It is unclear why humans first daubed pigments on stone or moulded figures from clay. Succeeding generations, however, continued to craft original works and devise new mediums for their creations. Over time, those novel formats shaped not only how we create and express ourselves, but also how we have come to appreciate art and the genius of the human imagination. In some cases, those new mediums also challenged our sense of what is valuable and what we as a society consider culturally meaningful. The desire to protect culturally important works, though, has often come into conflict with another ancient human impulse: the desire to make war.Footnote 1
Attempts to moderate the destructive effects of conflict have met with varying degrees of success throughout history. In the early twentieth century, for example, the Covenant of the League of Nations and the Kellogg–Briand Pact sought to restrict or even eliminate recourse to war, yet the world plunged into a world war nevertheless. More limited efforts to regulate aspects of armed conflict such as the treatment of the wounded and sick,Footnote 2 the treatment of prisoners of warFootnote 3 and the use of certain weapons in warFootnote 4 have had a more lasting impact. The subject of cultural property in armed conflict has also garnered significant attention. As codified in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Cultural Property Convention)Footnote 5 and addressed in subsequent international agreements,Footnote 6 the law relating to cultural property has helped spare cultural objects from harm in war.Footnote 7
Digital technology, however, has begun to strain our understanding of what constitutes cultural property. In particular, the ability to make digital copies of works with ease and exactness has raised questions about the cultural value of reproduced or reproducible works and the expectation to protect them in armed conflict. Although digital technology may have rekindled these concerns, discomfort over copies predates the invention of digital mediums. In the nineteenth and twentieth centuries, the invention of lithography and photography heralded the beginning of what Walter Benjamin famously called the “Age of Mechanical Reproduction”.Footnote 8 Benjamin argued that a copy of a unique work of art – even “the most perfect reproduction” of it – could never equal the original because copies could not capture the “authenticity” or possess the “aura” of their exemplars.Footnote 9 For Benjamin, “[t]he authenticity of a thing is the essence of all that is transmissible from its beginning, ranging from its substantive duration to its testimony to the history of which it has experienced”.Footnote 10 It is a reflection of a work's existence in time and space.Footnote 11 The patina of an ancient bronze statue, therefore, is not only a sign, but also a constituent, of its authenticity.Footnote 12 “Aura”, meanwhile, refers to the authority possessed by a unique and original work.Footnote 13
The advent of art forms designed for reproducibility, however, unsettled our understanding of authenticity and aura. As Benjamin observed, “[f]rom a photographic negative, … one can make any number of prints; to ask for the ‘authentic’ print makes no sense”.Footnote 14 The questions of authenticity and aura that Benjamin raised in the early twentieth century have only grown more apparent today. The “Age of Digital Reproduction” has virtually obliterated the distinction between originals and copies.Footnote 15 Just as the digital revolution forced a re-evaluation of the law's applicability to other aspects of society, digital means of creation and reproduction have necessitated a re-evaluation of what constitutes a work of art and cultural property more broadly.Footnote 16
One source that has addressed the cultural importance of digital works is the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Tallinn Manual 2.0).Footnote 17 Released in 2017, the Tallinn Manual 2.0 reflects the state of the public international law governing cyber warfare and peacetime cyber operations as understood by a distinguished group of legal experts known collectively as the International Group of Experts.Footnote 18 Significantly, the Tallinn Manual 2.0 includes a rule requiring that States respect and protect cultural property, including “digital cultural property”, in armed conflict.Footnote 19 Digital cultural property, however, remains an elusive concept, and for military forces obligated to protect cultural property in armed conflict, uncertainty about the character of digital material will affect the planning and execution of military operations. Absent a clearer understanding of digital works, material of great importance to the cultural heritage of the world could be lost. Ultimately, if digital cultural property must be safeguarded and respected like tangible cultural property in the event of armed conflict, how must States discriminate between what is and what is not appropriately digital cultural property?
This article begins by outlining the obligation to protect cultural property in the event of armed conflict as provided in the Cultural Property Convention. Under the Convention, protection consists of both a duty to safeguard and a duty to respect cultural property. Because the nature of digital material differs substantially (literally and figuratively) from that of physical material, traditional approaches to safeguarding and respecting tangible cultural property may be ill-suited to the protection of digital works.
In the second section, the article considers the Cultural Property Convention's definition of cultural property and States’ protection obligations under the Convention. Other international instruments – adopted both before and after the Cultural Property Convention – have also sought to define cultural property, but while these definitions feature some overlap, they do not neatly align.Footnote 20 For purposes of this article, therefore, the Cultural Property Convention's definition will serve as the foundation for analyzing cultural property, whether in physical or digital form.
In the third section, the article explores the nature of digital material and important conceptual differences between digital and physical works. The third section begins by examining how the drafters of the Tallinn Manual 2.0 debated the meaning of terms such as “object” and “property” when considering digital candidates for protection in armed conflict. The article then analyzes differences between species of digital creations. Broadly speaking, digital works can be divided into two general categories of material: (1) “born-digital” material – works originally created in a digital medium, like a work of digital art or cultural data entered and stored electronically; and (2) digital surrogates – digital facsimiles of extant physical works. The section concludes by comparing how concepts such as aura and authenticity apply to original works and reproductions in both physical and digital mediums. The article contends that elements traditionally valued in physical creations – such as aura and authenticity – are arguably inapplicable to digital works, which can be replicated with exactness and in large quantities. Given the ease of digital reproduction, the protection of cultural information rather than the identification of the “original” digital work may be more salient.
The fourth section examines why some digital material deserves consideration as digital cultural property and how digital cultural property may be identified through direct and indirect indicators. This section discusses how our understanding of tangible goods has informed our evaluation of digital works and suggests that digital material requires a new approach to protection.
Lastly, the fifth section warns that States must be purposeful and deliberate about identifying the digital works they consider to be of great importance to their national cultural heritage. Because identifying an adversary's digital cultural property during armed conflict could be impracticable, States must actively heed their duty to safeguard their own cultural property. This means that they must identify the works they consider digital cultural property, notify other States of the cultural property, and potentially mark the works as digital cultural property. The duty to safeguard cultural property, which States often neglect with respect to physical works, will play an outsize role in the protection of digital forms of cultural property.
Safeguarding and respecting cultural property in the event of armed conflict
Conceived in the aftermath of the Second World War, the Cultural Property Convention sought to protect cultural property against the destructive effects of armed conflict while acknowledging the realities of military operations.Footnote 21 The Convention defined cultural property in purely tangible terms, for when it was signed in 1954, the digital creation and reproduction of works was not yet possible.Footnote 22 In the decades since, digital technology has transformed society in profound ways, resulting in what has been described as a digital revolution.Footnote 23 That transformation has, among other things, introduced new mediums for expression, altered how we conceive of and appreciate art, and revolutionized the organization, storage and retrieval of data.Footnote 24 Already, digital film and digital audio recording have drastically reshaped the movie and music industries, while digital artwork has become increasingly prized and valued.Footnote 25 Other digital materials – including texts, databases, still images, graphics, software and web pages – have also emerged as potential sources of culturally important works.Footnote 26 The digital revolution has also created an entirely new domain – cyberspace – through which States and non-State actors now vie for advantage, to achieve effects both in the physical world and in the incorporeal realm of bits and bytes.Footnote 27
Meanwhile, the conditions that compelled States to adopt the Cultural Property Convention in the first place persist; armed conflict remains a grave threat to cultural property around the world. In an age of digital creation and reproduction, determining whether digital material might also constitute cultural property – that is, digital cultural property – entitled to the same protections as its physical analogues has emerged as an increasingly relevant consideration.
