Some Considerations on the Protection of the Intangible Heritage:
Claims and Remedies

Lyndel V. Prott
Chief International Standards Section
Division of Cultural Heritage, UNESCO

Introduction

Much discussion on the protection of “intangible cultural heritage” proceeds as though this concept were uniform and the objectives of those seeking to protect it were in all cases the same. Before any serious work can be done on protection, these assumptions should be analyzed, and the needs and objectives for each category of cultural heritage should be examined. This would help answer questions such as whether legal protection is required and would be sufficient; what, if any, the appropriate analogies in existing law are; and whether a sui generis scheme should be developed.

To note the need to analyze the components of “intangible cultural heritage,” to distinguish the different objectives of protection, and to explore the varied threats and the diverse means that might be used against them is not to disregard the holistic approach traditional communities take to their heritage. That holistic approach is to be taken into account in achieving an adequate level of protection. But it is clear that the threat to particular aspects of heritage is more serious, if only because in those cases the would-be users are much more powerful.

Such an analysis would start by listing what is regarded as intangible cultural heritage by the individuals and communities seeking protection. Even when they agree that protection is necessary, they all may not see the same needs in protecting a particular kind of traditional knowledge or share the same objectives for what they call “protection.” The Recommendation on the Safeguarding of Traditional Culture and Folklore lists “among others” the cultural forms to be protected as “language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts” that reflect the cultural and social identity of a community.

As an experiment, I have attempted to look at certain aspects of the intangible heritage and at the various elements that would be concerned in their protection. This paper is not intended to define this concept, even less to offer an authoritative or even tentative list. It simply illustrates the range of intangible heritage to be protected, the threats posed now or likely to be posed in the near future and the means -- economic, social, or legal -- which might be available to counter those threats and meet the objectives of protection.

Current anthropological studies emphasize that it is social process that needs to be preserved, rather than merely the items produced, to ensure the continued creation of these valued products. This social process is currently interfered with by other social processes now very evident: globalization, tourism, commodification. But cultural items are produced by diverse social processes; and rather than trying first to categorize those processes, it seems easier to gain an initial perspective by looking at the kinds of traditional culture that have been cited as needing protection and then to consider the social processes which created them.

What Kinds of Intangible Heritage?

Below, to begin this quest for perspective, are fifteen items, in no particular order. Some of course overlap (language and oral history; music and dance, etc.); others are dependent on the availability of material elements (handcrafts, on availability of materials husbanded by traditional ecological skills) or on outside factors (maintenance of a viable ecological unit, for example). The list is only intended to illustrate the problematic of adequately protecting intangible heritage. The objectives, needs, and means cited may not be accurate or complete and may be subject to disagreement. The list is intended as a starting point for assessing the objectives to be pursued, the needs to be met, and the kinds of means to be used, legal and non-legal.

Language

Objective : to preserve threatened languages.

Needs : to maintain a viable language community, a minimum number of mother-tongue speakers.

Means: endangered-language programs; mother-tongue or bilingual education programs; recording of elderly speakers; “living cultural treasures” program for epic and poetry reciters; prize for “oral cultural heritage.”

Oral History

Objective : to maintain living oral tradition by addition of modern historical items and repetition of existing histories.

Needs : to support traditional oral historians and encourage imitation by the young.

Means: to encourage participation in education; to record; to encourage respect for, e.g., by prize.

Traditional Religion and Ritual

Objective : to retain existing religious beliefs and practices.

Needs : to ensure survival of a group, i.e., by ensuring adequate economic support and cultural continuity; to ensure continued access to religious sites; to ensure maintenance of ceremonial objects in the community or their return from outside the community where necessary; to ensure continuity of the skills used to create ritual objects.

Means : ensuring of social and economic support sufficient for group survival; legal protection of religious property; return programs where necessary; legal guarantees of access to sites; legal guarantees of freedom of religious practice (provided not contrary to human rights); preservation of craft skills for ritual objects.


Sacred Images and Themes

Objective : to ensure respect.

Needs : to prevent use by non-entitled; continued induction of young authorized artists to this tradition.

Means : legal regulation to prevent non-authorized use; support for traditional training and induction methods; support for social unit to whom tradition belongs and for unit within it that decides on entitlement.

Non-Sacred Designs, Artistic Themes, and Handicrafts

Objective: to ensure continuity and survival of handicraft traditions; to convert into source of income.

Needs: to ensure supply of raw materials (species of woods, cane, etc., in threatened areas); development of markets; training; legal protection requiring authorization for use by someone other than the artist (if the cultural product is regarded as individual property) or the community (if it is regarded as community property).

