Intellectual Property Rights in Underwater Cultural Heritage Salvage and

Digital Reconstruction

Author - Tanushri (Advocate)

ABSTRACT

The maritime domain represents an unprecedented frontier of intellectual property

complexity where submerged cultural heritage exists at the complicated intersection of legal,
technological, and ethical dimensions. This work critically examines emerging challenges
surrounding intellectual property rights in underwater cultural heritage salvages and digital
reconstruction, exposing some fundamental legal and epistemological gaps in current
international frameworks. Through an interdisciplinary analysis, we deconstruct the intricate
ownership paradigms surrounding maritime artifacts, examining how digital technologies
challenge traditional ideas of cultural property. The authors highlight the disagreement
between commercial salvors, preservationists, and indigenous cultural rights, providing a
much more nuanced taxonomy of ownership beyond the typical legal boundaries. The
comparative case studies from international maritime archaeology contexts reveal how the
current IP frameworks are ill-suited to engage with the tortuous provenance of underwater
cultural artifacts; the result advocates for a new conceptual architecture incorporating
technological documentation, legal pluralism, and ethical restoration practices. Our
conclusions interrogate prevailing assumptions concerning IP while offering a means of
transforming cultural heritage into a contestation space, where meaning is negotiated. This
study intervenes significantly within maritime cultural studies, delivering a future-oriented
perspective into global heritage preservation.

INTRODUCTION

Underwater cultural heritage shall be pursued with preservation and protection, thereby
raising a matter of grave concern under international cultural property law. This has arisen
owing to technological advances making possible complex salvage operations and highly
intricate digital reconstructions of shipwrecked artifacts. The MARITIME
ARCHAEOLOGY-DIGITAL INNOVATIONS-INTELLECTUAL PROPERTY RIGHTS
(MARONTI) triangle presents distinct legal and ethical challenges for managing cultural
heritage. Foundational principles for the protection of submerged cultural heritage are
provided by the 2001 UNESCO Convention on the Protection of Underwater Cultural
Heritage which advocates, among other things, the preservation of underwater cultural
property situated as in situ, with scientific methodologies being employed in salvages
wherever adequate.1 In addition, digitization and Virtual Reconstruction of underwater
cultural heritage lead to questions around intellectual property and put a strain on multitude
claimants-individual, including salvage operators, archaeologists, digital creators, and source
nations-to provide competing claims over tangible artifacts and their digital duplicates in such
contexts. It is a challenge that becomes most striking in cases where commercial salvage
operations challenge cultural heritage preservation efforts; the case of R v. Secretary of State
for Culture and Sport is an illustrative example in which parallel interests came to be heard
by the court concerning the underwater cultural heritage management2. Article 303 of the
United Nations Convention on the Law of the Sea states that "States do have the duty to
protect objects of an archaeological and historical nature which are found at sea."3 However,
the convention does not address the intellectual rights dimensions regarding digitization yet
could have the same reason in plate actual cases like the one dealt with which made this all
publicly available through digital scan recordings, photogrammetry, virtual reality, etc.
Article 2(iii) of the European Convention on the Protection of the Archaeological Heritage
(Revised), i.e., the Valletta Convention further highlights the importance of non-destructive
investigation techniques that are in experimentation with digital record techniques.4

The emerging practice of digital reconstruction raises many complex questions of copyright
protection, database rights, and the moral rights of creators. According to Sarah Dromgoole,
author of 'Underwater Cultural Heritage and International Law', the digital documentation of
underwater cultural heritage sites results in new forms of intellectual property that may not
easily fit within traditional copyright frameworks.5 Added complications arise from a

1
UNESCO Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered
into force 2 January 2009) 2562 UNTS 1
2
R (on the application of Bacon) v Secretary of State for Culture and Sport [2020] EWHC 1197 (Admin).
3
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16
November 1994) 1833 UNTS 3, art 303
4
European Convention on the Protection of the Archaeological Heritage (Revised) (adopted 16 January 1992,
entered into force 25 May 1995) ETS 143
5
Sarah Dromgoole, Underwater Cultural Heritage and International Law (Cambridge University Press 2013)
consideration of indigenous peoples' rights and traditional custodianship of knowledge within
the scope of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Articles 11
and 31 which connoted that these peoples have the right to maintain, protect, and develop
their cultural heritage; while on the other hand, every work of new technological innovations
has enabled the construction of highly informative digital twins of underwater cultural
heritage sites through the Black Sea Maritime Archaeology Project (MAP).6 These digital
assets present issues of ownership rights, access rights, and commercial exploitation of
cultural heritage in the digital domain. The absence of authoritative and clear international
legal frameworks addressing the intellectual property rights of digital cultural heritage
projects makes stakeholders uncertain and poses grave threats to effective preservation and
management of underwater cultural heritage sites.

