LENS Essay Series: “Uploading Culture: Navigating the International Humanitarian Legal Framework Governing Cultural Property in the Metaverse”

International law has long sought…with only mixed success…to protect cultural objects from the dangers of wars and other armed conflicts.  Today this issue has become even more complex though the emergence of various digitization techniques that may not only be an unprecedented means of preserving cultural heritage, but also might be used to create unique cultural assets.

Are the treaties that aim to protect cultural heritage but which date from before these techniques existed still adequate for the job?

Graduating Duke Law 3L Madison Cash brilliantly examines the technologies and their legal implications in her new article,  “Uploading Culture: Navigating the International Humanitarian Legal Framework Governing Cultural Property in the Metaverse”    It is the latest addition to the LENS Essay Series which features top young scholars writing about cutting-edge aspects of national security.

Among other things, Maddie’s essay makes this observation: “A less commonly discussed means of preserving property digitally could be available through the creation of an entirely digital sector in the metaverse, in which a state’s cultural objects are uploaded using 3D scanning or are recreated within a virtual reality setting, integrating with physical and augmented reality.” 

She later makes the intriguing point that some cultural objects may exist only in digital form and only within a metaverse hub:

Because virtual land is easily created with code, and the metaverse itself is easily expandable, there is no natural scarcity within the metaverse; however, metaverse proponents hope that the blockchain, which is the foundation of metaverse technology, will allow the creation of virtual hubs of commerce and culture.  Non-fungible tokens (“NFTs”) are especially relevant for these purposes, as an NFT is a “unique digital asset that represents a real-world object (e.g., art, music, photo, GIFs, collectibles, video game items, etc.) and whose data (e.g., proof of ownership, certificate of authenticity, sale information, etc.) is stored on the blockchain where it can be traded or sold.” (Citations omitted.)

How does (or should) the international law of armed conflict deal with all this?  Read Maddie’s “Uploading Culture” essay! 

Here’s the abstract with some more information:

Abstract:

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As business moguls buy digital art that has been minted as an NFT and Ukrainian citizens use 3D scanning technology to upload their at-risk cultural artifacts into digital archives, digital and digitized cultural property is becoming a new global trend. Protecting cultural property from illegal incursions by belligerents in wartime is also rising to the top of public awareness.

In a world that might eventually integrate virtual reality with physical reality, it is worth exploring the way that the metaverse can be utilized to preserve cultural heritage along with the risks posed by belligerent cyber actors to the resulting cultural property.

Part I of this paper discusses the newest developments in metaverse-building technology, including digital twin technology and NFTs, and their application to cultural property preservation. Part II discusses the existing international humanitarian legal framework that governs cultural property protection through the 1954 Hague Convention and its Second Protocol, the Geneva Convention and its additional protocols, the Rome Statute, and existing caselaw.

Part III applies the international humanitarian legal framework to digital data, both created-digital and born-digital, concluding that if either type of digital property was state-controlled, it could qualify for cultural property protection. Part IV explores proposed standards for governing kinetic and cyber operations impacting the metaverse under international humanitarian law standards. Ultimately, this paper argues that the duty to safeguard cultural property will likely include increased digitization in the future and will require states to create clear governance standards for virtual reality. 

Again, you can read the essay here.

About the Author

Madison Cash (J.D. 2024) is a 3L at Duke University School of Law. Growing up, she moved often as a military kid, but now calls Houston, Texas home. She graduated from Wheaton College summa cum laude, where she double majored in Spanish and English Literature. During her 1L summer, Madison was a Legal Intern for the Navy Judge Advocate General’s Corps at the Commander, Navy Region Mid-Atlantic in Norfolk, Virginia. During her 2L summer, Madison worked as a Summer Associate at Hogan Lovells in Washington, D.C. After graduation and bar passage, Madison will be returning to Hogan Lovells and subsequently clerking for Judge David Novak in the Eastern District of Virginia.

Throughout her time at Duke, Madison has been involved with the LENS Center as a Research Assistant; she wrote LENS Essay #21, “Financial Jihad: Combating the Use of Virtual Assets in Terrorist Financing.” Madison serves as the Co-President for the National Security Law Society and is the Notes Editor for the Duke Law Journal of Comparative & International Law (“DJCIL”). Her note, “Reversing CFIUS: Analyzing the International and Constitutional Implications of the Revised National Critical Capabilities Defense Act,” was published by DJCIL in the Spring of 2023. She is involved with the Duke Law and Technology Review, the Moot Court Board, and the Legal Analysis, Research, and Writing Program.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!