The first step to determining how the Cultural Property Convention applies to digital material is understanding how the Convention protects traditional forms of cultural property. Works created and duplicated digitally are unlike those devised from tangible materials. They exist in time and space differently than physical objects and, arguably, are valued differently as well. Despite these contrasts, the law of armed conflict appears to protect digital cultural property to the same extent as more conventional, more broadly accepted forms of tangible cultural material.Footnote 28 Rule 142 of the Tallinn Manual 2.0 states unequivocally: “The parties to an armed conflict must respect and protect cultural property that may be affected by cyber operations or that is located in cyberspace. In particular, they are prohibited from using digital cultural property for military purposes.”Footnote 29
The Cultural Property Convention envisions the protection of cultural property as comprising two main components: the safeguarding of cultural property by territorial States, and respect for such property by both territorial States and those engaged in armed conflict with them.Footnote 30 With regard to safeguarding, Article 3 of the Convention provides that States are required to safeguard cultural property located in their territory against the foreseeable effects of an armed conflict.Footnote 31 Article 3, however, does not mandate what measures a State must implement. Rather, it specifies only that States must “tak[e] such measures as they consider appropriate”.Footnote 32 Article 5 of the 1999 Second Protocol to the Cultural Property Convention (Second Protocol), on the other hand, does define certain preparatory measures to safeguard cultural property, including the “preparation of inventories”.Footnote 33 Even for States not party to the 1999 Second Protocol, the illustrative examples outlined in Article 5 can help inform how States safeguard cultural property.
Inherent in the notion of safeguarding – and implied in Article 5 of the Second Protocol – is the identification of relevant cultural property. As Roger O'Keefe has observed, “the measure sine qua non that a Party can and should take in pursuance of the obligation laid down in article 3 is the identification of the property in question”.Footnote 34 Determining what constitutes cultural property is explored in more detail in the following section below.
Notification can also be crucial to safeguarding. Once a State has identified the cultural property located in its territory, effective safeguarding should reasonably include notifying others of the nature and location of the designated property.Footnote 35 The Cultural Property Convention, however, does not stipulate how States can or should notify other States in advance of armed conflict, and in practice, few States regularly disseminate detailed information about their cultural property.Footnote 36 As UNESCO's Protection of Cultural Property Military Manual (UNESCO Manual) explains,
[t]he challenge for military planners and forces in the field is that almost no state party to the 1954 Convention indicates explicitly, for the benefit of potential parties to an armed conflict on its territory, all the precise objects, structures and sites that it deems “cultural property”.Footnote 37
While the UNESCO Manual suggests that an opposing State could consult an adversary's “register of national cultural heritage or similar domestic legal or administrative inventory” to ascertain what the territorial State considers cultural property, it also recognizes that accessing these registers and inventories “may prove difficult for military planners and impossible for forces in the field”.Footnote 38 Under Article 7 of the Cultural Property Convention, States are expected to incorporate cultural property “services or specialist personnel” into their armed forces, and access to this expertise could help.Footnote 39 Nevertheless, a State's formal communication of its cultural property to others would be more definitive than expecting armed forces to rely on external sources and a degree of conjecture to identify an opposing State's cultural property.
Alternatively, a State could mark cultural objects to identify them as cultural property. The Cultural Property Convention provides for the physical marking of cultural property with the Convention's distinctive emblem, but such marking is not obligatory and, in some cases, may be undesirable.Footnote 40 For example, affixing the Convention's blue and white shield to a work of art or cultural artifact – a handscroll, painting or sculpture, for instance – could be impractical or aesthetically unappealing.Footnote 41 Moreover, relying on visual markings alone to secure the protections of the Convention, rather than on timely and detailed notifications to States, is risky. Modern targeting often occurs outside visual range, increasing the likelihood that cultural property might be inadvertently damaged or destroyed by an opposing force.Footnote 42 Of more immediate consequence, as the UNESCO Manual states, is the reality that “in practice no state affixes the emblem to every item of its cultural property, and most states do not use the emblem at all”.Footnote 43
In the absence of a declaration by a State attesting to its cultural property – such as a published list – or the marking of all such property with the distinctive emblem of the Convention, it is unlikely that an opposing State could know definitively what moveable and immovable property the territorial State considers cultural property.Footnote 44 States are nevertheless obligated under Article 4 to respect cultural property in armed conflict whether or not it has been previously identified or marked.Footnote 45 Article 4(5) provides:
No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3.Footnote 46
To satisfy its Article 4 obligations, then, an opposing State may be forced to assume by default the responsibility for determining what constitutes cultural property in a territorial State.Footnote 47 Under these circumstances, what must an opposing State and its military planners and forces in the field do to identify the requisite cultural property?
What is cultural property?
The Cultural Property Convention's definition
Article 1 of the Cultural Property Convention defines “cultural property” to include, irrespective of origin or ownership,
(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;
(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);
(c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as “centres containing monuments”.Footnote 48
As defined in Article 1, the term “cultural property” bears a legal meaning particular to the Convention and its protocols.Footnote 49 The definition established in Article 1, however, also frequently serves as a starting point for evaluating cultural property more broadly in armed conflict.Footnote 50 The US Department of Defense Law of War Manual, for example, provides: “‘Cultural property’ is a term of art that is defined in the 1954 Hague Cultural Property Convention.”Footnote 51 The Air and Missile Warfare Manual adopts the Cultural Property Convention's definition virtually verbatim.Footnote 52 Meanwhile, the Tallinn Manual 2.0 states that the definition in Article 1 “reflects customary international law”.Footnote 53
Earlier codifications, such as the 1907 Hague Regulations, conceived of cultural property more expansively.Footnote 54 For example, Article 27 of the 1907 Hague Regulations required that
[i]n sieges and bombardments all necessary steps must be taken to spare as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.Footnote 55
Meanwhile, Article 56 prohibited seizing, damaging or destroying property belonging to “institutions dedicated to religion, charity and education, the arts and sciences”, as well as historic monuments and works of art and science.Footnote 56
In formulating the Cultural Property Convention's definition, the Convention's drafters sought to avoid prescribing an over-inclusive and potentially impracticable definition of cultural property.Footnote 57 Accordingly, they abandoned the 1907 Hague Regulations’ broad conception of cultural property for what they believed was something more manageable. O'Keefe writes:
The unchallenged assumption was that it was unrealistic to hope to protect every building dedicated to religion, art, science or charitable purposes, every historic monument, and every work of art in the event of armed conflict. What was wanted was a convention of narrower application, so as to render feasible a higher standard of protection.Footnote 58
As adopted, Article 1(a) of the Cultural Property Convention recognizes “movable or immoveable property of great importance to the cultural heritage of every people” to be cultural property.Footnote 59 Significantly, the phrase “of great importance to the cultural heritage of every people” has been interpreted to mean “of great importance to the national cultural heritage of each respective Party” rather than to “all people collectively”.Footnote 60 Therefore, the onus is on individual States to identify the objects located in their territory that constitute national cultural heritage. If done so reasonably and in good faith, consistent with prevailing rules of treaty interpretation,Footnote 61 such national heritage can be assumed also to be “of great importance for all peoples of the world” and, consequently, part of the world's cultural heritage.Footnote 62 The question of what objects are of the greatest importance to humanity – and are, therefore, potentially entitled to additional protection under the Second Protocol's enhanced protection regime – is a separate matter that lies outside the scope of this article.Footnote 63
It should also be noted that the terms “cultural heritage” and “cultural property” are not synonymous. While the relationship between the two has been historically vague, more recent developments have helped clarify the differences between these related ideas.Footnote 64 In general, cultural heritage is a broader concept that encompasses both cultural property and non-material elements of culture, such as oral traditions, musical traditions, and rituals or ceremonial practices.Footnote 65 Moreover, because cultural heritage epitomizes aspects of culture that a society considers valuable, and because cultural heritage is non-renewable, it has sometimes been described as “a form of inheritance” that must be kept safe and handed down to future generations.Footnote 66
A recognition that non-material elements could constitute cultural heritage is evident in Article 2 of the Convention for the Safeguarding of the Intangible Cultural Heritage. Article 2 of the Convention defines “intangible cultural heritage” to mean “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.”Footnote 67 Accordingly, cultural property may be considered a subset of material within the broader umbrella of cultural heritage.Footnote 68 Importantly, as defined in Article 1 of the Cultural Property Convention, cultural property is not intended to include all cultural heritage.
