Research On The Legal System For The Safeguarding Of Intangible Cultural Heritage

In the long history of mankind, the peoples have created rich and colorful intangible cultural heritage ("ICH"). The ICH constitutes some of the fundamental sources of the cultural identity of communities and groups as well as a mainspring of cultural diversity. Because of the extreme vulnerability of the ICH and the impact of modern civilization, the ICH faces grave threats of deterioration, disappearance and destruction. Thus, the international community and the states have paid considerable attention to the safeguarding of ICH. However, a lot of theoretical problems were borne alongside the safeguarding programs relating to the ICH going on. This dissertation concentrates on the legal system design of the ICH, with a comprehensive and systemic research on the questions concerned public law safeguarding (focusing on the administrative law) and private law protection (focusing on the intellectual property law), hoping that it would contribute to the construction of the Chinese legal system concerning the ICH.This dissertation is divides into 6 parts, totally 220,000 words. Part one discusses the origin of the question of safeguarding ICH. At the beginning of this part, the author illuminates that why the international community put forward the question of safeguarding ICH, through the analysis of the evolution of the conception of the ICH. And then on the basis of defining the ICH, the author point out that, the ICH has four essential characteristics, namely community, inheritance, regionality and nationality. And the ICH features heavily in intangibility, which is quite different from tangible cultural heritage. All above characteristics and feature determines that compare to the safeguarding of the tangible cultural and natural heritage, the question of the safeguarding of ICH is much more complicated by involving public law safeguarding as well as private law protection. Concerned theory and practice indicates that single legislation can't provide the ICH with comprehensive safeguarding. And that we'll have to face the three major problems, namely should the ICH be safeguarded? How we safeguard the ICH? And to what extent should the ICH be safeguarded? Also these problems are the primary line through the full paper.Part two discusses the international legal basis on the safeguarding of ICH. The safeguarding of ICH is a new challenge that the whole international community faces. And that the international legal basis on the safeguarding of ICH determines that the safeguarding of ICH is the common mission afforded by international community and all the nations in the world. First, as the cultural heritage of a sovereign state, the ICH comes within the national jurisdiction of the sovereign state, while not being the common heritage of mankind. Thus, the sovereign state must safeguard its own ICH from the perspective of upholding national cultural sovereignty. The safeguarding of ICH, however, is the universal will and the common concern of mankind. So the international community should contribute, together with the sovereign states, to the safeguarding of such heritage in a spirit of cooperation and mutual assistance. Secondly, the safeguarding of ICH is the inevitable requirement of achieving the cultural right and the right of development which the individual and the collective, in particular the indigenous peoples. On the other hand, intellectual property right constitutes one part of cultural right. And the excluding of the ICH from the existing intellectual property ("IP") law results in some conflict between the safeguarding of ICH and the cultural right. Only by providing the ICH for IPR protection, this conflict can be resolved, and the enthusiasm and initiative of the originating groups to safeguarding ICH can be brought out consequently. Thirdly, the ICH is a mainspring of cultural diversity and a guarantee of sustainable development. The safeguarding of ICH is therefore the inevitable requirement of enriching cultural diversity and keeping sustainable development.Part three discusses the discovery of the safeguarding ways of ICH. When it comes to how to safeguard the ICH, there seems to be some disagreement between the countries around the world. Some countries such as Japan, Korea and France safeguard ICH by the public law. The cultural tradition is safeguarded very well, and the cultural industry is developed in these countries, thus not much demand for IP legislation any more. Some developing countries in Africa, Latin America and Asia, like Tunis, Ghana, Bolivia, Peru, Indonesia, protest protecting ICH by the existing IP systems such as copyright and patent. And some countries, like Panama and Philippine, have established sui generis protection system for the ICH. Customary law is also an important source of law in the safeguarding of ICH, especially for the indigenous communities. Meanwhile, different international and regional organizations express different opinions of the safeguarding ways. World Intellectual Property Organization (WIPO) and Pacific Community, Pacific Islands Forum agree with sui generis system, their representative fruit are the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions and the Guidelines for developing national legislation for the protection of traditional knowledge and expressions of culture based on the Pacific Model Law 2002. Yet Agreement Revising the Bangui Agreement on the Creation of an African Intellectual Property Organization introduces copyright law to protect the ICH. This study shows that, the ICH is of cultural nature as well as economic nature. The cultural nature is the first and the economic nature is the second, the