Study On The Mode Of Legal Protection Of Traditional Cultural Expressions

Traditional cultural expressions which constantly recreated as traditional artistsand practitioners bring fresh perspectives to them are handed down from onegeneration to another as living cultural heritage. Especially under the background ofeconomic globalization, traditional cultural expressions have been the effectivestrength to support sustainable economic development in some communities ornations. It’s no doubt that we should provide appropriate protection to them in legalsysterm. Now, we have applied “the convention for the safeguarding of intangiblecultural heritage” to preserve and safeguard the traditional cultural expressions inpublic law. But there are also some defects in protection of traditional culturalexpressions in private law. It’s stipulated in article6of “copyright law of the people’srepublic of china” that regulations for the protection of traditional culturalexpressions of folklore shall be separately established by the State Council.(expressions of folklore has the same meaning with traditional cultural expressionshere)But the regulations still remained not passed. Nowadays, we are preparing toformulate the regulations. Therefore, the author will put forward some suggestions inhow to protect traditional cultural expressions in china based on the research resultsdomestic and overseas.Experience so far with traditional cultural expressions protection has shown thatthe main mode of legal protection are as follows: copyright law, industrial propertylaw, anti-unfair competition law, cultural heritage law, sui generis systems and so on.Protection of cultural heritage give a chance to protect traditional cultural expressionsin public law, as well as the copyright law and industrial law and anti-unfaircompetition law give a mode of protection in intellectual property law systems. Suigeneris systems is a IP-type protection mode most likely copyright law. Due totraditional cultural expressions are similar to that of “work” in copyright law, many scholars claim to adopt the mode of legal protection under copyright law or specialcopyright law. Some country have done so within their copyright laws. However,such legislations can’t provide appropriate protection to traditional culturalexpressions. The reasons for this can be assigned as following: First, the subjectmatter of traditional cultural exprssions is wide than “work”. The two terms aresimilar but not the same. Second, the subject of right of traditional culturalexpressions have collective quality, but that of within copyright law which is authorbased traditionally are totally different. Third, traditional cultural expressions can’tmeet the fixed condition for protection within copyright law. In addition, theprotection of economic right is not suitable to traditional cultural expressions. Lastbut not the least, the protection term of traditional cultural expressions should beindefinite duration.Therefore, the author supports the viewpoint of provide sui generis protection totraditional cultural expressions and constructs sui generis legal protection system inChina. The system constructions referred to following aspects: First, objectives of suigeneris protection. Aim at recognize value, meet the actual needs of communities,prevent the misappropriation of traditional cultural expressions/expressions offolklore and empower communities and so on. Second, general guiding principles,including responsiveness to aspirations and expectations of relevant communities,balance, recognition of the specific nature and characteristics of cultural expression,respect for customary use and transmission of TCEs and so on. Third, the maincontent of sui generis system, including defination of TCEs, beneficiaries, scope ofprotection and limitations, formalities, remedies and exercise of right, term ofprotection and retroactivity, relationship with intellectual property protection andother forms of protection and international or regional protection.