectual property rights may not be other communities) legitimately held by French appropriate, legally or culturally, for the digital institutions. Heritage institutions pursuing this surrogates of some objects and archival materials. path of rethinking have developed comprehensive As addressed above, this is a cultural and curatorial cultural permissions policies in tandem with the prerogative belonging to the community of origin. communities whose objects remain in their care.29 This initiative presents a novel opportunity to A real opportunity exists here, as the Report notes, begin viewing certain materials as falling outside of to “invert the colonial hegemonic relationship”30 intellectual property (and digitization) frameworks around the treatment of African Cultural Heritage entirely.26 Thus, this “radical practice of sharing” (and the heritage of other communities), including must be defined according to a co-developed the heritage remaining in situ with French understanding and encompass only the works institutions. deemed appropriate for digitization, unfettered open access, and public reuse, and only after the 34 Second, these politics are fraught with their own key stakeholders and communities of origin are historiographies. Similar to the restitution process consulted as to how this should proceed. detailed by the Report, any digitization and exploration of image rights “implies much more [2] “how one rethinks the politics of image rights use” than a single exploration of the past: above all, it becomes a question of building bridges for future 31 The Report fails to detail any intentions around “how equitable relations”.31 We encourage the Government one rethinks the politics of image rights use”. We to consider how the digitization policies designed applaud the recommendation and raise the following for these materials might also contribute to future concerns identified by the Report as central to this equitable relations around cultural heritage and its inquiry. And, while closely related to the “radical treatment in light of these politics of the past. practices of sharing” discussion, it is important to treat the “politics of image rights use” as a separate [3] “we recommend the creation of a single portal providing matter for the following reasons. access to the precious documentation in the form of a platform that would be open access” 32 First, the digitization process can expose African Cultural Heritage to a secondary “system of 35 The Report lacks any definition or contextual appropriation and alienation” identified by the information to clarify the meaning of “open access”. Report as the crux of the problem.27 Appropriation As detailed above, “open” often reveals a variety of can occur due to the authorship role recognized by subjective interpretations put to practice, but at the copyright, which carries the ability to symbolically very least it includes making content available for appropriate and control the knowledge, personhood, viewing online fee-free to extend access to non-local and objecthood embodied in the material object.28 audiences. We assume this recommendation may Alienation can occur due to the reproduction process have been motivated by one or all of the following in two ways: both symbolically when concerns around rationales: any sensitive treatment of the material object are not transferred to its digital version, and physically when the digital surrogate is alienated from the material object upon its physical return to the community of origin and digital deposit with the 29 For example, initiatives undertaken by the Field Museum in Chicago, USA and the Auckland War Memorial Museum open access platform. Any cultural preferences by in New Zealand are recentering Indigenous perspectives these communities of origin, whether historical or in collections management. See Alaka Wali, ‘Making present-day geographical communities, must be Room for Native American Voices’ Field Museum Blog (8 accounted for in rethinking the politics embedded November 2018)
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a) To improve education surrounding: the suggest taking a “slow digitization” approach,35 history and damaging effects of colonization; which involves paying the same attention to the the power dynamics underlying Western processes of digitization as we pay to the objects narratives and knowledge generation, the themselves, instead of rapidly digitizing African curatorial care, and treatment of African Cultural Heritage to make it available online. This Cultural Heritage; the pressing need for more naturally requires an examination of who is best attention paid to restitution globally; and the placed to undertake this task and the systems of important goals driving this initiative;32 values informing this answer. On this point, scholars warn: a) To ensure African countries, communities, or institutions provide access to