States’ obligation to protect cultural property
As discussed above, notification and marking are not specifically required under the Cultural Property Convention, but the absence of notification or marking does not relieve a belligerent State of the obligation to respect cultural property in time of armed conflict. Article 1, however, may serve as a guide to identifying another State's cultural property – at least with respect to tangible objects. A belligerent State obligated to respect the cultural property of a State that has not notified others of the identity or location of its cultural property, or otherwise marked such property with the Convention's protective emblem, could discharge its obligations under Article 4 by nevertheless treating all moveable and immoveable property, buildings and centres outlined in Article 1 as “cultural property”. In other words, as O'Keefe has suggested,
the safest course is to err on the side of caution and simply to presume that every example of the sorts of cultural property outlined in [Article 1] … is of great importance to the cultural heritage of the territorial Party and is therefore protected by the Convention.Footnote 69
In the context of digital cultural property, however, the presumption that O'Keefe proposes would likely prove unworkable. Digital works are so qualitatively different from tangible works that relying on Article 1 by default would be futile. Instead, protecting digital cultural property in time of armed conflict will require a greater emphasis on States’ peacetime obligation to safeguard cultural property – through notification and marking – in advance of armed conflict. Expecting a belligerent State's armed forces to ascertain what digital material comprises its adversary's national cultural heritage makes little sense given the nature of creation and reproduction in digital mediums.
What is digital property?
Determining what digital material appropriately qualifies as cultural property presupposes that at least some digital material can, as a matter of law, be considered cultural property to begin with. This conclusion is not an immediately obvious one, though the weight of international opinion appears to favour this view.Footnote 70 At present, no State has formally designated digital content to be of great importance to national cultural heritage, but the need to safeguard digital cultural property – however that may be defined – is clearly an emerging concern.Footnote 71 As already mentioned, Rule 142 of the Tallinn Manual 2.0 specifically addresses the requirement that States respect and protect cultural property which may be affected by cyber operations or is located in cyberspace.Footnote 72 The commentary to Rule 142 reveals, however, that the International Group of Experts which drafted the Manual was split on the question of whether “intangible items could qualify as ‘property’ for law of armed conflict purposes”.Footnote 73 This divergence of opinion is indicative of the uncertainty regarding what should and should not qualify as digital cultural property.
Some members of the International Group of Experts believed that cultural property must be tangible and that intangible items, like data, do not qualify.Footnote 74 These experts argued that in formulating the Tallinn Manual 2.0's Rule 100 on “Civilian Objects and Military Objectives”, the group generally rejected characterizing intangible material as “objects”.Footnote 75 In the commentary to Rule 100, the Tallinn Manual 2.0 states: “The meaning of the term ‘object’ is essential to understanding this and other Rules found in the Manual. An ‘object’ is characterised in the ICRC [International Committee of the Red Cross] Additional Protocols 1987 Commentary as something ‘visible and tangible’.”Footnote 76 Accordingly, a majority of the International Group of Experts determined that “the law of armed conflict notion of ‘object’ is not to be interpreted as including data, at least in the current state of the law”.Footnote 77 The commentary further explains that “[i]n the view of these Experts, data is intangible and therefore neither falls within the ‘ordinary meaning’ of the term object, nor comports with the explanation of it offered in the ICRC Additional Protocols 1987 Commentary”.Footnote 78 Based on this analysis, some of the International Group of Experts concluded that cultural property must be tangible and therefore does not encompass digital material.Footnote 79
Other members, however, determined that intangible items could be cultural property so long as the items were cultural in nature.Footnote 80 Reasoning by analogy, these experts pointed out that other intangible material, such as intellectual property, has been widely recognized as “property” under international law and many domestic legal systems.Footnote 81 Accordingly, cultural heritage need not manifest physically to qualify for protection as cultural property.Footnote 82
As mentioned above, Rule 142 of the Tallinn Manual 2.0 approaches the duty to safeguard and respect cultural property in the event of armed conflict from the narrower perspective of “cultural property” rather than “cultural heritage”. While this approach may seem reasonable given the Cultural Property Convention's particular use of the term “cultural property”, some might argue that the Manual's emphasis on “property” rather than “heritage” is misguided.Footnote 83 Some scholars have asserted that “the existing legal concept of ‘property’ does not, and should not try to, cover all that evidence of human life that we are trying to preserve”.Footnote 84 Moreover, the concept of ownership implicit in the notion of property is contrary to the goals of preserving and protecting a common or shared heritage.Footnote 85 Others have even suggested that “cultural property” should be considered a fourth category of property law – in addition to real property, personal property and intellectual property – because the existing categories do not account for important types of (intangible) heritage material, such as oral traditions, performing arts, rituals and ceremonies.Footnote 86
As a matter of legal interpretation, treating digital material as a species of intangible “property”, rather than excluding all such material from protection under the Cultural Property Convention because intangible material cannot be “objects”, appears to be the stronger approach. In defining cultural property, Article 1(a) of the Cultural Property Convention provides a non-exclusive list of examples of the types of “movable and immovable property of great importance to the cultural heritage of every people”, leaving open the possibility that at least some intangible material could fall within the ambit of the Convention. While the idea of culture as property may be problematic – because of property's association with ownership and commercial value, among other things – and perhaps antiquated by contemporary standards, the Tallinn Manual 2.0's interpretation of property at least expands the concept of cultural property in a manner consistent with the evolving understanding of cultural heritage.Footnote 87 Ultimately, Rule 142's acknowledgment that non-material culture may be entitled to protection under the lex specialis of armed conflict – albeit under the rubric of property – reflects an appreciation for the broader goals of heritage preservation as referred to in the Convention for the Safeguarding of the Intangible Cultural Heritage and other sources.
