1 See, for example, MacMillan, Margaret, War: How Conflict Shaped Us, Profile Books, London, 2020, p. 5Google Scholar (noting that while there is some disagreement among historians, anthropologists and sociobiologists, “the evidence seems to be on the side of those who say that human beings, as far back as we can tell, have had a propensity to attack each other in organized ways – in other words, to make war”); John Keegan, A History of Warfare, Vintage Books, New York, 1993, p. 3 (“Warfare is almost as old as man himself, and reaches into the most secret places of the human heart, places where self dissolves rational purpose, where pride reigns, where emotion is paramount, where instinct is king”).

2 For example, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950).

3 For example, Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950).

4 For example, Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 1342 UNTS 137, 10 October 1980; Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 1342 UNTS 168, 10 October 1980; Protocol (III) on Prohibitions or Restrictions on the Use of Incendiary Weapons, 1342 UNTS 171, 10 October 1980; Protocol (IV) on Blinding Laser Weapons, 1380 UNTS 370, 13 October 1995; Protocol (V) on Explosive Remnants of War, 2399 UNTS 100, 28 November 2003; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 1974 UNTS 45, 13 January 1993.

5 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 240, 14 May 1954 (Cultural Property Convention).

6 See, for example Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 53; Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 16; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 2253 UNTS 172, 16 March 1999 (Second Protocol).

7 Roger O'Keefe, The Protection of Cultural Property in Armed Conflict, Cambridge University Press, Cambridge, 2006, p. 2 (explaining that “there is a greater possibility than ever before of sparing cultural property from damage and destruction in wartime”).

8 Walter Benjamin, “The Work of Art in the Age of Mechanical Reproduction”, in Walter Benjamin, Illuminations, ed. Hannah Arendt, trans. Harry Zohn, Mariner Books, Boston, 2019.

9 Ibid., pp. 170–172.

10 Ibid., p. 171.

11 See Erin Nicholson, “Keywords Glossary: Authenticity”, Chicago School of Media Theory, available at: https://csmt.uchicago.edu/glossary2004/authenticity.htm (all internet references were accessed in February 2022).

12 See, for example, W. Benjamin, above note 8, pp. 169–170.

13 Mike Young, “Keywords Glossary: Aura”, Chicago School of Media Theory, available at: https://csmt.uchicago.edu/glossary2004/aura.htm.

14 W. Benjamin, above note 8, p. 174.

15 See, for example, Douglas Davis, “The Work of Art in the Age of Digital Reproduction”, Leonardo, Vol. 28, No. 5, 1995, p. 381 (“The work of art in the age of digital reproduction is physically and formally chameleon. There is no clear conceptual distinction now between original and reproduction in virtually any medium based in film, electronics, or telecommunications”).

16 See, for example, US Supreme Court, Carpenter v. United States, 585 U.S. ___ (2018), 2018 (holding that law enforcement's acquisition of cell-site location information was a search under the Fourth Amendment and required a warrant); US Supreme Court, South Dakota v. Wayfair, Inc., 585 U.S. ___ (2018), 2018 (holding that states may tax internet commerce); Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare, Cambridge University Press, Cambridge, 2013 (Tallinn Manual) (examining how extant legal norms apply to cyber warfare); Michael N. Schmitt (ed.), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Cambridge University Press, Cambridge, 2017 (Tallinn Manual 2.0), Rule 142.

17 Tallinn Manual 2.0, above note 16, Rule 142.

18 Ibid., pp. 1–3. The Tallinn Manual 2.0 expanded on the work of the 2013 Tallinn Manual, above note 16,which focused specifically on cyber operations involving the use of force and those that occurred in armed conflict. The Tallinn Manual 2.0 broadened the scope of the 2013 Manual to include rules related to peacetime cyber activities.

19 Tallinn Manual 2.0, above note 16, Rule 142.

20 See, for example, US Department of War, Instructions for the Government of Armies of the United States in the Field, General Order No. 100, 24 April 1863 (Lieber Code), Arts 34–35; Regulations Respecting the Laws and Customs of War on Land, Annexed to Convention No. IV Respecting the Laws and Customs of War on Land, 36 Stat. 2227, TS No. 539, 18 October 1907, Art. 27; Convention No. IX Concerning Bombardments by Naval Forces in Time of War, 36 Stat. 2351, TS No. 542, 18 October 1907, Art. 5; Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, 49 Stat. 3267, TS No. 899, 15 April 1935 (Roerich Pact), Art. 1; AP I, Art. 53; AP II, Art. 16.

21 See Cultural Property Convention, Art. 4(2) (stating that the obligation to respect cultural property and refrain from any act of hostility against such property “may be waived only in cases where military necessity imperatively requires such a waiver”); see also Second Protocol, Art. 6. But see AP I, Art. 53 (establishing that it is prohibited to commit acts of hostility against cultural objects and places of worship); AP II, Art. 15 (similarly establishing that it is prohibited to commit acts of hostility against cultural objects and places of worship). Both Article 53 of AP I and Article 16 of AP II, however, state explicitly that they apply “[w]ithout prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict”. Accordingly, both provisions do not necessarily abrogate the waiver for imperative military necessity outlined in Article 4(2) of the Cultural Property Convention. See, for example, Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed., Cambridge University Press, Cambridge, 2016, pp. 207–208CrossRefGoogle Scholar (“The ‘without prejudice’ qualification in Article 53 [of AP I] makes it clear that the legal regime established in the [Cultural Property Convention] is not invalidated”); R. O'Keefe, above note 7, p. 208 (noting that the “without prejudice” clause in the chapeau of Article 53 was “inserted to make it clear that article 53 is not intended to modify the existing legal obligations of those Parties to [AP I] which are also Parties to the [Cultural Property Convention]”).

