The coloniality of memory and cultural heritage: From copyright exceptions to a right to remember under Article 15 of the ICESCR

Abstract Across former colonies, the question of access to cultural heritage remains contested and constrained by the enduring legacies of colonialism. While physical restitution has been the subject of much debate, comparatively little attention has been paid to the legal structures governing control of cultural memory associated with said physical artefacts. This paper interrogates the relationship between copyright law, colonial archives and collective memory. Drawing on concepts of coloniality theory and memory studies, this paper introduces the novel concept of coloniality of memory and applies it to preservation exceptions like that proposed by the African Group's 7 October 2025 Proposal on Limitations and Exceptions made at the WIPO Standing Committee on Copyright and Related Rights. Interpreted solely through the framework of copyright, these preservation exceptions are unable to meaningfully challenge colonial hierarchies of memory. Their decolonial potential may only be fully realised if they are further interpreted through the framework of international human rights, specifically the right to culture in Article 15 of the ICESCR read with UNDRIP. In doing so, it is argued that these preservation exceptions give rise to a communal right to remember derived from Article 15. By interpreting preservation exceptions as a matter of access, participation and contribution to cultural life, this paper offers a new normative framework that allows them to be utilised as tools for decolonising memory without displacing copyright.