ABSTRACT
This chapter will use the current academic debate on the relationship between intellectual property (IP), intangible cultural heritage (ICH), and the market to highlight the role of self-regulation and private law-making in heritage law. Self-regulation and private law-making are important in heritage law because they can challenge assumptions about the source of legal rules and authority, and can also plug gaps that formal rules in real-life scenarios can’t practically address. Most typically, self-regulation in relation to heritage law involves non-state actors setting the rules of their activities themselves, without state interference, promising effective regulation that more quickly responds to the changing needs of that which is being regulated and is less costly by avoiding heavy state bureaucracies. Less common – but also important – is when self-regulation is used as a tool by heritage-bearer communities to shape their relations with those with whom they interact in the market. As a case study for the tensions around the source of authority and need for heritage norms for these heritage bearer communities, the chapter will discuss a British Academy-funded sustainable development project, ‘Celebrating local stewardship in a global market: community heritage, intellectual property protection and sustainable development in India’. This case study will illustrate how private stakeholders comprising IP, heritage and marketing experts, as well as an NGO based in Kolkata, worked with three ICH communities in West Bengal to co-create ways in which rules controlling IP and marketing could be harnessed to help meet, increase, and develop new markets for the ICH performances and artefacts. The chapter will highlight how communities chose IP law as a regulatory blueprint without touching, or fixing, the processual nature of their ICH, while soft law, in the form of codes of ethics (self-regulation measures), was used to deal with shortcomings and plug gaps in their relations in the market, such as the difficulties with the realities of IP enforcement. In other words, this case study shows that self-regulation can be harnessed not instead of, but alongside, traditional regulatory frameworks for better outcomes for heritage communities.
