RESPONSE TO THE 2018 SARR-SAVOY REPORT Statement on Intellectual Property Rights and Open Access relevant to the digitization and restitution of African Cultural Heritage and associated materials

Written by Mathilde Pavis and Andrea Wallace and signed by 108 scholars and practitioners working in the fields of intellectual property law and material and digital cultural heritage at universities, heritage institutions and organizations around the world, this Response argues in support of undertaking further research and designing a more nuanced strategy around the digitization of African Cultural Heritage as recommended by the Sarr-Savoy Report submitted to the French Government in 2018. While the Sarr-Savoy Report goes into great detail about the important issues surrounding restitution, it includes very little about digitization, IP rights, and open access, which raises a number of concerns reviewed in the Response. Accordingly, the Sarr-Savoy Report’s recommendations for the digitization and management of cultural content must be critically examined. This Response urges the French Government to do so before proceeding with restitution.

• First and foremost, the Report's recommendations, if followed, risk placing the French Government in a position of returning Africa's Material Cultural Heritage while retaining control over the generation, presentation, and stewardship of Africa's Digital Cultural Heritage for decades to come.
• Second, and related to this, the validity of intellectual property claims in certain digital materials and the implementation of open access policies are contested and subject to increasing global legal and social controversy.
In France, open access to digital heritage collections is almost nonexistent, thus the French Government should refrain from taking any position that creates a double standard by requiring African Cultural Heritage to be digitized and made available when the same demands are not made of its own national institutions.
• Third, restitution must not be conditioned upon any obligations to allow the digitization of materials held in France and open access commitments.Such decisions around digitization (including the waiver of any rights for open access purposes) are cultural and curatorial prerogatives.Accordingly, they must be made by African communities of origin, as they impact how heritage may be represented, preserved, and remembered.African communities must therefore enjoy full autonomy in devising any access strategies for restituted material and digital cultural heritage.
• Finally, attempts to truly decolonize French institutions of African Material Cultural Heritage must carry through to the treatment of archival and digital materials, including those remaining in France.Digital heritage today is as important as material heritage and should be thoughtfully considered and fully integrated within future restitution policies and collections management.The restitution of African Digital Cultural Heritage therefore cannot be treated as an afterthought.With this in mind, France should consider the opportunity to aid African communities in this process, both practically and financially, alongside other forms of reparation.
2 For these reasons, we urge the French Government to pursue further research and consultation with the key stakeholders around these issues prior to • The validity of intellectual property claims to digital cultural heritage is contested and subject to increasing global legal and social controversy.Within the EU, national responses to the subsistence of authorship in digital surrogates currently vary.
• A claim to intellectual property rights in digital surrogates carries the ability to mediate public access, use, and engagement, which is especially relevant for communities of origin.At present it remains unclear whether the Report recommends waiving any intellectual property rights arising or takes the position that such rights fail to arise in digital surrogates of public domain works.
• The management of intellectual property is a cultural and curatorial prerogative, as is the initial decision about whether and what materials to digitize.These prerogatives should belong to the communities of origin.
• Open access to digital surrogates of cultural heritage held by French institutions is almost nonexistent. 3The Government should refrain from taking any position that requires restituted cultural materials to be digitized and made available as open access, especially when the same demands are not made of its own national institutions.
• The current practice of Western governments and heritage institutions campaigning for and leading digitization projects according to Western values and priorities, such as open access, may be appropriate for their own cultural heritage.As applied to non-Western cultural heritage, it carries the potential to sustain the very colonial approaches the Report takes great care to denounce.