Types of digital material
The conclusion that digital material may constitute cultural property is legally significant. If some digital material may be considered cultural property, then States must safeguard and respect it to the same extent as tangible cultural property in the event of armed conflict. Applying the Cultural Property Convention's definition of cultural property to digital material, however, presents a challenge. Because digital material is so fundamentally different from physical objects – in terms of creation, identification and reproducibility, for example – digital items do not fall neatly within the categories of items outlined in Article 1 of the Convention, nor can they be easily analogized to tangible cultural artifacts. How, then, should States determine what digital items constitute cultural property? And how should military commanders treat potential digital cultural property in the absence of notification or marking by the State in which the digital material is situated?Footnote 88
The commentary to the Tallinn Manual 2.0 offers some discussion of what material might qualify as digital cultural property, but whether the parameters the commentary establishes appropriately describe how digital cultural property should be understood is open to debate.Footnote 89 An international consensus has yet to coalesce around the nature of digital cultural property, and given the unsettled state of the subject, the commentary to Rule 142 must be read with caution, at least as it pertains to the characterization of digital cultural property.Footnote 90 To date, none of the State expressions on international law and cyberspace have addressed cultural property, and the discussion to Rule 142 further highlights some of the uncertainty surrounding the concept of digital cultural property.Footnote 91 As the means to create, reproduce, alter and destroy digital heritage accelerate, a clearer conception of what constitutes digital cultural property is needed to ensure that States fulfil their obligation to safeguard and respect digital material in the event of armed conflict.
The Tallinn Manual 2.0's discussion of Rule 142 alludes to two general categories of digital material: (1) original digital works and (2) digital copies of original physical works. The commentary suggests that original digital works include both novel creations devised in a digital medium and cultural information generated and stored in digital form. This article will use the terms “born-digital material” and “original digital works” interchangeably to describe both types of new works. By comparison, digital copies of original physical works include photographs as well as encoded information from sources that could be used to replicate physical objects, such as building plans and maps.Footnote 92 This article will refer to these types of copies as “digital surrogates”. The following subsections briefly examine both born-digital material and digital surrogates as distinct species of digital material.
Born-digital material
To distinguish between originals and copies, some sources refer to original digital material of the type contemplated by the Tallinn Manual 2.0 as “born-digital”.Footnote 93 The Oxford English Dictionary defines “born-digital” works as those “created in digital form, rather than converted from print or analogue equivalents”.Footnote 94 UNESCO similarly states that born-digital heritage “results from an ‘all-digital’ process of initial production, the message being digitally encoded at the moment of its creation”.Footnote 95 What distinguishes “born-digital” from “created-digital” material, therefore, is that born-digital works are new works executed in a digital medium, not copies created digitally to replicate something that already exists. For example, the digital artist Beeple's work Everydays – The First 5000 Days consists of a collage of images generated as a JPG file.Footnote 96 It is a born-digital creation. In contrast, a high-resolution copy of the Mona Lisa would be a created-digital work.
As defined, born-digital content could include a wide spectrum of material. The Tallinn Manual 2.0 seems to acknowledge this by providing a range of examples, from works of artistic expression to government bureaucratic records. The commentary to the Manual, however, does not further distinguish between various types of born-digital material. In addition to original creative works, born-digital material could include data recorded and stored digitally – what this article will refer to as “digital data”. Differentiating between these subsets of born-digital material could prove helpful to conceptualizing what digital creations can appropriately be considered digital cultural property, and why they should be regarded as such.
The commentary asserts that intangible property which is cultural in nature could include “objects that are created and stored on a computing device and therefore only exist in digital form, such as musical scores, digital films, documents pertaining to e-government, and scientific data”.Footnote 97 Here, the commentary appears to be referring exclusively to born-digital material rather than created-digital works. Indeed, the commentary specifically rejects the idea that “a single extremely high-resolution image of Leonardo da Vinci's Mona Lisa, comprising a terabyte of information”, could be protected as an original digital work, even if the original painting were later destroyed, leaving only the digital copy.Footnote 98 The commentary's disinclination to recognize a digital facsimile as an original work, however, does not mean that such material is ineligible for protection as digital cultural property. Instead, the commentary suggests that digital reproductions could be protected under a different category of material – that is, digital surrogates – which is addressed in more detail below.
However, the commentary's recognition that “documents pertaining to e-government” and “scientific data” may be entitled to protection as born-digital cultural property suggests that the significance of born-digital material is not merely a function of uniqueness or the limited production of copies. Digital documents and scientific data may be analogous to the “manuscripts, books and other objects of artistic, historical or archaeological interest” and the “scientific collections and important collections of books or archives” outlined in Article 1(a) of the Cultural Property Convention.Footnote 99 The present article takes an approach similar to the UK National Archives and distinguishes between “digital originals” and “digital data”.Footnote 100 While both classes of material are born-digital, they are conceptually different. Understanding why the Cultural Property Convention recognizes the protection of physical books and archives, and why the Tallinn Manual 2.0 acknowledges the need to protect digital data, can help us appreciate why some digital material that has been widely copied might nevertheless be entitled to protection as digital cultural property.
Digital surrogates
In addition to born-digital material (both digital originals and digital data), the commentary to Rule 142 recognizes that digital copies of original physical works – what this article will refer to as “digital surrogates” – could also qualify as digital cultural property. As the commentary explains, some members of the International Group of Experts believed that “[c]ertain copies of objects of which a physical manifestation exists (or has existed) that can be used to create replicas also qualify as cultural property”.Footnote 101 The commentary states:
No member of the International Group of Experts taking this position asserted that all digital manifestations of cultural property are entitled to protection of this Rule. Protection only 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.Footnote 102
Accordingly, the hypothetical high-resolution copy of the Mona Lisa that would not qualify for cultural property protection as a born-digital work could nevertheless be entitled to protection as a digital surrogate.Footnote 103 The Tallinn Manual 2.0 explains, however, that “due 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”.Footnote 104
Notably, the Tallinn Manual 2.0 focuses on the extent of replication rather than the quality of the reproduced material.Footnote 105 For some scholars, copy quality is critical to evaluating the importance of digital reproductions. Eugene Ch'ng, for example, distinguishes between what he calls “surrogates” and “true facsimiles”.Footnote 106 Ch'ng characterizes “surrogates” as “pointers to the original copy and therefore good only for public appreciation”.Footnote 107 He explains that “surrogates” are generally of lower quality, with smaller file sizes, than “true facsimiles”, in order to make them more viewable on the internet.Footnote 108 (Note that Ch'ng's use of the term “surrogates” differs from the term “digital surrogates” as used throughout this article.) For Ch'ng, therefore, the existence of “surrogates” and their widespread replication and dissemination would not necessarily negate the value of a “true facsimile”. Instead, his concern is with preserving the importance of what he calls the “First Original Copy” – that is, “any first true 3D facsimile of a digitally reproduced physical object” – regardless of how many copies exist or might be produced in the future.Footnote 109
Unlike Ch'ng, who is comfortable with the digital reproduction of heritage objects and works of art, the Tallinn Manual 2.0's discussion of both born-digital originals and digital surrogates evinces a strong preference for original works, whether initially created digitally or in a tangible medium. As discussed in the commentary to Rule 142, recognition as digital cultural property is closely tied to a work's uniqueness as an original or, to a lesser extent, to the ability to limit its reproduction. But why the emphasis on preserving originals over copies? Is the Tallinn Manual 2.0's preoccupation with originals an anachronism in an Age of Digital Reproduction?
