Protecting Intangible Cultural Expression In Ireland

Irish cultural activities, structures, patterns of living and expressing the human condition are distinct and yet methods of protecting the existence and integrity of that culture require re-evaluation at this time. International standards of protection are evolving and developing with the conclusion of new texts such as the Beijing Convention 2012 and the 2005 Council of Europe Convention (Faro) extending protection for performers and intangible cultural expressions respectively. Ireland has yet to update national legislation to take account of developments that post-date the 1972 UNESCO Convention in respect of intangible cultural expression. In the first part of this article the author addresses the range of international legal instruments that provide legal standards of protection from both intellectual property and cultural protection perspectives. In Part two of the article the author engages with the debate over the extent to which copyright and related rights such as performer's protection and database rights may provide some means of responding to threats to the existence and integrity of intangible cultural expressions. After reviewing recent case-law from Ireland and the United Kingdom he concludes that public domain materials can be used to create new and derivative works (Sawkins, Fisher v. Brooker) and that in some instances contributions by performers may not be protected or recognised via copyright at all (Gormley, Barrett). In general, copyright is not intended to apply for cultural protection purposes although database rights may be valuable but ill-suited to the task at hand. In Part three of the article the author considers what existing Irish law protects, concluding that, while tangible expression is recognised and protected via cultural institutions, intangible expression is not overtly recognised outside the realm of folklore. The folklore provisions in the Copyright and Related Rights Act 2000 do not provide adequate protections. The author argues for Ireland to not only adhere to and ratify the Faro Convention but that Ireland should allow cultural institutions and representative organisations who can satisfy the High Court as to locus standi to seek judicial remedies when intangible cultural expression is damaged by misrepresentation or misappropriation.