digital heritage Paradoxically, there is a risk that an emphasis on digitizing collections of African Cultural Heritage to cultural treasures will undermine the claim that digitization the same individuals and communities who opens up and democratizes access to cultural heritage. If enjoyed access prior to restitution; digital libraries merely reiterate and reinforce long-standing cultural narratives and stereotypes, rather than enabling the a) To prevent French institutions in possession exploration of forgotten and neglected collections, then they can of African Cultural Heritage from exercising become agents of cultural exclusion.36 and enforcing intellectual property rights in the digital surrogates they currently hold 39 We must critically examine whose needs are and might generate, which would impede served by systematic digitization and explore the restitution of Africa’s Digital Cultural how more nuanced systems serving the historical Heritage. and geographical communities of origin might be established through collaborative work. At present, 36 The spirit and aim of creating the open access portal the Report’s focus on systematic digitization and aligns with OpenGLAM principles to “support the mandatory open access risks “reinforcing existing advance of humanity’s knowledge” so users may cultural stereotypes and canonicities”37 imposed on not only “enjoy the riches of the world’s memory the material objects by the culture in possession. institutions, but also to contribute, participate and share”.33 Yet it must be challenged whether this 40 The remaining extracts are only briefly addressed as decision to digitize and create an open access portal they build upon previous sentiments. should lie with the communities of possession. [5] “It goes without saying that questions around the rights 37 In the section titled “A Long Duration of Losses”, the for the reproduction of images needs [sic] to be the object of Report criticizes the legal structures in place which a complete revision regarding requests coming from African enabled African Cultural Heritage’s “economic countries from which these works originated including any capitalization (through the art market) as well as photographs, films, and recordings of these societies.” the symbolic capitalization (through the museum)” that went “hand in hand with the wars of that same 41 With regards to the need for revising “rights for era”.34 As applied to our era, the legal structures in the reproduction of images”, we agree with its place supporting mandatory systematic digitization spirit and overall aim. But it remains unclear what and open access policies have the potential to this statement means or how it might incorporate reinforce both economic capitalization (through the concerns expressed above. What is especially the exploitation of intellectual property) as well as unclear is whether the African countries mentioned symbolic capitalization (through the open access have any say in this revision or will simply receive portal), marrying the two practices renounced by digital copies of the works upon request. the Report. [6] “Free access to these materials as well as the free use of [4] “a plan for the systematic digitization of documents the images and documents should be the end goal.” that have yet to be digitized concerning Africa should be established” 42 With regards to the final statement, the end goal of securing “free access” via the open access platform 38 With regards to the “systematic digitization”, we and “free use of the images and documents” does not repeat the concerns previously expressed. We appear to have been set by the African communities
35 See Andrew Prescott and Lorna Hughes, ‘Why Do We 32 This assumption is also informed by the Report’s discussion Digitize? The Case for Slow Digitization’ [2018] Archive of the online portal on page 86, discussed infra. Journal
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involved, but rather by the Report’s authors. It thought”.40 remains unclear how the authors reached this conclusion to make this recommendation, and we 47 As a secondary matter, whether rights subsist in would welcome clarification. As discussed further digital heritage collections, and who owns them, is below, this position is problematic as it sets a double a legal doctrinal question with no certain answer standard of imposing open and free access to digital under French law, and one which is unlikely to be heritage collections of African Cultural Heritage settled before restitution begins as outlined by the yet similar obligations are not expected of French Report. national institutions. 