Intellectual Property Protection Of Intangible Cultural Heritage

Intangible cultural heritage is called the DNA of nation. With the deepening of the globalization, the economically developed countries invade our field of cultural awareness with the economic hegemony. National culture is facing the disaster of disappearing. Our government has been conscious of the necessity of protecting the intangible cultural heritage, and has made an effort to do it. But this kind of protecting the intangible cultural heritage will not be good of the development of intangible cultural heritage. Intangible cultural heritage legislative protection of the foreign has taken a try of the protection with intellectual property law. But their entire try is limited in the copyright law. The legislative protection is not perfect.This article tries to use comparative analysis to build a system construction on the basis of determining the types of intangible cultural heritage, in-depth analysis of the characteristics of intangible cultural heritage, difficulties to understand its protection, analysis of specific practices at home and abroad, and by contrast administrative protection with protection of intellectual property law. This article is divided into four parts:Part 1: The characteristics of the intangible cultural heritage and the difficulties were brought by the characteristics. Details include: (1) the definition of intangible cultural heritage. Every country has differences in the protection of objects because of the different history. So the intangible cultural heritage was divided into six categories. (2) The characteristics of the intangible cultural heritage. The characteristics of the intangible cultural heritage include Non-material nature, living heritage, nationality, rationality, diversity and scarcity. The perfect protective paths can be found by the consideration of the characteristics. (3) The difficulties were brought by the characteristics. The characteristics of the intangible cultural heritage will lead to difficulties in the presume of right subjects, the rights nature, the rights content.Part 2: Foreign intangible cultural heritage protection legislation in practice and the history of our prostration. This part analyzed the protected modes of developed and developing countries. Then this part analyzed the history of our prostration. That will give our external conditions by contrast with all the methods.Part 3: The protection of intangible cultural heritage by the intellectual property law. There are some differences between the subject of intellectual property law and the intangible cultural heritage. But the differences do not impede the methods by intellectual property law. The intangible cultural heritage is a kind of culture in nature. It will bring economic benefits. There are more similarities than differences; all the differences will be compensated by amending the law. The protection by administration dose not fit our social conditions. This part explained the rationality of the protection method by the intellectual property law.Part 4: To built a system of intellectual property protection for the intangible cultural heritage. It is necessary to make amendment in copyright law, trademark law, and patent law. Details include: (1) the copyright law protection of intangible cultural heritage. Intangible cultural heritage that coincides with the object of the folk literature will be protected by copyright law. Social groups, the state, individuals can be used as subjects of rights, the other subjects as trimmer, adaptation can also enjoy certain rights. The subjects can be determined by the establishment of the declaration, survey system. That will avoid disputes. The subjects will enjoy the rights indefinitely. But the subjects can not damage the public. (2) The trademark law protection of intangible cultural heritage. The protection of geographical indications will be chose. The intangible cultural heritage that has become a formation of industry can be registered as collective marks or certification marks. If the intangible cultural heritage is inherited by just one body or several people, the intangible cultural heritage can be registered as a trademark. All the marks need to be registered by government. All the subjects can not damage the first right. (3) The patent law protection of intangible cultural heritage. The traditional craft skills, the traditional knowledge and practices about nature and the universe were not meet the novelty, creativity and practicality that were required by patent law. But this kind of intangible cultural heritage has an enormous economic value. So the patent law has to low the standards. The intangible cultural heritage that was met the requirement of tradition, specialness and utility can be prated by patent law. And the patent law has to protect of intellectual property by weakening the monopoly.