Legal and Financial Instruments for Safeguarding our Intangible
Heritage - Executive Summary
South Africa and Senegal
A Human Sciences Research Council (HSRC) Social Cohesion and Integration
Project paper by H.J. Deacon with L. Dondolo, M. Mrubata, S. Prosalendis
and workshop participants, for the HSRC and the South African Department
of Arts and Culture, to be presented to the International Network
on Cultural Policy (INCP-RIPC) meeting in Croatia, October 20031.
Material was added to the paper from the representative for Senegal,
Moustapha Tambadou, concerning the situation in Francophone Africa,
although time and budget did not allow for completion of this aspect
of the project.
Executive Summary
Intangible heritage consists of the oral traditions, memories,
languages, traditional performing arts or rituals, knowledge systems,
values and know-how that we want to safeguard and pass on to future
generations. Intangible heritage can be recorded in various ways,
but it is often not expressed in a permanent physical form. Every
performance or expression of intangible heritage is different and
significant change is frequent. This makes it very vulnerable to
loss, but also very difficult to safeguard using the same legal
and financial mechanisms established for heritage places and objects.
Various international organizations and national ministries have
been working on policies to help identify and safeguard intangible
heritage. This paper reviews these instruments to assist INCP-RIPC
member states to draft appropriate policies at a national level
and contribute to the development of international instruments.
A number of countries have developed laws and policies to manage
intangible heritage. Each country or region tends to focus on specific
issues. One of the leading voices has been Japan, which has an
integrated approach to tangible and intangible heritage, and, for
over fifty years, has recognised the importance of the intangible
heritage in Japanese building techniques, crafts and performing
arts. Australia and New Zealand have been particularly rigorous
in developing the relationship between government and indigenous
communities both in assessing significance and making decisions
about the management of heritage such as cultural landscapes with
spiritual significance. In Canada, the key issue has been the use
of indigenous frameworks to assess landscape significance in national
parks. Although not much legislation developed by countries in
Africa directly mentions intangible heritage, post-colonial Africanisation
policies have encouraged local traditions and languages for some
time. In South Africa, heritage legislation explicitly covers intangible
values associated with places and mentions the importance of popular
memory as a form of 'living heritage'. The emphasis in most national
legislation remains on heritage places, however, rather than on
intangible heritage or even heritage objects. There is no good
reason, however, to create separate instruments for safeguarding
heritage places and objects, and intangible heritage.
Most of the work on specific instruments for safeguarding intangible
heritage has been done at an international level by organisations
such as the United Nations Educational, Scientific and Cultural
Organization (UNESCO) and the World Intellectual Property Organization
(WIPO). Instruments like UNESCO's new Intangible Heritage Convention
have helped us to expand the concept of heritage beyond buildings,
places and objects and to correct an earlier bias towards Western
buildings in heritage lists. WIPO's work on the protection of intellectual
property rights has suggested that community rights over intangible
heritage can only partly be protected by existing international
intellectual property law. Specific protection may be provided
by a sui generis regime, but intellectual property protection is
only one element in a whole range of possible ways to ensure that
communities can continue to benefit from, and practise, their intangible
heritage. It may not be the most useful way of safeguarding the
intangible heritage and protecting community rights.
While the development of international instruments should inform
national legislation for the safeguarding of intangible heritage,
national instruments can provide a much more integrated approach
to safeguarding intangible and tangible heritage. One of the biggest
challenges for the safeguarding of heritage, particularly the intangible
elements, is not just the development of national cultural policy
and legislation but the better integration of the functions of
government departments responsible for culture, heritage and social
development.
It is important also to broaden the definition of intangible heritage
beyond the 'traditional' and 'indigenous' to include a wide range
of cultural practices. This will challenge the dichotomy between
intangible heritage as 'primitive culture' and tangible heritage
as 'civilised culture'; it will also challenge the notion that
all heritage is ethnic, ancient and 'cultured'. We should include
recent, non-traditional, non-ethnic forms of heritage such as the
oral histories of people who lived under Apartheid or other forms
of colonialism. We should include the heritage associated with
communities of people who do not necessarily live in close proximity,
but share an interest or characteristic, such as 'communities'
of gay men or women. We should recognise the heritage associated
with modern urban society just as we recognise the heritage associated
with pre-industrial forms.
