On Intellectual Property Protection of Intangible Cultural Heritage
|Keywords||Intangible Cultural Heritage Intellectual Property Protection Protected Mode Special Legislation|
The intangible cultural heritage is the rusults of inheritance,innovation and the accumulation of traditional knowledge and traditional culture around the world.It is an important source of innovation of modern knowledge. But with the accelerated process of economic modernization, the cultural ecology of our country has undergone tremendous changes. Strengthening the protection of intangible cultural heritage which is under severe impact has become of great urgency.At present, most countries in the world merely take advantage of administrative means to protect the intangible cultural heritage. But in the reality, the disputes based on the improper use of intangible cultural heritage happened frequently. Only exploiting the administrative means to protect the intangible cultural heritage has been far from meeting social needs. Therefore, some countries and organizations in the world have been exploring and practicing the intellectual property protection of intangible cultural heritage. Because of there being many correspondences between the intangible cultural heritage and the intellectual property, introducing the intellectual-property regime into the field of protection of intangible cultural heritage has become an important research area in China and the international community.After nearly a decade of discussion in the legal profession, our country finally promulgated the "The Intangible Cultural Heritage Law of the People’s Republic of China" on February 25,2011 which mainly adopts administrative means to protect the intangible cultural heritage. The intellectual property protection of intangible cultural heritage is only stipulated by provisions of convergence at the end of the law, with reference to the existing intellectual property laws on intellectual property protection of intangible cultural heritage.By the analysis on our country’s existing protection mode of the intellectual-property regime, the author found that with regard to the direct application of the current intellectual property regime to protect the intangible cultural heritage which has the feasible side, there still are many deficiencies and defects; adjusting the active intellectual property regime also does more harm than good. Thus, the writer propose to conduct special legislation for the intellectual property protection of intangible cultural heritage based on the special nature of the intangible cultural heritage, and draw on good methods and models of the existing intellectual property regime in the legislative process to actively create rights and systems fitting into the protection of intangible cultural heritage, so that the intangible cultural heritage can be preserved in the round.In addition to the introduction and conclusion, this paper is divided into four parts. The main contents are:The first part researches basic problems of intangible cultural heritage. The author chiefly introduces the concept, classification, characteristics and conservation status of intangible cultural heritage, and analyzes the necessity and feasibility of intellectual property protection of the intangible cultural heritage.The second part studies how foreign countries carry on the intellectual property protection of intangible cultural heritage. By introducing the present condition of the intellectual property protection of intangible cultural heritage in international organizations, developed and developing countries, the writer hopes to provide experience for improving our country’s legal protection on this respect.The third part is the analysis on the mode of existing intellectual property protection in our country. This section describes the status of the intellectual property conservation of intangible cultural heritage firstly; subsequently it concretely analyzes the pattern of intellectual property protection in China and discusses the current situation and weakness of it in the perspective of intellectual property protection of intangible cultural heritage.The last part is the advice of special legislation on the intellectual property protection of intangible cultural heritage in our country. Above all, this section elaborates reasons of special legislation. Then the author set forth his own legal design in several aspects that are the subject, acquisition, content, exertion, length of protection and tort liability of the intellectual property right of intangible cultural heritage.