Digital works versus physical works
Physical artifacts have long been valued by human societies.Footnote 110 Original creations were prized above copies because, as Benjamin argued, originals were believed to possess attributes of aura and authenticity – characteristics associated with a physical existence. Given the traditional allure of aura and authenticity, and the historic predilection for original works, the Tallinn Manual 2.0's preference for originals over copies may be understandable. However, the Manual's focus on preserving original examples rather than the cultural information that those works convey is worth reconsidering given the realities of digital technology. Older notions of aura and authenticity and their paramount expression in original physical works do not translate cleanly to works in digital mediums. The primacy of original examples and the significance of aura and authenticity, which already began to be questioned with the development of mechanical reproduction, arguably mean even less with respect to digital creations.
Aura and authenticity of physical creations
The discovery of handmade artifacts in ancient human graves indicates that physical objects could hold great significance to early human societies.Footnote 111 While it is unclear why certain artifacts were interred with the dead, their presence suggests they were meaningful.Footnote 112 The state of a 28,000-year-old burial site in Sungir, Russia, is illustrative. In it, three bodies were discovered dressed in clothes interwoven with more than 3,000 ivory beads.Footnote 113 The bodies were also adorned with carved pendants, bracelets and shell necklaces.Footnote 114 Two of the bodies – both juveniles – were further flanked by mammoth tusks, each over two yards long, which had been meticulously straightened through a process likely involving boiling.Footnote 115 The amount of time and effort needed to prepare these bodies for burial would have been considerable; by some estimates, fashioning the ivory beads alone would have consumed nearly 3,000 hours of labour.Footnote 116 In light of the effort invested in the burials, the sociologists Neil Fligstein and Doug McAdam have argued that the creators of the site must have possessed “an extraordinary capacity for coordinated, meaningful, symbolic, collaborative activity”.Footnote 117 They contend that “the ritual act encoded in the interment was clearly full of shared meaning for those involved”.Footnote 118
The world's earliest stories, recorded thousands of years later, confirm how highly prized material objects could be. In the Epic of Gilgamesh, the world's oldest extant long poem, the story's eponymous hero mourns the death of his dearest friend Enkidu by ordering the creation of a lavish funeral statue and filling Enkidu's grave with opulent grave goods.Footnote 119 Ancient Greek epics similarly featured material objects in abundance. For example, Homer dedicates an entire book of the Iliad to the tale of the crafting of Achilles’ shield.Footnote 120
For Benjamin, original works such as the Mona Lisa possess an aura and authenticity that reproductions could never have. Benjamin contends: “Even the most perfect reproduction of a work of art is lacking in one element: its presence in time and space, its unique existence at the place where it happens to be.”Footnote 121 Original physical works may be distinguishable from copies for a variety of reasons; for example, they may be created from particular material, such as a specific metal alloy, stone from a localized area, or unique pigments fashioned into paints. These objective physical characteristics can help to distinguish original works from their copies. Alternatively (or in addition), the aura of original works may set them apart from less authentic reproductions, even those of the highest quality, crafted from identical materials. As Charles Cronin observes:
We revere the Parthenon not only for its aesthetic and historical values but also because the building and its decoration are very old. We cherish, in a manner akin to ancestor worship, the fact that objects we behold today were touched over 2000 years ago by individuals of an ancient civilization that profoundly affected the development of our own.Footnote 122
Additionally, Cronin notes, an object's aura may be enhanced by the identity of its creator.Footnote 123 In 2017, for example, a conservator at the Nelson-Atkins Museum of Art in Kansas City discovered a grasshopper embedded in the paint of Vincent van Gogh's 1889 work Olive Trees.Footnote 124 The director of the museum commented: “Looking at the image of this grasshopper, one can readily imagine Van Gogh struggling with wind, dust, and insects as he created Olive Trees.”Footnote 125 Accordingly, an expert copy of a work that perfectly reproduces its form, texture and visual effect could never capture the aura and authenticity of the original because it never endured the same history, nor inhabited the same space, as its archetype.
Benjamin recognized, however, that by enabling the mass production of identical copies, mechanical reproduction threatened to undermine our appreciation of aura and authenticity, and in so doing, radically alter our relationship to original works.Footnote 126 Throughout history, original creations have always been copied – either by students to practice their craft, by artists to disseminate their works, or by opportunists seeking financial gain.Footnote 127 Mechanical reproduction, on the other hand, represented something new and more disruptive.Footnote 128 The philosopher Paul Valéry perceived this as well. In his 1928 essay “The Conquest of Ubiquity”, Valéry observed that “profound changes are impending in the ancient craft of the Beautiful”.Footnote 129 He explained:
In all the arts there is a physical component which can no longer be considered or treated as it used to be, which cannot remain unaffected by our modern knowledge and power. For the last twenty years neither matter nor space nor time has been what it was from time immemorial. We must expect great innovations to transform the entire technique of the arts, thereby affecting artistic invention itself and perhaps even bringing about an amazing change in our very notion of art.Footnote 130
Reproduction degrades the aura and authenticity of originals by displacing them from time and space.Footnote 131 Because reproductions do not share the same provenance, nor are they experienced in the same location, as original works, “the technique of reproduction detaches the reproduced object from the domain of tradition”.Footnote 132 Visiting the Parthenon in Athens, for example, is wholly different from visiting its replica in Nashville, Tennessee.Footnote 133 Every reproduction of the Mona Lisa – in art books, on posters and on tote bags – dissipates the aura of the original. Reproduction, however, also emancipates art by removing it from what Benjamin called its “parasitical dependence on ritual”.Footnote 134 The existence of a copy can make art more accessible; the proliferation of copies even more so. As Benjamin remarked, a reproduction “enables the original to meet the beholder halfway”.Footnote 135 Accordingly, the Mona Lisa can be enjoyed from the comfort and convenience of one's home without the need ever to visit the Louvre.Footnote 136
Benjamin also argued that the mechanical reproduction of works – in new formats, such as photography and film – changed how we appreciate the aura and authenticity of original works, and in so doing, transformed how we value art.Footnote 137 When a work of art can be reproduced in identical form and in limitless numbers, authenticity becomes meaningless. No single print from the same photographic negative, for example, is any more “authentic” than another.Footnote 138 Consequently, while the reproduction of original works may make art more accessible, mechanically reproduced works convey no aura and retain no authenticity. In this context, the relevance of originals is lost.
It should be noted that the terms “reproduce” and “reproduction” are often used to mean slightly different things, and the metaphysical – and legal – implications of “reproducing” a work could change depending on which meaning is intended. Sometimes “reproduce” is used to mean “[t]o bring again into material existence; to create or form (a person or thing) again”.Footnote 139 For the purposes of this article, a work reproduced in this sense is produced or created again, like a photograph produced from a negative or a digital work that is executed when its digital file is run. Alternatively, “reproduce” could mean “[t]o produce again in the form of a copy; to replicate (a work of art, picture, drawing, etc.), esp. by means of engraving, photography, scanning, or similar digital or mechanical processes”.Footnote 140 Throughout this article, a work “reproduced” in this sense is something that exists as a copy or replica of something else. A photograph or a 3-D digital scan of an extant work, therefore, would be a reproduction in the sense of a copy, replica or duplicate. Wherever possible, this article will attempt to clarify which meaning is intended.Footnote 141
Inapplicability of aura and authenticity to digital creations
Like works reproduced through mechanical means – both in the sense of being recreated and being copied – digital creations ostensibly cannot possess aura or authenticity. Stored as code, each version of a digital work is produced in its original form every time its digital file is executed.Footnote 142 Consequently, no version (or every version) of a digital work can be easily identified as the original.Footnote 143 As the Tallinn Manual 2.0 anticipates, some digital works will undoubtedly come to be regarded as cultural property.Footnote 144 In light of States’ obligation to safeguard and respect cultural property, how will States determine whether a work that may have been recreated constitutes protected digital cultural property?