This study investigates the complex interplay among intellectual property rights, underwater
cultural heritage protection, and digital reconstruction technologies, in terms of the legal
frameworks, stakeholder interests, and possible solutions available to balance commercial
interests with cultural heritage protection in the digital age.

LEGAL AND ETHICAL COMPLIXICITY

The legal framework for intellectual property rights as applicable to underwater cultural
heritage salvage is multi-faceted. The basic tension arises between the commercial interests
of salvage companies and the cultural and heritage rights of other stakeholders7. While
member states of the 2001 UNESCO Convention on the Protection of Underwater Cultural
Heritage have been entrusted with the duty to protect underwater cultural heritage for the
benefit of mankind, such obligations often clash with existing maritime salvage law and other
emergent claims of intellectual property. 8Numerous historic high-profile cases have
supported the notion that salvage companies indeed have a property right under the doctrine
of finds or salvage law; the most notable is Columbus-America Discovery Group v. Atlantic
Mutual Insurance Co.9However, increasingly, these traditional maritime law principles have
begun to subject themselves to the influence of the new protection mechanisms that have

6
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: Resolution adopted
by the General Assembly, 2 October 2007, A/RES/61/295
7
Frederique Dussart and Benjamin Smith, 'Indigenous Peoples and the Protection of Cultural Heritage: Issues
and Challenges' (2019) 42 International Journal of Cultural Property 11
8
UNESCO Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered
into force 2 January 2009) 2562 UNTS 1
9
Columbus-America Discovery Group v Atlantic Mutual Insurance Co [1992] 974 F.2d 450 (4th Cir).
been introduced for cultural heritage. Claims to intellectual property by the salvage industry
extend to methods of documentation, methods of recovery, and sometimes digital
reconstruction of sites. Thus far, the court cases of Odyssey Marine Exploration v. Kingdom
of Spain acknowledge the coinciding claims of salvage rights and the rights of national
sovereignty over underwater cultural heritage, which can misrepresent the essence of salvage
rights. Claims to intellectual property rights by the salvage industry extend beyond artifacts to
include methods of documenting, recovering, or digitally reconstructing sites10. There exist
such divergences: courts are starting now to recognize the dramatic interplay between salvage
rights claims and national sovereignty claims relating to underwater cultural heritage, as
11
evidenced in the case of Odyssey Marine Exploration v. Kingdom of Spain. The
legitimization of original nations' claims to underwater cultural heritage is supported by
UNCLOS, especially Article 149, relating to archaeological and historical objects found in
the Area 12

Historically, if we observe all these Nation-states have claimed property not only over their
material or physical artifacts but also the related intellectual property associated with their
digital documentation and reproduction. Such a position is fortified by the adoption of the
2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, which
emphasizes the structure of protection of traditional knowledge and modes of cultural
expression.13 Claims that Indigenous communities make concerning underwater cultural
heritage become paramount since they relate to both tangible or physical heritage and
intangible heritage. 14The UN declaration on the Rights of Indigenous Peoples provides that
indigenous peoples have the right to maintain, control, protect, and develop their cultural
heritage, traditional knowledge, and cultural expressions. 15These rights regarding underwater
cultural heritage have been considered in Protection of Aboriginal Heritage cases, where the
indigenous communities were successful in claiming rights over submerged sites and the

10
Thijs J Maarleveld, Ulrike Guérin and Barbara Egger (eds), Manual for Activities Directed at Underwater
Cultural Heritage (UNESCO 2013)
11
Odyssey Marine Exploration, Inc v The Unidentified Shipwrecked Vessel [2009] 657 F.3d 1159 (11th Cir).
12
Odyssey Marine Exploration, Inc v The Unidentified Shipwrecked Vessel [2009] 657 F.3d 1159 (11th Cir)
13
UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003,
entered into force 20 April 2006) 2368 UNTS 1
14
James A R Nafziger, 'Cultural Heritage Law' (Edward Elgar Publishing 2012)
15
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: Resolution adopted
by the General Assembly (2 October 2007) A/RES/61/295
 16
associated cultural knowledge. Maritime archaeological institutions are judicial forums
working to conciliate competing claims while advocating the capacity of scientific
knowledge and preservation. 17Their work almost invariably generates massive amounts of
intellectual property, particularly in the form of scientific documentation, research
18
methodology, and virtual reconstructions. The International Council on Monuments and
Sites Charter on the Protection and Management of Underwater Cultural Heritage provides
that standards of archaeological documentation recognize the intellectual property rights
necessarily brought into being by scientific investigation19. The digital reconstruction of
underwater cultural heritage will add layers of complexity, including layers of intellectual
property. When we observe 3D scanning, photogrammetry, and VR introduce forms of
intellectual property that may be claimed by more than one entitlement. 20According to the
European Union approach, the Commission's recommendation on digitization and online
accessibility of cultural materials and digital preservation, creates a framework for the ethical
management of digitized cultural heritage that ensures public access.21

