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Home > Vol 20, No 3 (2014) > Harmon

Disabled Dance: Grounding the Practice in the Law of 'Cultural Heritage'

Shawn H.E. Harmon [1], Charlotte Waelde [2] & Sarah Whatley [3]

Cite as: Harmon S.H.E., Waelde C., & Whatley S., "Disabled Dance: Grounding the Practice in the Law of 'Cultural Heritage'", (2014) 20(3) Web JCLI.

Abstract

The arts, including dance, hold great importance in society. The InVisible Difference project seeks to extend thinking and alter practice around the making, status, ownership, and value of work by contemporary dance choreographers, focusing on that made and performed by differently-abled individuals. This paper considers the position of disabled dance in law and society by asking the overarching question: Is disabled dance a part of our 'cultural heritage'? This is an important question because it will, or ought to, have both legal and social consequences for this art-form moving forward. First, we examine the legal definition of 'cultural heritage' as it has developed in international human rights law and practice. Second, we consider whether disabled dance does or could fit into that definition and therefore claim the protections and potential benefits of that capture. Finally, we consider what might be done under the directive legal instruments that bear on this setting, focusing on the Convention on the Rights of Persons with Disabilities (2006). [4]

Keywords: law, international law, human rights, cultural heritage, culture, dance, marginalisation.

1. Introduction

It is undeniable that the arts, broadly understood, hold great importance in contemporary society. They contribute to health, [5] education, [6] professional development, [7] economic development, [8] social identity, [9] and more. Within the arts, dance is a core component with a long history. [10] While 'disabled dance' (i.e., dance choreographed and/or performed by differently-abled dancers) has a much shorter history, support for disability arts generally, and disabled dance more specifically, has been growing, particularly in Scotland. Beginning in 2004, Janet Smith, then Artistic Director of Scottish Dance Theatre, embarked on a strategy to include disabled dancers in the work of that theatre. Around the same time the Scottish Arts Council (now Creative Scotland) employed an Equalities Officer who focused on arts and disability. Since then it has earmarked funds for disabled performers, created a 4-year post of Dance Agent for Change (held by Bowditch), and embedded equality into all programmes. [11] Scotland's leadership in this area was acknowledged in 2013 when the British Council undertook a mission to Scotland to learn more about its approaches to equality in the performing arts. Recently, a second round of funding has been made available under the Unlimited Programme, [12] a part of the Cultural Olympiad that accompanied the Paralympics in 2012, [13] one aim being to ensure that the work from the first round gets seen.

Despite all of this, however, there is a long-standing deficit in the support of performance by 'differently-abled' people, [14] who remain in a precarious position when it comes to being valued as producers and disseminators of creative works. In this paper, we consider the position of dance, and specifically disabled dance, in law and society by asking the overarching socio-legal question: Is disabled dance a part of our 'cultural heritage'? This is an important question because it will, or ought to, have both legal and social consequences for the future of this art-form (viewed as a constituent element of the broader 'dance' art-form). Recognition as part of our cultural heritage is a legal recognition that signals not only that we value this art-form, but that it deserves some form of protection and/or active support. This, in turn, has implications for the realisation of some of the equality rights contained in the United Nations Convention on the Rights of Persons with Disabilities (2006) (CRPD), [15] and other human rights instruments. The CRPD establishes the broad right of disabled people not to be discriminated against, [16] the right to recognition and support of their specific cultural and linguistic identity, [17] and the more specific right to access and participate in culture on an equal basis with others. [18]

Given the above, we first examine the legal definition of 'cultural heritage' as it has developed in international human rights law and practice. We then consider whether disabled dance does or could fit into that definition and thus claim the protections and potential benefits of that capture. We conclude that that it can, resulting in obligations on States to promote and protect the rights of disabled dancers and choreographers. We suggest a number of concrete actions that can be taken to fulfil those obligations including: nurturing receptiveness to the rights of persons with disabilities; raising levels of audience awareness; and using the copyright system to its full potential. Before doing so, however, we offer a brief word on the genesis of this paper, which emerges from the InVisible Difference project, an AHRC-funded empirical research project that seeks to extend thinking and alter practice around the making, status, ownership, and value of work by contemporary dance choreographers. [19] With an emphasis on the experience of differently-abled choreographers and dancers, it explores questions at the nexus of dance, disability, and law (specifically intellectual property, human rights and medical law). In undertaking its work, InVisible Difference relies on multiple methodologies, including: multidisciplinary literature reviews; content analysis of governing instruments/texts and social media narratives generated in response to videos of performances; interactive workshops with a growing network of individuals who are interested in dance and disabled dance; micro-ethnographies of differently-abled dancers making dance in the studio and transitioning that dance to the public stage; and semi-structured qualitative interviews with dance artists.

