The International Protection For Folklore And Its Inspiration To China

There is a systematic and preliminary research on the protection for folklore. It is made up with three chapters: the first chapter introduces the definitions of folklore and related concepts, and the characteristics of folklore; the second chapter analyses the present situation of folklore's protection in the world; the third chapter is about the way to protect folklore in China based on international experience.Chapter one is the introduction of folklore, which is the basis of the whole discussion. There is no unified definition of folklore, since different scholars, different domestic laws and international treaties have different understandings of its meaning. There are three terms which are often used: 1. Works of Folklore, which is defined by Chinese Copyright Law; 2. Expressions of Folklore, which is defined by the Model Provisions For National Laws On The Protection Of Expressions Of Folklore Against Illicit Exploitation And Other Prejudicial Actions; 3. Folk Art, which is almost the same as folklore. In addition, the World Intellectual Property Organization also used Traditional Cultural Expressions as an alternative of Expressions of Folklore. The concepts related to folklore are as follows: 1.Traditional Knowledge; 2.Intangible Cultural Heritage. Based on the discussions of such concepts, we can summarize the characteristics of folklore as follows: 1.The proprietor of folklore is uncertain; 2.Folklore is traditional and continuous; 3.Folklore is related to some regions; 4.Folklore is continuously changing its forms; 5.Folklore is comparatively opened to public. Based on the discussion above, we tried to look for a definition which could reflect all the characteristics of folklore as the basis of the whole thesis. The folklore is a general term which is produced by a group in a certain region during long period's experience, and widely spread, reflecting this group in the region's history, living habits, production methods and psychological characteristics. And it is continuously changing its expressions. This definition is generated from China's judicial practice, so it has some significance in China. Meanwhile, this definition can also reflect all the characteristics of folklore.Chapter two researches the present situation of folklore's protection in the world. Now, the number of international treaties related to folklore is still limited. These treaties include: Berne Convention for the Protection of Literary and Artistic Works, Bangui Agreement, WIPO Performances and Phonograms Treaty, Convention for the Safeguarding of the Intangible Cultural Heritage and so on. Different countries'protection measures are varied. Many countries in the world have had their protection of folklore in their current copyright laws. Developing countries as Panama (in its 1993 law), developed countries as the United Kingdom (in its 1988 Act) definitely provide such a protection. Certainly, there are some countries refusing to protect folklore under copyright system, such as Russia. Some countries protect folklore through trade-mark legal system, or anti-unfair competition law. Although in some countries there is no rule in their legislation about folklore's protection, the protection for folklore is established during judicial practice. But many developed countries still persist in folklore is part of"public domain", and refused to protect it. In this issue, the United Nations educational scientific and cultural organization and the World Intellectual Property Organization have been carrying out a series of legislative research and other kinds of activities, which provide lots of experience and demonstrations on the protection for folklore.Chapter three is trying to look for the most suitable method for China to protect folklore based on international experience discussed above. China's government has realized the importance of protecting folklore, and established the intangible cultural heritage protection system. The legislation in China is becoming more rational step by step. Meanwhile, the related holders started protecting their rights by means of legal procedures when faced infringement. In recent years, China had made lots of efforts on this issue, and the achievement is very obvious. However, the protection for folklore is still at an early stage. The shortcomings and inadequacies still exist, especially when China's protection of folklore is mainly through intangible cultural heritage protection system. The protection for folklore is almost separated from the intellectual property law system, which lead to an unpleasant way to protect it. First, protecting folklore through intangible cultural heritage protection system has its inevitable flaws. Second, the protection for folklore based on the intellectual property law system is almost dropped recently. In the 1990 Chinese Copyright Law, folklore had been included as a protectable subject-matter. But as to the details of protection, more rules or regulations are still needed. Judging from the current trend of the international situation, learning from other countries'legislation and judicial practices, and the provisions of international treaties, now China should proceed from the following two aspects on this issue: On one hand, China should actively participate in the international harmonization to protect folklore. Not only participate in the revise of existing treaties, especially the amendment of TRIPS, but also participate in the international organizations, particularly the World Intellectual Property Organization's activities of protecting folklore in order to draw up an international treaty which will have more influence. On the other hand, China's legislation should add intellectual property law system to protect folklore on the basis of the existing intangible cultural heritage protection system. China could choose to protect it by the combination of public law and private law, comprehensive taking advantage of the related measures of intellectual property system, including copyright system, trademark system, patent system, trade secrets protection system, anti-unfair competition law protection system and other administrative measures to achieve the purpose of protecting folklore.The protection of folklore is a complex question. It will involve the interests of numerous sides such as the region, the nation, the artistic recreators, the adapters, the public and the State. Much attention has long been paid to the study of the problems in the protection of folklore in the world, and this is undoubtedly right and necessary. However, China's legal system needs to be revised to reach the requirements of folklore's protection.