22 Cultural Property Convention, Art. 1.

23 See, for example, Dinniss, Heather Harrison, Cyber Warfare and the Laws of War, Cambridge University Press, Cambridge, 2012, p. 14CrossRefGoogle Scholar (“It is axiomatic to say that the information revolution is fundamentally changing societies”); June Jamrich Parsons and Dan Oja, New Perspectives on Computer Concepts, Cengage, Boston, MA, 2009, p. 4 (“The digital revolution is an ongoing process of social, political, and economic change brought about by digital technology, such as computers and the Internet”). The digital revolution is also sometimes referred to as the third industrial revolution: see H. H. Dinniss, above.

24 For example, the introduction of verifiable assets, such non-fungible tokens (NFTs), has revolutionized how digital artwork can be bought and sold. See, for example, Josie Thaddeus-Johns, “What Are NFTs, Anyway? One Just Sold for $69 Million”, New York Times, 12 March 2021, available at: www.nytimes.com/2021/03/11/arts/design/what-is-an-nft.html; Clive Thompson, “The Untold Story of the NFT Boom”, New York Times, 12 May 2021, available at: www.nytimes.com/2021/05/12/magazine/nft-art-crypto.html.

25 See, for example, Manohla Dargis and A. O. Scott, “Film Is Dead? Long Live Movies”, New York Times, 6 September 2012, available at: www.nytimes.com/2012/09/09/movies/how-digital-is-changing-the-nature-of-movies.html; Ian Morris, “Technology is Destroying the Music Industry, Which Is Great for the Next Taylor Swift, Forbes, 17 November 2014, available at: www.forbes.com/sites/ianmorris/2014/11/17/technology-is-destroying-the-music-industry-which-is-great-for-the-next-taylor-swift/?sh=dc6538b236b8; Eileen Kinsella, “An NFT Artwork by Beeple Just Sold for an Unbelievable $69 Million at Christie's – Making Him the Third Most Expensive Living Artist”, Artnet, 11 March 2021, available at: https://news.artnet.com/market/christies-nft-beeple-69-million-1951036; Chistiane Paul, “Histories of the Digital Now”, Whitney Museum of American Art, available at: https://whitney.org/essays/histories-of-the-digital-now.

26 See, for example, Charter on the Preservation of the Digital Heritage, 17 October 2003, Art. 1 (stating that “[d]igital materials include texts, databases, still and moving images, audio, graphics software and web pages, among a wide and growing range of formats”).

27 See, for example, Lynn, William J. III, “Defending a New Domain: The Pentagon's Cyberstrategy”, Foreign Affairs, Vol. 89, No. 5, 2010, p. 101Google Scholar (“As a doctrinal matter, the Pentagon has formally recognized cyberspace as a new domain of warfare. Although cyberspace is a man-made domain, it has become just as critical to military operations as land, sea, air, and space”).

28 Tallinn Manual 2.0, above note 16, Rule 142.

29 Ibid.

30 Cultural Property Convention, Arts 2 (“Protection of Cultural Property”), 3 (“Safeguarding of Cultural Property”), 4 (“Respect for Cultural Property”).

31 Ibid., Art. 3 (requiring that parties “undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict”).

32 Ibid. art. 3.

33 Second Protocol, Art. 5.

34 R. O'Keefe, above note 7, p. 114.

35 See Cultural Property Convention, Art. 3; R. O'Keefe, above note 7, p. 114.

36 Roger O'Keefe et al., Protection of Cultural Property Military Manual, UNESCO, Paris, 2016 (UNESCO Manual), p. 13.

37 Ibid., p. 13.

38 Ibid., p. 14.

39 Cultural Property Convention, Art. 7(2). Article 7 also provides for the promulgation of military regulations or instructions to “ensure observance” of the convention and to “foster … a spirit of respect for the culture and cultural property of all peoples”. Ibid., Art. 7(1).

40 Ibid., Arts 6 (“Distinctive Marking of Cultural Property”), 16 (“Emblem of the Convention”), 17 (“Use of the Emblem”). See also R. O'Keefe, above note 7, pp. 116–117 (noting that practicality and aesthetics militate against marking movable cultural property with the distinctive emblem of the Convention).

41 See R. O'Keefe, above note 7, pp. 116–117. In some cases, the distinctive emblem can be affixed in a way that does not distort or distract from the object; for example, the protective emblem can be placed on the object's base or pedestal. As the records of the Intergovernmental Conference indicate, however, aesthetic and even psychological considerations had already been flagged as potential areas of concern during the drafting of the Cultural Property Convention. See Hladik, Jan, “Marking of Cultural Property with the Distinctive Emblem of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict”, International Review of the Red Cross, Vol. 86, No. 854, 2004, p. 381Google Scholar, quoting UNESCO, Records of the Conference Convened by the United Nations Educational, Scientific and Cultural Organization, Held at The Hague from 21 April to 14 May 1954, 1961, p. 383 (observing that “such marking, in peace-time, might raise difficulties on aesthetic and even psychological grounds”).

42 See, for example, Alex Leveringhaus, “Distance, Weapons Technology and Humanity in Armed Conflict”, Humanitarian Law and Policy Blog, 6 October 2017, available at https://blogs.icrc.org/law-and-policy/2017/10/06/distance-weapons-technology-and-humanity-in-armed-conflict/ (observing that “the drone operator, safely seated in a cubicle located thousands of miles away from a theatre, has become an enduring symbol of distance in warfare”).

43 UNESCO Manual, above note 36, p. 14.

44 R. O'Keefe, above note 7, p. 111.

45 Cultural Property Convention, Art. 4(5); see also UNESCO Manual, above note 36, p. 111.

46 Cultural Property Convention, Art. 4(5).

47 R. O'Keefe, above note 7, p. 111 (observing that when a territorial State has failed to notify other States in advance of the identify and location of the cultural property on its territory, or has failed to mark such property with the distinctive emblem of the Convention, “the opposing Party must hazard an assessment as to the cultural importance of the property in question”); UNESCO Manual, above note 36, p. 14 (stating that when in doubt, commanders and other military personnel should proceed on the assumption that all “movable and immovable property of historic, artistic or architectural significance” identified on the territory of another State is “of great importance to the cultural heritage of that state”).

