The Protection of Cultural Heritage by Designs

Publication details

Bernd Justin Jütte and Alina Trapova, ‘The protection of cultural heritage by designs’ in Irini Stamatoudi (ed) Research Handbook on Intellectual Property and Cultural Heritage (2023, Edward Elgar)

Abstract

This chapter examines the (potential) role of design law for the protection of cultural heritage (CH). While the intersection of CH with other intellectual property rights (IPRs) is relatively well researched,  the literature on the usefulness (or its lack) of design law for protecting CH has not been thoroughly explored. This chapter seeks to partially close this gap. The first part of this chapter introduces two central notions – defensive and positive protection of intangible cultural heritage (ICH). These will serve as stepping-stones for the analysis in the next sections, both in terms of protecting ICH with design law, but also with respect to preventing others from appropriating ICH in design applications. We then turn to the international and EU legal frameworks behind design law by focusing on the scope of design protection by reference to its main requirements – novelty and individual character. One crucial aspect is the assessment of designs against public policy and morality grounds. While this has received little attention, by drawing parallels to trademark law, we make the argument that national and EU offices should make better use of the public policy ground in order to safeguard the interest of ICH communities. This way forward becomes even more pertinent in view of the problems of protecting CH with design rights, i.e., protecting collective expression is not the aim of design law, which reflects economic end goals.