| Folklore may have different meanings in different contexts, and in the context of legal study, it is mainly a concept closely related to intellectual property (Hereinafter referred to as IP). Folklore may also be termed as "expressions of folklore" or "traditional cultural expressions". The earliest link between folklore and IP is found in Copyright Law of Tunisia, 1966, where it provided that folklore "within the meaning of this Law shall be any artistic heritage bequeathed by preceding generations and bound up with customs and traditions and any aspect of folk creation such as folk stories, writings, music and dance". The Secretariat of World Intellectual Property Organization informally described folklore as "productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of [name of country] or by individuals reflecting the traditional artistic expectations of such a community, in particular: verbal expressions, such as folk tales; musical expressions, such as folk songs and instrumental music; expressions by actions, such as folk dances, plays; and tangible expressions, such as productions of folk art, in particular, drawings, paintings, carvings sculptures", etc. It can be concluded from those descriptions of folklore that folklore is traditional production in literary and artistic domain, characterized by two features: firstly, it is usually creations of a community with the identity as being a group rather than an identified author, and secondly, it was originated from the old past and was passed from generation to generation till today.Similar to works protected by copyright, folklore is part of literary and artistic domain, a domain expressly protected by Berne Convention. Accordingly, there should exist certain moral and economic interests in folklore. With regard to moral interests, communities which created and maintained folklore should enjoy certain right to claim paternity as the origin of folklore, as well as the right to protect integrity of folklore, namely to prevent it from any distortion or other derogatory acts. As for economic interests, due to the capability of folklore of being exploited in both tangible and intangible ways by the business society with a view to profit earning, the originating communities of folklore should have right to control such exploitations, or at least be able to participate in the benefit sharing process. Therefore, folklore should enjoy certain legal protection. Among different modes of legal protection, in order to ensure real protection of the moral and economic interests mentioned above, an IP-type protection, rather than administrative safeguarding or technical conservation, is indispensable. Only through IP protection may communities creating and maintaining folklore be protected by civil rights. To make it clearer, copyright protection designed for literary and artistic productions is suitable for folklore also featured as within literary and artistic domain.However, IP laws developed in the process of industrialization, including but not limited to copyright law, are concentrated on promoting innovations as their main objectives, rather than protecting traditions. The rights owners of those laws are authors or legal entities with a definite identity in modern society, rather than communities each member of which may not be identified, and which may have a varying membership through lapse of time. To put it another way, the two features mentioned previously, namely ancient origin and unidentified legal status of membership preclude folklore from meeting the requirements of IP laws. Moreover, IP mechanisms, especially copyright law only offer protection with a limited term, and this is apparently insufficient for folklore, because it originated from the long ancient time and may further exist in the same way till the uncertain future. On the one hand, real meaningful protection may only be guaranteed by IP systems, while on the other hand, folklore usually fail to fit into the basic rules of general IP laws. Besides, normal rules of IP protection are not adequate to accommodate the needs for real protection of folklore. Consequently, it becomes necessary and expedient to adapt general IP law rules, especially copyright law, taking into consideration the special features of folklore, and formulate a sui generis IP system. Legislative practices of sui generis IP protection came into being accordingly. Beginning with 1966 Copyright Law of Tunisia, an increasing number of countries have been enacting sui generis IP laws to protect folklore, and there have also been some model laws providing sui generis protection for folklore in international dimension. These legislations are practices in the form of statutes rather than pure theories or appeals. They are the most direct and practical methods of protection, thus differing from those indirect ways through general IP protection for folklore performers and the like. It may even well be said that these legislations are the only practices of protecting folklore through real protection of rights. Therefore, the legislative practices have very special values, especially to a country with enormous resources of traditional culture like China. Yet due to the fact that those who provide such sui generis IP protections are mostly developing and least developed countries, these legislations haven't brought about enough influences on the international IP protection mechanism, and they haven't even attracted proper attentions of the international forum of IP and cultures protection.It is based on previous considerations that this thesis chooses the present topic, with its main objective to conduct a specific and focused research into those sui generis IP protection legislations through probing into the common problems faced up with those legislations, generalizing the characteristics of the solutions provided in those legislations, and assessing relevant issues. Through these efforts the author is aimed at offering analyses as well as enforceable suggestions for those states prepared to give or considering IP protection for folklore, especially China. The thesis is divided into four parts. The first part introduces the origins of the issue of IP protection for folklore, defines folklore in the context of the present discussion. On those bases, it analyzes the necessity of providing sui generis IP protection for folklore and identifies the scope and characteristics of such a special form of protection, classifying it into two modes, namely sui generis copyright mechanism and new, stand alone sui generis IP mechanism. The second part gives researches into two model laws of sui generis IP protection for folklore, formulated in the international dimension. Identifying them respectively as sui generis copyright mechanism and new, stand alone sui generis IP mechanism, it makes analyses of the contents and characteristics of each of the mechanism, evaluating their protective measures pointing out relevant achievements and defects of them. The third part gives researches into sui generis IP legislations that have been in effect in both international and domestic dimensions, including a regional IP agreement and IP laws of several developing states. Based on the classification of them into sui generis copyright and new, stand alone sui generis IP, it makes evaluations of each of the legislations in a case-by-case way, generalizes their solutions for some common problems they face and points out achievements and defects of each of the legislation. The fourth part makes a comparative study of the solutions provide by all the relevant sui generis IP legislations for the common and fundamental issues universally involved with them, including solutions for such questions as how to define the meaning and scope of folklore, whether and how to regulate the protections for economic and moral rights, and how to regulate the rules related to right owners or holders. This part also analyzes the defects still existing in those solutions and provides its own pathway of improving them. On the previous basis, the part analyzes defects in China's current folklore protection mechanism under Copyright law and raises its own suggestions on improving the mechanism through establishing detailed rules. |
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