Roundtable #32: Who Owns What Matters: Cultural Artifacts, Pharmaceutical Patents, and the Limits of Intellectual Property Law

Section I: Who Owns Culture? Museums and Legal Title to Artifacts Acquired During Colonial Rule 

On Monday, December 8, 2025, the San Francisco Asian Art Museum returned four bronze statues to the Thai government after a fifty-year ownership dispute. As Thailand’s ambassador to the United States, Suriya Chindawongse, commented, “their repatriation not only safeguards an important part of heritage, but allows their history to continue as an enduring part of the Thai nation.” The return of sculptures is part of a growing trend known as repatriation, as museums face increasing pressure to return objects to their countries or communities of origin. In recent years, museums have returned hundreds of artifacts acquired through colonial or illegal means: the U.S. Homeland Security Investigations has reported returning more than 20,000 artifacts since 2007. Repatriation advocates highlight that ownership over cultural artifacts often stems from a legacy of slavery, Western colonialism, and systemic violence. These injustices are minimized when cultural heritage is governed and owned by those same agents of oppression. Current laws and international frameworks governing repatriation in the United States ultimately treat cultural artifacts as transferable property rather than as objects of cultural significance. The prioritization of legal title and chain of possession over cultural significance allows museums and states to maintain exclusive control over artifacts that once belonged to indigenous communities or other nations, entrenching colonial ownership. 

The monopolistic quality of museums stems from repatriation law’s treatment of acquired  objects as "transferable property.” In order to be recognized as alienable under the law, property must be transferable—or able to be bought or sold—between parties. This classification allows museums to act as de facto intellectual property (IP) rightsholders. Section 106 of the United States Copyright Act of 1976 states that a copyright owner has exclusive rights to control how a specific work is used. Museums do not formally hold copyright over the artifacts in their collections, as ancient objects predate copyright laws, and many artifacts were created by communities rather than individual authors, placing them outside the scope of Section 106. Nevertheless, museums exercise forms of control similar to those of IP rights holders in practice. Through institutional policies, such as those of the Smithsonian, museums control whether artifacts are displayed, reproduced, loaned, or returned, mirroring the exclusive rights that IP law grants to copyright holders. By requiring repatriation claims to undergo internal review (via the museum’s own process), these policies allow museums to decide for themselves whether an artifact should be returned, paralleling how copyright holders control the use of their work. However, IP laws include mechanisms to limit exclusive rights in the public interest, such as fair use under 17 U.S. Code § 107 and compulsory licensing regimes. Repatriation law, as exemplified by the Smithsonian policies, contains no comparable mechanisms and therefore lacks structures to hold them accountable or to constrain traditional rightsholders, reinforcing their authority over cultural artifacts. 

Repatriation laws must respond to the realities of artifact ownership and adopt mechanisms from existing IP laws to bolster institutional accountability. Under 26 U.S. Code § 501(c)(3), museums in the United States are granted a tax-exempt status as charitable or educational institutions, reflecting their obligation as promoters of knowledge, research, and public access. In practice, museums’ control over cultural artifacts undermines public interest. As the sole “gatekeepers” of cultural artifacts, museums can limit research, creative reuse, and public access to cultural heritage. This tension between the expectation of museums as educational institutions and their exclusive ownership shows the necessity of an IP framework that increases institutional accountability and extends the legal construct of museums as public-interest institutions. One of these existing frameworks is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), a treaty adopted by the WTO that outlines the basic principles of intellectual property law, minimizes trade distortions, and promotes innovation on an international level. Specifically, Article 31 of TRIPS outlines the process of compulsory licensing, which allows a party other than the patent-holder to produce, use, or sell a patented product without the owner’s consent under certain conditions (e.g., vaccine development during a public health emergency). In other words, existing IP frameworks authorize the limiting of exclusive ownership (i.e., override mechanisms) in the name of public interest, which would strengthen the legal enforcement of the public-interest principle that museums are already subject to. 

