WIPO Alternative Dispute Resolution (ADR) for Art and Cultural Heritage
As part of the WIPO ADR Services for Specific Sectors, the WIPO Center provides dispute resolution advice and case administration services to help parties resolve disputes arising in the area of art and cultural heritage, without the need for court litigation.
Art and Cultural Heritage Disputes
Art and cultural heritage disputes can involve a variety of highly specific subject matter such as copyright, traditional cultural expressions, or cultural property. They can also involve sensitive non-legal issues of a commercial, cultural, ethical, historical, moral, religious, or spiritual nature. Parties in such disputes are often from different jurisdictions and cultural backgrounds.
As a flexible and confidential mechanism, ADR allows consideration of such issues and helps parties to adopt sustainable, interest-based solutions that may go beyond monetary relief (e.g., compensatory provision of art works, long-term loans, co-ownership). Where indigenous communities are involved, ADR may also be a forum in which customary laws and protocols can be considered. ADR allows parties to choose a mediator, arbitrator or expert with specific expertise in art and cultural heritage and understanding of the cultural backgrounds. It provides a neutral forum in which an international art and cultural heritage dispute can be resolved through a single procedure.
Selected Areas of Dispute
Potential Stakeholders to Dispute
WIPO ADR Services for Art and Cultural Heritage
- Administration of Art and Cultural Heritage Disputes
The WIPO Rules are flexible and can also be applied in disputes that are not limited to intellectual property. In its role as administering institution, the WIPO Center maintains strict neutrality and independence.
Examples of WIPO arbitrations in this area include:
- WIPO Expedited Arbitration Relating to an Artistic Production Finance Agreement,
- WIPO Arbitration of an Artist Promotion Dispute
By way of further example, the WIPO Center has carried out its “good offices” in a matter between a museum and an indigenous community concerning the restitution of a cultural object, as well as related intellectual property issues.
- WIPO Art and Cultural Heritage Panel of Neutrals
Effective proceedings to a large extent depend on the quality of the mediator, arbitrator or expert. The WIPO Center maintains an open-ended Panel, including mediators, arbitrators and experts from around the world with expertise in art and cultural heritage. They can be appointed by parties in cases under WIPO Rules but parties are also free to select mediators, arbitrators or experts from outside the WIPO Panel.
- Procedural Guidance and Training
The WIPO Center makes available recommended contract clauses and submission agreements that parties can use to submit their disputes to ADR.
Upon request, the WIPO Center provides procedural guidance to interested parties and organizations in the art and cultural heritage sector. This includes advice on the drafting and adaptation of ADR clauses in art and cultural heritage related contracts and submission agreements, as well as helping to bring disputing parties to ADR.
The WIPO Center also organizes training and workshops on mediation, arbitration and related topics.
- Establishment of Adapted ADR Frameworks
Where appropriate in light of the needs of the relevant stakeholders, the WIPO Center provides guidance in the establishment of adapted ADR frameworks, including Rules, fees and clauses, and provides administrative services thereunder.
Collaboration with Concerned Stakeholders and Entities
To optimize dispute resolution in the art and cultural heritage sector, the WIPO Center collaborates with relevant stakeholders and organizations. This may include organization of joint events and training, and establishment of adapted ADR frameworks, and involves for example the following:
- International Council of Museums (ICOM)
ICOM and WIPO are collaborating in a number of areas, including the provision of a dedicated mediation process for disputes involving ICOM members' areas of activity under the tailored ICOM-WIPO Mediation Rules.
The WIPO Center is available to collaborate with other interested stakeholders.
Collaboration with Other WIPO Divisions
In the art and cultural heritage sector, the WIPO Center collaborates in particular with WIPO’s Program on Intellectual Property, Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, and with WIPO’s Copyright Program.
WIPO ADR Services for Art and Cultural Heritage are operationally distinct from and without prejudice to ongoing normative discussions in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) and elsewhere. The WIPO ADR service is intended as a voluntary and complementary mechanism and does not substitute or interfere with ongoing IGC discussions.
- ICOM-WIPO Workshop for Mediators in Art and Cultural Heritage
Thursday and Friday, May 10 and 11, 2012, London, United Kingdom
- International Symposium on Litigation in Cultural Property: Judicial and Alternative Means of International Dispute Resolution
Geneva, November 11, 2011
- Workshop for Mediators in Art and Cultural Heritage (event in English),
October 17 and 18, 2011, ICOM, Paris, France
- Seminar on “Cultura y Propiedad Intelectual: Los Márgenes de un debate”, November 26, 2010, Universidad Internacional Menéndez Pelayo, Cuenca, Spain; WIPO Center presentation on Arbitraje y Mediación para la resolución de controversias en materia de derechos de autor: últimos avances en la OMPI
- International Bar Association (IBA) Annual Conference, IBA Art, Cultural Institutions and Heritage Law Committee’s Session on “Museum Law - from Acquisitions to Code of Ethics and Restitution of Artworks”, Madrid, Spain, October 4-6, 2009; WIPO Center presentation on “WIPO and Alternative Dispute Resolution in the Museum Sector”
- International Bar Association (IBA) Annual Conference, IBA Art, Cultural Institutions and Heritage Law Committee’s Session on “Mediating Disputes in the Art and Heritage Sector: Why and How to Spread the Word”, Buenos Aires, October 12-18, 2008, WIPO Paper by Jane Anderson
- Intellectual Property and the Safeguarding of Traditional Cultures - Legal Issues and Practical Options for Museums, Libraries and Archives, written for the World Intellectual Property Organization (WIPO) by Molly Torsen and Jane Anderson, WIPO Publication No. 1023(E), 2010, on dispute resolution see pp. 62-66.
- WIPO Guide on Managing Intellectual Property for Museums, by Rina Elster Pantalony, WIPO Publication 1001(E), 2007, on dispute resolution see Chapter 2, paragraph 2.7.
- Alternative Dispute Resolution in Art and Cultural Heritage - Explored in the Context of the World Intellectual Property Organization’s Work, by Sarah Theurich, in Kerstin Odendahl, Peter Johannes Weber (Eds.), Kulturgüterschutz - Kunstrecht - Kulturrecht, Festschrift für Kurt Siehr zum 75. Geburtstag aus dem Kreise des Doktoranden - und Habilitandenseminars ”Kunst und Recht“, Schriften zum Kunst- und Kulturrecht, Nomos Verlag, Baden-Baden, 2010, Volume 8, pp. 569-594.
- Art and Cultural Heritage Dispute Resolution, by Sarah Theurich, WIPO Magazine, July 2009, Issue 4, pp. 17-19.
- “Mediation as an Option for Resolving Disputes between Indigenous/Traditional Communities and Industry Concerning Traditional Knowledge”, by J. Christian Wichard and Wend B. Wendland, in Barbara T. Hoffman (ed.), Art and Cultural Heritage: Law, Policy, and Practice, Cambridge University Press, 2005, pp. 475-482.
- Bibliography on Intellectual Property Arbitration and Mediation
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