48 In the absence of any clear legal guidance, the 43 Building on this discussion, the next section presents French Government ought to, at least, formulate a concerns on the Report’s current position and politically-sound position in its stead. This position recommendations relevant to the generation and should consider that (a) French institutions claim stewardship of digital heritage collections. intellectual property rights in digital heritage collections to the fullest extent, and (b) very few 3. Concerns on the Report’s Current Position French institutions make some or all collections and Recommendations available under open-compliant policies for any purposes.41 The Government should therefore avoid 44 This response argues that a critical reflection on the adopting any strict open access recommendation role of intellectual property is necessary to better that creates a double standard whereby French inform these “new relational ethics”. Our concerns institutions have no open access obligations primarily center around the desire to systematically regarding their own digital heritage collections, yet digitize (and what that entails) and any subsequent African institutions and communities do. rights arising in the process. These are summarized below. 49 We understand the recommendations made by the Report regarding the rights vested in African 45 As an initial matter, the same principles of dignity and digital heritage collections aim to promote the free respect the Report recognizes surrounding the object circulation of information and knowledge. This and its restitution must be extended to the object’s is, undeniably, a laudable and defendable pursuit. digitization. The Report criticizes the situation in However, in light of the complex legal loopholes 1960s Europe for defaulting on its obligation to framing digital heritage collections and mediating address colonial structures deeply embedded in access today, the Report’s recommendations risk the ownership and management of African Cultural placing the French Government in the position of Heritage. Yet the Report lacks the same “structured returning Africa’s Material Cultural Heritage while reflection devoted to the role [digital heritage retaining control over the generation, presentation, collections] could play in the emancipation of and stewardship of Africa’s Digital Cultural Heritage. formerly colonized African countries”.38 Our concern This recommendation is therefore untenable in is that an equally important part of this process is practice. being neglected, and that genuine efforts to restitute African Cultural Heritage may therefore succumb to 4. Alternative Recommendations the same mistakes made during (and prior to) the 1960s. 50 In light of the arguments presented, we make the following alternative recommendations, which are 46 This is because just as there are “different by no means exhaustive. Here, we choose to briefly interpretations or conceptions of cultural address the preliminary decisions around digitization heritage”,39 there are different interpretations or and access, stress the necessary adjustments to conceptions of digital cultural heritage. Digital cannot relevant legal frameworks to aid restitution, and be treated as an afterthought. Any rebalancing highlight some further opportunities posed by open of global cultural heritage must anticipate these access policies and platforms. different interpretations or conceptions and, most importantly, be motivated by the interests of the relevant communities in documenting and sharing 40 Sarr-Savoy Report, 33. their own material heritage. This rebalancing must 41 Those known to the authors of this response include: (1) account for alternative conceptions of objecthood, Alliance Israelite Universelle; (2) Babord-Num (Université de Bordeaux); (3) Bibliothèque de l’Institut national authorship or personhood, representation and d’histoire de l’art; (4) Bibliothèque de Rennes Métropole; (5) presentation, and digital heritage, thereby “releasing Bibliothèque municipale de Lyon; (6) Bibliothèque nationale oneself from the lone framework of European et universitaire, Strasbourg; (7) Centre National de la Danse; (8) Lo CIRDÒC (Occitanica); (9) Musée d’art et d’histoire de Saint-Brieuc; (10) Musée de Bretagne; (11) Musée de Die; (12) 38 Sarr-Savoy Report, 18. Musée des Augustins; (13) Musée Saint-Raymond. McCarthy 39 Sarr-Savoy Report, 29. and Wallace (n 3).
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Digitization and African Cultural Heritage any general framework for approaching questions of digitization and intellectual property management.43 51 First and foremost, decisions regarding digitization and open access must rest solely with the country/ 56 As an initial matter, the Report suggests undertaking ies, community/ies, or institution(s) to whom an inventory of all pieces of African Cultural Heritage the cultural heritage is returned. Put simply, conserved in French collections.44 We suggest restitution must come at no obligation to commit that any inventory process should also explore: to or guarantee digitization and open access. (1) whether any intellectual property rights exist in the material