Furthermore, the current legal architecture of repatriation wholly disregards cultural heritage rights, or the collective right of communities to preserve and transmit the cultural objects and traditions integral to their identity. In Republic of Turkey v. Metropolitan Museum of Art (1987), the Republic of Turkey sued the Metropolitan Museum of Art, seeking the return of ancient gold jewelry, ceremonial objects, and burial goods from the Lydian civilization. While this case reflects an early instance of repatriation, it failed to establish the jurisprudence surrounding repatriation and its limits, as the parties settled rather than reaching a court ruling. Lacking a binding precedent on cultural heritage grounds, subsequent repatriation cases have proceeded without a settled doctrinal foundation—an ambiguity reminiscent of museums’ aforementioned quasi-property-rightsholder status. 

The practical realization of cultural rights seems to be missing from cases related to cultural artifacts, which instead focus on property ownership and title. For example, in 1990, the Autocephalous Greek Orthodox Church of Cyprus and the Republic of Cyprus sued an American art dealer, Peg Goldberg, after she attempted to sell four 6th-century Byzantine mosaics. The court held that the mosaics must be returned to the Church of Cyprus, holding Goldberg liable for failing to obtain their legal ownership. While the mosaics were ultimately returned, the court largely ignored the mosaics’ religious and cultural significance to the Church of Cyprus, treating the objects as ordinary property. When cultural heritage disputes are resolved through property law, the disputes are limited to questions of legal title, meaning that cultural loss (such as taking artifacts from a cultural community) remains unaddressed in name. Cultural heritage is crucial to consider in repatriation cases, as cultural artifacts carry historical, and often religious or social significance. Furthermore, recognizing cultural heritage is necessary for restorative justice, as it addresses the harms caused by the removal of sacred and significant cultural objects. Therefore, the current legal system leaves gaps in the protection of cultural heritage in repatriation cases, further reinforcing the need for the adoption of new legal mechanisms—in addition to the importation of existing IP practices—in IP law.

Beyond legal precedents in the United States, current international protections and laws for repatriation allow museums to exercise institutional control over cultural heritage, as there are no real, enforceable mechanisms to incentivize the return of cultural artifacts. The 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property frames repatriation as state cooperation, but does not actually have an enforceable legal mechanism to compel museums to return artifacts that they obtained through colonial extraction: repatriation is not cooperative between the museum and the artifact’s community of origin, but rather, it is wholly dependent on the museum’s internal mechanisms. Furthermore, the Convention relies on state implementation rather than binding obligations, meaning UNESCO cannot force compliance from states, depending on their individual incorporation and cooperation. There is no real compulsory licensing through the convention, meaning no real way of forcing access to or return of cultural items. Additionally, the convention is non-retroactive, meaning it only pertains to objects removed from countries or communities after 1970, thereby excluding the vast majority of artifacts taken during the height of colonial extraction.

Furthermore, the United States has consistently refused to participate in existing legal frameworks governing artifact ownership, particularly those that explicitly outline the duties and responsibilities of museums’ collection practices. The International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects in 1995 ensured that museums would get compensated if they could prove they exercised due diligence on the artifact and inherited it in a legal way. However, UNIDROIT was not ratified by the United States due to its burdens on due diligence and limitations to protections for good-faith purchases. The United States’ refusal to ratify the international framework reinforces the idea that U.S. legal structures protect museum ownership over claims to cultural heritage. While IP law is a good starting point for ensuring that repatriation is cooperative in practice, cultural heritage claims are necessary to take these laws a step further and account for the spiritual and communal importance of the objects taken.  

Overall, current U.S. laws and international frameworks treat cultural artifacts held by museums as objects of ownership, even though, in practice, they function as cultural heritage.  Without reforms, repatriation depends on a case-by-case basis and largely on the goodwill of the museums themselves, who already act as parallel IP rightsholders. IP law is a useful starting point for repatriation reform because it limits the principle of exclusivity in the name of public interest and can help ensure more cooperative repatriation processes. However, there are also important shortcomings to consider, such as the absence of cultural heritage rights within the current scope of IP law. Therefore, further reforms could include tying museums’ tax-exempt status as educational institutions to their compliance with repatriation laws, having governments enforce public-interest overrides for museums, or even creating a cultural fair-use doctrine, with communities gaining rights to reproduce or access museum artifacts directly tied to their heritage. 