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The lack of attention paid to digitization plans and intellectual property rights in the Report makes it difficult to critique these issues with any specificity.Despite this, we argue the current recommendations, if adopted, greatly undermine the Report's core aim to establish "new relational ethics" in the ownership and management of African Cultural Heritage.These same aims must be extended to Africa's archival and digital cultural heritage.It simply is not enough to return the material cultural heritage while retaining any potential right to digitize, commercialize, and control access (even by mandating "open access") to another community's digital cultural heritage.7 For these reasons, the Sarr-Savoy Report's recommendations for the digitization and management of cultural content must be critically examined.We urge the French Government to do so before proceeding with restitution.Further consultation and research with the key stakeholders identified must be pursued prior to and alongside restitution efforts.Attempts to truly decolonize French institutions of African Material Cultural Heritage must carry through to the treatment of archival and digital materials.France therefore holds a unique position to explore equitable opportunities for how restitution will proceed and be integrated with the digital realm.
8 This response proceeds as follows: Section 1 provides an overview of the legal issues relevant to the discussion; Section 2 addresses the Report's framing of intellectual property rights and open access, while Section 3 speaks to the concerns it raises.Section 4 concludes with recommendations, but these are not exhaustive.

Overview of Intellectual Property Rights in Digital Cultural Heritage (and Open Access)
9 As an initial matter, it should be stressed that the legal issues implicated by digitization are worthy of their own report.This response does not attempt to accomplish this, but highlights the additional complex legal and social interrogations that are required.These include examinations of international and national legal measures, colonial systems of value, the complex nature of digital content and its production, and cultural attitudes toward the treatment of heritage.
10 First, the minimum standards required for copyright protection and related rights are set via national legislation, which is harmonized through international and regional agreements that bind a wide range of countries.Having said that, not all countries are signatory to these agreements.As such, they may not implement the same level of intellectual property rights or associated standards of "open access" recognized by, for example, French law.Any restitution agreement must account for these variations.
11 Second, the subsistence of "rights", specifically "intellectual property rights", varies according to the digitization processes involved.25 Below we have set out the questions raised by these recommendations and taken guidance from the Report in addressing them.
[1] "these digitized objects must be made part of a radical practice of sharing" 26 The Report fails to detail any intentions around this "radical practice of sharing".We assume this recommendation references the OpenGLAM (Galleries, Libraries, Archives, and Museums) 21 movement and its desire to make works in the public domain accessible to generate new knowledge and creative reuses.This recommendation is laudable for its commitment to the democratic principles supporting free access and reuse of the public domain. 22 With this in mind, it should be acknowledged that intellectual property is a Western construct which carries its own colonial bias. 23It follows that the public domain and "open access" are components of this colonial thinking.We should therefore resist casually exporting our associated understandings of "sharing" to non-Western heritage.Here, two points are important to make.
28 First, we assume from the Report that digitization is expected to occur in France prior to any physical restitution.As addressed above, this is likely to trigger the application of French and EU intellectual property law.At present, the very decisions made about these digitization processes will and are proceeding under host communities' oversight, precluding alternative African conceptions of how its cultural heritage might be represented and then presented to the public.Accordingly, there is a real risk of digitally imposing Western perspectives of how intellectual property should be exploited (or not) and how access should be extended to Africa's cultural heritage.
29 A claim to intellectual property carries the ability to exclude others from accessing the digital heritage collections' embodied knowledge.It also fortifies the circumstances precipitating an "impeded or blocked memory" 24 by awarding the rightsholder with control over access and reuse.Notably, the Report explores the juridical effect of 19th-century courts legitimizing the "right to pillage and plunder what had belonged to the enemy" and "the right to appropriate for oneself what one had taken away from the enemy". 25As applied here, the law and its formalities have the similar ability to legitimize the same historical annexation and appropriation of cultural heritage that this Report seeks to dismantle.
30 Second, intellectual property rights may not be appropriate, legally or culturally, for the digital surrogates of some objects and archival materials.
As addressed above, this is a cultural and curatorial prerogative belonging to the community of origin.This initiative presents a novel opportunity to begin viewing certain materials as falling outside of intellectual property (and digitization) frameworks entirely. 26Thus, this "radical practice of sharing" must be defined according to a co-developed understanding and encompass only the works deemed appropriate for digitization, unfettered open access, and public reuse, and only after the key stakeholders and communities of origin are consulted as to how this should proceed.
[2] "how one rethinks the politics of image rights use"

