Editor\u2019s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.<\/p>\n
*Ronald Alcala<\/strong><\/p>\n In 2021, when the Taliban recaptured control of Afghanistan, a small museum in Kabul quietly shuttered its doors. The museum contained no famous artifacts or works of art, and it had never hosted an exhibition of national or international acclaim. Rather, the <\/span>Afghanistan Memory Home Museum<\/span><\/a> displayed modest items once owned by ordinary people. It was dedicated to memorializing the lives of war victims by sharing their stories through objects they once owned. Grouped together in \u201cmemory boxes,\u201d these items\u2014a school notebook, a pair of sandals, a child\u2019s drawings\u2014were a testament to lives altered or lost as a result of the ongoing violence in Afghanistan.<\/span><\/p>\n When the Taliban entered the city, the museum\u2019s organizers <\/span>hid or sent away<\/span><\/a> all of the museum\u2019s artifacts. Some were hastily buried in volunteers\u2019 yards while others were smuggled abroad for safekeeping. Today, the museum no longer exists in physical form, but it has reemerged online. Visitors can view the museum\u2019s \u201cmemory boxes\u201d in a digital gallery along with descriptions of each item and a narrative of the victim\u2019s story. The digitized artifacts have kept the museum\u2019s mission alive in a way that has become increasingly common in contemporary society: through the use of digital reproductions.<\/span><\/p>\n This article explores the value of digital reproductions and the significance of protecting them as cultural heritage. The article examines the law\u2019s emphasis on original creations and argues that preferencing original works unduly burdens the aims of cultural heritage preservation. In some cases, digital reproductions can encode cultural memory as effectively as original creations, and the law should avoid biasing the protection of original works when the preservation of a digital copy can achieve the same result. All digital material, whether born digital or created to reproduce a physical object, should be independently evaluated for its cultural heritage value and protected accordingly.<\/span><\/p>\n A Preference for Originals<\/b><\/p>\n UNESCO\u2019s adoption of the <\/span>Charter on the Preservation of Digital Heritage<\/span><\/a> in 2003 marked an important milestone in the protection of digital cultural heritage. The charter recognized that recorded knowledge and creative expression were increasingly \u201cproduced, distributed, accessed and maintained in digital form,\u201d leading to the creation of a \u201cnew legacy\u2014the digital heritage.\u201d Older agreements that did not explicitly address digital works have now also been interpreted in light of emerging digital technologies. Among these is the <\/span>1954 Hague Cultural Property Convention<\/span><\/a>, adopted in the aftermath of the Second World War to protect cultural heritage from damage or destruction in future armed conflicts. As interpreted by the international group of experts who produced the <\/span>Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations<\/span><\/i><\/a>, the convention\u2019s requirements to respect and protect cultural property <\/span>extend to<\/span><\/a> \u201ccultural property that may be affected by cyber operations or that is located in cyberspace.\u201d In particular, parties to an armed conflict \u201care prohibited from using digital cultural property for military purposes.\u201d\u00a0<\/span><\/p>\n The protection of digital heritage, however, comes with a significant caveat. Both UNESCO\u2019s Charter on the Preservation of Digital Heritage and the <\/span>Tallinn Manual 2.0<\/span><\/i> express a preference for original works\u2014either \u201cborn digital\u201d material or a \u201cdigital surrogate\u201d\u2014and prioritize their protection over other digital materials. Article 7 of the Charter on the Preservation of Digital Heritage suggests that the main criteria for deciding what digital materials to keep include \u201ctheir significance and lasting cultural, scientific, evidential or other value.\u201d Article 7 then declares, without further explanation, that \u201c\u2018[b]orn digital\u2019 materials should clearly be given priority.\u201d The <\/span>Tallinn Manual 2.0<\/span><\/i> also preferences original works. Its <\/span>commentary to Rule 142<\/span><\/a>, which addresses cultural property, explains that the protection of digital cultural property \u201conly applies to digital copies or versions where the original is either inaccessible or has been destroyed, and where the number of digital copies that can be made is limited.