Folklore Intellectual Property Protection

Folklore, which evolved from the remote antiquity, bears the weight of reflecting the human history. If a sort of culture type has a longer history, which has been developed from an independent and close environment, its national characteristic is more brilliant. From the view of cultural gene, its value is greater, too. Folklore, which snowballed absorbs the world view and values of creators and inheritors from different eras, classes, regions and cultural qualities, embodies the special culture shape and individuality accumulated within the psychological structure of human being, and constitutes the source of the national affinity and the basis of national self-identity. Folklore, originating from different groups, is not only the important contents of the national traditional culture, but also the hardcore of the intangible cultural heritage. We can not really understand the connotation and significance of the unitary human culture, unless we arouse the cultural memory contained in folklore which has been gradually neglected or forgotten by people as the era changes and reforms. In the context of globalization, the dual extrusions coming from the market exploitation pursuing the utmost benefit and the West post-modem colonial culture with arrogant and prejudice, result in the disappearing or vanishing of folklore.The development of cultural nationalism, the maintenance of cultural diversity, the prosperity of the third era human rights theory and the expansion of intellectual property, inspire more and more movements aiming to protect intangible cultural heritage. Protecting and defending folklore, which is the spirit home of human being, is a widely resonant topic in the context of globalization. As an organic segment of the movements aiming to protect intangible cultural heritage, the intellectual property protection for folklore has begun in the middle of twentieth century all over the world. However, the intellectual property protection for folklore is such a mystical and complicated topic for discussion, and there are numerous discrepancies in the legitimacy, protected mode and the specific system design, that the folklore protection has not obtained substantial progress in the international treaties and the national legislations of the developed countries and even some primary developing countries. This dissertation, by researching the intellectual property protection for folklore thoroughly and systematically, provides a comparatively mature theoretical guidance to establish the intellectual property protection system for folklore, and the pygmy effort for China's intellectual property and intangible cultural heritage legal system construction. Although it involves the construction of specific system, the dissertation focuses on the significant theoretical issues and framework design of the intellectual property protection for folklore. The dissertation, calculated 290, 000 words, consists of six chapters besides preface and conclusion. The former three chapters focus on the basic theoretical issues and legislation status quo of folklore, while the latter three chapters probe into the intellectual property protection system for folklore including copyright, geographical indications and unfair competition system.Chapter One, by retrospect and analysis, makes an introduction to folklore, and reveals the connotation and extension of folklore conception, which is the logical starting point to study folklore and carry out the legal protection. In this chapter, on the basis of historical analyzing the origin of folklore and its transformation progress in China, and emphasizing on the definition and characteristic of folklore, the author concludes that folklore is the traditional literature and art creation, which is created by social groups or individual in special region, and expresses the very characteristic and cultural heritage elements of the groups. Folklore, which is transmitted from one generation to another, and never stops developing, is a peculiar unity concurrently possessing numerous contradictories, such as the group creation and individual transmission, traditional stability and era variation, information regionality and culture expansion, tangibility and intangibility. WIPO classifies folklore into diction expression, music expression, action expression and substance expression. No matter what kind of expression, folklore has some basic models or patterns called the folklore mother models, which reflect the cultural characteristic and heritage elements of the specific group. Folklore mother model is not an abstract concept, but has idiographic objects, including the script in folk story, the paper-cut pattern, the specimen of folk painting, the basic action and melody of folk dancing, the intonation and tune of folk song and the sculpt style and artistry knack of the folk craftwork. The reappearance, imitation, performance, compilation and deduction of folklore mother model form the folklore son model. The son model is the modem expression of the mother model, while the latter is the traditional culture shape concealed behind the son model. Moreover, the son model is unceasingly innovating, transforming, enriching and developing the mother model. This classification is a new attempt which helps to take pertinent measures of intellectual property protection. The intellectual property protection of folklore mother model is a nodus and focal point of this dissertation. In this chapter, by discussing the cultural, economical and political values of folklore and its existing meaning, the author points out the significance and necessity of legal protection for folklore.Chapter Two studies the justice of intellectual property protection for folklore. Different subjects, such as the philosophy of jurisprudence and culture study, provide a method to judge whether the intellectual property protection for folklore is reasonable or not. These explanations, having advantages and disadvantages and being intersected and associated, jointly constitute the basis of the justice to protect folklore by intellectual property system. Locke's laboring property theory considers that every one has the ownership of oneself, including one's ideology and wisdom. Labor endows people with the original qualification of possessing property, and almost the source of all values. Therefore, folklore as an intellectual creativity production, which is senior than simple physical labor, should belong to its creator. Personality theory suggests that intellectual production belong to the creator because it contains the creator's free will, spirit and personality, which are the nature of human being and can not be abandoned or transferred. According to personality theory, specific group or individual should have legal control including economic rights and moral rights on folklore, which expresses their personality, identity and free will of living. The existing intellectual property system results in an extremely unfair or injustice benefit distribution mechanism that the folklore creator obtains little or none benefit. The distribution justice and social justice in the justice theory, separately emphasize the equity and opportunity exploitation of the weaker group in benefit distribution, which provide another important theoretical basis for protecting folklore and reconstruction the modern intellectual property system. Recently, human rights and folklore protection have become hot topics in the international society. People are concerned no only the indigenous or minority nations, or developing countries begin to arouse the human fights consciousness and use it to safeguard their interest, but also the human rights, especially the self-determination and developing rights, provide a refreshing moral power and novel protecting view for intellectual property protection of folklore and introduce a new value for intellectual property system. The maintenance of cultural diversity, which has the utmost significance considering the factors of cultural transmission and evolution, is a systematic project, requiring the whole society striving together and colligating different measures. The maintenance of cultural diversity provides an intellectual property protection for folklore, and is bound to