The blue-and-white motifs of Azorean faience have adorned plates, tiles, and cups for more than 160 years. They are recognisable anywhere in the archipelago. But who owns them? The artisans who paint them today? The factory that has produced them since 1862? The island communities whose identity they reflect? The tourists who buy them? Or no one — and everyone? The question of ownership in ICH is never simple. And when the answer is “no one owns it exclusively,” a harder question immediately follows: who, then, is responsible for protecting it?
1. Why Exclusive Ownership Doesn’t Work for ICH
Traditional property law — whether copyright, trademark, or patent — is built around the idea of an individual creator who owns a fixed, identifiable work for a limited period. ICH breaks every one of these assumptions. It is communal rather than individual, evolving rather than fixed, and often centuries old — well beyond any statutory term.
As Kirshenblatt-Gimblett (2004) observes, ICH cannot be neatly categorised under conventional property laws precisely because it evolves alongside the communities that uphold it. The communal, fluid, multi-located nature of living traditions makes exclusive ownership claims not just legally awkward but ethically problematic: if a tradition belongs to a community across generations, who within that community has the right to sell it, license it, or refuse access to it?
UNESCO’s 2003 Convention responds to this by introducing the concept of custodianship — a fundamentally different relationship to cultural heritage. Custodians are not owners; they are guardians. Their role is not to exploit heritage for private gain but to safeguard it, transmit it, and ensure it remains meaningful and alive for future generations.
Ownership vs. Custodianship: Ownership implies the right to use, exclude, and transfer. Custodianship implies the responsibility to protect, transmit, and share — with the interests of the community and future generations as the guiding principle. In ICH contexts, custodianship is almost always more appropriate than ownership. But it also raises difficult questions: who qualifies as a custodian, what obligations does custodianship create, and what happens when different custodians disagree?
2. Intellectual Property Tools and Their Limits
Conventional IP tools offer some protection to ICH-related products, but all have significant limitations:
| IP Tool | Limitation in ICH contexts |
|---|---|
| Copyright | Protects individual creative works for a limited term; does not cover communal, oral, or traditional knowledge that has no single author. |
| Trademark | Protects commercial brands and logos; can be misused by outsiders to appropriate cultural symbols or names. |
| Geographical Indication | Protects products linked to a specific origin (e.g., Feta of Kalavryta); useful for craft products but does not protect the underlying knowledge systems. |
| Patent | Protects technical inventions; entirely inapplicable to most ICH practices and risks commodifying traditional ecological knowledge. |
| Sui generis systems | Emerging frameworks (championed by WIPO) designed specifically for traditional knowledge and cultural expressions — the most promising but still unevenly implemented. |
WIPO’s Intergovernmental Committee has been working since 2000 to develop sui generis legal instruments specifically tailored to traditional knowledge and traditional cultural expressions. These approaches recognise collective rights, indefinite duration, and community consent mechanisms — features that conventional IP simply cannot accommodate.
3. Benefit-Sharing: Who Profits from ICH?
One of the most persistent ethical failures in ICH management is the unequal distribution of economic benefits. When ICH is commercialised — through tourism, licensed products, documentary films, or digital archives — the profits rarely flow back to the communities who created and sustain it. This is both an economic injustice and a threat to the survival of the heritage itself: when artisans cannot earn a living wage from their craft, the tradition dies with them.
Ethical benefit-sharing requires transparent attribution of cultural authorship; fair compensation for commercial use; community veto rights over uses they find objectionable; and mechanisms for reinvesting revenues into preservation, training, and transmission.
Equitable benefit-sharing in practice: In the Azores, artisan cooperatives are beginning to advocate for certification schemes that would allow authentic ceramics and embroidery to be distinguished from industrial imitations. A “Certified Azorean Artisanal” label could serve as both a quality mark and a benefit-sharing mechanism, ensuring that purchases support genuine artisans rather than counterfeit producers. But certification alone is not enough without legal enforcement, public education, and fair trade principles embedded throughout the supply chain.