48 Cultural Property Convention, Art. 1.

49 Ibid. (stating the term “cultural property” is defined “[f]or the purposes of the present Convention”); see also R. O'Keefe, above note 7, p. 102 (“As the chapeau to the provision states, the definition is strictly for the purposes of the Convention. It is not cross-referable to the definitions of cultural property found in subsequent UNESCO standard-setting instruments in the field of cultural heritage”).

50 See, for example, US Department of Defense (DoD), Department of Defense Law of War Manual, revised ed., Office of the General Counsel, December 2016, para. 5.18.1; UK Ministry of Defence, The Manual of the Law of Armed Conflict, 2004, paras 5.26, 5.26.2; Harvard University Program on Humanitarian Policy and Conflict Research (HPCR), Manual on International Law Applicable to Air and Missile Warfare, 2009 (HPCR Manual), Rule 1(o); Tallinn Manual 2.0, above note 16, p. 534.

51 DoD, above note 50, para. 5.18.1.1.

52 HPCR Manual, above note 50, Rule 1(o). The HPCR Manual purports to “produce a restatement of existing law applicable to air or missile operations in international armed conflict”. Ibid., Rule 2(a).

53 Tallinn Manual 2.0, above note 16, p. 534.

54 Hague Convention (IV) Respecting the Laws and Customs of War on Land, with Annex of Regulations, 36 Stat. 2277, 1 Bevans 631, 18 October 1907, Arts 27, 56.

55 Ibid., Art. 27.

56 Ibid., Art. 56.

57 R. O'Keefe, above note 7, p. 101.

58 Ibid., p. 101.

59 Cultural Property Convention, Art. 1(a–c). The centres described in Article 1(c) are also known as “centres containing monuments”.

60 R. O'Keefe, above note 7, pp. 103–106; see also Y. Dinstein, above note 21, pp. 207–208. O'Keefe explains: “On its face, the phrase ‘of every people’ is capable of two meanings, that is, ‘of all peoples jointly’ or ‘of each respective people’.” R. O'Keefe, above note 7, p. 103. According to O'Keefe, it is clear that “the term ‘cultural property’ in article 1 refers to movable or immovable property of great importance to the cultural heritage of each respective people – in other words, of great importance to the national cultural heritage of each respective Party.” Ibid., p. 104. Dinstein agrees, noting that the Cultural Property Convention's “universalist message” is “worthy of emphasis, inasmuch as some Belligerent Parties are disposed to view the enemy's cultural property from a constricted (even antagonistic) ethnic or religious perspective, attempting to erase alien monuments and other memorabilia”. Y. Dinstein, above note 21, p. 208.

61 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969, Art. 26.

62 Cultural Property Convention, Preamble; see also R. O'Keefe, above note 7, pp. 104 (citing Nagendra Singh, a former president of the International Court of Justice, who stated that “cultural objects and properties which make up [one state's] national heritage [are], consequently, the world's heritage”), 109 (noting that a State's power to evaluate the cultural importance of specific property located in its territory “must be exercised reasonably and in good faith”).

63 Second Protocol, Arts 10–14. Article 10 provides that cultural property may be placed under “enhanced protection” if it meets three conditions, one of which is that the property “is cultural heritage of the greatest importance for humanity.” Ibid., Art. 10(a) (emphasis added).

64 See, for example, Blake, Janet, “On Defining the Cultural Heritage”, International and Comparative Law Quarterly, Vol. 49, No. 1, 2000, pp. 66–67CrossRefGoogle Scholar (“The relationship between ‘cultural property’ or ‘cultural heritage’ is unclear, appearing interchangeable in some cases, while in others, cultural property is a sub-group within ‘cultural heritage’”); UNESCO, What Is Intangible Cultural Heritage?, 2011, p. 3, available at: https://ich.unesco.org/doc/src/01851-EN.pdf (“The term ‘cultural heritage’ has changed content considerably in recent decades, partially owing to the instruments developed by UNESCO”).

65 See, for instance, Frigo, Manlio, “Cultural Property v. Cultural Heritage: A ‘Battle of Concepts’ in International Law?”, International Review of the Red Cross, Vol. 86, No. 854, 2004, p. 369Google Scholar; UNESCO, above note 64. The first time the phrase “cultural property” was used in English in a legal instrument was in the Cultural Property Convention. Lyndel V. Prott and Patrick J. O'Keefe, “‘Cultural Heritage’ or ‘Cultural Property’?”, International Journal of Cultural Property, Vol. 1, No. 2, 1992, p. 312. In contrast, UNESCO's Convention Concerning the Protection of the World Cultural and Natural Heritage purposely used the phrase “cultural heritage” instead. The preamble to this convention underscored the distinction by noting its consideration of “the existing international conventions, recommendations and resolutions concerning cultural and natural property”, then exclusively using the phrase “cultural heritage” throughout the remainder of the text. Convention Concerning the Protection of the World Cultural and Natural Heritage, 1037 UNTS 152, 16 November 1972 (World Heritage Convention), Preamble; see also L. V. Prott and P. J. O'Keefe, above, p. 318.

66 J. Blake, above note 64, pp. 68 (noting the “significance of cultural heritage as symbolic of the culture and those aspects of it which a society (or group) views as valuable”), 69 (identifying the characterization of cultural heritage as a “non-renewable resource” as central to the view of cultural heritage as a form of inheritance); 83–84.

67 Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, Art. 2(1). In contrast, UNESCO's earlier World Heritage Convention defines “cultural heritage” exclusively in tangible terms. World Heritage Convention, Art. 1.

