A/HRC/58/60 right of access to and enjoyment of cultural heritage forms part of international human rights law, finding its legal basis, in particular, in the right to take part in cultural life, the right of members of minorities to enjoy their own culture, and the right of Indigenous Peoples to self-determination and to maintain, control, protect and develop cultural heritage. Other human rights must also be taken into consideration, in particular the rights to freedom of expression, freedom of belief and religion, the right to information and the right to education.62 25. Through its periodic resolutions 33/20, 37/17 and 49/7 on cultural rights and the protection of cultural heritage, the Human Rights Council has confirmed that the enjoyment of cultural rights, in particular the right of everyone to take part in cultural life, includes the ability to access and enjoy cultural heritage. It has underscored the importance of cultural rights in safeguarding cultural heritage and has requested the United Nations High Commissioner for Human Rights to advance efforts in this area. 26. The Special Rapporteur, together with her predecessors, considers that the right of access to and enjoyment of cultural heritage includes the right of individuals and communities to, inter alia, know, understand, enter, visit, make use of, maintain, exchange and develop cultural heritage, as well as to benefit from the cultural heritage and the creation of others. It also includes the right to participate in the identification, interpretation and development of cultural heritage, as well as the design and implementation of preservation and safeguarding policies and programmes.63 In her view, the time has come to label this right as a “right to cultural heritage”, one that encompasses not only access to and enjoyment of cultural heritage but also identification with and participation therein, as affirmed by the eleventh Summit of Southern Countries of the European Union, in its declaration on cultural rights (see para. 10, above). 27. This approach to and understanding of the right to cultural heritage applies both to digital and non-digital cultural heritage. There is no reason why the right to cultural heritage should be ignored in digitization and digitalization processes. 28. One major difficulty, for all types of cultural heritage, is to identify and recognize the varying degrees of access, enjoyment and participation based on the diverse interests of individuals and communities according to their relationship to specific cultural heritages. Notably, for Indigenous Peoples, participation must take the form of seeking free, prior and informed consent, as required by the United Nations Declaration on the Rights of Indigenous Peoples and the recognition of their right to self-determination. Other communities who are entitled to the right of self-determination will also enjoy free, prior and informed consent. In any case, everyone has the right to effective participation in matters relating to their cultural heritage. Implementation should also ensure accountability for and revisability of any decision-making relating to the digitalization of cultural heritage. 29. Despite the fact that the right to participate in all decision-making relating to one’s cultural heritage, including its digitalization, is an important element of cultural rights, it is too often reduced to a box-ticking exercise. The voice of source or guardian communities, particularly Indigenous Peoples, is taken away or is diluted by a majority of State officials, experts, academics and others, and their control over their cultural heritage is lost. Digital technologies often fail to consider Indigenous notions of ownership and custodianship, which are rooted in communal and intergenerational relationships rather than individual or institutional control.64 Therefore, States and public bodies must ensure that rights holders maintain their right to free, prior and informed consent (Indigenous Peoples) or to meaningful contribution to decision-making processes in all phases of digitalization, from its inception to its use once finalized. Governments should incorporate free, prior and informed consent into their domestic systems and ensure that penalties exist in case of violation. 62 63 64 GE.25-01705 Ibid., para. 78. Ibid., para. 79. Michael F. Brown, Who Owns Native Culture? (Cambridge, Massachusetts, Harvard University Press, 2003); and Kimberly Christen, “Does information really want to be free? Indigenous knowledge systems and the question of openness”, International Journal of Communication, vol. 6 (2012). 9