Before addressing this question, it is important to evaluate the different standards that the Tallinn Manual 2.0 applies to born-digital material and digital surrogates. As discussed in the above subsection on “Types of Digital Property”, several members of the International Group of Experts believed that born-digital material and digital surrogates could be cultural property.Footnote 145 With respect to digital surrogates, these experts insisted that not all digital copies of material identified as cultural property are entitled to protection under Rule 142.Footnote 146 The commentary to Rule 142 states: “Protection only 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.”Footnote 147
This interpretation raises a number of concerns. First, as stated in the aforementioned subsection above, the Tallinn Manual 2.0's approach seems to preclude the possibility that reproductions of physical objects (a digital photograph, for example, or a 3-D scan of a cultural object) could be protected as original works themselves – in other words, as born-digital material. Accordingly, the commentary conditions the protection of digital surrogates on the non-existence or inaccessibility of their physical exemplars.
Second, while specifying that protection only applies where the original is either inaccessible or destroyed, the commentary does not explain what “inaccessible” means or even why the inaccessibility or destruction of the physical original is relevant. The commentary's approach suggests that what is really being protected is the tangible cultural object – the physical creation imbued, as Benjamin asserted, with aura and authenticity – rather than the digital creation.Footnote 148 Certainly, a digital surrogate derives its cultural value by reference to a physical analogue, but if virtual objects can convey the same information – and, potentially, evoke the same responses in viewers – as physical objects, arguably they should be protected to the same extent as their referents, whether or not the tangible originals exist or are accessible in the physical world.Footnote 149 Moreover, if, as some have argued, objects are only important to the extent that they contain information which can be transmitted in other media, why does the Tallinn Manual 2.0 emphasize the primacy of the physical work over the information that a virtual object encodes?Footnote 150
Rule 142 clearly recognizes the cultural importance of digital surrogates; otherwise, the rule would not provide for their protection. However, it is not clear why digital surrogates – and the cultural information they convey – only become meaningful when the original works upon which they were based are lost.Footnote 151 Possibly, the Tallinn Manual 2.0 does not believe a digital surrogate could be “of great importance to the cultural heritage of every people” when the physical original still exists. Under this approach, “great importance” could only attach to a copy when the original has been compromised – that is, become inaccessible or been destroyed. This interpretation, however, discounts the Cultural Property Convention's apparent recognition that cultural information, regardless of the medium in which it is encoded, can possess a cultural significance entitling it to protection under the Convention's legal regime. It also precludes States, which are ultimately responsible for deciding what property in their territory is cultural property, from exercising their discretion to recognize digital surrogates of extant works as digital cultural property.Footnote 152 Accordingly, the Tallinn Manual 2.0's approach to digital surrogates may be more constrictive than the Cultural Property Convention's protective regime.
Digital material as cultural property
The inapplicability of aura and authenticity to digital works suggests that the preservation of digital cultural property is driven by something other than an interest in preserving original examples of works. By conceptualizing digital cultural property as cultural information, some significant works could be treated as digital data rather than as digital surrogates. These works could then be entitled to cultural property protection as born-digital material.
Protection of cultural information
Notably, the Cultural Property Convention provides for the protection of both culturally significant information and reproductions thereof. The Convention incorporates the protection of cultural information by mandating the protection of manuscripts and books of “artistic, historical or archeological interest”, and of “scientific collections and important collections of books or archives” regardless of their artistic, historical or archaeological interest.Footnote 153 The protection of libraries and archives could be understood as being more broadly related to the preservation of human knowledge.Footnote 154 As depositories of learning and experience, these collections serve as records of encoded information.
Arguably, digital surrogates serve a similar function. As Fiona Cameron notes, digital reproductions carry information about an original object's “form, fabric, shape, aesthetics, and history through interpretation”.Footnote 155 Cameron further argues:
In creating a surrogate, the gestures, memories, customs and intentions, and scars of [the original objects’] life histories are faithfully replicated in virtual space taking on the solidity, surfaces, edges, and texture of the real to ensure a more certain recovery of history, time, or aesthetic experience.Footnote 156
Digital surrogates, then, could potentially deserve protection as records of cultural information, regardless of the availability or accessibility of the original physical artifact. Instead of being viewed as digital surrogates, they could instead be understood as digital data, a type of born-digital material, entitled to its own protection under Rule 142.
Protection of reproductions
Another argument could be made, however, that digital surrogates merely deserve the same protections already afforded to reproductions under the Cultural Property Convention. The Convention provides that in addition to the examples of movable and immovable property described in Article 1, reproductions of the property outlined in Article 1(a) also constitute cultural property.Footnote 157 When the question of reproductions was debated in the Main Commission of the Intergovernmental Conference on the Convention, the French delegate argued that
it was more than ever necessary to preserve reproductions of essential works of art, whether in museums or other places, so that future generations would at least have the opportunity of seeing photographs of such works if the originals had been destroyed.Footnote 158
Notably, the protection of these reproductions is not incumbent on the destruction or inaccessibility of the original works. Consistent with this outcome, the protection of digital surrogates arguably should not depend on the existence or availability of their physical counterparts.
It is unclear why the commentary to Rule 142 conditions protection on the ability to limit the number of digital copies that can be made. When the issue of reproductions was debated at the Intergovernmental Conference, photography – a form of mechanical reproduction – was the contemplated method of duplication.Footnote 159 Despite the relative ease of producing photographic copies, the Cultural Property Convention contains no limitation on the number of copies that could be produced. Why, then, is the ability to limit the creation of digital copies a consideration for the protection of digital surrogates? The commentary to Rule 142 contends that the reason is related to uniqueness and value. The commentary states:
[D]ue 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. This is because protection of cultural property is afforded based on the value and irreplaceability of the original work of art, and on the difficulty, time, and expense involved in reproducing faithful copies of that original. The logic underlying this Rule does not apply in cases where large numbers of high-quality reproductions can be made.Footnote 160
This same logic, however, would seem to preclude the protection of born-digital material, even though the commentary clearly provides for its protection.Footnote 161 Born-digital creations are, by their nature, capable of being reproduced not just in large numbers, but also in versions of identical quality. Furthermore, unlike tangible cultural objects, “original” digital works possess no aura, authenticity or any other intrinsic characteristics capable of distinguishing them from copies. Cronin observes that “aura often determines the worth ascribed to an object as much as, if not more than, the combined value of the material of which it is composed and the intellectual effort invested in shaping it”.Footnote 162 Because digital creations possess no aura and comprise no physical material, valuable or otherwise, their worth is largely a reflection of their intellectual achievement. The value and significance that the Tallinn Manual 2.0 attributes to digital originals, then, is largely artificial unless the originals can be readily distinguished. Cronin asserts that “if, using unenhanced perceptive capacities, we cannot distinguish between an original artifact and a copy, it is irrational to prize the unknown original”.Footnote 163 In this context, valuing one digital version over an identical copy seems unwarranted.