68 See, for example, J. Blake, above note 64, p. 67 (stating that the Cultural Property Convention's definition of cultural property “clearly shows it to be one element within the cultural heritage”); M. Frigo, above note 65, p. 369 (observing that cultural property “can and indeed has been conceived as a sub-group within the notion of cultural heritage”).

69 R. O'Keefe, above note 7, p. 111. The UNESCO Manual similarly states that “to ensure their state's compliance with the law of armed conflict and to avoid their personal responsibility for war crimes, commanders and other military personnel should treat all objects, structures and sites of historic, artistic or architectural significance on foreign territory as ‘cultural property’ protected by the 1954 Hague Convention and its two Protocols and by customary international law”. UNESCO Manual, above note 36, p. 14.

70 See Tallinn Manual 2.0, above note 16, Rule 142. Curiously, the commentary to the Tallinn Manual 2.0 never explicitly states that those who favoured this approach actually constituted a majority of the International Group of Experts.

71 See, for example, Rhian Addison, Protecting Digital Cultural Assets: A Review of the Export Process and Supporting Mechanisms, National Archives, London, 2019, p. 4 (“With digital forming such a large part of the world economy and daily activity, policy needs to acknowledge the importance of digital culture as it will soon be an essential part of protecting ‘national treasures’”).

72 Tallinn Manual 2.0, above note 16, Rule 142.

73 Ibid., p. 535.

74 Ibid.

75 Ibid.

76 Ibid., p. 437. The ICRC's Commentary on the Additional Protocols states: “The English text uses the word ‘objects’, which means ‘something placed before the eyes, or presented to the sight or other sense, an individual thing seen, or perceived, or that may be seen or perceived; a material thing’. The French text uses the word ‘biens’, which means ‘chose tangible, susceptible d'appropriation’. It is clear that in both English and French the word means something that is visible and tangible.” Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987, paras 2007–2008.

77 Tallinn Manual 2.0, above note 16, p. 437.

78 Ibid.

79 Ibid., p. 535. As the commentary suggests, some of these members may have been further convinced by AP I's use of the term “cultural objects” in Article 53. The UNESCO Manual notes: “Although the relevant provisions of the 1977 Additional Protocols to the Geneva Conventions adopt different terminology, the property of cultural significance protected by them is effectively the same as the ‘cultural property’ protected by the 1954 Hague Convention and its Protocols.” UNESCO Manual, above note 36, p. 14.

80 Tallinn Manual 2.0, above note 16, p. 535 (“For these Experts, the critical question is whether the intangible property is cultural in nature”).

81 Ibid., p. 535.

82 See Ibid.

83 See, for example, L. V. Prott and P. J. O'Keefe, above note 65; J. Blake, above note 64.

84 L. V. Prott and P. J. O'Keefe, above note 65, p. 307; see also J. Blake, above note 64, pp. 65–66.

85 See, for example, L. V. Prott and P. J. O'Keefe, above note 65, pp. 307, 309–318; J. Blake, above note 64, pp. 65–66 (asserting that the term “cultural property” is a fundamental legal concept which carries “a range of ideological baggage” and is “problematic to apply” because it involves “the rights of the possessor to the protection of cultural resources which may involve a severe curtailment of such rights and the separation of access and control from ownership”).

86 See Richard Crewdson, “Cultural Property – A Fourth Estate?”, Law Society's Gazette, Vol. 18, 1984, p. 126, cited in L. V. Prott and P. J. O'Keefe, above note 65, p. 311.

87 See, for example, L. V. Prott and P. J. O'Keefe, above note 65, pp. 309–318 (discussing the problems with the concept of property); J. Blake, above note 64, pp. 65–66 (describing the drawbacks of applying the rights of a possessor to the protection of cultural resources, the commodification of cultural artifacts, and the limited scope of the term “cultural property”).

88 Determining the location of digital cultural property for purposes of the Cultural Property Convention presents another challenge. This article assumes that digital material which a State considers to be part of its national cultural heritage must be located in the State (e.g., on a server physically situated in the territory of the State) in order to be subject to the provisions of the Cultural Property Convention.

89 Tallinn Manual 2.0, above note 16, pp. 535–536.

90 It is important to note that Rule 142 is not concerned exclusively with digital cultural property. The rule also implicates traditional forms of cultural property that may be affected by cyber operations.

91 See, for example, Brian J. Egan, “Remarks on International Law and Stability in Cyberspace”, 10 November 2016, available at: www.law.berkeley.edu/wp-content/uploads/2016/12/egan-talk-transcript-111016.pdf; UN Office for Disarmament Affairs, Official Compendium of Voluntary Contributions on the Subject of How International Law Applies to the Use of Information and Communications Technology by States, UN Doc. A/76/136, August 2021. See also Duncan B. Hollis, “A Brief Primer on International Law and Cyber Space”, 14 June 2021, available at: https://carnegieendowment.org/files/Hollis_Law_and_Cyberspace.pdf.

92 See Tallinn Manual 2.0, above note 16, p. 535 n. 1327.

93 See, for example, Jean-Michel Rodes, Geneviève Piejut and Emmanuèle Plas, Memory of the Information Society, UNESCO, Paris, 2003, p. 39; H. H. Dinniss, above note 23, pp. 231–232.

94 “P2: To Be Born Digital”, Oxford English Dictionary, 3rd ed. 2010, available at: www.oed.com/view/Entry/52611?redirectedFrom=born-digital#eid1262411270. This OED reference cites a 1998 article from Business Wire as the earliest known use of the term. The article referred to “[a] vast data resource pulled from the most comprehensive archive of documents ‘born digital’ – that is, electronic at conception and through publication”.

95 J.-M. Rodes, G. Piejut and E. Plas, above note 93, p. 39.

96 Scott Reyburn, “JPG File Sells for $69 Million, As ‘NFT Mania’ Gathers Pace”, New York Times, 11 March 2021, available at: www.nytimes.com/2021/03/11/arts/design/nft-auction-christies-beeple.html; E. Kinsella, above note 25.

