The Philosophical Basis of Cultural Property

At the meeting of the U.S. National Commission for UNESCO last month a recommendation was made that UNESCO encourage countries to make a practice of long term loans of their movable cultural property to responsible institutions in other countries. Loans of at least a decade could recognize the ownership of the country making the loan while allowing the citizens of the country receiving the loan to benefit from the study of the artifacts.

I am not a philosopher, but it seems to me that it is important to think about the philosophical basis of cultural property. It also seems to me that the age of an item must be taken into account in terms of its property rights.

The creator of a painting, sculpture, or other item of movable cultural property seems to have a natural right to his/her own creation, unless it is created as a work for hire. There would also seem to be a utilitarian basis to grant the creator the right to choose how to transfer ownership and to benefit from the value of his/her creation. Such ownership rights would seem likely to encourage people to create new works and to disseminate them to those who value the works. Indeed, granting property rights to those who purchase works of art from their creators would also seem to have instrumental value as a means of promoting creativity and the support of creative individuals.

Modern cultural products are to some degree not only the products of their individual creators but also of the society from which they come. While we have a myth of the artist as outsider, frequently creators of cultural products have been the beneficiaries of financial support or supporting services from government, the private sector or civil society of the countries in which they live. Again, there would seem to be some natural right of the creator's compatriots to benefit from those creations, and indeed a utilitarian argument that only if compatriots are to benefit will they adequately support the creative process.

The situation is different for antique movable cultural property, in my opinion. Take for example the items from Byzantine society or the Middle Ages. The societies from which they came have disappeared, and often the people living in the geographic locations in which those societies flourished are the descendants of peoples who later moved into the areas, and indeed are quite distinct culturally from the creators of the items. I find little sympathy for the position that the possession of the geographic area in which an object was created provides a natural right right to that cultural property.

Of course, many important items of movable cultural property have been moved, and are now in the possession of institutions in countries which obtained them by conquest or purchase. Again, it is hard to see that they are in place by natural right, although in some cases they have been held in place for centuries.

An argument can be made that rights to cultural property accrue to those who are willing and able to take on the responsibility for the safeguarding and for sharing them. So too, rights may be created among men and among countries by negotiation and agreement. UNESCO's conventions on movable cultural property clearly create a moral as well as a legal basis for ownership of cultural properties.

If we can differentiate the ancient from the nearly antique, then the natural rights to property by possession of the areas in which they were created are weaker still. As objects of ancient cultures are literally unearthed, it would seem that rights can be assigned. I would suggest that the utilitarian arguments should have some value. Legitimate finders, such as professional archaeologists should have rights because they have the skills to protect that which they find, and because granting them rights will encourage the exploration of the ancient past. So too, utilitarian calculations would seem to have a role in deciding how to deal with grave robbers and other illegitimate finders of ancient cultural objects; rights should be allocated so as to discourage grave robbing, while protecting as much as possible the objects recovered by the grave robbers who can not be dissuaded from that occupation. So too, the power of states to control the excavation of sites within their own borders must be recognized, and utilitarian calculations applied to the policies dealing with their rights established by both physical power and the rights attributed to sovereign powers.

UNESCO has popularized the concept of "world heritage", and there are items of movable cultural property that would seem to be so important in cultural history as to suggest that all people share a natural right to benefit from their study. I would think of the Mona Lisa or Michaelangelo's David as examples of such items, but there are many such objects from Asian and African cultures as well as European cultures, and some modern items of world heritage from all continents.

I like the concept that the warrants establishing intellectual property, especially copyright, should be limited in time, and that an artist's copy rights are not permanent. I suggest that with the Internet and with evolving technology that will eventually allow copies of objects to be made by digitally controlled desktop devices there will be much more done to allow people everywhere to study copies of items of world heritage. Putting the descriptions of such items in a commons seems to make a lot of sense.

There seems to be a general understanding that items of world heritage should not be private property. Governments have expropriated royal collections with the collapse of monarchies, putting the objects in museums. Those rich enough to purchase items of world heritage often feel that they should donate them to public institutions, and governments often establish incentives for them to do so. Thus there may well be an agreed natural right of the public to access to items of world heritage, and that to ensure such rights they should be held as property of state or civil society institutions.

Utilitarian arguments would seek agreements on the definition of cultural property which would serve to promote creativity, to promote the protection of items of cultural property, to promote the sharing of access to study and benefit from such items within the societies which they most benefit, and to promote the global access to study and benefit from items of world heritage.

I think the idea of long term loans of items of cultural property, which would separate the issue of ownership from the issues of access and short term control might be useful. I find the decision of the Afghan museum to send the treasures of Afghanistan on a world tour, recognizing that they could not safeguard them in the current political and security situation within Afghanistan was creative and forward thinking.

Perhaps there should be some international organizations that take ownership of cultural property of regional or global importance. To some degree, private museums can have this characteristic even though they have sites physically located in a single country. The United Nations family of organizations of course does have a significant collection of items of world heritage, but one that pales in comparison with the collections of some of their member states. Moreover, one must question the willingness of member states to provide adequate financing to such collections. Practicality has a place in the evaluation of ideologically defined solutions.