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The Report fails to detail any intentions around "how one rethinks the politics of image rights use".We applaud the recommendation and raise the following concerns identified by the Report as central to this inquiry.And, while closely related to the "radical practices of sharing" discussion, it is important to treat the "politics of image rights use" as a separate matter for the following reasons.
32 First, the digitization process can expose African Cultural Heritage to a secondary "system of appropriation and alienation" identified by the Report as the crux of the problem. 27Appropriation can occur due to the authorship role recognized by copyright, which carries the ability to symbolically appropriate and control the knowledge, personhood, and objecthood embodied in the material object. 28lienation can occur due to the reproduction process in two ways: both symbolically when concerns around any sensitive treatment of the material object are not transferred to its digital version, and physically when the digital surrogate is alienated from the material object upon its physical return to the community of origin and digital deposit with the open access platform.Any cultural preferences by these communities of origin, whether historical or present-day geographical communities, must be accounted for in rethinking the politics embedded in "image rights use".
26 For example, a community may have permitted the audio or video recording of a secret ritual for specific research purposes, but refused for such recordings to be made more widely available to the public.Such requests by communities of origin must be accounted for, regardless of whether any intellectual property or sui generis rights subsist in the content captured.
33 But this rethinking might also apply to objects not designated for restitution during the digitization of African Cultural Heritage (and the heritage of other communities) legitimately held by French institutions.Heritage institutions pursuing this path of rethinking have developed comprehensive cultural permissions policies in tandem with the communities whose objects remain in their care. 29 real opportunity exists here, as the Report notes, to "invert the colonial hegemonic relationship" 30 around the treatment of African Cultural Heritage (and the heritage of other communities), including the heritage remaining in situ with French institutions.
34 Second, these politics are fraught with their own historiographies.Similar to the restitution process detailed by the Report, any digitization and exploration of image rights "implies much more than a single exploration of the past: above all, it becomes a question of building bridges for future equitable relations". 31We encourage the Government to consider how the digitization policies designed for these materials might also contribute to future equitable relations around cultural heritage and its treatment in light of these politics of the past.
[3] "we recommend the creation of a single portal providing access to the precious documentation in the form of a platform that would be open access" 36 The spirit and aim of creating the open access portal aligns with OpenGLAM principles to "support the advance of humanity's knowledge" so users may not only "enjoy the riches of the world's memory institutions, but also to contribute, participate and share". 33Yet it must be challenged whether this decision to digitize and create an open access portal should lie with the communities of possession.

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In the section titled "A Long Duration of Losses", the Report criticizes the legal structures in place which enabled African Cultural Heritage's "economic capitalization (through the art market) as well as the symbolic capitalization (through the museum)" that went "hand in hand with the wars of that same era". 34As applied to our era, the legal structures in place supporting mandatory systematic digitization and open access policies have the potential to reinforce both economic capitalization (through the exploitation of intellectual property) as well as symbolic capitalization (through the open access portal), marrying the two practices renounced by the Report.
[4] "a plan for the systematic digitization of documents that have yet to be digitized concerning Africa should be established" 38 With regards to the "systematic digitization", we repeat the concerns previously expressed.We suggest taking a "slow digitization" approach, 35 which involves paying the same attention to the processes of digitization as we pay to the objects themselves, instead of rapidly digitizing African Cultural Heritage to make it available online.This naturally requires an examination of who is best placed to undertake this task and the systems of values informing this answer.On this point, scholars warn: Paradoxically, there is a risk that an emphasis on digitizing cultural treasures will undermine the claim that digitization opens up and democratizes access to cultural heritage.

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The remaining extracts are only briefly addressed as they build upon previous sentiments.
[5] "It goes without saying that questions around the rights for the reproduction of images needs [sic] to be the object of a complete revision regarding requests coming from African countries from which these works originated including any photographs, films, and recordings of these societies." 41 With regards to the need for revising "rights for the reproduction of images", we agree with its spirit and overall aim.But it remains unclear what this statement means or how it might incorporate the concerns expressed above.What is especially unclear is whether the African countries mentioned have any say in this revision or will simply receive digital copies of the works upon request.
[6] "Free access to these materials as well as the free use of the images and documents should be the end goal." 42 With regards to the final statement, the end goal of securing "free access" via the open access platform and "free use of the images and documents" does not appear to have been set by the African communities involved, but rather by the Report's authors.It remains unclear how the authors reached this conclusion to make this recommendation, and we would welcome clarification.As discussed further below, this position is problematic as it sets a double standard of imposing open and free access to digital heritage collections of African Cultural Heritage yet similar obligations are not expected of French national institutions.
43 Building on this discussion, the next section presents concerns on the Report's current position and recommendations relevant to the generation and stewardship of digital heritage collections.