\u201d<\/span><\/p>\n While a preference for original items may be understandable, this bias is worth reconsidering in an age of digital reproduction. At a time when photography and film were the disruptive reproduction technologies of the day, the German philosopher Walter Benjamin explored the allure of originals in his essay \u201c<\/span>The Work of Art in the Age of Mechanical Reproduction<\/span><\/a>.\u201d Benjamin explained that originals possessed qualities of \u201cauthenticity\u201d and \u201caura\u201d that could never be recaptured in a copy, even if the copy represents \u201cthe most perfect reproduction\u201d of a work. Authenticity and aura were a reflection of a work\u2019s existence in time and space and, therefore, were inapplicable to copies produced. Still, Benjamin questioned the value of authenticity and aura in an age of mechanical reproduction, \u201cfrom a photographic negative,\u201d he noted, \u201cone can make any number of prints; to ask for the \u2018authentic\u2019 print makes no sense.\u201d\u00a0<\/span><\/p>\n Digital reproduction has only magnified this argument. One <\/span>commentator suggested<\/span><\/a>, \u201cthe work of art in the age of digital reproduction is physically and formally chameleon. There is no clear conceptual distinction now between original and reproduction in virtually any medium based in film, electronics, or telecommunications.\u201d A growing list of projects lends support to this conclusion. In one example, a high-quality reproduction of Paolo Veronese\u2019s <\/span>Wedding at Cana <\/span><\/i>was created to replace the original painting in Venice\u2019s San Giorgio Maggiore. Napoleon ordered the painting\u2019s removal and transfer to the Louvre in 1797. To replace it, the art conservation firm <\/span>Factum Arte<\/span><\/a> produced a <\/span>high-resolution photographic rendering<\/span><\/a> of the work and even recreated the <\/span>raised seams<\/span><\/a> rejoining sections of the painting that had been cut apart when Napoleon\u2019s soldiers transported it to France.\u00a0<\/span><\/p>\n Presented in the painting\u2019s original setting, the near-perfect copy is striking. It reproduces what Veronese envisioned when he composed the work for the space centuries ago. One art critic described it as the \u201c<\/span>third miracle at Cana<\/span><\/a>,\u201d placing it after only Veronese\u2019s original masterwork and the biblical miracle itself. The sociologists Bruno Latour and Adam Lowe <\/span>suggested<\/span><\/a> that \u201cthe aura of the original had migrated\u201d from Paris to Venice, while <\/span>another scholar<\/span><\/a> described the transfer as flowing from the original work to \u201can otherwise perfect reproduction with only one shortcoming: being a facsimile.\u201d These reactions are telling. If reproductions can possess this power and even at times feel more authentic than the originals, shouldn\u2019t they also be entitled to independent protection, regardless of the condition or whereabouts of the originals themselves?\u00a0<\/span><\/p>\n The Cultural Value of Reproductions<\/b><\/p>\n The law has been reluctant to extend unqualified protection to copies and facsimiles because they are viewed as inauthentic and inferior. This reflexive criticism persists despite the ability of contemporary technologies to encode essentially the same cultural memory that heritage law seeks to preserve. Public response to a proposal to replace the Parthenon Marbles in the British Museum with high-quality reproductions is illustrative. The proposal would substitute the existing works with <\/span>nearly identical copies<\/span><\/a> carved by robots from detailed digital scans. The project would even use Pentelic marble sourced from the same quarry as the original sculptures.\u00a0<\/span><\/p>\n Critics, however, <\/span>contend<\/span><\/a> that the iron flecks in the marble \u201cwould inevitably fail to match the original\u201d and that viewing the copies would not hold the same \u201c<\/span>magic<\/span><\/a>\u201d as viewing objects crafted by hand centuries ago. <\/span>In reply<\/span><\/a>, the Executive Director of the <\/span>Institute for Digital Archaeology<\/span><\/a>, the group overseeing the project, has argued that \u201cthe Parthenon sculptures are a far cry from the \u2018real thing,\u2019 at least if the real thing is defined as something that approximates the actual appearance of the work-product of Phidias & Co.\u201d <\/span>Phidias<\/span><\/a> oversaw the Parthenon\u2019s sculptural program, including the creation of the disputed marbles in the British Museum, in the 5th century BCE.<\/span><\/p>\n Viewing a high-quality reproduction with the knowledge that the archetype exists someplace else could be unsettling. Latour and Lowe indicated that the experience could provoke \u201c<\/span>terrible cognitive dissonance<\/span><\/a>.