On The Protection Of Traditional Culture Under Cultural Property Rights

The traditional cultures are intellectual achievements which are constantly summed up and created from the specific ethnic groups or communities of people during the process of production and living practice and have a distinct cultural symbol. China is an ancient country which has a long history of five thousand years and the Chinese have created colorful traditional cultures. However, based on the economic globalization, as the recognition of the value of traditional cultures has increased profoundly and the use of traditional cultures has expanded gradually. Therefore, the economic globalization influences the multiple developments of the world’s cultures directly.Both the subject and content of the rights of the traditional cultures are not clear, which are the bottleneck problems of legal protection of traditional cultures. Because of these, the phenomena that people outside the traditional community take illegal possession and make improper use of traditional cultures become more and more serious. Those behaviors not only infringe upon the spiritual and property rights of the traditional cultural holders, but also threaten the people’s life in the traditional community seriously.Based on the above background, I would employ some methods such as Lock’s Labor property rights theory, encouragement theory, externality theory etc. to demonstrate the necessity and rationality of the protection of traditional cultural property. First of all, in theory, through the analysis of concepts, characteristics and related terms of traditional cultures, we would make clear that traditional cultures are various creative achievements which have been continually developed and passing down from generation to generation in the long process of production and living practice by the specific ethnic groups or communities of people, embodying their specialized qualities and cultural elements. Secondly, by comparing the related legislations among China, international organizations and developing countries, I intend to have an overall generalization and evaluation of the present situation of traditional cultures under legal protection in and abroad. Besides, by analyzing the choice of legislation of the protection of traditional cultures, it is advocated that China should adopt a way of protection law both public and private, that is, the combination of civil protection and administrative protection. China has issued "Intangible cultural heritage protection law", the nature of which is a public law and it emphasizes on the protection of traditional cultures from the perspective of public law. However, at present, China has not any regulations on civil protection of traditional cultures. Therefore, only by establishing civil protection regulation and giving traditional community corresponding private rights can we mobilize their enthusiasm of protecting the traditional cultures and achieve the goal of protecting and inheriting the traditional cultures. Based on the above analysis, the definition of traditional cultural property is to handle the rights of cultural resources belonging to its holders or to make sure the holders’exclusive rights. The protection of traditional cultures under the cultural property rights embodies the legal relationship of traditional cultural property rights, which includes three aspects, that is, the subject of rights, the object of rights and the content of rights. The subject of traditional cultural property rights shall adopt the statement of "double subjects", namely the subject of the traditional cultures is traditional community and the management subject is the management organizations of traditional culture. The content of traditional cultural property rights includes spiritual and property benefits. The spiritual benefits contain the rights of authorship, cultural dignity and cultural inheritance and the property benefits contain the rights of utilizing culture and attaining certain benefits.