School of Information Management & Systems. Fall 2000.
142  Access to American Cultural Heritages.   Buckland.

Cultural property.

One thinks of property as that which one "owns", such as a book, an auto, or a house, and, therefore, can control. A more precise view is to think of property as a bundle of rights relating to what one can do with respect to this particular property. In particular, these rights are in varying degrees limited in the public interest. There are limits to book ownership, e.g. if the contents of the book are considered a threat to national security or public morality. There are very detailed limits to what you can with or to your automobile, especially on a public highway. In urban areas there are massive restrictions on what you ca do to it or in (zoning, building, usage ordinances; attractive nuisance laws; etc.) and how you can dispose of it (legal regulation of real property sales).

"Cultural property" is the term used to denote any object for property rights are restricted because of public interest in the cultural significance of the that property. Laws vary greatly by country but typical examples are restrictions on:

1. Modifying any building of historic significance, e.g. for its architecture, style, or "association" (e.g. an otherwise uninteresting house would "associated with" a national hero who was born or lived in it).

2. Modifying or exporting any artifact considered a significant part of the national cultural heritage. NB: Any such artifact is, by definition, likely to be a commercially valuable collector's item.

"Alienation" - when cultural property is no longer in the possession the nation or cultural group for whom it is of significance. Examples: (i) By international agreements that war loot must be returned to the country from which it was taken; (ii) Recent legislation in the US requiring museums to return Native American bones to their tribes.

Waverly Rules (UK): (1) The state must retain the right to prevent the export of object of high importance in suitable cases by establishing a delay period; (2) In every case in which export is prevented, the owner must be assured of an offer to purchase at a fair price; (3) Offers at purchase should be related to the market price wherever the conditions admit of a genuine and reasonable market price being arrived at.

3 Rs: Restitution of cultural properties to their countries of origin; Restriction of imports and exports of cultural properties; and Rights (e.g. rights of ownership, of access, of inheritance). Ownership of "the past" is not only objects but perceptions of the past itself. Owned by "everyone", specific groups, no-one. Arguments against 3R claims by country of origin: Moving the property would mean damaging it; Foreign ownership may be entirely legal; Cultural property belongs to humanity, not any one government; Scholars need access; Restrictions encourage illegal evasion. Arguments for claims by country of origin: It is their cultural heritage (which depends on specific patrimony claims); The country owns it; Scholarly and aesthetic integrity requires that it remain in context.

The stakes: The international trade in cultural property that was stolen and/or illegally exported is estimated at around $1 billion per an. much of it imported into the USA. Much of the holdings of most major museums could be claimed to be the cultural property of another country; some holdings came through questionable means.