Misappropriating Intangible Cultural Heritage in Scotland: Empowering Community Ownership through IP rights

Scottish intangible cultural heritage has long suffered from English oppression and sublimation and has been all but eradicated by the internal colonisation of the Highlands during the 1700s. Most of this remaining knowledge has been left in the public domain to be misappropriated by romantic antiquated concepts of Scottish culture whilst the guardians of the knowledge have been prevented from asserting any rights over it. Whilst the rest of the world scrambles to protect its traditional knowledge and cultural expressions, the UK has categorically denied its existence within its borders. Instead opting to continue its focus on the preservation and inventorying of tangible antiquities and immoveable monuments.

For Scotland, the ability to control its regulation of traditional knowledge and its manifestations are beyond reach. The nature of devolution prevents the Scottish Parliament from ratifying any international conventions as well as preventing any adaptations to current Intellectual Property (IP) mechanisms. For the communities within Scotland, the effects of sublimation are still being felt as they try to reignite interest and connect to their cultural heritage whilst it is continually misappropriated by the rest of the world.

By considering the social utility of IP, a legal framework can be established for Scotland’s traditional knowledge and associated creations offering empowerment to the communities that have long attempted to safeguard it for future generations. This paper looks to explore this social utility and the experiences of traditional knowledge holders within the Scottish diaspora working towards a socially just framework for Scottish traditional knowledge, with or without Scottish Independence. The contrast between the historical treatment of two of Scotland’s most famous traditional textiles will be discussed to exemplify the social utility of IP rights for these communities.