July 2009

The pursuit of the arts and the preservation of cultural heritage are noble causes, but that does not make them immune to dispute. Quite the contrary - conflicts in this area are as abundant and multi-faceted as the wealth of works they concern. From fine or applied arts to sculpture or musical creations, from historical or contemporary works to traditional cultural expressions (TCEs, or "expressions of folklore") or commercial blockbuster films - no area is untouched by discord.

Because these disputes often have distinct features. Stakeholders tend to look for creative approaches, such as alternative dispute resolution (ADR).

Stakeholders and subject matter

A variety of players are concerned - anthropologists, archivists, art and antique dealers, artists, collective rights societies, auction houses, collectors, cultural institutions, distributors, art experts, galleries, indigenous communities, individuals, industries, libraries, museums, publishers, states, universities - the list is endless. Opportunities for dispute are also endless, and on a multitude of subjects.

Contractual disputes, for example, may arise over artist representation agreements, copyright licenses and assignments, donation, loan and sale agreements. Non-contractual disputes may pertain to access to and benefit-sharing of TCEs and/or traditional knowledge (TK), authenticity, control over a work or cultural object, digitization, documentation, resale rights, restitution, unauthorized representation, reproduction or use.

For example, disputes may arise between:

• a museum and a researcher over the reproduction of a work from the museum's collection;
• an auction house and the seller of a work of art over its authenticity; or
• an indigenous community and a museum over the digital reproduction of confidential traditional ceremonial songs.

Nature of issues

A single dispute may combine issues both tangible and intangible in nature. An indigenous community, for example, may be in conflict with a museum regarding the return of an object (tangible) they believe was originally created by their community but which is now in the museum's collection. Copyright questions (intangible) may arise if the museum has reproduced the cultural object in publications.

Art and cultural heritage disputes are often multidimensional, involving not only complex legal issues, but also sensitive, not necessarily legal elements, of an emotional, ethical, historical, moral, political, religious, or spiritual nature.

For example, sensitive issues arose in the Australian "carpet case", where industrial carpet manufacturers were reproducing works of indigenous artists without their authorization. The artists' works incorporated images and TK belonging to their community. This was a very delicate case, because according to customary law, the artists could be held responsible by their community if a third party makes inappropriate use of the traditional images, resulting in communal sanctions of the artists. In addition, a moral issue arose, as the carpets did not reproduce the artists' works in their integrity.

While this case was decided in court, which applied copyright law, ADR could also have been an appropriate avenue to settle this dispute, allowing in particular consideration of all the cultural and non-legal issues involved.

The potential of ADR

There are instances in which litigation in a national court may be entirely appropriate in art and cultural heritage disputes; for example, when a recalcitrant party is involved (as no consent is needed to start litigation), or when a legal precedent is sought which may have a deterrent effect.

However, in view of the specific needs in art and cultural heritage disputes, litigation may not always be the optimal solution.

Parties to the dispute may have different legitimate interests, and long-term professional relationships may be involved. If they go to court there is normally an overall winner and loser, and the procedure and result are public, which may adversely affect relationships. Further, as legislation in the art and cultural heritage field is not fully harmonized internationally, there is a risk of contradictory outcomes in the courts.

That is why ADR options such as negotiation, mediation, arbitration and expert determination, may, in some circumstances, be more advantageous in this sector. Provided each party agrees to use ADR (e.g., in an ADR contract clause or submission agreement), these private, out-of-court dispute resolution mechanisms allow them to solve their disputes in a timely, cost-efficient, sustainable and responsible manner with the assistance of one or several qualified independent mediators, arbitrators or experts. A mediator can assist parties in settling their dispute through facilitating dialogue and helping identifying their interests but without imposing any decision. An arbitrator renders a final, binding and internationally enforceable decision on the parties' dispute. An expert makes a determination on a specific matter submitted by the parties, for example on the authenticity of a work.

The potential of ADR for resolving disputes relating to TCEs and TK is being addressed within the context of WIPO's program on intellectual property (IP) and genetic resources, TK and TCEs. For example, this program, working with the WIPO Arbitration and Mediation Center and other actors such as the United Nations Educational Scientific and Cultural Organization (UNESCO), the International Council of Museums (ICOM), the Food and Agriculture Organization (FAO), and the Convention on Biological Diversity (CBD), is exploring the role of ADR in IP disputes relating to access to and benefit-sharing in genetic resources and the alleged misappropriation of TK and TCEs. Moreover, WIPO is developing a compendium of issues and options for the management of IP in cultural institutions, and ADR is highlighted as a key feature of IP management policies.

The utility of considering ADR has also been raised by Member States participating in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Benefits of ADR

Some of the benefits of ADR in the art and cultural heritage sector include:

A single, international and neutral procedure - Art and cultural heritage disputes are often international, involving parties based in different countries. Instead of bringing cases to court in different jurisdictions, ADR mechanisms allow parties to solve their dispute in a single procedure, saving time and money.

ADR provides an international and neutral forum in which parties are free to choose a neutral mediator, arbitrator or expert from a third country, the applicable law and language, thereby preventing the possible perception of bias that could arise in national court litigation. Parties therefore have complete control over the dispute resolution process.

Expertise - In an ADR procedure, parties can choose one or several mediators, arbitrators or experts with expertise in the specific legal area and subject matter of art or cultural heritage at issue, as well as knowledge of the cultural and linguistic background(s) of the parties. This would be i