Research On China's Intellectual Property Protection For Intangible Cultural Heritage

The intangible cultural heritage is the most plentiful and precious fortune of knowledge and storehouse which is created and innovated by ancestors and constantly transmitted from generation to generation. It is also the significant carrier of specific nation or group. The consciousness and action of protection towards the intangible cultural heritage have been arised since the middle of last century. From then on, The UNESCO and WIPO have been trying to build a uniform international standard and system for the protection towards the intangible cultural heritage all the time. Many counties have built their own systems of the protections towards the intangible cultural heritage, while the legislations and theory research which are related to gradually increasing.As the nongovernmental living cultural which is constantly transmitted by oral teaching that inspires true understanding within and is well received by most people, the intangible cultural heritage is the carrier of the memory of the culture and spiritual wealth of the whole nation. The protection towards the intangible cultural is propicious to the nations to get cultural identity, to preserve cultural sovereignty, to resist the infiltration of cultural hegemony from the external area, and to improve the cultural competitive power during international cultural competition. Even more important, the protection towards the intangible cultural heritage can preserve the world cultural diversity, keep the balance of the development of global culture, and ensure the sustainability of the development of the culture of human being. The modern intellectual property system which does not contain the traditional resources in its extent of protection not only goes against the protection and explore our traditional resources, but also goes against the law universal sense of worth including justice values and human rights values. However, to readjust and improve the legal frame work is what we have to do in order to fully protect the intangible cultural heritage whose frame has been well received and steady-going. This brings endless discussions on pros and cons. In this context, the study on the legitimacy and feasibility of the research on intellectual property protection is especially important. Among all the discussions on intellectual property protection and intellectual property system, the conflict and fit between the idea of intangible cultural heritage protection and intellectual property system are the debate point. Our country has been taking up with legislative work since the accession to the Convention for the Safeguarding of the Intangible in 2004. But up to now, special legislation has not introduced. The legislative work on intellectual property protection for intangible cultural heritage is not easy. Consequently, the text does serious study on the relationship between relevant international conventions,typical legislation abroad, and the present China's intellectual property, aiming at provide useful ideas for the legislation on China's intellectual property protection for intangible cultural heritage.The Chapter 1 of this paper is a brief introduction about the basic theory of ICH, including the concept, the sorts and the characters, and so on.The Chapter 2 mainly illustrates the justice of using intellectual property laws for the protection of intangible cultural heritage through the philosophy of positive law. It provides theoretical basis of the justice of using intellectual property laws for the protection of intangible cultural heritage by explanations through four different angles which are publicity right theory, personality theory, labor theory of value and human right theory.The Chapter 3 discusses about the feasibility of the intellectual property protection for intangible cultural heritage. It analysis China's intellectual property protection for intangible cultural heritage by the space given by relevant international conventions,typical legislation abroad, and the conflict and fit between the idea of intangible cultural heritage protection and the present China's intellectual property.On the basis above, the Chapter 4 give advices and make suggestions of legislative objectives and principles and illustrated specific problems about China's intellectual property protection for intangible cultural heritage,.As the conclusion part of this paper, the Chapter 5 put forward a proposal that we should mainly make use of the intellectual property system and followed by system of administration which builds up a complex protection system. No doubt there are system bottlenecks and theory holdbacks when we deliberately apply the present intellectual property system for the protection of intangible cultural heritage. In consequences, it is bound to accordingly readjust and improve the present intellectual property system in allusion to those specific features and circumstances of the intangible cultural heritage.