2. The Development and Meaning of 'Cultural Heritage'

There is a lot of rhetoric and confusion around the idea of 'cultural heritage', with some claiming that too much is being asked of it insofar as it seeks to address national, regional, ethnic, and global concerns, many of which are contradictory and competing. [20] Conceptually, it is tangled up with the terms 'cultural property', 'cultural rights' and 'common heritage of mankind', all of which appear in both binding and non-binding international legal instruments. Because the term 'cultural heritage' forms the basis of, or informs, these concepts and so many international rights declarations, and because it is meant to have legal consequences, a detailed examination of cultural rights and cultural heritage (as a concept), with a view to encouraging a reasonable common understanding, is critical.

2.1 Historical Context

To begin, we can confidently say that the idea of 'cultural heritage' is firmly grounded in the human rights tradition. [21] Indeed, the idea of human rights has its origins in mediaeval times. The Magna Carta (The Great Charter) of 1215 was created by King John of England and refers to a series of rights gained by the nobility from the Monarchy. [22] It was viewed as a defence against unjust rule in England. This was followed by the 1628 Petition of Right, which dealt with issues such as imprisonment without trial and the unlawfulness of martial law. [23]

The modern incarnation of human rights draws heavily on two philosophical traditions. The first is that around natural law, which has mediaeval Christian origins (with Thomas Aquinas) but has evolved to espouse the view that the conveyance of basic rights is linked to human morality, and there is a heavy reliance on the concept of the 'common good'. [24] The second tradition is that around rationality as articulated in the Enlightenment by such luminaries as Immanuel Kant, [25] John Locke, [26] Adam Smith, [27] and Francis Hutcheson. [28] The Enlightenment heralded a period of intellectual transition wherein old traditions were replaced by calls for rationality, and humankind was encouraged to think inwardly about itself, without complete subservience to God as the sole moral arbiter.

However, it was the horrors of World War II that prompted the formalisation and systematisation of human rights under the auspices of the United Nations. [29] While the UN system is directed primarily towards crimes perpetrated against individuals by the State, some of its organs have been tasked with tackling the sources of cultural conflict, and with stamping out the all-too-common phenomenon of conquerors taking or destroying cultural artefacts belonging to the conquered. It is through the conceptual and standard-setting work of the UN organs, most notably the United Nations Educational, Scientific and Cultural Organisation (UNESCO), [30] that the concept of 'cultural heritage' has developed. Of course, much more is needed if we are to articulate what it means on the ground, and what its consequences are (or should) be for specific practices.

2.2 Cultural Rights in General Instruments

Culture has been described as anything produced by man and not limited to cultural manifestations in the narrow sense, as exemplified by art, literature, and architecture. [31] Cultural rights in general human rights instruments focus on respect for, and protection of, cultural diversity and integrity, and those rights are both broadly and narrowly based: broad in the sense of referring to general notions of cultural identity and diversity; narrow in the sense of prescribing specific culture-related rights. [32] The idea that culture is central to identity is one of the foundational beliefs of the Universal Declaration of Human Rights 1948 (UDHR). [33] For example, Articles 27.1 and 27.2 state that everyone has: [34]

• the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits; and
• the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

This idea of the right to participate in culture and the right to enjoy cultural artefacts and practices is expanded on in the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), [35] which stipulates that States must ensure that everyone has the right to: (a) take part in cultural life; (b) enjoy the benefits of scientific progress and its applications; and (c) benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. [36] The International Covenant on Civil and Political Rights 1966 (ICCPR), [37] develops and concretises these rights by erecting the right to seek, receive, and impart information and ideas in any media of choice, [38] and the right of minorities to enjoy culture. [39]

2.3 Cultural Rights in Culture-Specific Instruments

In addition to these general human rights instruments, culture and cultural identity are addressed in more culture-specific instruments, many of which emanate from UNESCO and rely on different descriptions of their subject matter. They refer variously to 'culture', 'cultural heritage', 'cultural property', and the 'common heritage of mankind', and these terms are not necessarily interchangeable. This complexity is added to by the fact that there are different types of cultural heritage and different but overlapping classifications within the property paradigm. For example, there are tangible manifestations (e.g., monuments, statues, pictures, books), intangible manifestations (e.g., dance, folklore, know-how, musical traditions), heritable manifestations (e.g., museums, libraries, archives, trees in the rainforest), and moveable manifestations (e.g., paintings, sculptures, photographs, films). UNESCO's instruments cover all these types of property and in different ways. For this reason, the propriety of the property paradigm has been challenged for failing to capture the essence of intangible cultural heritage. For example, Arizpe notes that intangible cultural heritage "is not an object, nor a performance, nor a site; it may be embodied or given material form in any of these, but basically, it is an enactment of meanings embedded in collective memory." [40]

