Folklore Subject Of Rights

As a major part of intangible culture heritage, folklore bears the weight of reflecting the common memory and culture of a nation. However, with the overwhelming development of economic and cultural globalization, the folklore, which is severely struck by western modern industrial civilization and cultural values of information society, is confronted with serious situation. Within past a few years, the folklore has been becoming an important issue in the intellectual property field. The legal protection of the folklore is in debate both in the academe and the legislative all over the world. However, the author of the folklore cannot be ascertained because of the faraway history of the folklore; on the other hand, the author and the holder of the folklore take on the feature of collectivity, which is not borne by other subjects of the right of intellectual property. As a result of above reasons, the subject of the right of the folklore has become a common difficult problem of various protection models both in theory and practice. This article intends to find a proper model of the subject of the folklore and constructs the idiographic system according to the practical situation of China.This article is divided into four parts except the foreword and the epilogue, about 40,000 words in total.PartⅠ, by retrospect and analysis, makes an introduction of the folklore, including the definition, the legal characteristics and the sorts. Folklore, which is limited in the field of literature and art, means the literature and art of characteristic elements of the traditional artistic heritage developed and perpetuated by a community or by individuals recognized as meeting the expectations of such community, and includes folk tales, folk poetry, folk songs and instrumental music, folk dancing and entertainments as also the artistic expressions of rites and productions of folk art etc. This article analyzes two major characteristics of the folklore—collective creation and individual transmission. Then, it classifies the folklore into mother model and son model.PartⅡreviews the evolvement of the system of the subject of intellectual property. Although the existing intellectual property system has enormously contributed to the development of science and technology of western developed countries, it still empathizes the individualism. This kind of subject system of intellectual property just brings difficult problems to the protection and development of the folklore, though it promotes the development of the knowledge and culture industry of western countries. The major obstacle, which the protection of the folklore is faced with, is the conflict between the existing system of the intellectual property that the individualism plays a key role and the feature of collective creation of the folklore.PartⅢintroduces the legislation and practice of intellectual property for the subject model of the folklore. There are three typical viewpoints: individual right model, collective right model and native right model. On the basis of a brief introduction of these models, this part analyzes the advantages and the disadvantages of each model and elicits the proper choice for the subject of the folklore.PartⅣsets forth that the collective right model is the proper way for the subject of the folklore. This part is also on how to establish a suitable legal subject system for the actual needs of folklore in China. It analyzes the rationality of the collective right model. The right holder is the indigenous or local people who have been creating or maintaining the folklore, all the activities involving folklore such as re-creations, transmissions, performs, and records, should be undertaken according to the rules set by the law.