heritage, especially with regards to 52 Digitizing and managing rights in digital heritage documentation or archival materials; (2) whether collections is a curatorial process with an impact digitization (even for preservation) is appropriate on how heritage is represented, preserved, and and, if so, for what purposes; (3) whether access is remembered. Communities of origin should be appropriate and, if so, for what purposes; (4) whether trusted to make these decisions about their own any intellectual property rights, or other sui generis restituted heritage. The opportunity for France rights,45 are (a) recognized in digital surrogates or to aid African communities in this process, both other digital records already held in institutional practically and financially, should be considered collections, or (b) might arise in digital heritage alongside other forms of reparation. collections during future digitization processes; (5) whether such intellectual property rights are, in fact, 53 Moreover, a curatorial decision to embrace open appropriate for the digital heritage collections; and, if access is neither neutral nor insignificant. It can so, (6) who may be the most appropriate rightsholder involve surrendering control over how heritage is (and subsequently whether any assignment of rights presented, reproduced, and recorded once made can be arranged). available online. For communities seeking to first re-appropriate and reacquaint with their material 57 At the same time, any adjustments of French legal cultural heritage, this sensitive decision cannot be texts to adapt the public property obligations rushed. This is not to suggest that digitization and/ and inalienability posing the principal obstacle or open access are undesirable outcomes of any to restitutions must also consider intellectual restitution agreement,42 but that such decisions property obligations and the implications of rights must be made solely by the African country/ies, recognized in perpetuity.46 Such adjustments should community/ies, or institution(s) to whom the be reflected in any bilateral agreements envisioned cultural heritage is returned. by the Report.47 Doing so will require more than the current cursory considerations of “image rights” Necessary Adjustments to Relevant Legal Frameworks and open access. Accordingly, deeper reflection and consultation is imperative before digitization 54 Second, the status and management of digital proceeds. heritage collections is a paramount issue in today’s digital age. These collections hold an increasingly Further Opportunities Posed by Open Access Policies prominent place within our heritage institutions. and Platforms For this reason, consultation on the digitization process, including the intellectual property 58 Finally, we turn to the opportunities posed by open rights to be claimed, recognized, and conferred to access policies and platforms. Relying on the Report’s African Digital Cultural Heritage is as important own recommendations concerning material cultural as the negotiations involving any property rights heritage, we call on the French Government to in the material objects designated for restitution. undertake a “structured reflection devoted to the role [digital heritage collections] could play in 55 Such a consultation must revisit and expand on the emancipation of formerly colonized African the necessary adjustments to the relevant legal countries”.48 For this structured reflection, we frameworks. While the Report’s final section recommend focusing on two areas: the first regards entitled “Accompanying the returns” sets out the portal and the second regards the opportunities the chronological, juridical, methodological, and outlined in pages 85-86 (“Popular Appropriations”). financial framework for material restitution, it lacks
42 The Report highlights Achile Mbembe’s framing of how “these societies generated open systems of mutual resource- 43 Sarr-Savoy Report, 71-86. sharing concerning the forms of knowledge at the heart of 44 Sarr-Savoy Report, 41-42, 67. participative ecosystems, wherein the world is a reservoir 45 See RightsStatements.org and Local Contexts (n 28). of potentials”. This is a meaningful framing of open access, 46 Sarr-Savoy Report, 75-76. but, importantly, it comes from the community of origin. Sarr-Savoy Report, 34 (quoting Achile Mbembe, Notes sur les 47 Sarr-Savoy Report, 77-78. objets sauvages, forthcoming). 48 Sarr-Savoy Report, 18.
