Research On The Safeguard Of Intangible Cultural Heritage Under Intellectual Property Law

To safeguard intangible cultural heritage under intellectual property law may bring about a blazing transformation of the established international intellectual property law system, simultaneously, behind this is the tensional and vehement interest dispute between the developed countries and the developing ones, as a result, it is a sensitive subject that might be opposited and resisted by the developed nation. Nevertheless, in order to fight against the developed nation's obvious advantage in intellectual property, it will be a sensible strategy for our nation to try to bring intangible cultural heritage, which is our abundant local resources, as a object of intellectual property law.Considering the truth that there is no international rule or mature practice for us to borrow idea from, to prove the validity of safeguarding intangible cultural heritage under intellectual property law and its special system design concept shall be the difficult point and main purpose of this subject.This essay mainly use the semantic parsing method, the value analysis method, comparative method, substantial evidence analysis method to discuss the subject in five chapters.Chapterâ… defines intangible cultural heritage from the angles of elements, as well as characteristics and classification, which based on Convention for the Safeguarding of the Intangible Cultural Heritage. In the mean time, the author defines the concept of safeguarding intangible cultural heritage under intellectual property law, and have a discuss on the different function of intellectual property law and other forms of law when protecting the intangible cultural heritage.Chapterâ…¡proves the validity of safeguarding intangible cultural heritage under intellectual property law by its necessity and feasibility. The argument of necessity starts basically from the point of view that the challenges that China would be confronted under the current international intellectual property protection environment. The feasibility is argued from four main points as follows, the correspondence between the goal of safeguarding intangible cultural heritage and the value orientation of intellectual property law, the compatibility between intangible cultural heritage and objects of intellectual property right, the coincidence between the interest demands content arising from intangible cultural heritage and the content of intellectual property right, the consistency of interest demands parties of intangible cultural heritage and the parties of intellectual property right.Chapterâ…¢makes an conclusion of intangible cultural heritage protection of intellectual property law under international treaties, as well as foreign legislation and domestic legislation, then sums up the reference of the international community's legislation practice for our nation from both the angle of the confirm system of party and that of right.Chapterâ…£discuss both the feasiblities and defects of the four modes to safeguard intangible cultural heritage under the established copyright law, patent law, trademark law, as well as trade secret law.Chapterâ…¤is the concept of perfect our nation's intellectual property law for intangible cultural heritage. Basing on the conclusion made from the former four chapters, the author proposes the concept of establishing an intellectual property law special for safeguarding our intangible cultural heritage. Through the analysis of the cultural value and resource value and the conflicts between the two values, the author conclude that the special law should established basing on the principle of both balancing the conflicts between the double values and assuring that the humanism of national pride and national identity reflected by intangible cultural heritage shall not to be derogatory. In the end, following the guidance of this principle, the author has a detailed discussion on objects, subjects, as well as the contents of intangible cultural heritage right, with a view to give some constructive advice for the forthcoming Intangible Cultural Heritage Act of our nation.