Technological options for distinguishing digital cultural property
Direct indicators
One way to distinguish an original work from a copy would be to mark it. In the case of cultural property, the commentary to Rule 142 observes that use of the Cultural Property Convention's distinctive emblem would be appropriate for qualifying digital cultural property.Footnote 164 Currently, however, no formal digital marking equivalent of the Convention's distinctive emblem has been established.
In the absence of such an emblem, the commentary suggests that technological solutions such as “file-naming conventions, the use of tagging-data with machine-interpretable encoding schemes, published lists of IP addresses of digital cultural property, or generic top-level domain names” could be used instead.Footnote 165 A report produced for the United Kingdom's National Archives suggests that a single form of persistent identifier could be used to verify the authenticity of digital items among galleries, libraries, archives, museums and the commercial sector.Footnote 166 A similar form of identifier could conceivably be developed for digital cultural property as well. Alternatively, special digital watermarks could be used to distinguish specific versions of a work as a State's protected copy.
Ch'ng, meanwhile, has proposed that blockchain technology could be employed to identify and validate digital creations.Footnote 167 Although Ch'ng's proposal focuses on creating value for digital reproductions of tangible objects, his scheme could potentially be applied to record examples of digital cultural property.Footnote 168 Instead of using blockchains to identify the “First Original Copy” of cultural heritage artifacts, States could resort to blockchains to designate certain reproductions as digital cultural property.
Indirect indicators
Additionally, other technologies could be used as indirect indicators of cultural importance. For example, verifiable assets, such as non-fungible tokens (NFTs), are widely advertised as a way to differentiate versions of digital works. In the absence of marking or formal notification of a work's status by a State, verifiable assets could be used as indirect indicators of a digital work's cultural importance.
Created by private actors or institutions rather than States, indirect indicators would not carry the same authority as State-determined designations of digital cultural property, but they could be used to ascertain whether a work might be culturally important. In other words, the existence of indirect indicators, such as NFTs, while not dispositive, could serve as some evidence of a work's significance as digital cultural property. How might verifiable assets be used in this way?
NFTs use blockchain technology to create a unique identifying code that distinguishes a particular digital asset.Footnote 169 They essentially function as a certificate of authenticity and proof of ownership for a digital work.Footnote 170 Ownership of the certificate is recorded on the blockchain, which can be updated to reflect changes in the status of a work.Footnote 171 Like a physical certificate of authenticity, however, an NFT exists separate and apart from the work it represents. An NFT may contain basic information about the digital work, such as the title and name of the creator, but the work itself typically exists elsewhere on the internet, sometimes on multiple sites simultaneously.Footnote 172 To view the work, the owner of the NFT must access its digital file wherever it happens to be hosted online.Footnote 173 Ultimately, ownership of an NFT is nothing more than ownership of the NFT. It does not grant special or exclusive access to its associated work, and the work itself – whether in the form of a JPEG, GIF or other digital format – will generally remain accessible, in identical form, to the multitude of internet users interested in finding it.Footnote 174 This arrangement can be somewhat precarious. If, for example, the link to the work becomes broken or the file is removed from the designated domain, access to the work could be lost forever, including for the owner of the NFT.Footnote 175
Assigning an NFT to a digital creation can help capture at least some of the mystique and value more commonly associated with original physical works, but ultimately, NFT technology does not actually solve the conundrum of uniqueness, aura and reproducibility in digital formats. Digital works are essentially generated anew each time their code is run and theoretically can be reproduced (recreated) with exactness ad infinitum. This process of regular regeneration essentially shields them from the accretions of time. They are not subject to the vicissitudes of a physical existence in the same way that tangible objects are. They cannot be marked by the effects of weather or contact with human beings. They do not accrue patina. Accordingly, they cannot possess aura and authenticity in the same way as physical works, which exist differently in time and space.
An NFT's ability to signal an individual's special relationship to a work, however, has profoundly changed how the ownership of digital creations is perceived.Footnote 176 The minting of NFTs can promote a sense of scarcity for digital works, which in turn has enabled digital creations to be monetized and sold in a way more commonly associated with tangible goods.Footnote 177 Accordingly, digital creations that were once cheap or even free can now be bought, sold or exchanged as NFTs, much like physical goods – though, as noted above, an NFT is not synonymous with the work it represents.Footnote 178
NFTs have been minted for a broad range of digital creations, including YouTube videos,Footnote 179 video clips of NBA basketball games,Footnote 180 and internet memes.Footnote 181 Introduced in 2014, NFTs did not gain widespread attention until relatively recently, and growing interest in them has resulted in extraordinary prices for the assets.Footnote 182 In March 2021, for example, Jack Dorsey, the co-founder and CEO of Twitter, sold his very first tweet as an NFT for $2.9 million,Footnote 183 and Beeple's Everydays – The First 5000 Days sold at Christie's for $69 million, achieving the third-highest auction price for a living artist.Footnote 184
NFTs, however, can do more than merely transform a fungible item into a saleable non-fungible good. Unique information stored in an NFT's metadata, by either the work's creator or its owner, can enhance the perceived value of the asset.Footnote 185 A digital artist, for example, can add her signature to the NFT of a digital creation,Footnote 186 permanently linking the NFT to the artist in a unique and verifiable way.Footnote 187 As one commentator has observed, “[i]n the age of NFTs, downloading a picture is like owning a print. Having the NFT is like owning the original painting.”Footnote 188 Others have described ownership of NFTs as granting “digital bragging rights”.Footnote 189
Ultimately, however, analogizing the ownership of NFTs to the possession of original physical works is inexact and obscures fundamental questions concerning the nature of digital works and their protection in the event of armed conflict. While the potential to authenticate and record the provenance of digital works may have addressed a lingering concern within the art community, the availability of NFT technology has not necessarily resolved the question of how to treat digital material that may or may not constitute digital cultural property.Footnote 190 NFTs, though unique and distinguishable, are not themselves cultural objects that must be protected under the law of armed conflict. Meanwhile, because the digital files they link to remain susceptible to boundless copying, an armed force responsible for respecting and protecting cultural property must still determine how to treat such material. Accordingly, the existence of an NFT may be immaterial to the protection of digital cultural property. On the other hand, NFTs may serve as evidence that a work is considered important and, though perhaps not irreplaceable, that it should be treated as digital cultural property at least as a matter of default.
A proposal to protect digital cultural property in armed conflict
Rule 142 of the Tallinn Manual 2.0 is undoubtedly correct: digital cultural property, like more traditional, tangible forms of cultural property, is entitled to protection in the event of armed conflict. The commentary's approach to identifying what digital material should be afforded protection, however, reflects an older, perhaps outdated understanding of cultural property that ties priority of protection to economic factors such as scarcity and market value. Laudably, the Tallinn Manual 2.0's interpretation at least expands the protection of cultural property to some non-material forms of heritage, but the suggestion that protection is dependent on “value and irreplaceability”, rather than importance to national heritage, somewhat undercuts the text and purpose of the Cultural Property Convention.Footnote 191 Moreover, it discounts the impact that digital reproduction has had – or will have – on our conception of cultural property.