Initially, the primary focus was on tangible objects and their protection and maintenance in times of war, and on the growing need to protect world cultural and natural heritage, including underwater cultural heritage. And the Conventions implicated each have their own definition of 'cultural heritage' or 'cultural property'. For example, the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (Armed Conflict Convention), [41] in addressing 'cultural property', refers to movable and immovable property 'of great importance' such as monuments and works of art, and to the buildings designed to preserve and exhibit cultural property, such as museums and libraries. [42] The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (Anti-Trafficking Convention), [43] which also refers to 'cultural property', states that property designated by each State as being of importance for, inter alia, literature or art and belonging to defined categories (including paintings, sculptures, rare manuscripts, and archives) must be protected. [44]

However, as time passed, the concept expanded such that both the Convention Concerning the Protection of the World Cultural and Natural Heritage 1972 (World Heritage Convention), [45] and the Convention on the Protection of the Underwater Cultural Heritage 2001 (Underwater Heritage Convention), [46] refer to 'cultural heritage' rather than 'cultural property'. This signals a growing doubt within the international community about the universality of Western notions of property, and a growing recognition that culture cannot be reduced to an inventory of objects without marginalising its most important features. [47] The World Heritage Convention defines 'cultural heritage' as certain monuments, groups of buildings and sites, and 'natural heritage' as natural features and sites and geological and physiographical sites which are of outstanding universal value, [48] and it places on states the duty to ensure the identification, protection, conversation, presentation and transmission to future generations of the cultural and natural heritage. [49] The Underwater Heritage Convention defines 'cultural heritage' as all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years, and it enumerates such things as buildings, vessels, and objects of prehistoric character. [50]

Two of UNESCO's most recent conventions focus on the intangible elements of our cultural heritage. The Convention for the Safeguarding of Intangible Cultural Heritage 2003 (Intangible Heritage Convention), [51] for example, defines 'intangible cultural heritage' as the practices, representations, expressions, knowledge, skills - as well as the instruments, objects, artefacts and cultural spaces associated therewith - that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. [52] It goes on to state that this intangible cultural heritage is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. [53] It then enumerates oral traditions and expressions, including language, performing arts, social practices, rituals and festive events, knowledge and practices concerning nature and the universe, and traditional craftsmanship, insofar as they are compatible with human rights, as examples, [54] and stipulates that 'safeguarding' them entails ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, and revitalisation of various aspects of such heritage. [55]

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 (Cultural Expressions Convention), [56] refers not to 'cultural heritage', but to the 'cultural heritage of humanity', which it seeks to protect by recognising cultural diversity expressed, augmented, and transmitted through a variety of cultural expressions and modes of artistic creation, production, dissemination, distribution, and enjoyment, whatever the means and technologies used. [57] As with the Intangible Heritage Convention, the Cultural Expressions Convention contains a strong use of human rights language in reference to cultural values, and stress is laid on the importance of cultural identities. [58] However, it also protects current artistic creativity and values, partly encompassed within definitions of cultural expressions, [59] cultural content, [60] and cultural activities. [61]

2.4 Summation: The Components of Cultural Heritage

The above historical context and evolution demonstrates that the meaning of 'cultural heritage' has been shaped and re-shaped by many factors. Some key factors include:

• the long and tragic history of cultural destruction, including the treatment of indigenous peoples and their cultural identities by colonisers, [62] and the destruction and looting that took place during and after WWII and subsequent conflicts; [63]
• the mosaic of relevant legal instruments, whose genesis span many decades; [64]
• the increasing commodification of cultural works under the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPs Agreement) and subsequent bilateral treaties; [65]
• the contested recognition that valuable and diverse art-forms will disappear if not actively supported; and
• the shifting positions of states and stakeholders within a highly politicised process shaped by competing interests, the rhetoric and reality of property, and multifaceted and shifting alliances between political and economic interests. [66]

Additionally, the ongoing deliberative process has been both broad and narrow: broad in its focus on cultural diversity and integrity; narrow in its focus on specific cultural practices and rights. Taking all this into account, what can we say that 'cultural heritage' means?