97 Tallinn Manual 2.0, above note 16, p. 535. The commentary's use of the term “object” is interesting here. Earlier in the same discussion, the commentary points out the International Group of Experts’ general rejection of the idea that intangible items could be objects. The commentary then explains how intangible items could be “property” before reverting to the use of the term “object” to describe certain digital material.

98 Ibid., pp. 535–536.

99 Cultural Property Convention, Art. 1(a).

100 See R. Addison, above note 71. Addison's report, prepared on behalf of the National Archives, divides born-digital material into two forms: (1) “[o]riginal digital art work, such as videos and music”, and (2) “[d]igital data or knowledge, such as databases, spreadsheets and websites” (p. 4).

101 Tallinn Manual 2.0, above note 16, p. 535.

102 Ibid.

103 Ibid., pp. 535–536 (commenting that a “single extremely high-resolution image of Leonardo da Vinci's Mona Lisa … might, and in the event of the destruction of the original Mona Lisa would, qualify as cultural property”).

104 Ibid., p. 536.

105 The commentary to the Tallinn Manual 2.0 does hint at the importance of reproductive quality, but it never expressly identifies quality as an essential consideration. The commentary's Mona Lisa example identifies the digital copy as “a single extremely high-resolution image” but never discusses whether or why the resolution is significant. Instead, the commentary states that protection is afforded “based on the value and irreplaceability of the original work of art” as well as “the difficulty, time, and expense involved in reproducing faithful copies”. Ibid., pp. 535–536.

106 Eugene Ch'ng, “The First Original Copy and the Role of Blockchain in the Reproduction of Cultural Heritage”, Presence, Vol. 27, No. 1, 2018, pp. 156–157.

107 Ibid., p. 156.

108 Ibid. Ch'ng also notes that “surrogates” feature smaller file sizes, and they may be of little use to experts “as their lack of surface details have rendered them noninterpretable”.

109 Ibid., p. 151.

110 See Yuri Smirnov, “Intentional Human Burial: Middle Paleolithic (Last Glaciation) Beginnings”, Journal of World Prehistory, Vol. 3, No. 2, 1989, p. 199; Helen Thompson, “The Oldest Stone Tools Yet Discovered Are Unearthed in Kenya”, SmithsonianMag.com, 20 May 2015, available at: www.smithsonianmag.com/science-nature/oldest-known-stone-tools-unearthed-kenya-180955341/ (noting that some stone artifacts may be nearly 3.3 million years old, almost 3 million years older than the earliest Homo sapiens fossils); Jean-Jacques Hublin et al., “New Fossils from Jebel Irhoud, Morocco and the Pan-African Origin of Homo Sapiens”, Nature, Vol. 546, No. 7657, 2017, p. 290 (dating the excavations at Irhoud to “315 ± 34 kyr”).

111 See Y. Smirnov, above note 110, p. 214 (“Middle Paleolithic burials are known both with and without associated [grave] goods, which makes it most likely that goods were sometimes deliberately placed in the grave”).

112 See Neil Fligstein and Doug McAdam, A Theory of Fields, Oxford University Press, Oxford, 2012, p. 37.

113 Ian Tattersall, Becoming Human: Evolution and Human Uniqueness, Oxford University Press, Oxford, 1998, p. 163, cited in N. Fligstein and D. McAdam, above note 112.

114 N. Fligstein and D. McAdam, above note 112, p. 37.

115 Ibid.

116 Fligstein and McAdam wonder: “How many people did it take to boil and straighten the mammoth tusks? Who contributed the 3,000 hours required to make then sew the ivory beads on to the burial clothes? … We will never know, but one can be assured that the members of the group shared an acute and elaborate sense of the event's significance.” Ibid., pp. 37–38.

117 Ibid., p. 37 (emphasis omitted).

118 Ibid. (emphasis omitted).

119 See Michael Schmidt, Gilgamesh: The Life of a Poem, Princeton University Press, Princeton, NJ, 2019, p. 1 (describing Gilgamesh as “the oldest long poem in the world”); The Epic of Gilgamesh, trans. Andrew George, Penguin Books, London, 1999. In the poem, Gilgamesh cries out: “O forgemaster! [Lapidary!] Coppersmith! Jeweler!” He then commands that Enkidu's statue shall be made with eyebrows of lapis lazuli and a chest of gold. Ibid., p. 65.

120 Homer, The Iliad, trans. Robert Fagles, Penguin Books, New York, 1990, pp. 467–487. Virgil similarly describes the shield of another hero, Aeneas, in Book 8 of the Aeneid. Virgil, The Aeneid, trans. Robert Fagles, Penguin Books, New York, 2006, pp. 241–265. Interestingly, the Iliad's description of the shield is considered the first literary description of a visual work of art – also known as ekphrasis – in Western literature. James A. Francis, “Metal Maidens, Achilles’ Shield, and Pandora: The Beginnings of ‘Ekphrasis’”, American Journal of Philology, Vol. 130, No. 1, 2009, p. 6.

121 W. Benjamin, above note 8, p. 169.

122 Charles Cronin, “3D Printing: Cultural Property as Intellectual Property”, Columbia Journal of Law & the Arts, Vol. 39, No. 1, 2015, p. 21. Cronin further explains that aura “often determines the worth ascribed to an object as much as, if not more than, the combined value of the material of which it is composed and the intellectual effort invested in shaping it”.

123 Ibid., p. 22.

124 Katherine McGrath, “Researchers Just Found a Grasshopper in a Van Gogh Painting”, Architectural Digest, 7 November 2017, available at: www.architecturaldigest.com/story/researchers-just-found-a-grasshopper-in-a-van-gogh-painting.

125 Ibid.

126 See “Mechanical Reproduction”, in Daniel Chandler and Rod Munday (eds), A Dictionary of Media and Communication, 2011, available at: https://tinyurl.com/bdh8vp2u.

