The Future of the EU Cultural Policy in the Protection of Intangible Cultural Heritage

Abstract

The protection of cultural heritage, especially of the intangible type, is a growing international concern. International legal instruments and policy initiatives on the protection of cultural heritage multiply worldwide, and we experience a true “heritage fever”. Considering this scenario, it is only to be expected that the European Union is also involved in the protection of cultural heritage. Article 151 of the current Treaty Establishing the European Community lays down the provisions on the protection of culture and cultural heritage for the EC. It mentions cooperation among Member States, and the special significance of a common European cultural heritage. The Treaty of Lisbon (2007), to enter into force, makes only small changes to this provision, and the amended Treaty on the Functioning of the European Union will keep the provision that determines the exclusion of the harmonization of laws and regulations in the Member States in cultural matters from the reach of the EU. This paper will analyze the current state of affairs of the cultural policy of the EU in terms of protection of cultural heritage, and will assess whether the maintenance of the current policy under the Lisbon Treaty is positive. I argue that the EU, as an international player of great importance, should adopt a more aggressive posture towards the protection of cultural heritage. This posture should be aimed both at the internal and external dimensions of EU law and policy: in its internal dimension, the EU would address an issue of great importance and offer a solution for it in the bloc; externally, it would positively influence its partner States to also pursue solutions. The adoption of solutions internally also has a spillover effect over the external dimension, simply because it sets a good example towards the international community at large. To the extent that heritage loses some of its “local” dimension, and becomes more and more an international concern, through the concept of “common heritage of mankind”, it is essential that international organizations gain a greater role in this area. Harmonizing laws that can be used for the protection of cultural heritage, besides being an important goal in itself, is part of the aggressive posture I advocate. In the case of intangible cultural heritage (folklore), intellectual property (IP) law, especially copyright, can be used as a particularly valuable tool, even though it is not the only one available. To the extent the harmonization of IP is a newly-created competence of the EU under the Lisbon Treaty, this may provide a means of protecting at least some aspects of cultural heritage within the framework of the EU.