Concerns on the Report's Current Position and Recommendations
44 This response argues that a critical reflection on the role of intellectual property is necessary to better inform these "new relational ethics".Our concerns primarily center around the desire to systematically digitize (and what that entails) and any subsequent rights arising in the process.These are summarized below.
45 As an initial matter, the same principles of dignity and respect the Report recognizes surrounding the object and its restitution must be extended to the object's digitization.The Report criticizes the situation in 1960s Europe for defaulting on its obligation to address colonial structures deeply embedded in the ownership and management of African Cultural Heritage.Yet the Report lacks the same "structured reflection devoted to the role [digital heritage collections] could play in the emancipation of formerly colonized African countries". 38Our concern is that an equally important part of this process is being neglected, and that genuine efforts to restitute African Cultural Heritage may therefore succumb to the same mistakes made during (and prior to) the 1960s.
46 This is because just as there are "different interpretations or conceptions of cultural heritage", 39 there are different interpretations or conceptions of digital cultural heritage.Digital cannot be treated as an afterthought.Any rebalancing of global cultural heritage must anticipate these different interpretations or conceptions and, most importantly, be motivated by the interests of the relevant communities in documenting and sharing their own material heritage.This rebalancing must account for alternative conceptions of objecthood, authorship or personhood, representation and presentation, and digital heritage, thereby "releasing oneself from the lone framework of European 60 The Government should explore to the greatest extent possible how it might collaborate with ongoing African digitization initiatives. 50This would facilitate building community-based solutions around digitization, access, and education (especially in native languages).As the Report highlights in "Popular Appropriations", restitution "also implies working to ensure that the communities concerned as well as the public at large are able to claim ownership of this practice in all its aspects". 51The Report's subsequent discussion in this section provides an opportunity to put this goal into practice.It describes the potential for new collaborative networks in line with reparations leading to the production of new creative works and cultural goods.
61 We assume the Report only briefly addresses the portal and any related benefits for practical reasons.
We suggest that when that exploration proceeds, these recommendations also be embedded in that process.
49 The Report recommends: "The creation of an online portal around the theme of the circulation of cultural objects that would contain general information about the situation and redistribution of cultural heritage from the African continent outside of Africa, while also proposing detailed narratives of the trajectories of certain pieces (with the help of accompanying texts and multimedia documents) would be a creative and engaging way to create a pathway of discovery b. Sharing of Digital Content A large number of photographic cinematographic, or sound documents concerning African societies once held by former colonial administrations have recently been part of the intensive campaigns for digitization projects (such as the "iconothèque" in the Musée du quai Branly-Jacques Chirac).Within the framework of the project of restitutions, [1] these digitized objects must be made part of a radical practice of sharing, including [2] how one rethinks the politics of image rights use.Given the large number of French institutions concerned and the difficulty that a foreign public has for navigating through these museums, [3] we recommend the creation of a single portal providing access to the precious documentation in the form of a platform that would be open access.After a dialogue with the other institutions and parties involved, [4] a plan for the systematic digitization of documents that have yet to be digitized concerning Africa should be established, including the collections of (Ethiopian, Omarian, etc) manuscripts from the Bibliothèque nationale de France.[5] It goes without saying that questions around the rights for the reproduction of images needs [sic] to be the object of a complete revision regarding requests coming from African countries from which these works originated including any photographs, films, and recordings of these societies.[6] Free access to these materials as well as the free use of the images and documents should be the end goal.
, or audio-visual records of performances, rites, or oral traditions, or the metadata associated with the creation and manipulation of the digital item.For clarity, we will refer to this category as digital records.20 A precondition of moral rights is that copyright must first subsist in the work.It is important to stress that France defines moral rights to be perpetual, inalienable, and imprescriptible.As such, moral rights survive copyright and continue to apply to many heritage collections passing into the public domain. 14A number of African countries, and, notably, many that were previously colonized or occupied by France, have implemented similar moral rights regimes.This is the case in Mali, 15 Chad, 16 Cameroon 17 and Madagascar, 18 to cite a few examples of the Sarr-Savoy Report.Regardless of a work's origin, French courts have declared moral rights enforceable during cross-border litigation held in France. 19Moral rights therefore have strong implications for digitization and open access.Heritage institutions, experts, and policymakers can be found on either side of this debate.To satisfy increased expectations to digital access, institutions have adopted "open access" policies ranging from simply making collections visible online to disclaiming copyright altogether and releasing high-resolution digital surrogates to the public domain.Many institutions restrict reuse of digital heritage collections to personal or non-commercial purposes, a premise that is noncompliant with the Open Knowledge International definition of "open" allowing free use of open data and content by anyone for any purpose.
Two categories of digital materials are relevant for restitution purposes: (a) Born-digital material describes digital items of cultural heritage that are records of particular human or technological expressions, especially for intangible cultural heritage expressions.This can include photographic, audio10 On the other hand, claiming copyright in digital surrogates of public domain works essentially diminishes the public domain and privatizes its contents, 11 which 6 Creative Commons, 'CC0 "No Rights Reserved"' <https:// creativecommons.org/share-your-work/public-domain/cc0/>.7 Judith Blijden, 'The Accuracy of Rights Statements on Europeana.eu'(Kennisland2018),<https://www.kl.nl/ wp-content/uploads/2018/02/The-Accuracy-of-Rights-Statements.pdf>.8However,researchshows the "level of revenue raised by museums through imaging and rights was small relative to the overall revenue earning capacity of the museum from retail, ticket sales, membership and fundraising" with most rights and reproductions services operating at a loss to museums instead of a profit.Simon Tanner, 'Reproduction charging models & rights policy for digital images in American art museums' (A Mellon Foundation Study 2004) <http://msc.mellon.org/msc-files/21Finally,otherrightsmaysubsistviarelatedor sui generis rights due to national or regional legislation.For example, some African countries grant sui generis protection in traditional knowledge or traditional cultural expressions. 20ights will reside with the country or communities of origin and add another layer for consideration.22Consequently,"openaccess"policieswillbecontingent upon the various layers of protection discussed above.The next section examines the Report's minimal recommendations made in this respect.is of increasing importance today in an information society.171218Thesituation of copyright in digital surrogates made in the European Union (EU)13or Africa can vary considerably from one country to the next.Rights defined by geographic boundaries will apply according to the location in which digitization occurs.At present, we assume digitization will occur according to processes defined by the institutions of possession.This would implicate French and EU law, with a digital copy generated and retained by the institution and deposited in the open access portal, while the material African Cultural Heritage is returned to the country or community of origin.