Means: protection of materials needed (especially where production is dependent on a continued local supply); commercial advice and training; legal regulation to prevent imitation by non-authorized persons; training programs; “living cultural treasures” program; income support; encouragement of sponsorship, e.g., by tax deductions; development of markets (commoditization); active museum collecting programs; artists-in-residence programs; prizes; handicraft fairs.

“Handicrafts” probably needs to be broken down into separate areas such as wood and stone sculpture, pottery, and wickerwork so as to cover the particular needs of each. As an example, the case of textiles can be examined:

Traditional Textile Skills
 (e.g., embroidery, weaving, tapestry, quilting, knitting,
 lace-making, and carpet-making)

Objective: to preserve and ensure continuation of skills.

Needs: preservation of equipment (e.g., looms, shuttles); cultivation and maintenance of raw materials (e.g., wool, flax, silk, and vegetable dyes); appropriate working places.

Means: active museum programs on history, with examples of different patterns from various groups; recording work songs, etc.; recording work methods for later reintroduction if necessary; commoditization to ensure economic return; replacing disappearing clients (e.g., churches) by others; recording methods of handing down.

Traditional Skills Related to Tangible Cultural Heritage
(e.g., all the skills associated with vernacular architecture)

Objective: to maintain stock of skills for restoration, maintenance, and replacement of tangible heritage created by traditional skills.

Needs: to ensure the handing on of skills and the survival of tools and raw materials.

Means: support of senior craftsmen to ensure survival; training schemes to ensure passing on; “living cultural treasures” program; mandatory use in government-owned properties; education programs to enhance appreciation.

Traditional Music

Objective: to ensure continuation of traditional forms of music; to ensure consent for use.

Needs: training; traditional instruments.

Means: support of instrument-making and repair through workshops; encouragment and income support for itinerant performers; recording of music; establishing or maintaining of legal right to recompense for use by persons outside the community.

Traditional Dance

Objective: to ensure traditional dance forms continue.

Needs : training; maintenance of associated skills (costume; choreography; traditional music).

Means : support for specialist schools; “living cultural treasures” program; festivals; teaching appreciation in education programs; recording of choreography; quality control; encouragement of quality cultural tourism.

Cuisine

Objective: to maintain distinctive culinary habits; to maintain sustainable lifestyle; to encourage healthy diet.

Needs: to maintain availability of traditional ingredients (e.g., in viable fishing, hunting, and cropping areas); to maintain traditional cooking implements and know-how.

Means: recording recipes; “living cultural treasures”; establishment of eco-reserves; quality cultural tourism.

 
Tracking and Hunting Skills
(e.g., recognition of animal spoor, imitation of animal calls, fishing, and navigating)

Objective: to retain traditional knowledge for the community; to ensure traditional food supply.

Needs: a viable social unit; an adequate ecological reserve.

Means: allowing sufficient time from education for children to learn the skills within a community; reconsideration of educational programs; encouraging traditional festivals related to seasonal activities; exemption of traditional lifestyle from imposed regulation or prohibition.

Traditional Practices of Husbanding Nature

Objective: to preserve ecological practices; to disseminate knowledge of good ecological practice.

Needs: preservation of an ecologically viable unit; preservation of traditional seed stocks and animal species.

Means: national protected areas for continuance of traditional lifestyles; education in the value of ecologically based lifestyles.

Traditional Medical Knowledge

Objective: to ensure survival of traditional knowledge; to ensure commercial return for its bearers.

Needs: to ensure continued supply of plant and other material; to ensure maintenance of an ecologically viable unit; to ensure consent of and/or recompense to community for advice.

Means: legal requirement of consent of community for commercial exploitation of knowledge or of recompense for its use.

Traditional Methods of Conflict Resolution
(e.g., the Polynesian way and the methods in some African communities)

Objective: to maintain successful conflict resolution practices; to study and disseminate them for use elsewhere.

Needs: respect for traditional methods in addition to imported ones.

Means: supporting analysis and comparative studies by institutes of conflict resolution; supporting practice of these skills at the community level; inserting them in educational programs; fostering their use in appropriate circumstances inside and outside their community of origin.

Traditional Relationships between Different Ages in the Community

Objective: to maintain traditional respect for age.

Need: counter the globalization of “youth culture.”

Means: review of educational programs; support of traditional political and judicial systems (e.g., chieftaincy); support for apprenticeship systems.

These examples may or may not accurately reflect the wishes of traditional communities. They are intended simply to show the variety of aims, threats, and possible remedies that may exist and need to be considered before embarking on any program of protection. Such considerations are particularly important when developing legal protections, and even more so when such protection is envisioned on the international level.

