Sui Generis Protection Mechanism Of Traditional Cultural Expressions

Despite the increasing importance that the international community attaches to TCEs, issues as to how to protect TCEs and whether new mechanism of protection should be introduced still remain controversial. This dissertation mainly covers the Sui Generis protection of traditional cultural expressions (hereinafter referred to as TCEs), that is one of the multiple legal options for TCEs protection. Sui generis protection is a newly developed mechanism introduced catering for the distinctive characteristics of TCEs, which differs from the current intellectual property (IP) protection in that it is specially designed for TCEs.This dissertation is divided into four parts. In Part One, the author defines relative conceptions, and preliminarily analyzed the meaning and necessity of Sui Generis protection.In Part Two, with an analysis of the existing sui generis protection legislation (including model law) of countries, regions and in international dimension, the author demonstrates the specific legislative mechanisms of sui generis protection, its relationship with and distinction from the current IP protection and relevant legislative outcomes worldwide. Sui generis protection differs from current IP protection in many aspects such as legislative mechanism and main contents, and attention should be given to the adaptations that sui generis protection mechanism should achieve in respect of the existing guidelines and rules of current IP system. On the other hand, sui generis protection is not totally irrelevant to current IP mechanism, and it may even rely on current IP law to accomplish its establishment through adaptations of IP system. From the view of Legislative mechanisms, sui generis protection may be further divided into two options, namely establishment in the mechanism of current IP system through adaptation of existing IP law, and stand-alone sui generis protection. The latter is relatively independent from current IP law but still closely linked with the norms it has established and still within a broader view of IP system.In Part Three, the author analyzes the main contents a sui generis mechanism should mainly cover, such as the definition subject matter, the criteria of protection (originality, fixation, etc.), the rights holders, the nature and scope of rights, and the choice of unlimited term for protection. Those are issues which constitute adaptation of current IP standards. Recently, there have been a few existing examples of sui generis legislation that provide references for the author's analysis.In Part Four, the author analyzes the importance of TCEs protection in China, as well as the loopholes in existing legislation in respect of TCEs protection. The author also gives advice on what main rules should be established in China's formulation of a sui generis protection mechanism, and raises specific legislative suggestions as to the legal options related to how such a mechanism should be established.