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59 In creating any portal,49 the Government might CONCLUSION consider looking to existing models of digital heritage collections, cultural data aggregators, 62 If pursued, the advantages of this ambitious Report and online platforms designed by organisations will have long-standing global impact on our that have successfully delivered similar portals. understanding of history and culture extending to The Government could integrate models already multiple generations. For this reason, the initiative developed by Europeana, Wikimedia, or GitHub to must anticipate and incorporate issues around structure and host content to avoid the expense of digital. The communities of origin must enjoy full commissioning redundant research. For example, autonomy to carve out any open access paths to projects, like Europeana, have developed processes sharing their own digital cultural heritage. Policies by which standardized metadata and digital enabling this should be designed in partnership with infrastructures enable the aggregation of content communities of origin, even if the general consensus from different institutions of various sizes and aims to enable free and unfettered open access. structures. And many institutions use Wikimedia The French Government is uniquely positioned Commons and GitHub to host content and share it to explore equitable practices for how these openly with a plural public. discussions should proceed and the methodology that follows. The outcomes co-developed through 60 The Government should explore to the greatest such an opportunity will aid other governments extent possible how it might collaborate with and institutions attempting to tackle similar long- ongoing African digitization initiatives.50 This overdue restitution initiatives. would facilitate building community-based solutions around digitization, access, and education (especially in native languages). As the Report highlights in “Popular Appropriations”, restitution “also implies working to ensure that the communities concerned as well as the public at large are able to claim ownership We, the undersigned 108 scholars and practitioners of this practice in all its aspects”.51 The Report’s working in the fields of intellectual property law and subsequent discussion in this section provides an material and digital cultural heritage at universities, opportunity to put this goal into practice. It describes heritage institutions and organizations around the the potential for new collaborative networks in line world, write in support of the ‘Response to the Sarr- with reparations leading to the production of new Savoy Report: Statement on Intellectual Property creative works and cultural goods. Rights and Open Access relevant to the digitization and restitution of African Cultural Heritage and 61 We assume the Report only briefly addresses the associated material’. portal and any related benefits for practical reasons. We suggest that when that exploration proceeds, these recommendations also be embedded in that Written and signed by: process. Dr Mathilde Pavis Senior Lecturer in Law University of Exeter Exeter, United Kingdom [email protected]
Dr Andrea Wallace Lecturer in Law University of Exeter 49 The Report recommends: “The creation of an online portal Exeter, United Kingdom around the theme of the circulation of cultural objects that [email protected] would contain general information about the situation and redistribution of cultural heritage from the African continent outside of Africa, while also proposing detailed narratives of the trajectories of certain pieces (with the Supported and signed by: help of accompanying texts and multimedia documents) would be a creative and engaging way to create a pathway of discovery.” Sarr-Savoy Report, 86. Prof Michael K. Addo Director of the London Law Program 50 Examples might include: Cherry Leonardi, Zoe Cormack University of Notre Dame (USA) in England and Sarah Bevin, ‘New explorations into South London, United Kingdom Sudanese museum collections in Europe’
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Yaw Adu-Gyamfi Dr Hayleigh Bosher Researcher, Royal Society of Asante Culture Lecturer in Intellectual Property Law and History (ROSACH) Brunel University London Director, Centre for Social Innovations (CSI) London, United Kingdom Kumasi, Ghana Prof Maurizio Borghi Ananay Aguilar Director CIPPM / Jean Monnet Centre Affiliated Researcher of Excellence for European IP Centre for Intellectual Property & Information Rights and Information Law Bournemouth University University of Cambridge Poole, United Kingdom United Kingdom Prof Kathy Bowrey Prof Isabella Alexander Faculty of Law Faculty of Law University of New South Wales University of Technology Sydney Sydney, Australia Sydney, Australia Dr Aleksandar Brkic Dr David Felipe Alvarez Amezquita Lecturer in Arts Management Assistant Professor and Cultural Policy University of Tolima Institute for Creative and Cultural Entrepreneurship Colombia Goldsmiths, University of London London, United Kingdom Prof N. O. Ama University of Botswana Prof Abbe E. L. Brown Gaborone, Botswana Chair in Intellectual Property Law University of Aberdeen Adrian Aronsson-Storrier Aberdeen, United Kingdom Lecturer in Law University of Reading Dr Shane Burke Reading, United Kingdom Lecturer in Law Cardiff University