Most importantly, the issue of repatriation is about the enduring legacy of colonialism that upholds many Western institutions. Repatriation frameworks rooted in labels of “property” or “ownership” allow historical systems of Western domination to persist in a more subtle, modern form, as artifacts continue to derive their value from conquest and appropriation. To properly address the enduring legacy of colonialism, the United States should adopt a legal framework that institutionalizes cultural communities. Repatriation law, therefore, needs to be understood through the lens of cultural rights to address the deeper colonial history and inequities that shape who holds authority over culture and heritage. 

By Jemma Granite 

Edited by Patrick Dugan

Section II: Patent Protection and Public Health: Reinterpreting TRIPS Through the Right to Health

Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a comprehensive treaty that establishes the basic principles of intellectual property protection, adopted by the World Trade Organization (WTO) in 1995. The agreement compels its 166 member states to abide by minimum standards of intellectual property law, including the recognition and enforcement of patents for technological innovations. For the biopharmaceutical industry, which heavily relies on strong IP protections to incentivize the research, development, and manufacturing of life-saving treatments, TRIPS is crucial. However, the efficacy of TRIPS’ enforcement mechanisms was tested during the COVID-19 pandemic, when the competitive interests of biopharmaceutical companies clashed with consumers’ “right to health.” In theory, TRIPS enshrines formal flexibilities that allow governments to suspend strict, unaccommodating patent enforcement mechanisms to prioritize the immediacy of drug development and distribution, but these flexibilities were often politically constrained and inconsistently applied. While vaccines were developed at unprecedented speed, intellectual property protections concentrated manufacturing power in a small number of pharmaceutical companies in high-income countries. Meanwhile, countries such as India and South Africa encountered sustained opposition from several developed-country WTO members, alongside pharmaceutical industry lobbyists, when they sought TRIPS waivers intended to relax intellectual property protections and promote broader vaccine production. This failure in trade law reflects a deeper structural imbalance between profit-driven incentives and public health obligations, not because TRIPS lacks the necessary tools, but because its existing flexibilities were not meaningfully operationalized. This paper therefore calls for a reinterpretation of TRIPS that foregrounds these existing flexibilities rather than replacing or amending the agreement. It also argues for integrating international human rights law into its framework and application.

TRIPS formally provides states with the legal tools to prioritize public health over strict patent enforcement. A relevant example is compulsory licensing, which allows the government to permit someone other than the patent holder to produce, use, or sell a patented product without the patent owner’s consent. This provision addresses market failure in situations where a drug is priced too high or when a patent holder refuses to supply sufficient quantities of a drug. Compulsory licensing is especially important in health crises because it allows governments to quickly access life-saving medicines by lowering prices, increasing supply, and reducing dependence on pharmaceutical companies. These dynamics were exemplified in 2012, when the Indian government granted a compulsory license for Nexavar, a drug used to treat liver and kidney cancer, which was priced at around $5,500 per month. The license allowed a domestic company, Natco Pharma, to produce a generic version of the drug costing only $175 per month. 