At base, while 'cultural heritage' is intimately bound up in ideas of cultural and political identity, individual and community norms and traditions, and individual and collective rights, all of which might be viewed as fluid, the international legal framework does not support one definition of 'cultural heritage', but rather a range of context-dependent meanings. This reality has led to observations such as the following:

[I]international cultural heritage law has developed with an uncertainty at its centre over the exact nature of its subject-matter and based on a set of principles which are not always coherent. [67]

There are however elements that are repeated and so can be viewed as fundamental to the concept and its legal operation, namely that some artefact or some act or performance (that is not necessarily static or fixed) forms a part of our protected 'cultural heritage' when it meets two core criteria. First, the artefact or practice must comprise some form of inheritance that a community or people considers worth safekeeping and passing forward to future generations. In other words, it must be a thing - moveable or immoveable, tangible or intangible - that a community or a people considers worth preserving and handing up to the future. [68] Second, the artefact or practice must be both a symbol of the cultural identity of an identifiable group (i.e., a nation, a region, a people, etc.) and an essential element in the construction of that group's identity. [69] Embedded in this 'definition' is the idea of 'cultural identity'. This is an admittedly 'slippery' concept with political overtones, [70] but it is paramount. At base, we suggest that 'cultural identity' can relate to the community, nation, or group, and that it acknowledges the manifold links (moral, conceptual, functional, etc.) that bind people together. While there can be tensions around such identification, particularly at the margins of membership, self-identification by groups is usually overt and reviewable.

3 Disabled Dance as Part of our 'Cultural Heritage'

Having arrived at an historically-grounded and legally defensible definition for 'cultural heritage', we can consider the position of dance, and particularly disabled dance, in our 'cultural heritage'. To do so, we must consider the extent to which the practice conforms to the above definition.

3.1 Disabled Dance: A Practice Worth Passing Forward

To reiterate, the first component of the definition is that the practice be subject to intergenerational transmission and re-creation - and here there is no difference between dance made and performed by able-bodied dancers and that made and performed by the differently-abled. Meeting this component would, in the normal course, demand an inquiry into, and some evidence on:

• the nature and scope of the 'thing';
• the community for which it has meaning; and
• the sense of duty toward that thing by the community.

The very first element of this component - the nature and scope of the practice - might seem to be a hurdle to the inclusion of dance. For example, it has been argued that dance may be indivisible from the dancer, ceasing to exist as an entity beyond its moment of performance. McFee argues that dances are not 'eternal', but reach a time when they can no longer be performed because no dancer has the appropriate 'craft mastery'. [71] Indeed, there are many examples of re-created dances which seem to diverge so far from the intentions of the original work that they cease to be that work as originally conceived.

Having said that, the reality is that dance, even contemporary dance (which is viewed as more fluid and less-bound than, for example, ballet), is passed from generation to generation through the bodies of the dancers:

From toe to toe, from hand to hand, from eye to eye, dance, more than any other of the performing arts, has been transmitted through time by human chains of dancers, choreographers, and others involved in its creation and performance. [72]

In short, the different embodiments and interpretations of the dance, rather than being viewed as a hurdle, should be viewed as a strength of the practice. The conceptions, emotions, messages, etc., can be reiterated despite a natural shifting of ideals. The bodies through which the dance is performed serve as the link from past to present and onwards into the future, and they therefore assist in the formation of identity (addressed in component two below).

Another potential hurdle is that around preservation; the act of recording dance for purposes of its preservation has its challenges and detractors, with many acknowledging that the ephemeral nature of dance makes it difficult to substitute with a hardcopy recording. [73] Meskin has gone so far as to state:

Video and film recordings of dance performances, however, do not allow us access to those dance performances. We do not see dance performances when we look at video or film; we see representations of them. The video and film media are not transparent since they do not present us with the first-person spatial information that is essential to vision. With dance, this means that important spatial information, and spatial experience (for example, the experience of having the dancers move towards you) … is missing. [74]

However, we suggest that the potential to record dance strengthens its intergenerational element. This fact, combined with the fact that many of the legal instruments discussed above specifically identify the performing arts, strongly suggests that dance must be viewed as meeting this particular element of the first component. [75]

With respect to the community for which dance has meaning, the evidence need not disclose shared universal affinity. Again, we can point to the specific inclusion of the performing arts generally, and dance specifically, in our legal instruments not only as strong evidence of the importance of dance, but that its 'community' is all of mankind. Dance has long held a central role within many global cultural practices and almost all sectors of society will have some tradition of dance, whether it is within indigenous dance forms that hold a place within ritual, religion, or spirituality, or within codified theatrical dance traditions as popularised in modern Western practices. [76] Since the mid-1980s, greater attention has been paid to dance by anthropologists and ethnographers who have studied the place of dance in constructing traditional and colonial cultures, ethnic and national identities, gender, discourses of exoticisation, and the production of social bodies, as well as in situating studies of dance and movement within broader frameworks of embodiment and the politics of culture. [77]