Prof Catherine Barreau Cardiff, United Kingdom Full Professor of Commercial Law University of Rennes 1 Dr Xan Chacko Rennes, France Research Fellow School of Law, University of Queensland Prof Jeremy de Beer Brisbane, Australia Full Professor, Faculty of Law University of Ottawa, Canada Dr Susannah Chapman Senior Research Associate, IP Unit Research Fellow University of Cape Town, South Africa Law School, University of Queensland Senior Fellow, Centre for International Governance Brisbane, Australia Innovation, Canada Mary Costello Dr Lucky Belder Associate Lecturer, Art History and Anthropology and School of Law Exhibitions Coordinator Utrecht Centre for Global Challenges The Arts Institute Utrecht University University of Plymouth Utrecht, The Netherlands Plymouth, United Kingdom
Dr Megan Blakely Jill Cousins Lecturer in Law CEO & Director Lancaster University Hunt Museum Lancaster, United Kingdom Limerick, Ireland
Judith Blijden Dr Catherine Cummings Legal Advisor Research Fellow The Hague and Amsterdam,The Netherlands Department of Humanities University of Exeter Dr Enrico Bonadio Exeter, United Kingdom Senior Lecturer in Law City, University of London Dr Tesh W. Dagne London, United Kingdom Associate Professor Faculty of Law, Thompson Rivers University Dr David Booton Kamloops, Canada Senior Lecturer in Law University of Manchester Manchester, United Kingdom
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Dr Harriet Deacon Dr Rebecca Giblin Visiting Research Fellow Associate Professor, Faculty of Law Centre for Dance Research Monash University Coventry University Melbourne, Australia Coventry, United Kingdom Prof Johanna Gibson Prof Ronan Deazley School of Law Professor of Copyright Law Queen Mary, University of London Queen’s University Belfast London, United Kingdom Belfast, United Kingdom Laura Gibson Emmanuelle Delmas-Glass Lecturer in Digital Content Management Education Collections Data Manager King’s College London Yale Center for British Art London, United Kingdom New Haven, Connecticut, United States Dr Karin Glasemann Prof Estelle Derclaye Digital Coordinator Professor of Intellectual Property law Nationalmuseum, Sweden University of Nottingham Stockholm, Sweden Nottingham, United Kingdom Dr James Griffin Samuel Donvil Lecturer in Law Project Manager University of Exeter PACKED - Center of Expertise for Digital Heritage for Exeter, United Kingdom Flanders and Brussels / VIAA - Flemish Institute for Digital Archiving Prof Graham Greenleaf Brussels, Belgium Professor of Law & Information Systems University of New South Wales Prof Severine Dusollier Sydney, Australia Professor of Law Sciences Po Law School Dr Lucie Guibault Paris, France Associate Professor Schulich School of Law Sarah Ebel Dalhousie University Assistant General Counsel Halifax, Canada Field Museum of Natural History Chicago, United States Dr Jamie Hampson Senior Lecturer in Heritage Tony Eccles University of Exeter, Cornwall Campus Curator of Ethnography Penryn, United Kingdom Royal Albert Memorial Museum & Art Gallery Exeter, United Kingdom Dr Naomi Hawkins Senior Lecturer Sebastián E. Encina University of Exeter Law School Collections Manager Exeter, United Kingdom Kelsey Museum of Archaeology University of Michigan, Ann Arbor Prof Paul Heald Michigan, United States Richard W. and Marie L. Corman Research Professor, University of Illinois College of Law Dr Kris Erickson Fellow & Associated Researcher, CREATe, RCUK Centre for Associate Professor of Media and Communication Copyright, University of Glasgow University of Leeds Leeds, United Kingdom Evelin Heidel Member of Creative Commons Prof Ellen Euler Argentina Professor of Open Access / Open Data University of Applied Science Potsdam Dr Sabine Jacques Potsdam, Germany Senior Lecturer in IP/IT/Media Law University of East Anglia Assane Faye Norwich, United Kingdom Senior Librarian & HR Director University of Bambey David J. Jefferson Senegal Research Fellow School of Law, University of Queensland Prof Gustavo Ghidini Brisbane, Australia Professor Emeritus University of Milan Prof Phillip Johnson Milan, Italy Cardiff Law School Cardiff, United Kingdom
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Dr Hyo Yoon Kang Rosario University Senior Lecturer in Law Bogotá, Colombia Kent Law School University of Kent Dr des. Sunimal Mendis Canterbury, United Kingdom Researcher Centre d’études internationales de la propriété intellectuelle Paul Kimani (CEIPI) Postgraduate Researcher in Law University of Strasbourg University of Exeter Strasbourg, France Exeter, United Kingdom Dr Marc Mimler Victoria Leachman Senior Lecturer in Law Wikimedian User: Einebillion Bournemouth University Wellington, New Zealand Bournemouth, United Kingdom
