On The Legal Issues Of Intellectual Property Protection On Traditional Cultural Expressions

Over the past few years, the protection of traditional cultural expressions(TCEs) has generated multiple protection theories in the international worldand the questions of whether TCEs should be protected by intellectual propertyrights (IPRs) have been an increasing practical concern for both TCEs holdersand national policy-makers in various countries. The legitimacy and superiorityof IPRs protection model is mainly embodied on the similarity between IPRsand TCEs. And the similarity is reflected in both the subject matter and thevalue pursuit of interest balance mechanism between the right holders’ and thepublic. What on earth the problems of TCEs protection under the intellectualproperty system are, how the conflicts run and how the coordination betweenthe intellectual property rights protection model and other protection wayswork are the main basis of discussion in this paper for the aim that a sui generisright named traditional cultural expressions right will be supplemented underthe intellectual property system, and the main mission of China is theconstruction of new protection institution under the current intellectualproperty rights protection system and the integration to the internationalframework.Due to significant differences on the characteristics of subjects, objects,contents and relief mechanisms between the TCEs and IPRs, the sui generisprotection system is essential and it is a baseline to take the right of traditionalcultural expressions as a new right entity. The argumentation is made throughfive chapters. In chapter1, there is a comparison between different protectiontheories and a conclusion of the legitimacy of the IPRs protection on TCEs.The next three chapters analyze the details of legal issues. Chapter2discussesthe challenge initiated by the conflicts between the demands of intellectualsource of TCEs and the spirit of protecting fixed expression form of IPRs. Thepossibility and priority of the openness and expansion generated from IPRsobjects are also summarized. Chapter3deals with the subject collision and integration of IPRs and TCEs right. The uncertainty of determination onresidence status and the communal property over TCEs and IPRs are alsodiscussed. In chapter4, I will comb the special demands of TCEs on the protectduration, the prior right and the exercise body in performance and lawsuit,which requests the special contents of TCEs right and relief procedure such ascompensation system for spiritual damage and special litigation system.Chapter5is the foothold of the aforementioned analysis: China is abundant incultural resources which provide a natural environment for the succession andevolution of TCEs. To date, however, large numbers of TCEs in China hassuffered cultural globalization and malicious commercial abuse seriously fromboth home and abroad. The protection of traditional cultural expressions inChina, especially in the IPRs protection fields, enjoys a not very long historyand has experienced different models. Through the reflection of the ChineseTCEs protection practice and the summarization of protection predicamentunder TRIPs system, there is an analysis of legal construction and suggestionfor our country on TCEs intellectual property rights protection.