Innovative Intellectual Property Challenges

This new technological method for the documentation and reconstruction of underwater
cultural heritage brings with it a host of new challenges with respect to intellectual property
rights, which need to be confronted alongside the conventional protection framework for
cultural heritage22. This gives rise to further complications in the sense that ownership rights
in respects to the digital reconstruction of submerged artifacts stand as one of the great
puzzles, particularly where parties have participated in the documentation and digitization
processes. Certainly, while the Convention posits basic tenets for the protection of underwater
cultural heritage, it does not provide immediate resolutions detailing how the implications of
intellectual property rights arising out of digital documentation and reconstruction should be

16
Patrick J O'Keefe and Lyndel V Prott, 'Cultural Heritage Conventions and Other Instruments: A Compendium'
(Institute of Art and Law 2011)
17
Sarah Dromgoole, 'Underwater Cultural Heritage and International Law' (Cambridge University Press 2013).
18
ICOMOS, Charter on the Protection and Management of Underwater Cultural Heritage (1996)
19
Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010)
20
European Commission, 'Commission Recommendation on the Digitisation and Online Accessibility of
Cultural Material and Digital Preservation' (2011) 2011/711/EU
21
European Commission, 'Commission Recommendation on the Digitisation and Online Accessibility of
Cultural Material and Digital Preservation' (2011)
22
UNESCO Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered
into force 2 January 2009) 2562 UNTS 1
 23
treated. Questions of copyright and ownership that arise from recreations of underwater
artifacts are also quite different from those with objects right above water. New models of
intellectual property rights will continuously evolve with digitization as varying types of
institutions and private companies develop different 3-D models or scans of underwater
artifacts they create24. The intensive creative and technical labour that goes into a digital
reconstruction poses questions that may be considered as new ones having protectable status
under international intellectual property law. 25Such developments have allowed the Trust to
install a mechanism that provides an effective way of aiding the cultural entities with their
copyright claims in relation to their reconstruction of artifacts against the public need to allow
for access. The application of intellectual property rights to three-dimensional scanned
historical wrecks raises yet another area in cultural heritage law. The scanning process
involves multiple layers of intellectual property entitlement, which may include the scanning
methodologies, raw data collection, and the reconstructed model.26 The case of the digital
documentation of shipwreck Mary Rose illustrates the fine line maritime archaeological
institutions had to tread in negotiating the intellectual property landscape while executing
their mandates of preservation. 27

Guidelines from the European Union Intellectual Property Office regulate management of
these rights while at the same time promote access and research in the digitization of cultural
28
heritage initiatives. And while it may seem appropriation of underwater cultural heritage
narratives present challenges to intellectual property rights, such narratives cannot exist
without varying layers of copyright protections. These challenges abound in ownership of the
reconstructed narratives in the case it subsumed indigenous knowledge or cultural
expressions. 29The work that the World Intellectual Property Organization has yet to do for
traditional knowledge and cultural expressions provide good frameworks with which to

23
UNESCO Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered
into force 2 January 2009) 2562 UNTS 1
24
International Council of Museums, 'Guidelines for Digital Heritage Management' (ICOM 2019).
25
Charlotte Waelde and others, Contemporary Intellectual Property: Law and Policy (5th edn, OUP 2016).
26
Robert Mateescu, 'Digital Heritage and Copyright Law: A European Perspective' (2015) 20 Journal of
Intellectual Property Law & Practice 45
27
Fiona Macmillan, 'The Protection of Cultural Heritage: Common Heritage of Humankind, National Cultural
Patrimony or Private Property?' (2013) 64 Northern Ireland Legal Quarterly 351
28
European Union Intellectual Property Office, 'Guidelines for the Protection of Digital Cultural Heritage'
(EUIPO 2020)
29
Peter K Yu, 'Cultural Relics, Intellectual Property, and Intangible Heritage' (2016) 81 Temple Law Review
433.
approach these challenges.30Modern approaches toward resolving such challenges seem to
incorporate, in most instances, collaborations that include all stakeholders in the processes of
decision-making and agreement.31 Guidelines for managing digital heritage by the
International Council of Museums address very directly issues of intellectual property rights
by promoting scientific research and public access. 32These frameworks all acknowledge that,
in respect to indigenous cultural heritage, it is very much about balancing commercial
interests against cultural heritage preservation objectives.

