Research On Intellectual Property Protection On Folkfore

The intellectual property protection on traditional cultural is the challenge that existing intellectual property law is confronting. This thesis focus on the intellectual property rights of folklore.Since this thesis is concerned to how to protect the intellectual property rights of folklore, it is necessary to discuss the definition of the meaning of folklore in chapter 1.Sectionlis with regard to the usage and precision for the term. "Minjian Wenxue yishu " is the Chinese translation of "folklore". On the basis of the analysis the different translations of the "folklore" the author chooses the Chinese expression of "Minjian Wenxue yishu ".Strictly speaking, folklore is the important part of the traditional cultural system. Then the author defines the meaning of the term and made the usage of the terminology has gradually become exact. Section 2 is about the characteristics of folklore. As folklore is the intellectual products system made by the traditional people in his long history fit the environment by improvement, it has some special law features, such as collectivity, continuity, variability and so on.Chapter 2 examines the righteousness of the intellectual property protection on folklore. Section 1 is about the righteousness of the protection on folklore by law. The author discusses the justice reasons of the law protection on folklore from two different points of view. From the perspective of Human Rights, the protection of folklore by law has abundant justice reasons. Firstly, "Endowment of Human Rights" is the jurisprudence basis of the protection of folklore by law. Secondly, the protection of folklore by law can bring economic benefit to the traditional people, so it can largely help the traditional people to realize their right of subsistence and the right of development. Thirdly, since the folklore has close connection with the religious belief, the moral standard and the way of being of the traditional people, it reflects the personality of the traditional community. In this way, to protect folklore from the being abused is to respect the personality right of the traditional people. Section 2 is concerned to the justice reason of the protection on folklore by intellectual property. This section discusses the grounds from the two aspects of obverse and reverse. Firstly this section discusses the natural relation between folklore and the objects of the intellectual property system, thereby explains why many countries and the experts pay their attention of the protection on the folklore to intellectual property. Immediately after that, the author criticizes the standpoints that oppose to making use of intellectual property to protect folklore, thereby proves that there is no theoretic obstacles that can exclude folklore from the intellectual property system .Chapter 3 describes the worldwide exploration of the protection of folklore briefly. Section 1 is the survey on the global exploration of protection on folklore by law. The author introduces the exploration of the different countries, the results of the effort made by the world organizations especially by UNESCO and WIPO and the present conditions of protection on folklore in china. From the introduction in section 1, we can find that the exploration of the protection on folklore has made certain achievements on some extent, the experiments and good points of which can be assimilated by us in the process of legislation for folklore. However, in the survey we also find that there is a serious defect in the worldwide exploration of the protection on folklore, which is described in section 2. As the world organization that has the most influence power ,WTO has not made any virtual effort of the protection on folklore and consequently there is no stipulation about the protection on folklore at all in its TRIPS, which is most authoritative worldwide treaty of intellectual property protection . And we had to admit that the absence of protection on folklore in TRIPS is the grievous defect which is not only a departure from equity principal in doctrine, but also has caused great difficulty in the implement on international protection on folklore in practice. So the author call on the developing countries where most kinds of folklore exist should make their most effort to struggle with the developed countries to gain the intellectual property rights in TRIPS.Chapter 4 discusses the intellectual property protection of folklore under the existing intellectual property law. The requirement for the protection of folklore is seriously urgent, but it is impossible for a state to formulate and pass a special legislation for folklore in a short time. In order to temper the contradiction, the author manages to find the feasible ways to save folklore by exploring the existing intellectual property law. The author divides the chapter into three sections and respectively discusses the usage of the following three existing intellectual property system which are the copyright law, the geographical indications system and the trademark law. Every section contains three discussion levels which are the communications between folklore and each of the above three intellectual property system, how to make use of the concerning intellectual property law and the limitations in the folklore protection by the referred intellectual property law. After the discussion makes the conclusion that there are some points existing indeed that can be used to protect the folklore in each referred intellectual property system, meanwhile, what can not be denied is that the limitations and shortages in the usage of the above three intellectual property systems are also very obvious. The two aspects determines that making use of the existing intellectual property law can help to lighten the pressure of the urgent requirement for the protection of the folklore, but a special legislation for folklore in intellectual property system is quite necessary in a long-term view.Chapter 5 designs the special protection legislation for the folklore in the intellectual property system. This chapter is composed of four sections and discusses the concerning contents that is essential for a special intellectual property legislation. Section 1 is concerned to the goals and the principals of the special legislation, which sets up the guiding ideology for the following particular parts of the system. Based on the analysis of all kinds of different standpoints about the range of folklore, the author defines the reasonable extent of the objects that is involved in the special legislation for folklore in section 2. Section 3 discusses the subject whom the intellectual property rights of folklore should belong to. Furthermore the section talks over the status of the continuators of folklore. Section 4 designs the intellectual property rights of folklore. The content of the rights is very important for the traditional people, so are firstly discussed in the section meanwhile , for the goal of prevention the rights from being abused, some restrictions on the intellectual property rights of folklore is also necessary, and is fixed in the following part. Immediately after that, the tort behavior and the tort burden are discussed. The last part of the section is with regard to the protection term of the folklore. On this point the author hold that time limit should not be fixed on the intellectual property protection of folklore.