Certainly not all digital material – whether new creations or copies of extant works – can or should be protected as cultural property. As with tangible objects, the responsibility for determining, reasonably and in good faith, what constitutes cultural property should be left to States.Footnote 192 As discussed above, however, States rarely identify and notify other States of their cultural property prior to armed conflict.Footnote 193 While a territorial State's failure to identify and notify does not relieve an opposing State of the obligation to respect cultural property in armed conflict, expecting an opposing State to rely on Article 1 of the Cultural Property Convention by default to identify digital cultural property would be a mistake. The nature of digital material is too dissimilar to that of tangible works for Article 1 to serve as a useful and practical guide.
Instead, protecting digital cultural property will require States to clearly identify, possibly mark, and notify other States of the digital material they consider to be part of their national cultural heritage. Blockchain technology or other technological means could be used to record States’ designations of digital cultural property. The process of identification should include both born-digital material and digital surrogates, and identification should not be entirely dependent on the existence or accessibility of originals, or the existence of copies. Finally, if a digital equivalent of the Cultural Property Convention's distinctive emblem is ever adopted, States should be required to specifically mark their digital cultural property with the emblem so that other States can easily distinguish and respect such property in armed conflict.
Designating born-digital works as cultural property
As Valéry predicted, great innovations have transformed the process and product of artistic invention in the less than a century since his essay on art. Born-digital works, like physical artifacts of the past, have the potential to hold great cultural importance – that is, to be regarded as cultural heritage – for future generations. Accordingly, they deserve to be protected, too, and States should thoughtfully and deliberately identify the digital creations they regard as national cultural heritage.
Because a digital copy of a born-digital original could be indistinguishable from the original, identifying and specifically protecting the “original” work should be seen as unnecessary.Footnote 194 Instead, retaining a faithful digital reproduction of the work would suffice to preserve it for the future. Issues of materiality, aura and authenticity do not affect our appreciation of digital works in the same way as they do for physical works and therefore should not unduly influence our view of original digital works and their reproductions.
Designating digital surrogates as cultural property
As discussed in the above subsections on “Protection of Cultural Information” and “Protection of Reproductions”, some digital reproductions of physical works, like comparable physical reproductions, also deserve to be recognized as cultural property. Moreover, their protection should not necessarily depend on the existence or accessibility of the physical originals. As records of cultural information, like important collections of books and documents in a library or archive, some copies deserve independent protection as cultural property. Theoretically, copies that can be used to create replicas, on the one hand, and the replicas themselves, on the other, accomplish the same goal: preserving important information about a cultural object. Why, then, the difference in treatment?
Permitting States to designate some digital surrogates as cultural property, regardless of the existence of their physical counterparts, would provide a more coherent and transparent approach to digital cultural heritage preservation. Like the copies of essential works of art discussed at the Intergovernmental Conference on the Cultural Property Convention, these digital surrogates would preserve a simulacrum of the originals in case the originals were destroyed. Consequently, the Tallinn Manual 2.0's hypothetical one-terabyte, high-resolution image of the Mona Lisa might deserve protection as digital cultural property in its own right. Other digital copies of both movable and immovable cultural property, such as the 3-D scan of David created by the Digital Michelangelo Project or the data compiled by the Institute for Digital Archaeology to recreate the Triumphal Arch of Palmyra, might similarly be entitled to protection as cultural property.Footnote 195
Limitations on which copies qualify as protected cultural property may nonetheless be reasonable. Recognizing a limitation on protection based on the quality of the digital surrogate might be a more defensible approach than a limitation based on the availability of the physical archetype. After all, a high-quality “true facsimile” is a better encoder of cultural information than a low-quality copy. The Tallinn Manual 2.0, however, never expressly establishes reproductive quality as a criterion for the protection of digital surrogates. Ultimately, determining which digital surrogates comprise part of a State's national cultural heritage should be left to individual States to decide, consistent with the process for tangible cultural objects and born-digital material.
Marking of digital cultural property
Intangible, digital material is so fundamentally different from tangible objects that conditioning the protection of digital cultural property on whether it is an “original”, whether it is a copy, or whether many copies of it could be made makes little sense. Rather, attention should be focused on how best to preserve the heritage information encoded by a digital artifact, not how to preserve the “best” – that is, the only or the most authentic – version of the digital artifact. To achieve this, States should clearly designate one example of a digital work to be protected as cultural property, and clearly identify where it is located.Footnote 196 One way that States could register State-designated digital cultural property is through the use of blockchain technology; another would be to specifically mark such property. During armed conflict, only the State-designated example, whether a singular example or one of many copies of the work that exist, would be afforded all the protections granted to cultural property. Undesignated copies would not be entitled to the same protections.
Absent reliance on other technologies, the specific marking of protected digital examples could be used to put attackers on notice. Although no digital equivalent of the Cultural Property Convention's distinctive emblem exists, States could amend the Convention to include a new distinctive digital identifier for digital cultural property or otherwise adopt a special identifier. Article 39 of the Convention outlines the process for revising the treaty.Footnote 197 In accordance with Article 39, the new digital identifier could be added to Article 16 as an additional emblem of the Convention, and subsequent articles could be amended to provide for its use.Footnote 198
Alternatively, States need not formally amend the Cultural Property Convention to establish a unique digital identifier. For example, when a distinctive emblem for cultural property under enhanced protection was created, States did not resort to amending the 1999 Second Protocol itself. Rather, States established the new emblem and provided for its use by amending the guidelines governing the implementation of the Second Protocol.Footnote 199 A similar approach could be taken to designate a special digital identifier for digital cultural property. Absent the adoption of a distinctive digital identifier, other direct indicators, such as digital watermarks and persistent identifiers, could also be used to signify that a State has explicitly identified a digital work to be of great importance to its cultural heritage and, by extension, to the cultural heritage of the world.
Conclusion
The Cultural Property Convention begins by recognizing not only that cultural property has suffered grave damage in armed conflict, but also that “developments in the technique of warfare” have placed cultural property in “increasing danger of destruction”.Footnote 200 These observations remain applicable today, though perhaps in ways the drafters did not anticipate. The cultural property at risk in armed conflict now includes digital cultural property, and the means of warfare that have made such property vulnerable incorporate the use of cyber capabilities.
As an emerging and largely unfamiliar form of cultural heritage, digital cultural property is something of an enigma. Rule 142 of the Tallinn Manual 2.0 explicitly recognizes that States’ responsibility to respect and protect cultural property extends to digital cultural property, but how – and even to some extent why – States must safeguard digital works remains unsettled. Realizing the protective purpose of the Cultural Property Convention regarding digital cultural property will require States to consider and resolve as-yet undecided questions concerning the nature of digital works and the reasons why certain works should be preserved.
Undoubtedly, digital creations of great importance to the cultural heritage of every people deserve to be protected. These works, whether born-digital or created as digital surrogates, fall within the scheme of protection established by the Cultural Property Convention. The intangible nature of digital creations and their susceptibility to exact and prolific copying, however, demands that States play a more active and decisive role in identifying works they consider digital cultural property. The protection of cultural property requires not only that States respect cultural property, but also that they take measures to safeguard it in times of peace.Footnote 201 Should States fail to safeguard digital cultural property by identifying relevant works, notifying others of those works, and potentially marking them with a special identifier, the consequences for the world's cultural heritage in the next armed conflict could be grim – and, as the Cultural Property Convention reminds us, entirely foreseeable.