this reason, consultation on the digitization process, including the intellectual property rights to be claimed, recognized, and conferred to African Digital Cultural Heritage is as important as the negotiations involving any property rights in the material objects designated for restitution.
As a secondary matter, whether rights subsist in digital heritage collections, and who owns them, is a legal doctrinal question with no certain answer under French law, and one which is unlikely to be settled before restitution begins as outlined by the Report.

the undersigned 108 scholars and practitioners working in the fields of intellectual property law and material and digital cultural heritage at universities, heritage institutions and organizations around the world, write in support of the 'Response to the Sarr- Savoy Report: Statement on Intellectual Property Rights and Open Access relevant to the digitization and restitution of African Cultural Heritage and associated material'. Written and signed by:
." Sarr-Savoy Report, 86.If pursued, the advantages of this ambitious Report will have long-standing global impact on our understanding of history and culture extending to multiple generations.For this reason, the initiative must anticipate and incorporate issues around digital.The communities of origin must enjoy full autonomy to carve out any open access paths to sharing their own digital cultural heritage.Policies enabling this should be designed in partnership with communities of origin, even if the general consensus aims to enable free and unfettered open access.The French Government is uniquely positioned to explore equitable practices for how these discussions should proceed and the methodology that follows.The outcomes co-developed through such an opportunity will aid other governments and institutions attempting to tackle similar longoverdue restitution initiatives.