Study On The Legal Risk And Regulation Path Of The Commercialization Of Intangible Cultural Heritage In China

As countries around the world attach increasing importance to intangible cultural heritage,the study of its protection and utilization has become an unavoidable and important issue in the academic community.The commercialization of intangible cultural heritage can promote the use and protection of intangible cultural heritage.After years of exploration in my country,it has become increasingly mature,but the various risks and problems that have occurred have not been effectively valued.Therefore,this article selects the issue of commercialization of intangible cultural heritage in my country to study the legal risks and regulatory paths contained in it.The specific content is carried out from the following aspects.The first part defines the concept of commercialization of intangible cultural heritage,analyzes and discusses its development process,advantages and risks,and points out the necessity of preventing and controlling legal risks,which paves the way for the following article.The commercialization of intangible cultural heritage takes the protection of intangible cultural heritage as the starting point and foothold,promotes intangible cultural heritage to the market,and pursues the economic and social benefits of intangible cultural heritage to improve together.In the commercialization of intangible cultural heritage,advantages and risks coexist,and if we want to gain an advantage in the fierce market competition,we must prevent and control relevant legal risks,control the occurrence of losses and reduce the scope of losses to the greatest extent.The second part sorts out the legal risks of commercialization of intangible cultural heritage from the four perspectives of civil and commercial law,economic law,administrative law and criminal law.As far as the field of civil and commercial law is concerned,there are mainly risks of attribution of rights,risk of distribution of benefits and risks of infringement disputes.In the field of economic law,there are mainly unfair competition and corporate tax risks.In the field of administrative law,there are mainly administrative approval and environmental responsibility risks.As far as the criminal law field is concerned,there are mainly risks of prohibited items and illegal business.The third part analyzes the causes of legal risks arising from the commercialization of intangible cultural heritage from a legal perspective.It is found that there are deficiencies from basic theories,to legal norms,to administrative law enforcement and judicial remedies.In terms of basic theory,at present,the theoretical community has not yet reached a unified conclusion on the nature of intangible cultural heritage rights and the definition of right subjects.So it cannot provide a strong foundation for the formulation of legal norms and the construction of legal systems.In terms of legal norms,neither the Intangible Cultural Heritage Law nor relevant local legislation makes detailed provisions on the development and utilization of intangible cultural heritage,and there are natural limitations in the application of intellectual property law.In terms of administrative law enforcement,the regulatory entities and responsibilities are not clarified,and there is a lack of a normalized and rule-of-law regulatory mechanism,resulting in weak supervision by administrative organs.In terms of judicial remedies,due to the lack of legal basis and the difficulty of determining the subject of rights,victims are not highly motivated to use judicial channels to defend their rights.These reasons combine to lead to the liberal development of the commercialization of intangible cultural heritage and frequent legal problems.The fourth part explores the legal regulatory path of intangible cultural heritage in view of the legal risks and causes of its commercialization.First of all,the legal normative system for the commercialization of intangible cultural heritage should be improved by amending the Intangible Cultural Heritage Law,improving the Intellectual Property Law,and formulating special legislation.Secondly,the supervision and management of the commercialization of intangible cultural heritage can be improved through the establishment of a value assessment system,a licensing system for use,and a linkage supervision mechanism.Finally,the channels for remedy for the commercialization of intangible cultural heritage should be broadened.On the one hand,a public interest litigation system for intangible cultural heritage can be established,and on the other hand,the right remedy function of administrative mediation can also be played.