127 See W. Benjamin, above note 8, p. 168.

128 See ibid. (“Mechanical reproduction of a work of art, however, represents something new”).

129 Paul Valéry, “La Conquête de l'ubiquité”, Aesthetics, trans. Ralph Manheim, Routledge and Kegan Paul, London, 1964, p. 225, quoted in W. Benjamin, above note 8, p. 166.

130 Ibid.

131 See, for example, W. Benjamin, above note 8, p. 171; C. Cronin, above note 122, pp. 23–24; M. Young, above note 13. Cronin uses the J. Paul Getty Museum's Victorious Athlete to illustrate this point. He writes: “Imagine the Getty's bronze Athlete standing among a dozen or more visually and haptically identical copies of it. Each additional copy further undermines the legitimacy of the aura we ascribe to the original; what does it matter that one of these ten, twenty, or thirty bronzes was created 2000 years ago if I cannot identify it among the copies?” C. Cronin, above note 122, p. 24 (emphasis in original). Meanwhile, Benjamin further observes that “[t]he uniqueness of a work of art is inseparable from its being imbedded in the fabric of tradition” and that “the unique value of the ‘authentic’ work of art has its basis in ritual, the location of its original use value”. W. Benjamin, above note 8, pp. 173–174.

132 W. Benjamin, above note 8, p. 171.

133 Metropolitan Government of Nashville and Davidson County, “The Parthenon”, Nashville.gov, available at: www.nashville.gov/departments/parks/parthenon.

134 W. Benjamin, above note 8, p. 174. Benjamin explains that art initially served a ritualistic function, first in the service of magic, then of religion.

135 Ibid., p. 170. Benjamin states: “The cathedral leaves its locale to be received in the studio of a lover of art; the choral production, performed in an auditorium or in the open air, resounds in the drawing room.”

136 See, for example, “From the ‘Mona Lisa’ to ‘The Wedding Feast at Cana’: The Salle des États”, Louvre.fr, available at: www.louvre.fr/en/explore/the-palace/from-the-mona-lisa-to-the-wedding-feast-at-cana.

137 W. Benjamin, above note 8, pp. 175–176. Benjamin notes that works of art possess both cult value and exhibition value. By enabling works of art to be created or reproduced in quantity, mechanical reproduction freed art from the constraints of ritual, increasing its exhibition value.

138 Ibid., p. 174. Benjamin further asserts that “the instant the criterion of authenticity ceases to be applicable to artistic production, the total function of art is reversed. Instead of being based on ritual, it begins to be based on another practice – politics.” Ibid., pp. 174–175.

139 “Reproduce”, Oxford English Dictionary, 3rd ed., 2009, available at: www.oed.com/view/Entry/163098?redirectedFrom=reproduce#eid (definition 2.a.).

140 “Reproduce”, Oxford English Dictionary, 3rd ed., 2009, available at: www.oed.com/view/Entry/163098?redirectedFrom=reproduce#eid (definition 1.d.).

141 For example, “produce again” or “recreate” will be used to indicate the first sense of the definition – to bring again into material existence. “Copy”, “replicate”, or “duplicate” will be used in the second sense – to produce again in the form of a copy.

142 R. Addison, above note 71, p. 15.

143 See E. Ch'ng, above note 106, p. 153 (“There are in fact no mechanisms for authenticating digital copies. Once copied and distributed, there can be no distinction between the first copy and its subsequent copies”). But see Fiona Cameron, “Beyond the Cult of the Replicant: Museums and Historical Digital Objects – Traditional Concerns and New Discourses”, in Fiona Cameron and Sarah Kenderdine (eds), Theorizing Digital Cultural Heritage, MIT Press, Cambridge, MA, 2007, pp. 49, 67 (“Like the analog, the materiality of the digital acts as a testimony to its own history and origin, and hence authenticity”). Cameron further notes that the “provenance, chain of origin, and distributive character” of a digital replicant “can be traced, albeit with some difficulty”.

144 Tallinn Manual 2.0, above note 16, Rule 142; see also, for example, H. H. Dinniss, above note 23, p. 232 (noting how some art museums now exhibit digital artworks and some filmmakers now film exclusively in digital mediums); R. Addison, above note 71, p. 4.

145 Interestingly, the Tallinn Manual 2.0 never explicitly states that a majority of the group held this position.

146 Tallinn Manual 2.0, above note 16, p. 535 (“No member of the International Group of Experts taking this position asserted that all digital manifestations of cultural property are entitled to the protection of this Rule”).

147 Ibid.

148 Notably, this approach is consistent with an object-centred view of cultural preservation. As Cameron explains, “[d]iscourses have centered around the status of the digital copy as inferior to its non-digital original, and the potential of the former to subvert the foundational values and meanings attributed to the original. Western concepts of object-centeredness, historical material authenticity, and aura play a central role in upholding this differential relationship.” F. Cameron, above note 143, p. 50.

149 C. Cronin, above note 122, p. 20 (“In the digital age it is increasingly true that the economic and aesthetic value of a cultural artifact is generated more by the information it contains than by the substance in which it is embodied”); Cuseum, Neurological Perceptions of Art Through Augmented and Virtual Reality, 2020, available at: https://tinyurl.com/2p8tn2pw. See also Sarah Cascone, “Your Brain May Not Be Able to Distinguish a Digital Reproduction of an Artwork from the Real Thing, a New Study Suggests”, ArtnetNews, 10 June 2020, available at: https://news.artnet.com/art-world/brain-digital-art-reproduction-study-1873623. But see, for example, F. Cameron, above note 143, p. 63. Cuseum's study on Neurological Perceptions of Art Through Augmented and Virtual Reality found that the brains of test subjects did not differentiate between original works of art and digital reproductions. Cuseum, above, p. 1. The study concluded that the electroencephalogram readings of its subjects “would suggest that aesthetic experience is not denigrated by a digital interface representation and, in fact, digital reproductions in the case of augmented reality are shown to improve magnitude of brain activity compared to the viewing of original works of art”. Ibid., p. 5 (emphasis in original). Meanwhile, Cameron argues that real objects carry “deep imaginary power” and hold a “special psychological standing” that virtual objects do not. F. Cameron, above note 143, p. 63.