4. Data Sovereignty: Governing Digital Records of ICH
Digital documentation creates new opportunities for ICH preservation — and new risks. When communities allow researchers or institutions to record their practices, those recordings become data: audio files, video footage, photographs, transcripts, metadata. Who controls that data matters enormously.
Data sovereignty in ICH contexts means communities have the right to determine how digital records of their heritage are stored, accessed, shared, and taken down. Best practices include community-approved access protocols; consent logs recording who authorised what and when; takedown pathways allowing communities to withdraw consent; and data storage in community-controlled repositories.
Case Study Connections
Case Study 1 — Fábrica de Álcool da Lagoa: Custodianship of Industrial Memory
The stories of former workers, the recipes for alcohol production, the social rituals of the canteen and the football club — none of these can be copyrighted or trademarked. Yet they constitute a rich body of intangible heritage that belongs, in a meaningful sense, to the community of Lagoa. As the site awaits redevelopment, the key question is: who will act as custodian of this intangible dimension? Former workers and their families have the strongest experiential claim. Local historians and cultural institutions have archival responsibilities. The municipality has planning authority but not cultural authority.
If oral history recordings are made of former workers, data sovereignty principles must apply: community members must consent to being recorded, understand how their testimonies will be used, and retain the right to withdraw or restrict access.
Case Study 2 — Ceramics & Embroidery: IP Gaps and Cooperative Responses
Most Azorean ceramics and embroidery styles are currently not registered as Protected Geographical Indications or covered by consistent certification labels. This leaves artisan workshops — many operating on small, family-run, or cooperative models — without legal tools to distinguish their authentic products from industrial imitations.
The most promising pathway is a sui generis protection framework specifically designed for Azorean craft traditions — one that recognises communal authorship, protects island-specific stylistic identities (the blue-and-white of São Miguel, the white linen of Terceira, the straw-on-black of Faial), and creates fair benefit-sharing mechanisms for all artisans in the supply chain.
▶ Video: https://www.ceramicavieira.pt
Activities
→ Draft a Rights & Data Map (groups, 25 min): For the ceramics and embroidery case, identify all potential custodians (artisans, families, cooperatives, the Cerâmica Vieira factory, regional cultural institutions, tourism operators). Map their relationships using three columns: (1) What claim do they hold? (2) What obligations does that claim create? (3) What benefit-sharing arrangement would be fair? Then draft three principles for data governance that should apply if a documentary about these crafts is produced.
→ Certification Label Design (pairs, 20 min): Design a mock “Certified Azorean Artisanal” label for ceramics or embroidery. Your label must include: (a) the specific tradition it covers (island, technique); (b) criteria for certification (materials, provenance, maker identity, technique standards); (c) the mechanism ensuring certified sales generate revenue for artisans; (d) who has the authority to grant and revoke certification. Present and justify each criterion.
→ The IP Gap Analysis (individual, 15 min): Choose one specific element of Azorean ICH (e.g., the blue-and-white motifs of São Miguel ceramics, the bordado a matiz embroidery pattern, the oral histories of Fábrica workers). Analyse: (a) which conventional IP tools apply and where they fall short; (b) what a sui generis protection would need to include; (c) one risk of over-protection and how to guard against it.
Key Questions
- Why is exclusive ownership often inappropriate for ICH — and what does custodianship offer instead?
- Where do conventional IP tools (copyright, trademark, GI) fail for ceramics and embroidery in the Azores — and what would more appropriate protection look like?
- What does fair benefit-sharing look like in practice? Who should receive what, and through what mechanism?
- How should digital documentation of ICH be governed to protect data sovereignty? Apply this to the case of the Fábrica de Álcool da Lagoa.
- When different custodians disagree about how heritage should be used — for example, a cooperative wanting protection and a museum wanting open access — how should the dispute be resolved?