Dr Yong Liu Dr Poorna Mysoor Researcher in Law Leverhume Trust Research Fellow Hebei Academy of Social Sciences Faculty of Law Hebei, China University of Oxford Oxfordshire, United Kingdom Dr Lucas Lixinski Associate Professor of Law Prof Enyinna Nwauche University of New South Wales Nelson Mandela School of Law Sydney, Australia University of Fort Hare East London, South Africa Kelly Salchow MacArthur Associate Professor, Department of Art, Art History, and Dr Chijioke Okorie Design Postdoctoral Research Fellow Michigan State University DST/NRF Research Chair in IP, East Lansing, United States Innovation and Development University of Cape Town, South Africa Prof Fiona Macmillan Professor of Law Dr Claudy Op den Kamp Birkbeck University of London, University of Roma Tre, Senior Lecturer in Film Gothenburg University, and University of Technology Faculty Member Centre for Intellectual Property Policy and Sydney Management Bournemouth University Dr Danilo Mandic Bournemouth, United Kingdom Lecturer in Law University of Westminster Sarah Powell London, United Kingdom Copyright and Open Access Advisor Auckland University of Technology Josh Martin Auckland, New Zealand Lecturer in Law University of Exeter Dr Stephanie Pratt Exeter, United Kingdom Associate Professor of Art History (retired), Plymouth University Douglas McCarthy Independent Scholar and Cultural Ambassador for the Crow Collections Manager Creek Dakota (Sioux) Tribal Council, 2015-18 Europeana Foundation The Hague, The Netherlands Dr Viola Prifti Postdoctoral Researcher, Intellectual Property Models for Jani McCutcheon Accelerating Sustainability Transitions (IPACST) Project Associate Professor University of Applied Sciences and Economics Law School Berlin, Germany University of Western Australia Perth, Australia Deirdre Prins-Solani Past President International Council Dr Luke McDonagh of African Museums Senior Lecturer in Law Past President of South African City, University of London Museums Association London, United Kingdom Culture, Heritage and Education Specialist Republic of South Africa Bartolomeo Meletti Creative Director Dr Ana Ramalho CREATe, University of Glasgow Assistant Professor of Intellectual Property Law Glasgow, United Kingdom Maastricht University Maastricht, The Netherlands Audrey Mena Research Doctoral Candidate
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Dr Eleonora Rosati Dr Stina Teilmann-Lock Associate Professor in Intellectual Property Law Associate Professor University of Southampton Department of Management Southampton, United Kingdom Politics and Philosophy Copenhagen Business School Dr Isaac Rutenberg Copenhagen, Denmark Senior Lecturer, and Director of the Centre for Intellectual Property and Information Technology Law Nolubabalo Tongo-Cetywayo Strathmore Law School, Strathmore University Researcher Nairobi, Kenya Robben Island Museum South Africa Dr Amanda Scardamaglia Associate Professor, Department Chair Professor Janet Ulph Swinburne Law School Leicester Law School Melbourne, Australia University of Leicester United Kingdom Saskia Scheltjens Head of Research Services Department Pratyush Nath Upreti Rijksmuseum Researcher Amsterdam, The Netherlands Sciences Po Law School Paris, France Dr Antje Schmidt Head of Digital Cataloguing Dr Andrew Ventimiglia Museum für Kunst und Gewerbe Hamburg Assistant Professor of Media Law and Ethics Illinois State Hamburg, Germany University Research Fellow, School of Law Prof Caterina Sganga University of Queensland Associate Professor of Comparative Private Law Brisbane, Australia Scuola Superiore Sant’Anna Pisa, Italy Brigitte Vézina International Intellectual Property Prof Brad Sherman Law Consultant ARC Laureate Fellow Brigitte Vézina - Law & Culture University of Queensland The Hague, The Netherlands Brisbane, Australia Prof Charlotte Waelde Daniela Simone Chair in Intellectual Property Law Lecturer in Law Center for Dance Research University College London Coventry University London, United Kingdom Coventry, United Kingdom
Dr Ashton Sinamai Dr Karen Walsh Adjunct Research Fellow Lecturer in Law Flinders University University of Exeter Adelaide, Australia Exeter, United Kingdom
Dr Will Slauter Nan Warner Associate Professor, Université Paris Diderot Open AIR Project Manager Junior Member, Institut universitaire de France South Africa Paris, France Jane Willcock Alex Stinson Senior Registrar Senior Program Strategist University of Queensland Wikimedia Foundation Anthropology Museum United States Brisbane, Australia
Dr Victoria Stobo Prof Sara Yassine Lecturer in Recordkeeping Hassan II University University of Liverpool Casablanca, Morocco Liverpool, United Kingdom Anne M. Young Prof Simon Tanner Manager of Rights and Reproductions Professor of Digital Cultural Heritage Indianapolis Museum of Art at Newfields King’s College London Indianapolis, United States London, United Kingdom Dr Laura Zoboli Prof Melissa Terras Assistant Professor Professor of Digital Cultural Heritage University of Warsaw University of Edinburgh, Scotland Poland Edinburgh, United Kingdom
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