Recommendations on Digital and Intellectual Property Restitution

Recommendations

This submission focuses on the vital role of digital cultural heritage and intellectual property rights to restitution initiatives. We recommend that the Advisory Committee includes a restitution strategy for digital cultural heritage and intellectual property rights in its forthcoming Guidelines to support communities of origin and Austrian institutions. These Guidelines should incorporate the following matters: Principles on Digital Restitution and Intellectual Property Restitution

1. The digitisation and online publication of the relevant collections (including any associated inventory information and data) can have a profound impact on the underlying physical items and the ultimate goals of restitution.

2. New collections digitisation should be carried out only with the consent of the communities of origin (whenever possible) and/or when necessary to support restitution claims.

3. Any online publication of digital assets should be carried out after careful consideration of the risks and benefits in making the digital information and assets publicly available online. This assessment should balance (1) the benefit(s) of making information/data about the collections (e.g., their content and location) available to the public and/or the communities of origin who seek restitution against (2) the risk of harm any online publication may pose to communities of origin by enabling further dissemination, misappropriation, or exploitation of those materials without sufficient care. For the avoidance of doubt, this assessment refers to the scope, quality, and formats of the digital heritage made available online, rather than the initial decision to publish records of the collections from colonial contexts to support transparency and restitution claims.

4. Any restitution strategies for physical collections (e.g., the physical items, catalogue materials, and other records generated over the period of dispossession) should extend to any associated digital materials (e.g., digital reproductions, data, and datasets generated over the dispossession period). We refer to this as “digital restitution”.

5. Any restitution strategies for these physical and digital collections should extend to any intellectual property and other legal rights that may have arisen over the dispossession period. We refer to this as “intellectual property restitution”.

Practical Recommendations on Digital Restitution and Intellectual Property Restitution

When publishing any collections data (i.e., digital information, images, and other assets):

• Rather than publishing all existing digital materials, first assess what data, in what quality, and in what formats are necessary to support transparency goals and restitution claims;

• Consider publishing images at lower resolutions sufficient for collections research and

  evidentiary purposes in support of ownership and restitution claims;

• Consider installing technical safeguards against inappropriate data mining, scraping, and other uses of any data published online; and

• Bolster any databases, datasets, or online tools with clear terms and conditions that inform users of legal and ethical restrictions on downloading, downstream reuse, and further dissemination of collections data.

When undertaking digital restitution (digital property and property rights):

• Inventory all digital reproductions and data related to collections items and associated materials (e.g., archival materials, curatorial notes, provenance information, records of

  acquisition, loan, etc.,);

• Include all digital assets (i.e., digital property) within the scope of restitution and

  collaborate with communities of origin to prepare the materials so they can be

  meaningfully held, used, and engaged with upon restitution;

• Support or provide communities of origin with the necessary skills, technologies, and

  facilities to hold and engage with the digital assets, when required; and

• Remove digital assets published online (including as open access) prior to restitution from institutional websites and publicly-available repositories.

When undertaking intellectual property restitution (and associated rights):

• Inventory any legal rights rooted in intellectual property, contract, or other laws relevant to all physical and digital materials generated around the items over the dispossession period;

• Waive, declare void, or transfer with the materials any and all rights arising over the dispossession period to restore ownership and agency to communities of origin in a

  manner consistent with the goals of restitution; and

• Modify intellectual property policies, including open access policies, to exclude digital assets generated around collections from colonial contexts and communicate new access parameters for these materials.

These recommendations are informed by research and evidence in fields of law, digitisation, and cultural heritage stewardship and management conducted by independent academic researchers as well as law and heritage practitioners.