150 See, for example, F. Cameron, above note 143, p. 51 (citing one museum curator's belief that objects “are important only in that they contain information that can be communicated through a variety of media”); C. Cronin, above note 122, p. 27 (“The significance of aura to the aesthetic and economic valuations of cultural artifacts can be diminished only if we perceive cultural artifacts as fundamentally works of information rather than tangible relics”).

151 See, for example, F. Cameron, above note 143, p. 54 (explaining that “digital historical objects can potentially be seen as objects in their own right, can play to notions of polysemy, the experiential, and the sensual”).

152 R. O'Keefe, above note 7, p. 105 (explaining that “article 1 devolves to each Party the discretionary competence to determine the precise property in its territory to which the Convention applies”).

153 Cultural Property Convention, Art. 1(a). The commentary to Rule 142 treats similar digital information – e-government documents and scientific data, for example – as born-digital material and would protect them accordingly. Tallinn Manual 2.0, above note 16, p. 535.

154 Jiří Toman, The Protection of Cultural Property in the Event of Armed Conflict, Routledge, London, 1996, p. 52 (remarking that important libraries are protected “probably in the spirit of protecting human knowledge” and that archives offer “irrefutable evidence of the past”).

155 F. Cameron, above note 143, p. 55.

156 Ibid.

157 Cultural Property Convention, Art. 1(a).

158 Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, Records of the Conference Convened by the United Nations Educational, Scientific and Cultural Organization and Held at The Hague from 21 April to 14 May 1954, para. 215, cited in J. Toman, above note 154, pp. 53–54.

159 Ibid., para. 215.

160 Tallinn Manual 2.0, above note 16, p. 536.

161 Ibid., p. 535. It is possible that the International Group of Experts intended to confine the protection of born-digital material to born-digital property in limited circulation. The commentary to Rule 142, however, does not explicitly state this. Moreover, the examples of born-digital property provided in the commentary – i.e., “musical scores, digital films, documents pertaining to e-government, and scientific data” – are not the types of materials that are generally withheld from circulation or guarded against wide distribution.

162 C. Cronin, above note 122, p. 21; see also E. Ch'ng, above note 106, p. 154 (“The value of a certain relic made of stone can potentially outweigh the value of an object made of gold. … The fact that a historical artifact has value is not a credit to the object itself, but to the intangible properties embedded within the object through past human activities”).

163 C. Cronin, above note 122, p. 26.

164 Tallinn Manual 2.0, above note 16, p. 536.

165 Ibid.

166 R. Addison, above note 71, p. 15. The report proposes that at bit level, hash values or checksums could be used to assess authenticity.

167 E. Ch'ng, above note 106.

168 See Ibid., p. 160 (“Through blockchains the instrumental value of digital copies can be greatly increased, as the uniqueness and rarity of copies can be made possible”).

169 See, for example, Robyn Conti and John Schmidt, “What You Need To Know about Non-Fungible Tokens (NFTs)”, Forbes, 14 May 2021, available at: www.forbes.com/advisor/investing/nft-non-fungible-token/; Oscar Gonzalez, “NFTs Explained: These Expensive Tokens Are as Weird as You Think They Are”, CNET, 6 April 2021, available at: www.cnet.com/personal-finance/nfts-explained-these-expensive-tokens-are-as-weird-as-you-think-they-are/; J. Thaddeus-Johns, above note 24.

170 See, for example, J. Thaddeus-Johns, above note 24 (“An NFT is an asset verified using blockchain technology, in which a network of computers records transactions and gives buyers proof of authenticity and ownership”); O. Gonzalez, above note 169 (“NFTs offer a blockchain-created certificate of authenticity for a digital asset”).

171 See, for example, Daniel Van Boom, “NFT Bubble: The Craziest Nonfungible Token Sales So Far”, CNET, 22 March 2021, available at: www.cnet.com/news/nft-bubble-the-craziest-nonfungible-token-sales-so-far/.

172 See, for example, C. Thompson, above note 24; Jacob Kastrenakes, “Your Million-Dollar NFT Can Break Tomorrow if You're not Careful”, The Verge, 25 March 2021, available at: www.theverge.com/2021/3/25/22349242/nft-metadata-explained-art-crypto-urls-links-ipfs. Sometimes, however, even basic information, such as the title of the work or the name of the artist, isn't included in the NFT. See J. Kastrenakes, above (explaining that the NFT for Beeple's Everydays – The First 5000 Days, a digital artwork auctioned at Christie's for a record-setting $69 million, did not include the name of the artwork or the name of the artist).

173 C. Thompson, above note 24 (“Someone who buys an artwork NFT owns only the NFT”); J. Kastrenakes, above note 172 (“[U]nlike a painting, which can be placed in a buyer's home, an NFT is more like a piece of paper saying you own something”);

174 See, for example, C. Thompson, above note 24 (explaining that anyone can go to an NFT art site, copy a file, and “then post it to Instagram or Facebook … or make it the background on a phone”); J. Kastrenakes, above note 172 (“NFTs use links to direct you to somewhere else where the art and any details about it are being stored”) (emphasis in original). See also Emma Bowman, “‘Charlie Bit Me’ Will Remain on YouTube After NFT Auction Switcheroo”, NPR, 30 May 2021, available at: www.npr.org/2021/05/30/1001627869/charlie-bit-me-will-remain-on-youtube-after-nft-auction-switcheroo (explaining that a YouTube video which was auctioned off as an NFT would remain on YouTube after initial plans to remove it from the site were reconsidered). The suggestion that “Charlie Bit My Finger” could have been removed from the internet to ensure the auction winner would become “the sole owner of this lovable piece of internet history” indicates not all digital works might remain publicly accessible after the sale of an NFT.