Governments will need to develop ways of supporting communities
in their quest to safeguard their intangible heritage. One of these
ways may be the development of databases or registers of intangible
heritage. The format for listing of intangible heritage on national
or international registers will need to be different from that
used to create lists of tangible resources. On seeking listing
on national or international heritage registers, practising communities
would need to provide information to confirm the provenance, significance
and ownership of such resources. There would have to be a variation
on this documentation process for resources that do not have a
cohesive, well-defined or extant practising community, or whose
practising community is willing but unable to be involved in listing
the resource. In creating such registers or databases, due attention
should be given to the protection of intellectual property.
Heritage should not always be uncritically celebrated. Heritage-making
is often part of an attempt by community elders to strengthen a
shaky current power base and recreate some idyllic past, in which,
for example, men were men, women were in the kitchen and children
listened to their elders. Recording what we know of the past (whatever
its moral status) and using it to inform the present is helpful
and valuable, but uncritically accepting utopian versions of the
past or perpetuating damaging aspects of the past is not. We cannot,
for example, condone the physical abuse of women because it is
'traditional'. The notion of human rights is often presented as
a universal aim of all societies but in reality many societies
continue to function in ways incompatible with human rights discourse.
If we restrict intangible heritage listings to forms of heritage
that correspond with human rights principles this will affect not
only what can be considered heritage but it may also mean that
the form and /or modes of transmission of some forms of heritage
would have to be encouraged to change.
It is difficult to 'manage' intangible heritage forms because
they change every time they are performed, practised or passed
on, but changes can be documented and communities can be encouraged
to continue practising and passing on the traditions. Heritage
only retains its significance through performance or use. Governments
thus need to devolve greater responsibility for heritage management
onto the communities who use, practise or own this heritage. This
highlights the need for heritage experts to work with communities,
too. We also need sustainable ways of protecting the rights of
communities over their knowledge and skills, and of linking the
safeguarding of heritage with community development.
It is often difficult to define who owns a specific cultural form,
and who constitutes a community. We therefore need to think carefully
about what we mean by 'community' and 'ownership' so that the rights
of communities to benefit from profits associated with the commercial
exploitation of intangible heritage are maximised. These rights
should not depend on models of inheritance that are more appropriate
to family jewels than to cultural practices. Development needs
to be closely linked to heritage management strategies, but funding
should not be contingent on the identification of heritage forms.
The solution is not to ring-fence budgets and instruments for safeguarding
intangible heritage but to integrate issues around heritage conservation
into all development work, and to write national instruments with
this in mind. Safeguarding intangible heritage should not be a
cheap ticket to development funding so much as one of the ways
in which development funding finds appropriate and sustainable
channels for use.
Economic incentives to safeguard intangible heritage will probably
play the largest role of all in encouraging transmission and re-enactment
of intangible heritage. Simply creating a heritage product for
sale to outsiders, however, will not necessarily safeguard intangible
heritage, or be sustainable. New reasons for cultural production
will change traditional craft techniques, performances and other
forms of expression, and may (or may not) have a negative impact
on the meaning of the heritage resource for the community. Models
of successful interventions and innovative instruments need to
be developed and shared more broadly. The most successful incentives
and safeguarding strategies will involve the use of intangible
heritage forms as springboards for new cultural expressions that
have relevance and meaning in the modern world. An excellent example
can be found in broadcasting initiatives that use local vernaculars
to tell current news and provide cultural commentaries, while collecting
advertising revenue.
- Harriet Deacon (consultant) was the lead author on this project.
Sandra Prosalendis managed the project for the HSRC, and Luvuyo
Dondolo and Mbulelo Mrubata were the research assistants. Utando
Baduza helped to organise two workshops attended by experts in
the field. Besides the core team, the following people attended
the workshops to discuss issues related to the paper: Peter Rule
(chair), Nokuzola Mndende, Isabel Hofmeyr, Leslie Witz, Vincent
Kolbe (who also supplied a written contribution), David Morris,
Phakamani Mtembu, Achille Mbembe, and Mandla Matyumza. Discussions
were also held with Sean Field (Centre for Popular Memory, UCT)
and Pumla Madiba (SAHRA). Detailed comments on the final version
of the paper were received from Anita Smith, Olwen Beazley, Marilyn
Truscott, Isabel Hofmeyr and Deirdre Prins. Thanks also to Anita
Smith (ICOMOS Australia) and Olwen Beazley (AHC) for providing
us with important documentary sources for the paper.
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