The third evidentiary element of this component has to do with the sense of duty within the community that is felt toward the practice. On this matter, we can point to the financial support of the arts generally and dance specifically. In straightened economic times there is never enough public funding for all deserving initiatives in the arts. It is important, though, that the evident sense of duty towards dance be accompanied by a share of funding commensurate with other artistic practices more readily visible in our cultural heritage. In the UK, the Arts Council, one of the main conduits between the government and the artists whom it supports, has £1.4 billion of public money to invest in the arts between 2011 and 2015, plus an estimated £1 billion from the national lottery. Of this, the proposed investment in dance organisations from 2012 to 2015 is £110.8 million covering 57 organisations, seven of which were not regularly funded. The main aim of the funding is to ensure that audiences throughout the country have access to high quality or world-class work made and performed by talented dancers and choreographers. [78] Unfortunately, of the 57 dance companies funded as National Portfolio Organisations, only three are identified as 'inclusive', 'integrated', or in some way including disabled dancers in the company structure. [79] Nonetheless, it is not just public financial support that is indicative of the way the community feels towards the practice. Audience support is also vital. Estimates made by Kantar Media show that the proportion of adults attending contemporary dance events rose from 3.6% in 1994/95 to 8.9% in 2009/10. [80] This suggests growing public support for dance generally, and evidence that, for example, Candoco Dance Company reach audiences of some 18,000 and provide participatory and training activity for some 2,000 people each year indicate that inclusive or integrated and disabled dance are also embedding from a cultural perspective. [81]

3.2 A Symbol and Component of Identity

The second component of the definition is that the artefact or practice must link to the identity of an identifiable group. Meeting this component demands further or more specific evidence from the community about the meaning the artefact, or in this case the practice, has and how it fits into their construction of identity. At the outset, however, we must acknowledge that identity, like culture and morality, is fluid and ever evolving. Because of this, or perhaps causing this, it has been argued that cultural identities are developed through participation:

What I want to suggest … is not that social groups agree on values which are then expressed in their cultural activities (the assumption of the homology models), but that they only get to know themselves as groups (as a particular organization of individual and social interests, of sameness and difference) through cultural activity, through aesthetic judgement. Making music isn't a way of expressing ideas; it is a way of living them. [82]

In short, just as achieving 'humanness' is a 'process of becoming', [83] so forming identity is an active process or performance. Related to this, it has been argued that, in dance, the body is the source of cultural identity, as critical as the performance in the construction of meaning:

… more and more dancers and choreographers are asking that the audience see their bodies as a source of cultural identity - a physical presence that moves with and through its gendered, racial, and social meanings. With a renewed emphasis on text, narrative, and autobiography, much contemporary dance focuses on the dancer's specific physical, emotional, and cultural experiences within the moment of dancing'. [84]

Indeed, the body is very powerful, most particularly when it is different:

Because so many of our most explosive and most tenacious categories of identity are mapped onto bodily difference, including race and gender, but expanding through a continual slippage of categories to include ethnicity and nationality and even sexuality as well, we should not ignore the ways in which dance signals and enacts social identities in all their continually changing configurations. [85]

However, the body, with all its differences, is also a complicating factor because of its potential to fragment the social/cultural identity which dance might otherwise help to forge. In reality, a variety of identities are sought to be forged by any group or individual, and indeed through any dance. For example, some may see disabled dance (and disability arts more generally) as work created by disabled people to be shared with, and to inform, other disabled people by focusing on the truth of the disability experience. [86] And there are examples of those who tell a story of disability through their art. [87] Others may seek to make great art that just happens to be about disability (i.e., disability is made visible through the work, but it is not the defining character of the work), [88] and it may not matter who makes the work. Still others make work that has nothing to do with disability other than being made and performed by a disabled artist. [89] Some seek to reinstate the classical within the disabled, whereas others celebrate the different or divergent body and its capabilities. [90]

This identity issue is complicated by the fact that identity in disabled dance may be dependent on the particular dancer. [91] If the dance is dependent on a very particular body, which is often the case in disabled dance, then the work might be viewed as even more vulnerable. But there are ways in which this vulnerability can be countered. One example is Candoco's [92] reconstruction of Trisha Brown's Set and Reset. Originally made in 1983, Set and Reset has been reconstructed for different companies over the years. Its restaging by Candoco was its first revision for a mixed group of dancers, and its (re)naming as Set and Reset/Reset acknowledges its re-imagination. A role within the dance was revised for a dancer with cerebral palsy (Dan Daw), and then re-revised for a wheelchair dancer (Rick Rodgers). While this serves to establish the individual identity of the disabled dancer who 'creates the role' in a particular way that cannot be reproduced by a dancer with a very different physicality, it also, importantly, reaffirms the substitution of dancers that is common within a repertory company. [93]

The revision thus asserts the value of the dance while challenging the authority of a single version and so the formation of a singular authentic identity (or even narrative). This is made possible by the collision of three aesthetic sensibilities:

• the aesthetics of the culturally and historically located work;
• the aesthetics of the revising repertory company; and
• the aesthetic proclivities of the individual dancers.