\u201d Current interpretations of the law anticipate this dissonance and consequently express a preference for originals. Perhaps, however, it is time to revisit the purpose and importance of copies. In an age of digital reproduction, when material can be reproduced with exacting detail, we should adjust our expectations and evaluate copies on their own merit as potential encoders and communicators of cultural memory.<\/span><\/p>\n Digital Surrogates and Cultural Memory<\/b><\/p>\n The commentary to the <\/span>Tallinn Manual 2.0<\/span><\/i> supports protecting digital surrogates as cultural property in armed conflict, but <\/span>only in cases<\/span><\/a> \u201cwhere the original is either inaccessible or has been destroyed, and where the number of digital copies that can be made is limited.\u201d To illustrate this, the <\/span>Tallinn Manual 2.0<\/span><\/i> provides the example of an \u201cextremely high-resolution\u201d digital image of the <\/span>Mona Lisa<\/span><\/i>. The commentary indicates that this digital surrogate \u201cmight, and in the event of the destruction of the original <\/span>Mona Lisa <\/span><\/i>would, qualify as cultural property.\u201d On the other hand, \u201cdue to the high speed and low cost of digital reproduction, once such a digital image has been replicated and widely downloaded, no single digital copy of the artwork would be protected by this rule.\u201d<\/span><\/p>\n Applying the <\/span>Tallinn Manual 2.0<\/span><\/i>\u2019s rationale to the digital facsimile of the <\/span>Wedding at Cana<\/span><\/i> would lead to the following result. (Coincidentally, the original painting currently <\/span>shares a gallery<\/span><\/a> with the <\/span>Mona Lisa <\/span><\/i>in the Louvre.) First, the digital information used to create the image installed in San Giorgio Maggiore is not entitled to independent cultural property protection. Because the physical original continues to exist and is not otherwise inaccessible, the digital copy is not afforded protection under Rule 142 of the <\/span>Tallinn Manual 2.0<\/span><\/i>. Moreover, even if the original were to be destroyed or to become inaccessible, the digital surrogate still would not necessarily be entitled to protection. The <\/span>Tallinn Manual 2.0 <\/span><\/i>insists that if an image has also been widely downloaded, no single digital copy would be granted protection. (Another potentially interesting question, which is outside the scope of this article, is whether the same rule would apply if the original were destroyed or became inaccessible but a singular, high-quality reproduction, like the physical recreation of Veronese\u2019s painting, continued to exist.)<\/span><\/p>\n In contrast, the protection of born-digital material is not subject to the same \u201cwidely downloaded\u201d restriction as digital surrogates. The <\/span>Tallinn Manual 2.0 <\/span><\/i>does not explicitly distinguish between born-digital material and digital surrogates, but it does hint at a difference of treatment between the two. It contrasts \u201cobjects that are created and stored on a computing device and therefore only exist in digital form\u201d from copies \u201cof which a physical manifestation exists (or has existed).\u201d The \u201cwidely downloaded\u201d restriction apparently does not apply to born-digital material, such as musical scores, digital films, and scientific data.<\/span><\/p>\n Neither the <\/span>Tallinn Manual 2.0<\/span><\/i> nor UNESCO\u2019s Charter on the Preservation of Digital Heritage explain why born digital works should benefit from a more favorable and extensive protective regime than other digital heritage material. Presumably, it is because reproductions are considered less significant than original material. On the other hand, if a goal of cultural heritage preservation is to safeguard cultural memory for posterity, then potentially all material that accomplishes that purpose has cultural value. The <\/span>preamble<\/span><\/a> of the Charter on the Preservation of Digital Heritage itself declares that \u201cthe disappearance of heritage <\/span>in whatever form<\/span><\/i> constitutes an impoverishment of the heritage of all nations\u201d (emphasis added). In recognition that digital reproductions can preserve heritage, it may be time to decouple the protection of digital surrogates from their physical avatars.\u00a0<\/span><\/p>\n The digital \u201cmemory boxes\u201d of the Afghanistan Memory Home Museum and the facsimile of Veronese\u2019s <\/span>Wedding at Cana<\/span><\/i> attest to the power of reproductions. As repositories and transmitters of cultural information, digital surrogates can be valuable safekeepers of cultural memory. In a world increasingly cultivated and experienced online, linking the protection of digital surrogates to physical objects may no longer make much sense. The law should acknowledge that in some cases, digital surrogates, like born digital material, might merit independent protection as digital cultural heritage.<\/span><\/p>\n [hr gap=”1″]<\/p>\n
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