promote the formation and development of various culture, diversified knowledge system and multi-selective value system.Chapter Three introduces the legislation and practice of the intellectual property protection for folklore. WIPO, UNESCO, UCOSOC, AIPO and other international organizations have taken a quite positive attitude towards folklore protection, made effort to formulate a number of treaties, demonstrational acts, proposals and manifestoes, and convened a series of international or regional conferences. Although demonstrational acts, proposals, manifestoes and other meeting documents do not belong to international treaties and have no legal effect, they reflect the positive gesture of related international organizations on the folklore protection and delegate the unanimity of most countries and international intellectual property field. To some extent, they lead the developing direction of folklore protection and greatly influence the national legislation of folklore in some countries, especially the developing countries. When international organizations and some developing countries begin to pay attention to folklore, they usually use copyright to protect it. However, with more understanding of folklore and more countries joining into the discussion of folklore protection, the boundary of folklore protection is broadening. Neighboring right, sui generis system, trademark right, patent right and unfair competition system can all be seemed as the possible ways to protect folklore. These ways have their advantages and disadvantages. For example, copyright and sui generis system are the direct and positive ways, because folklore original groups can benefit straightly, neighboring right, trademark right (especially geographical indications), patent right and unfair competition protection are usually indirect ways, because the benefit objects are folklore inheritors and indigenous artists, while folklore original groups do not always benefit straightly. The indirect ways, although they have limitation that they only adapt to marketable folklore, can be accepted by more countries even developed countries, because they do not need to reform the existing intellectual property system and have a widespread basis of international co-operation.Chapter Four sets forth that special copyright is the way of direct protection. Although many intellectual property rights can exert particular function in folklore protection, the copyright system which has been reformed appropriately, is a comparative reasonable choice to provide a direct protection for folklore original groups. The reason is that copyright protection of folklore has definite legal basis, moreover, copyright law can conquer or eliminate the barriers of folklore protection, such as the originality, fixity, certainty of the author's identity, individualism civil right and limited protection period. The abundant contents of copyright including moral rights and economic rights, cater for the requirement and protection target of folklore original groups. If copyright protection period may be continuously extended based on the national policy, the creation of a special copyright system without time limit to protect folklore mother model possesses the rationality and justice, which satisfies the folklore original groups' desire to control traditional culture on behalf of their culture and identity. The construction of right subject is the utmost nodus in intellectual property protection for folklore. Generally speaking, folklore is a collective creation, whose subject is the folklore original groups. It is an ideal project to resolve folklore original groups' deficiency in capacity for civil conduct by introducing and appropriately reconstructing the legal agent in civil agent system. The national copyright and culture administration departments may become the agent institutions on behalf of folklore original groups to exercise and manage the special copyright. However, legal agent system is merely a transitional project, the ultimate settlement is to help folklore original groups to build an effective management system and obtain complete capacity for civil conduct until they can exert their right by themselves or entrust a collective management organization in a trust. The creation and transmission of folklore can not be lack of the disseminators, so they should have corresponding rights of the specific folklore son models. These rights ought to stipulate separately in the special copyright legislation according to different circumstances, while most of them should be protected by the existing copyright law and other intellectual property. Considering the importance of folklore in the cultural communication, the protection of folklore mother model ought not be too strict, so that the contents of the special copyright system are not as plentiful as the traditional copyright, for example economic rights are limited in the conducts of controlling the commercial use of folklore, and the restrictions from fair use or legal permission are more.Chapter Five discusses the geographical indications protection of folklore. Folklore inherently corresponds to geographical indications. Therefore the existing geographical indications system could exert important function to protect folklore. From the cultural point of view, geographical indications, as the result of natural factor and humanism effecting together, have profound historical and cultural base, and been recognized as cultural phenomenon for the special function in history and culture transmission. Some geographical indications express specific folklore information, for example, the place name of Lijiang in Yunnan province associates the colorful natural scenery and the traditional folklore, including Naxi tambour, Dongba dance, Baisha fresco, simple and unsophisticated architecture and Dongba folk handicraft. Analysis on economy and market, folklore possesses strong regional and national characters and is the same as geographical indications, being the result of natural factor and humanism effecting together. The specific expression of folklore, especially the folk singing and dancing and folk handicraft containing massive culture background, is not merely a culture phenomenon, but an economic resource which can produce marketable attraction and competition, and make the local place name become geographical indications. During the tourism development, reasonable use of folklore resources, and exploitation of tour products and service items with bright local color and national or cultural characteristic, will promote the progress of local economy as well as the transmission of folklore. After all, as belong to cultural category, folklore has inherent conflict with geographical indications in value idea, character and transmission rules. Since there is obvious defect using the geographical indications separately to protect folklore, it must harmony with other intellectual property systems. The particularity of folklore product and service item does not presume that a sui generis system is needed outside the existing geographical indications system, for collective trademark and certification trademark in the existing trademark law are sufficient to protect the folklore. In the last chapter, the author analyzes the unfair competition protection for folklore, which provides a widely effective recovery and supply for the intellectual property protection. Under the circumstances that the western developed countries do not stand for creating a new type of intellectual property to protect folklore, related countries and international organizations begin to recognize the importance of using the weapons of traditional intellectual property and unfair competition. Unfair competition law, on the theoretical basis of honesty, credit and commercial morality, not only provides an extensive moral support for folklore protection, but also makes the standard to judge unfair use of folklore more flexible and to some extent can satisfy the need of protecting folklore in certain countries without sui generis system. The prohibiting prescriptions of unfair competition law in China, such as false advertisement, famous trademarks counterfeit and commercial secrets infringement and so on, provide a direct legal basis for folklore protection.