The result is that the work itself may be more securely located within our cultural heritage, but the specific version performed by the dancers who are core to the work is subsumed within the work's generic identity. Viewing dance and its revision as such softens the impact of a multiplicity of identities, suggesting that disabled dance is amenable to complete capture by (or capture by both elements of) the legal definition of cultural heritage.

4 Using Law to Embed Disabled Dance in our Cultural Heritage

Having demonstrated that disabled dance fits into the definition of 'cultural heritage', and so should derive some benefit therefrom, we now turn to how the legal framework might be leveraged to assist practitioners. Foremost amongst the relevant legal instruments, as foreshadowed by the Introduction, is the CRPD. Developed via a participative and inclusive process, it has been described as one of the most successful international treaty negotiations, [94] followed by one of the most speedy ratifications. [95] More importantly, it was conceived of as "an unprecedented opportunity for domestic law, policy reform, and genesis on behalf of the globe's 'largest minority'," [96] with significant transformative potential. [97]

The CRPD directs States to ensure that people with disabilities have access on equal terms to cultural materials and places of cultural performances and services. [98] It also requires States to ensure that persons with disabilities can take part on an equal basis in recreational, leisure, and sporting activities, and have access to services provided by organisations in these areas. [99] While nothing is said about participation in cultural performance, [100] the right to cultural participation for all, including individuals with disabilities, is embedded elsewhere in the human rights framework. The ICESCR, for example, contains the right to take part in cultural life, [101] and the ICCPR contains the right to receive and impart information, [102] both of which are required to be delivered without discrimination as to race, colour, sex, or 'other status', [103] the latter of which was expected to encompass disability.

As disability was not expressly included in the ICESCR and ICCPR, a non-binding Resolution was adopted in 1993 which acknowledges the "strong moral and political commitment of Governments to take action to attain equalisation of opportunities for persons with disabilities." [104] In respect of culture, the 1993 Resolution directs States to ensure that persons with disabilities can utilise their artistic potential for their own benefit and for the benefit of the community, [105] and that places and works of culture should be accessible to those with disabilities. [106] In 1994, the UN Committee on Economic, Social and Cultural Rights issued a General Comment on persons with disabilities that made reference to the 1993 Resolution. [107] It states that, although there is no specific reference to disability in the ICESCR, the position of persons with disabilities is considered to be within the human rights framework, and that the position of persons with disabilities should be protected and promoted through general and specific instruments and actions. [108] It also stresses the right to full participation, stating that it should be made clear that persons with disabilities have equal rights to access cultural venues, and that communication barriers in particular should be eliminated. [109] The same Committee issued a further General Comment in 2009, which requires States to take a range of steps to facilitate participation in cultural life, [110] and which provides that States could adopt special measures to "attenuate or suppress conditions which perpetuate discrimination" provided they are reasonable, objective and proportionate and, exceptionally, permanent. [111]

All told, the human rights framework is strong and directly applicable to the disabled dance context, giving differently-abled performers rights to both participate in and produce culture, with even the potential to claim preferential treatment in funding decisions through special measures. Unfortunately, the great transformative potential of this framework has not yet been realised. Unquestionably, as noted in the Introduction, support for disability arts has been growing, particularly in Scotland. However, there is a long-standing and persistent deficit in the funding support for performance by differently-abled people. And while an argument can be made for additional or special funding, the question remains whether such can realistically be demanded by individuals given that the human rights framework places obligations on States to implement policies domestically for which there is significant margin of appreciation.

Under the CPRD, States submit reports to the monitoring committee to show how they are meeting their obligations. The UK submitted its Initial Report in 2012. [112] The narrative in relation to participation in cultural life opens by admitting that disabled people are less likely to participate in cultural activities, and responds by stating that the UK is committed to addressing this, building on progress already achieved, and "providing disabled people with equal opportunities to participate in culture, recreation, leisure and sport." [113] However, the text exposes an approach focused on the consumption of culture rather than the making and performing of it, [114] and no mention is made of the excellent preliminary work that has taken place in Scotland. Contrary to the transformative vision suggested for and by the CRPD, this seems woefully unambitious. [115]

How then to better realise the promise of the rights held out so tantalisingly in the CRPD for differently-abled dancers and choreographers? The first step is to engage meaningfully with the question:

What does the right to take part in cultural life in the CRPD actually mean?