Another TRIPS provision that aims to make medicines more affordable is parallel importation, which allows a country to import a patented drug from another country where it is sold at a lower price without the patent holder’s permission. Unlike compulsory licensing, which requires countries to produce medicines themselves, parallel importation lowers prices by allowing them to import cheaper versions from other markets, making it especially useful during emergency shortages. Beyond compulsory licensing and parallel importation, public interest is also protected through Articles 7 and 8 of TRIPS, which outline the objectives and principles of patents. Article 7 asserts that intellectual property protection should promote technological innovation, support technology transfer, benefit both producers and users, and contribute to social and economic welfare. Article 8 explicitly allows countries to adopt measures “necessary to protect public health” and to prevent abuse of intellectual property rights as long as the measures are “consistent with TRIPS.” However, rather than clearly defining what constitutes “welfare,” “necessity,” or permissible state action, these provisions remain deliberately broad and lack meaningful enforcement mechanisms. While this ambiguity may have been intended to allow flexibility across different national contexts, in practice it creates space for powerful pharmaceutical companies to challenge or discourage the use of these safeguards. As a result, mechanisms like compulsory licensing and parallel importation often become politically and legally difficult to implement, limiting their effectiveness. This gap between formal legal rights and practical accessibility reveals a critical flaw in TRIPS: protections for public health exist in theory, but are frequently undermined in practice, leaving countries—especially in the Global South—without reliable access to affordable, life-saving medicines. 

In practice, it is clear that states that attempt to exercise compulsory licensing and related mechanisms often face significant legal and economic resistance. South Africa and Brazil are case studies of this tendency. For instance, in the late 1990s and early 2000s, South Africa aimed to expand access to affordable HIV and AIDS medications through the Medicines and Related Substances Control Amendment Act. This legislation allowed parallel importation of cheaper drugs, enabled generic substitution, and laid the groundwork for compulsory licensing: measures made urgently necessary by South Africa’s HIV/AIDS crisis, where millions were infected and life-saving antiretroviral treatments remained financially infeasible for the vast majority of those affected . However, thirty-nine pharmaceutical companies responded with lawsuits against the South African government, contending that the law violated patent protections under TRIPS—the very framework that authorizes such relaxations of patent protections. Furthermore, the United States and European Union imposed additional economic pressure, threatening to limit trade with South Africa. Despite this pressure, South Africa ultimately maintained the legislation, and the lawsuits were withdrawn in 2001 following intense global public outcry and activism, allowing the country to move forward in expanding access to antiretroviral treatment. 

While the pharmaceutical companies eventually withdrew their lawsuits in response to public outcry, this misconstruction of TRIPS was not an isolated incident. In the 1990s, Brazil built one of the most comprehensive HIV and AIDS treatment programs by providing free antiretroviral drugs through its public health system, producing generic versions of some medicines domestically, and using the threat of compulsory licensing to pressure pharmaceutical companies to lower prices. This success was directly enabled by Brazil’s patent law, which included a provision that allowed compulsory licensing if a patent holder did not produce the drug in Brazil. However, in 2000, the United States filed a complaint at the WTO, arguing that Brazil’s local patent law violated TRIPS and discriminated against imported products. Although the United States similarly withdrew its complaint under mounting political and public pressure, Brazil retained its approach and continued its large-scale treatment program. 

These outcomes are significant: in both cases, governments were only able to exercise TRIPS flexibilities after sustained external pressure reframed access to medicines as a moral and political issue rather than a purely economic one. The ambiguous construction of patent flexibility in TRIPS makes it difficult for countries with emerging economies to comprehensively respond to public health crises. More importantly, it reveals that TRIPS itself operates within a trade law framework, privileging the rights of profit-driven pharmaceutical companies over the human rights obligations of states to protect public health. Rather than proactively enabling governments to relax patent enforcement, TRIPS is often invoked by states in WTO dispute settlement, frequently following pressure from pharmaceutical companies, to challenge these measures, delaying access to essential medicines until public and political forces retreat. A revised interpretation of TRIPS must thereby recognize the political economy of pharmaceutical production, centering international human rights principles as a necessary counterbalance to corporate power and prioritizing access to life-saving medicines as a fundamental right rather than a negotiable economic interest. 