latter is subordinate to the former. The dual nature determines that one the one hand the ICH represents public interest, on the other hand it reflects private interest, thus either the public law safeguarding or the private law protection should be took into consideration. Both of them present their own side, as well as they have their own disadvantages. The public law safeguarding and the private law protection are not an either/or relationship, both can be implemented without coming into conflict.Part four discusses the public law safeguarding of ICH. This part focuses on the main subjects and essential mechanisms of the safeguarding of ICH, and the international safeguarding of ICH as well. The subjects of the safeguarding of ICH are divided into two kinds, namely the safeguarding subjects and the bearing subjects. Among the safeguarding subjects, the governments of the countries hold leadership in this domain. The governments should respect the folk transmission of the ICH in the safeguarding and insist on the principal "to do and not to do". The extensive attendance of the public is the foundation for the safeguarding. In addition, the research and educational institutions, public cultural societies and non-governmental organizations play an important part in the scientific research, awareness-raising and capacity-building programs and establishing management and documentation institutions for the ICH. The bearing subjects, both the ordinary bearer and the representative bearer, are the bearers of the ICH. The ordinary bearer is the mass basis for the safeguarding of ICH, while the representative bearer is the soul. Both play an important role in the transmission and development of ICH. Listing mechanism is an essential method in providing for the safeguarding of ICH. The drawing up of lists is not only the important safeguarding measure at the international level, but also the biggest obligation imposed by the Convention for the Safeguarding of the Intangible Cultural Heritage. Most legislation around the world adopt masterpieces list model and exercise all kinds of measures to safeguard the ICH which is of outstanding value from the point of view of history, culture or society, and is compatible with existing international human rights instruments. The adoption of Convention for the Safeguarding of the Intangible Cultural Heritage indicates that, the international community has recognized that the safeguarding of ICH is a common duty of mankind, and is the responsibility assumed by each nation to the world. Thus, safeguarding the ICH at the international level, especially by international instruments, should be highly regarded. Also, international cooperation and assistance should be conducted and granted, in particular to developing countries, to build up the capacity to safeguard the ICH.Part five discusses the private law protection of ICH. IP law is no doubt the most important legal regime amongst the private law. Protecting ICH conflicts with the existing IP systems over the philosophy, and resulting in the rule conflict over the subject, object and content of right and so on. This conflict over the philosophy and rule determines that the existing IP systems can't provide the ICH with sufficient and effective protection. Thus, this study suggests that the ICH should be protected by sui generis system. It's worth nothing that the ICH composes of two different types: folklore and traditional knowledge. Although both are related to different IP domains, folklore and traditional knowledge can be discussed together when designing the sui generis system. Considering the difference relating to the rule, separate legislation would be preferable. The sui generis system is an innovation and creation compare with the existing laws. Both are different in many aspects like the subject, object and content of right, principals and time limit. However, the sui generis system belongs to the general IP systems and it is difficult to draw a firm distinction between the sui generis system and the existing laws. The IP protection of the ICH is involved in different parties interested. So there is a need to follow principal of balance and limit the sui generis rights, in order to achieve an equitable balance between the subject of right and the public. There is also a need for balance between the developed countries and developing countries in the sui generis system.Part six discusses the establishment of safeguarding legal system in China. At the beginning of this part, the author analyzes the current situation and loopholes in existing legislation in respect of safeguarding of ICH. And then the author points out that both the public law and private law is needed for the safeguarding of ICH. The public law should aim at ensuring the viability of the ICH and be guided by the principals of people oriented, living safeguarding, authenticity and integrity. In accordance with its conditions, China should adopt the Law on the Safeguarding of the Intangible Cultural Heritage providing for the scope of application, safeguarding measures and mechanisms, the functions and obligations of the authority and so on. The private law should aim to:(i) Recognize value and promote respect. (ii) Prevent the misappropriation of ICH and empower rights. (iii) Encourage innovation and promote cultural exchange on equitable terms. The private law should be guided by such principals as balance, flexibility, comprehensiveness and respecting for customary use and provide for detailed rules which may be included in the IP law. With regard to the legislative model, China should establish a sui generis system comprised of the Law on the Protection of Folklore and the Law on the Protection of Traditional Knowledge.