Other Considerations

Many other considerations must be borne in mind in developing protections for folklore and traditional lifestyles.

First, folklore is not static; it develops. The principles of sustainable cultural development require that the members of a culture are themselves empowered to preserve and develop it. It is also clear that some aspects of traditional cultures such as child marriage, female genital mutilation, and acts contrary to human rights can hardly be maintained in the face of general international agreement on human rights standards.

Secondly, for community-based systems, the intrusion of individualism from an encroaching culture may make decisions about preservation and development of traditional cultures particularly acute and prone to gender or age conflicts.

Thirdly, some of the solutions being sought may already be the subject of discussion in other fora such as the Draft United Nations Declaration on the Rights of Indigenous Peoples, discussions of cultural rights, and the Convention on Biological Diversity 1992. It should be noted, however, that none of these has yet successfully established the full range of protection being sought.

Fourthly, some of the proposals, like the Draft Declaration on the Rights of Indigenous Peoples, may run into conflict with other strongly held politico/legal views such as rights of property, which are in some legal systems guaranteed by a constitution and in others so strongly represented in a civil code or political tradition as to be deeply entrenched.

Fifthly, in many indigenous communities, traditional knowledge and skills are seen holistically: there is something artificial in separating out traditional knowledge of medicine, of husbanding nature, of religion, and so on, since they are interdependent and part of a whole conception of life and natural cycles.

Finally, the commodification of traditionally created goods may be acceptable in some cultures but unacceptable in others, especially where a religious element is present. On the other hand, the recognition of the right of a community, akin to a moral right, to stop unauthorized use or distortion may assist the preservation of traditions.

Conclusion

Preserving the social processes which have produced folklore and traditional knowledge is much more difficult than just recording them or preserving the results in a museum. For example, where traditional skills are handed down from elderly persons with a lifetime of expertise, with decades of experience in increasing cultural knowledge, and with primary responsibility for their transmission to the next generation, respect for the aged is a very important aspect of that transmission. In a society where youth is elevated as equally or more important, that transmission may well be interrupted and the traditions less respected than the radical, the new, the exotic. Similarly, the sharp division in some cultures between the social processes undertaken by women and those by men may be radically changed by new ideas of gender equality which interfere with the traditional attribution of roles and skills.

These changes therefore may make it extremely difficult to preserve folklore and its creative processes in isolation from society-wide processes that involve many value judgments about empowerment of local communities, of women, of the young. Some of these problems can be dealt with: an example is the use of a “living cultural treasures” program, which shows social approbation, including at the international level, of supreme exponents of traditional cultural skills.

However, the revolution created by global television and Internet communication provides powerful images and values that counter those inherited in many societies. These images are driven by commercial incentives, and any effort to oppose them by programming dominated by other motivations runs into theoretical (“censorship”) and economic (“freedom of trade”) arguments.

In this dynamic there is a place for legal regulation, but too much should not be expected of it. Law which runs counter to the most powerful social processes currently at work is unlikely to be successful in the long term without a degree of compulsion not acceptable in most societies today. Therefore it should be used as one of a number of social controls, such as education, while using incentive schemes (prizes, tax incentives, sponsorship arrangements) to work with existing elements of the social processes of the communities concerned. Above all, it should seek to empower those persons who are bearers of traditional culture to continue to provide alternative models of behavior and different criteria of “success” than those portrayed by other means from outside the community.

The 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore has been in place for ten years, and it is time to assess its future role within UNESCO Member States in order to ensure the safeguarding and revitalization of the world’s intangible cultural heritage. One option suggested has been an amendment of the Recommendation or its replacement by another Recommendation.

While some UNESCO Member States consider that the time has come for UNESCO to create an International Convention for the safeguarding of intangible cultural heritage after the manner of the World Heritage Convention of 1972, presently applicable only to tangible (cultural and natural) heritage, it is premature to decide what form such a convention might take: preservation of the intangible is more likely to need a different sui generis regime developed for the specificities of this particular type of heritage.

Another suggestion has been to amend the World Heritage Convention, but amendment of the Convention has so far been decided against and, for many reasons, a listing system is unlikely to produce all the kinds of protection being sought. Other analogies have been proposed such as those with intellectual property regimes: these need to be examined closely, but four regional meetings held in 1998-1999 by UNESCO and the World Intellectual Property Organization (WIPO) all came to the view that intellectual property law did not give appropriate protection to expressions of folklore or traditional knowledge. Experience with the 1989 Recommendation also needs to be taken into account in preparing a draft Convention.

Any legal instrument or amendment of an existing instrument prepared by UNESCO must, according to its internal regulations, start with a feasibility study. In such a study all these aspects would need to be examined.