TRIPS should be interpreted alongside a state’s broader human rights obligations, particularly the right to health. The right to health is recognized in international law in Article 12 of the International Covenant on Economic, Social and Cultural Rights, and in domestic law, where it has been incorporated into numerous national constitutions. Beyond its ethical, seemingly aspirational grounding, the right to health also imposes concrete obligations on states, ensuring the availability, accessibility, affordability, and quality of essential medicines. As clarified by the United Nations Committee on Economic, Social and Cultural Rights in General Comment No. 14, states must take steps to prevent third parties, including pharmaceutical companies, from limiting access to health-related goods. Importantly, the right to health has been further operationalized through the AAAQ framework (availability, accessibility, acceptability, and quality), which provides a structured basis for determining if states are successful in meeting their obligations. Unlike TRIPS, which is backed by enforceable trade sanctions, international human rights law relies primarily on reporting mechanisms, reputational pressure, and non-binding recommendations, creating little material consequence for non-compliance. As a result, there is often little immediate material consequence for non-compliance, weakening incentives for states to fully implement these standards. Integrating human rights into global health governance thus requires moving from discretionary exceptions towards enforceable standards that can be supported by domestic courts and international monitoring bodies. In practice, this could include empowering national judiciaries to review access-to-medicine claims, expanding the role of United Nations treaty bodies in evaluating compliance, and developing clearer guidelines within the WTO that align TRIPS implementation with human rights obligations. These mechanisms would not only clarify what states are required to do, but also create real consequences for failing to comply. Unlike TRIPS, which is enforced through trade sanctions, a stronger human rights approach would make states more consistently accountable and treat access to medicines as a binding obligation rather than a choice.

At the same time, these interpretive shifts must also recognize and confront structural deficiencies in the global patent regime, where practices such as evergreening—or the extension of patent protection through minor modifications to existing drugs—and the accumulation of secondary patents enable pharmaceutical companies to maintain exclusivity far beyond intended terms and sustain decades-long monopolies. These monopolies are foundational to the industry’s pricing model, enabling firms to charge artificially high prices that render essential medicines inaccessible. Because mechanisms like compulsory licensing directly threaten these inflated profit structures by permitting lower-cost generic production, they face aggressive legal and political pushback from patent-holding states, as demonstrated by the aforementioned South African and Brazilian case studies. Addressing these deficiencies requires a reform of patent standards, restoring intellectual property law to its intended function: the scaffolding of innovation and fair competition. Right now, intellectual property law does not just fall short of promoting innovation and fair competition, it undermines these objectives. Practices such as evergreening and secondary patents are embedded within the system, enabling firms to maintain monopolies and restrict competition. Rather than alleviating unequal access to medicines, the patent regime actively contributes to its persistence. 

The failures of TRIPS revealed throughout this analysis are not incidental but systemic. Although the agreement formally provides flexibilities such as compulsory licensing and parallel importation, these mechanisms are routinely undermined by legal ambiguity and corporate resistance, as demonstrated in the cases of South Africa and Brazil. At the same time, the broader patent regime, through practices such as evergreening and secondary patents, actively enables the monopolies that make these safeguards necessary in the first place. In the wake of COVID-19, the WTO must confront its role in designing a framework that allows intellectual property protections to constrain, rather than support, global public health responses. Addressing these issues requires more than a reinterpretation of TRIPS through a human rights framework. It demands a restructuring of the incentive systems that govern both states and pharmaceutical producers. While states must be incentivized and held accountable for fulfilling their obligations to protect the right to health, pharmaceutical companies must also face limits on practices that extend monopolies and restrict access to medicines. Without addressing both sides of this incentive structure, reforms risk remaining incomplete and ineffective. By addressing the imbalance of incentives and the structural power of patent monopolies, and by interpreting TRIPS in light of human rights obligations while pairing this with efforts to dismantle entrenched monopolies, provisions such as compulsory licensing and the public health safeguards in Articles 7 and 8 should be understood not as narrow exceptions, but as essential tools through which states fulfill their obligations to protect the right to health.

By Katelyn Horng

Edited by Patrick Dugan

This piece was reviewed and finalized by Eve Bertrand, Qizhen (Kiara) Ba, and Jasmine Rocha.

Τhe views in these articles are those of the individual authors and not of the Columbia Undergraduate Law Review.