Research On China's Intellectual Property Protection Model For Intangible Cultural Heritage

The intangible cultural heritage(ICH) is the fruits of the traditional culture and traditional knowledge constantly transmitted and recreated by nations in the world from generation to generation,which is the mainspring of our cultural diversity and its maintenance a guarantee for continuing creativity and sustainable development. Especially for the developing nations,ICH has prominent cultural,economic and social value.It is a new task for the international community,how to protect the ICH effectively how to regulate the utilization of ICH and how to prevent abuse.At the beginning of 50s last century,Japan and South Korea took the lead in protecting ICH by legislation,from then on,the international community has done many works for the protection of ICH,and promulgated some related laws,model provisions and international treaties,etc..But generally speaking,the present protection of ICH still mainly relies upon the administrative approaches,the protection of ICH through Intellectual property law is not a popular phenomenon in the world,yet.Out of the will of maintaining their interests and of counteracting the hegemony of the developed nations in the field of intellectual property domain,some African and Latin American nations started protecting expression of folklore through intellectual property law from the 50s last century upon,and then researches and legislations on intellectual property protection for ICH gradually increased.There are also stipulations about the protection and utilization of ICH in the Outline of National Intellectual property Strategy issued by the State Council of P.R.C on June 5,2008. While there is not any stipulation about protection of ICH in our intellectual property laws except the article 6 of the copyright law,viz."regulations for the protection of copyright in expressions of folklore shall be established separately by the State Council." But up to date,the article 6 is still a vacant article because the related regulations are still not established by the State Council.Therefore it is the most urgent task to legislate for the intellectual property protection of ICH,for this purpose,we must establish a appropriate model about intellectual property protection for ICH according to the characters of ICH and the status of China as soon as possible.The Chapter 1 of this paper is a brief introduction about the basic theory of ICH, including the concept,the sorts and the characters,and so on..The Chapter 2 mainly illustrates the necessity and the justice of using intellectual property laws for the protection of ICH.Considering the value,the crises of ICH and the disadvantages of the existing protection approaches,it is very necessary to protect ICH within the framework of intellectual property.At the same time,this paper explained the justice of using intellectual property law for the protection of ICH from the theories of interests balance and human rights.The Chapter 3 introduces some legislation examples of foreign countries, international treaties and model provisions for ICH protection in the domain of intellectual property.And the main academic view points on the intellectual property protection for ICH is also introduced in this chapter.From two aspects,the Chapter 4 analyses the disadvantage of using existing intellectual property laws to protect ICH.Firstly,the analysis out of the characters of ICH manifests,that there is a conflict between the ICH and the notion and the specific institutions of existing intellectual property laws,hence the existing intellectual property laws can not fulfill the positive protection for ICH.Secondly,this paper discusses the deficiency of the existing intellectual property laws for protection of ICH from the predicament of the international intellectual property protection for ICH and from the principle of national treatment.The Chapter 5 is the conclusion of this paper,that the most appropriate legislation model for ICH protection in the intellectual property laws is the complex model,namely using the existing intellectual property laws to fulfill the defensive protection of ICH, while using sur generis to fulfill the positive protection.Finally,the paper presents some suggestions on the establishment of complex model.