Interdisciplinary Research Potential

There is wide-ranging opportunity for interdisciplinary study among maritime law,

archaeological methodology, digital preservation methodologies, cultural heritage
conservation, and international legal systems in underwater cultural heritage management.
Precisely in the complexities of setting the conditions for museumization and documentation
an advanced appreciation across the disciplines is vital, which, indeed, has prompted a
number of recent changes within international legal heritage law and practice. Important is
that maritime law lays this necessary foundation for the protection of underwater cultural
heritage with the general application of UNCLOS and the 2001 UNESCO Convention on the
33
Protection of Underwater Cultural Heritage. These instruments set up jurisdictional
parameters and preservation obligations and create multiple avenues for collaborative work
between legal scholars and maritime archaeologists.34 The latest work being undertaken by
the Cambridge Heritage Research Centre shows how maritime law is intermixed with digital
preservation technologies and best operating archaeological practices. With the integration of
digital technology within it, underwater archaeological methods have reached a very modern
inclination. Contemporary approaches merge conventional excavation techniques alongside
some new and advanced methods of digital documentation, resulting in an escalation in the
research opportunities in this complementary interaction between archaeology and digital
preservation. Trailblazing work by the Harvard University Center for Digital Archaeology

30
World Intellectual Property Organization, 'Traditional Knowledge and Intellectual Property' (Background
Brief No. 1, 2016)
31
Catherine Argent, 'Digital Documentation of Cultural Heritage: Standards and Best Practices' (2017) 42
Journal of Cultural Heritage Management 78
32
John H Merryman, 'Two Ways of Thinking About Cultural Property' (1986) 80 American Journal of
International Law 831
33
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16
November 1994) 1833 UNTS 3
34
UNESCO Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered
into force 2 January 2009) 2562 UNTS 1
illustrates how archaeological methods are actually being technologically transformed and the
significant questions this raises about the rights of ownership and intellectual property.
Archaeological methodologies in underwater cultural heritage have evolved significantly with the
35
integration of digital technologies. Contemporary approaches combine traditional excavation
techniques with advanced digital documentation methods, creating new research opportunities at the
intersection of archaeology and digital preservation. The Harvard University Center for Digital
Archaeology's pioneering work in this field illustrates how archaeological methodologies are being
transformed through digital innovation, while raising important questions about data ownership and
intellectual property rights. Digital preservation techniques represent a crucial advancement in
underwater cultural heritage conservation.

Three-dimensional scanning, photogrammetry, and virtual reality technologies enable unprecedented

documentation and analysis of submerged cultural assets. The European Commission's Digital
Cultural Heritage initiative highlights how these technologies create new preservation possibilities
while generating complex intellectual property considerations. The integration of digital preservation
techniques with traditional conservation methods requires careful consideration of both technical and
legal frameworks. Cultural heritage conservation principles, as articulated in the ICOMOS Charter on
the Protection and Management of Underwater Cultural Heritage, increasingly emphasize the
importance of integrated approaches that combine physical preservation with digital documentation.
36
This integration creates new research opportunities in conservation science, particularly in
understanding how digital technologies can support traditional conservation practices. The World
Intellectual Property Organization's work on traditional knowledge and cultural expressions provides
valuable insights into protecting indigenous cultural heritage in digital contexts. The international
legal frameworks governing underwater cultural heritage protection continue to evolve in response to
technological advances and changing preservation needs. The Underwater Cultural Heritage
Convention's Scientific and Technical Advisory Body has identified significant research opportunities
in harmonizing different legal approaches to digital heritage preservation. This harmonization effort
requires careful consideration of intellectual property rights, particularly in cases involving multiple
jurisdictions and stakeholders.37

35
Richard A Spinello, 'Intellectual Property Rights in Virtual Environments' (2018) 7 Ethics and Information
Technology 123
36
UNESCO Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered
into force 2 January 2009) 2562 UNTS 1
37
Robert Grenier, David Nutley and Ian Cochran (eds), Underwater Cultural Heritage at Risk: Managing
Natural and Human Impacts (ICOMOS 2015)