A/HRC/58/60 these communities to retain income-generation rights, while sharing data for academic and preservation purposes promotes cross-cultural understanding and knowledge development. However, current experiences show that data ownership is often contentious, as institutions rather than source communities frequently control digital data. 55. In some instances, the specific significance of local cultural heritage may not be accounted for in open access digital repositories. Materials that hold spiritual or ceremonial significance, such as sacred objects, traditional songs or Indigenous art, may be widely disseminated without proper restrictions or acknowledgment of their cultural importance. Researchers have highlighted that digital spaces, while beneficial, often privilege global accessibility over the more restricted and nuanced rules that govern access and knowledge-sharing about certain heritage assets for which secrecy might be the standard. Again, participation of the persons and communities concerned is key for them to benefit from the full potential of open access. H. Revising intellectual property protections to infuse a cultural rights approach 56. The digitalization of cultural resources – whether tangible or intangible – often creates legal ambiguities around intellectual property, raising questions of ownership, access and ethical use. 57. Cultural heritage belongs to the public domain, which is essential for enabling access to cultural works and fostering creativity, innovation and education. Works in the public domain are not subject to copyright. 58. In contrast, digital reproductions of heritage resources can be subject to new copyright claims, even when the originals exist in the public domain. By being protected by copyright, the owners of such digital products enjoy exclusive economic (e.g. reproduction and distribution) and moral rights, including the right to attribution and the right to object to derogatory treatment of the work, that apply for the life of the author plus a minimum of 50 years.78 This leads to a paradox, wherein the original works are freely accessible, while the reproductions are protected, creating new restrictions on access to and engagement with the digitized versions of the heritage resources. Depending on who has the rights to the digital reproductions, it may again lead to misappropriation and undue commercial exploitation of cultural heritage, especially when commercial partners are involved. It may also exacerbate historical power imbalances, particularly in decolonial contexts.79 59. It is possible to include some specific uses in copyright legislation that do not require the authorization of the copyright owner. These are known as limitations and exceptions to copyright. However, they must comply with the “three-step test”, which includes exceptions to copyright as follows: (a) in certain special cases; (b) when they do not conflict with the normal exploitation of the work; and (c) when they do not prejudice unreasonably the legitimate interests of the copyright owner.80 The three-step test can be used to allow certain non-commercial cultural uses, thereby supporting digitization for research and preservation purposes. The interpretation of the test should be guided by the cultural rights approach and it should be recognized that cultural resources have more than mere monetary value. Considerations should include not only the legal and economic interests of authors or copyright holders but also the cultural and social significance of heritage materials for the persons and communities that relate to it.81 However, the test is not always guided by the cultural rights approach. 78 79 80 81 GE.25-01705 Berne Convention for the Protection of Literary and Artistic Works, art. 7 (1). Paula Westenberger, “Digital culture, copyright and the orphan works issue: a view from Brazil”, in Law and Policy in Latin America: Transforming Courts, Institutions, and Rights, Pedro Fortes and others, eds. (London, Palgrave Macmillan, 2017), pp. 293–309. Berne Convention, art. 9 (2); and Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 13. A/HRC/28/57, paras. 75 and 76. 15