A Study On Legal Protection Of The Intangible Culuture Heritage In China

Intangible cultural heritage is the crystallization of the traditional culture and traditional knowledge. It is the expression of cultural diversity, but also the originality and driving force for the human sustainable development in modern society. It is very important for cultural, economic and social development. However, in our country, the Intangible cultural heritages are suffering an unprecedented crisis. It is because that the deployments of modernization change the traditional heritage's living surroundings, and the more important reason is that man-made reasons led to the Intangible cultural heritage disappearance or improper use. In this context, how to protect Intangible cultural heritage effectively and regulate the use of Intangible cultural heritage has become a key issue.This article attempts to clarify the elements about the protection of intangible cultural heritage, including the concept of intangible cultural heritage, scope, features, the basic principles about the protection, models and other major issues. Of course, the article also discusses the protection according to the intellectual property legal.In the first part of this article, I analyze the concept of intangible cultural heritage, scope and characteristics, and the importance to enhance their protection. I believe that the intangible cultural heritage is a broad concept that includes not only closely related to the intangible spiritual material, and more emphasis on maintaining the world as its cultural diversity and human creativity to maintain continuity of Living Heritage. As for the scope, intangible cultural heritage includes oral traditions and expressions, performing arts, social practices, rituals, festivals ceremony, the nature and the universe of knowledge and practice and traditional craftsmanship. As for the character, I analyze the five features of intangible cultural heritage, including invisible, groups, traditional, live state and the diversity.In the second part of the article, I point out the protection should follow legal five principles. The legal protection of intangible cultural heritage should accept the guidance of a few basic principles, such as public participation, informed consent, attaching equal importance to both exploitation and protection, benefit sharing, combined protection of public law and private law, focusing on international experience, integration with the international conventions. These principles about the legal protection of intangible cultural heritage are based on the characteristics of the intangible cultural heritage, significance and the specificity of protection.In the third chapter, I point out that there are two models for the intangible cultural heritage protection, including the public and private law model. I believe that public law model is based on the public interest. The means includes creating environment, coordinating, and formulating public policy. As for our country, the protection of intangible cultural heritage still emphasis on public law protection mode. This model neglecters that the interests of the intangible cultural heritage not only includes the public interest and public relations, as well as includes the private interests and individual rights. Currently, the intellectual property system has been an important aspect of the private law protection for Intangible cultural heritage. Using the Intellectual property law to protect intangible cultural heritage has its theoretical and practical basis. Copyright model, patent model, trademark mode and trade secret rights mode are included in this mechanismIn the fourth chapter, I analyze China's intangible cultural heritage protection of the law has made some achievements, but there are still many problems, such as the bias of legislative guiding, the model of legal protection is single, the existing intellectual property system can not fully covers the requirements of intangible cultural heritage's protection, the lack of he basic law for the protection, the distemperedness of legal system, and the resolution of dispute is ineffective.The fifth Part of this article, I point out that the protection for intangible cultural heritage should choose the right way, and pay attention to perfection of the intellectual property system .And then we should coordinate the intellectual property protection system and intangible heritage conservation laws. And last, we have to construct specialized intellectual property system to solve the problems of intellectual property system under the existing intellectual property system.