175 See, for example, C. Thompson, above note 24 (explaining that if a site hosting a digital artwork goes down, “the NFT no longer even points to anything”); J. Kastrenakes, above note 172 (commenting that broken links could result in “awfully expensive 404 errors” for buyers of NFTs).

176 See, for example, J. Thaddeus-Johns, above note 24; R. Conti and J. Schmidt, above note 169.

177 See, for example, J. Thaddeus-Johns, above note 24; R. Conti and J. Schmidt, above note 169.

178 See, for example, J. Thaddeus-Johns, above note 24 (“Now, artists, musicians, influencers and sports franchises are using NFTs to monetize digital goods that have previously been cheap or free”); R. Conti and J. Schmidt, above note 169 (explaining that NFTs can have only one owner at a time and that their unique data “makes it easy to verify ownership and transfer tokens between owners”).

179 See, for example, Christina Morales, “‘Charlie Bit My Finger’ Is Leaving YouTube After $760,999 NFT Sale”, New York Times, 24 May 2021, available at: www.nytimes.com/2021/05/24/arts/charlie-bit-my-finger-nft-auction.html (reporting that the NFT for a video titled “Charlie Bit My Finger”, one of YouTube's first viral videos, sold for $760,999 in May 2021).

180 NBA Top Shot, available at: https://nbatopshot.com/.

181 Erin Griffith, “Why an Animated Flying Cat with a Pop-Tart Body Sold for Almost $600,000”, New York Times, 22 February 2021 (updated 27 May 2021), available at: www.nytimes.com/2021/02/22/business/nft-nba-top-shot-crypto.html (explaining that the internet meme featuring “an animated flying cat with a Pop-Tart body leaving a rainbow trail”, which had been viewed and shared online hundreds of millions of times, was sold on a website dedicated to the sale of digital goods).

182 See, for example, J. Thaddeus-Johns, above note 24; Saniya More, “‘NFT’ Search Volume on Google Hits All-Time High as Platform User Count Nears 400K”, The Block, 15 March 2021, available at: www.theblockcrypto.com/linked/98358/nft-search-volume-on-google-hits-all-time-high-as-platform-user-count-nears-400k.

183 Maria Armental, “Jack Dorsey's First Tweet Sells as NFT for $2.9 Million”, Wall Street Journal, 22 March 2021, available at: www.wsj.com/articles/jack-dorseys-first-tweet-sells-as-nft-for-2-9-million-11616455944.

184 S. Reyburn, above note 96; E. Kinsella, above note 25. The two living artists who have achieved higher auction prices for their works are Jeff Koons and David Hockney. S. Reyburn, above note 96.

185 R. Conti and J. Schmidt, above note 169.

186 Ibid.

187 J. Thaddeus-Johns, above note 24. See also, for example, R. Conti and J. Schmidt, above note 169.

188 D. Van Boom, above note 171.

189 R. Conti and J. Schmidt, above note 169 (“Collectors value those ‘digital bragging rights’ almost more than the item itself.”). See also E. Griffith, above note 181 (“The buyers are usually not acquiring copyrights, trademarks or even the sole ownership of whatever it is they purchase. They're buying bragging rights and the knowledge that their copy is the ‘authentic’ one”).

190 See J. Thaddeus-Johns, above note 24 (“The technology also responds to the art world's need for authentication and provenance in an increasingly digital world”).

191 Tallinn Manual 2.0, above note 16, p. 536.

192 See R. O'Keefe, above note 7, pp. 103–106; Vienna Convention on the Law of Treaties, Art. 26.

193 The identification of cultural property entitled to enhanced protection in accordance with the Second Protocol represents one notable exception. To date, however, a total of only seventeen objects have been granted enhanced protection. UNESCO, “International List of Cultural Property under Enhanced Protection”, 2019, available at: www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Enhanced-Protection-List-2019_Eng_04.pdf.

194 See, for example, E. Ch'ng, above note 106, p. 156 (“Copies copied from the First Original Copy are no different in nature and appearance from the original copy and therefore, all copies can be claimed as the First Original Copy”). Ch'ng further explains that while digital watermarking could be used to denote the first copy, digital watermarks easily added to subsequent copies would effectively negate the watermark's usefulness as an identifier.

195 See, for example, “The Digital Michaelangelo Project”, available at: http://graphics.stanford.edu/projects/mich/; Institute for Digital Archaeology, “The History of the Triumphal Arch of Palmyra”, available at: https://digitalarchaeology.org.uk/history-of-the-arch. The Institute for Digital Archaeology created a one-third replica of the Triumphal Arch using data from 3-D photographs of the monument and 3-D printing technology. See, for example, Christopher D. Shea, “Palmyra Arch Replica Is Unveiled in Trafalgar Square in London”, New York Times, 19 April 2016, available at: www.nytimes.com/2016/04/20/arts/international/replica-of-palmyra-arch-is-unveiled-in-trafalgar-square.html; Institute for Digital Archaeology, “Building the Arch”, available at: https://digitalarchaeology.org.uk/building-the-arch.

196 The “technological solutions” described in the Tallinn Manual 2.0 could be used for this purpose. See Tallinn Manual 2.0, above note 16, p. 536.

197 Cultural Property Convention, Art. 39.

198 Ibid., Arts 16, 17.

199 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Sixth Meeting of the Parties, CLT-15/6.SP/CONF.202/Decisions, 18 January 2016. The new emblem, created “for the exclusive marking of cultural property under enhanced protection”, would help distinguish cultural property under general and special protection (p. 4).

200 Cultural Property Convention, Preamble.

201 Ibid., Arts 2–4.