This is a question with which the UK government failed to engage in its Initial Report. Given that so little attention has been paid to it, [116] the opportunity exists to forge an understanding explicitly informed by the values contained in the CRPD. Such an interpretation could encourage the CRPD's norms to permeate society by informing practices, thus facilitating a shift away from 'negative social constructions' towards 'rights-aligned perspectives.' [117]

What we are talking about is better operationalising the right to take part in cultural life by founding a broad arts environment that is inclusive and welcoming such that disabled dance and its performers can thrive. Although, as we have argued, the absence of a reference to participation in cultural performance could be problematic, analogies can be drawn with the reasoning in General Comment 21. Here the Committee noted that there are three interrelated parts to the right to participate in cultural life; one of these is contribution to cultural life. [118] Contribution to cultural life "refers to the right of everyone to be involved in creating the spiritual, material, intellectual and emotional expressions of the community." Given the reference to participation in cultural life in the title of Article 30, it seems that the Article is apt to cover the right to participate in cultural performance. When the InVisible Difference team challenged the UK Government's report to the UN Committee responsible for overseeing the implementation of the CRPD, arguing that not nearly enough was being done to fulfil its obligations the Ministerial Correspondence Team pointed us to the following: [119]

• the Government's disability strategy, Fulfilling Potential - Making it Happen;
• the Arts Council support of artistic and cultural experiences, including works choreographed and/or performed by disabled people;
• the Arts Council goal relating to diversity and skills, ensuring that the leadership and workforce of the arts and cultural sector reflects the diversity of the country; and
• the website of the Intellectual Property Office for information on copyright.

This was a typically political response which did little to address the richness of the potential in the CRPD. A glance at some of its provisions illustrates the possibilities for action. Article 8, for instance, obliges States to combat prejudices and harmful practices, and to promote awareness of the capabilities and contributions of persons with disabilities. Article 21 additionally urges States to ensure that information is available in accessible formats and using appropriate technologies. The State must implement obligations through the adoption of legislative, administrative, and other measures. [120]

Only by shaping the arts (and dance) environment in ways that specifically and concretely reflect both the spirit and provisions of the CRPD will we give practical meaning to the legal recognition of cultural heritage (or rather to a practice being captured by the term cultural heritage). At present, no direct references are being made. However, drawing on the CRPD's values and rules, we would suggest the following supportive measures.

4.1 Recommendation 1: Nurturing Receptiveness to the Rights of Disabled Persons

Despite the legal and social advances that have been made in response to the long-standing and profound inequality suffered by disabled people, more needs to be done to encourage individual and social attitudinal change, including that relating to employment, access, healthcare, and more. For example, evidence exists that disabled people are disproportionately represented among the poorest of the poor, and that their exclusion from international development organisations and from social research reinforces marginalisation. [121] Studies have also shown that social injustice persists as a result of significant employment and income inequalities in developed countries such as the UK, [122] and that litigation to adjust unfair practices has manifold challenges. [123] Ultimately, it has been a long battle to get disability recognised as a human rights issue, and the battle for the realisation of those rights is far from over. [124]

Given the above, we reiterate the suggestion that solutions must reach beyond the dismantling of oppressive and discriminatory institutions; they must view cultural practices, from basic socialisation, to common conversation, to cultural rituals and performances artworks, as opportunities to promote the dignity of all members of society. [125] In other words, the cultural practices that we encourage and support should have the potential to educate and empower. In this respect, we recommend that the government reverse its decision to close the Independent Living Fund, which supports many artists in their effort to be a part of the UK's dance workforce. We further recommend that there be an increase in the Access to Work provision, [126] and that the highly successful Unlimited programme receives an uplift in funding beyond 2016 to continue its work in targeted funding for disabled artists to make work and to tour that work to major centres throughout the UK. On a broader note, we also recommend that efforts be undertaken to improve and expand the training of those in healthcare and health research so that they can better engage with disabled patients and their lived experience. [127]

4.2 Recommendation 2: Promoting Positive Perceptions and Greater Social Awareness Towards Differently-Abled Artists

Garland-Thomson talks of the 'visual activism' that some differently-abled individuals engaged in during the 1990s and beyond. [128] This consisted of three stages: look; think; and act. The 'look at me' and 'think about me' stages were designed to lead to the 'act' stage whereby the starer starts to feel a sense of obligation toward the other, and that sense of obligation, in turn, results in behavioural changes. These changes might be 'to vote differently, to spend money differently, to build the world differently,…' [129] The dancers engaged with in InVisible Difference currently occupy the 'look at me' stage. What is now needed is to give audiences - the starers - the opportunities and the tools to enable them to develop the informed thinking that can undergird the 'think about me (and about my work)' stage.

We recommend that the government and arts funders can facilitate this by supporting programmes meant to enhance both general audience and critic literacy around disabled dance. [130] Using this knowledge, audiences (and others) can come to better appreciate that disabled dance is worth safekeeping and passing forward to future generations. Then can also, importantly, enter the 'act stage', becoming advocates and forming communities which work to move disabled dance toward a safer location within our cultural heritage. There are already some innovative research projects that seek to understand audience engagement with dance, [131] but we can find no publicly-funded programme that specifically addresses audiences for dance made and performed by differently-abled dancers. Without this, there is a real danger that the rights articulated in the CRPD and elsewhere will remain notional.

4.3 Recommendation 3: Understanding and Operationalising the Law that Informs Control Over (Disabled) Dance

Choreographers and dancers with disabilities must now manage themselves in recognition of the Arts Council edict that those involved in the creative sector must commercialise to survive. [132] Commercialisation of dance in recorded form would depend on exercising the exclusive rights granted by copyright, including the rights of reproduction and communication to the public. [133] In this respect, there is a challenge for practitioners. There seems to be a widely held assumption within the dance community and beyond that the choreographer is the sole author of the dance. As such, in the absence of an agreement to the contrary, she is also the owner of the copyright. We dispute this. We have demonstrated that a disabled dancer can and should also be an author and thus owner of the copyright in a dance arrangement, or a joint author, depending on the nature of his or her contributions to the dance. [134]

To some this may seem a small point, but it has great significance in uncertain or depressed economic times, most particularly when considering the new ways that technology enables exploitation of dance and so diversifies the ways in which revenue can be generated. Take the example of YouTube: When a video of disabled dance is made available on YouTube, together with advertisements, a small payment is made to YouTube by the advertiser. This money is then shared among the owners of the video. Bearing in mind fairness and the realities of practice, there is no rational reason why the featured dancer, an owner of the copyright in the dance, should not be as entitled to a share of that income as others who have an ownership interest. The disabled dancer, as a copyright owner, should be in a strong position to seek an equitable share, but this outcome is not a given under current practices. And this is only one example. The ways in which income could be earned via new technologies is limited only by our imagination, and this makes greater clarity and equity around ownership critical.

We recommend that the State take positive steps to operationalise this understanding of ownership in dance and the potential utility of copyright to disabled dancers through an educational programme. As has been noted above, in response to our policy submission urging the government to do more, we were pointed to the Intellectual Property Office website as a source of information on copyright. While we acknowledge that there are good resources available in respect of improving understanding of intellectual property rights, none are directed towards disability apart from the information on the exceptions and limitations for the print disabled. [135] Similarly, while there is an education programme (mostly directed at finding ways to get intellectual property awareness onto the education curriculum), it is, again, not directed towards disability. In 2014, a Parliamentary Discussion Paper failed to mention disability. [136] Thus, a start would be for the government and its relevant agencies to better highlight for disabled artists and society more broadly, through information and education programmes, the rights that disabled artists have and can claim under intellectual property law, together with advice on how they can be meaningfully exercised in different social and technological contexts.

5 Conclusion

The idea of 'cultural heritage' runs throughout the law. As an important rights-grounding concept specifically claimed in international legal instruments, it imposes on policymakers and social institutions the obligation to give it practical effect by articulating and supporting the rights associated with it, and designing programmes to support the activities captured by it. In parallel with this, there is an obvious need (and expectation) to give effect to the human rights associated with disability, which rights include participation in the creation and practice of culture on a basis equal to that of others (i.e., on an equitable basis). In order to achieve these ends, a more positive and facilitative arts environment must be forged with respect to dance made and performed by differently-abled artists. No single course of action will serve as a panacea; multiple courses of action must be crafted and pursued.

In this paper, we have made three broad recommendations which have an overlapping ambition and which encourage a positively reinforcing cycle of acknowledgement and action obvious. First, these recommendations operationalise the directive, articulated in the CRPD and elsewhere, to foreground the rights of persons with disabilities, making clear to publics that receptiveness toward these rights is expected and legally mandated. Second, they acknowledge the (growing) importance of audiences for determining the place of disabled dance in our cultural heritage, a classification that not only entitles disabled dance to protection, but also affords it greater visibility and acceptance, and so greater potential to reach wider audiences. Third, they highlight and (re)shape the rights that copyright law gives to disabled dancers, and support that (re)shaping with meaningful programmes that illustrate how the law can be exploited. Again, this contributes to increasing the visibility of disabled dance and equality for the dancer. Together they can embed disabled dance deeper in our culture, and so achieve a true social transformation in respect of disabled dance.

Our critical message, which is worthy of re-emphasis, is that Article 30 of the CRPD imposes on States a number of obligations. It is past time that States take seriously those obligations, and improve their gatekeeper functions for the benefit of this art-form. In so doing, our cultural heritage will surely be enriched.