The Theory Of Folk Literature And Art Special Rights Protection

With the accelerating development of industrialization and globalization, the value offolklore is being tangible or intangible unfolded. In the process of conversion for materialwealth or the dissemination of information, folklore is faced with the risk of beingtransformed, alienated, or even “beyond recognition”. Therefore, it is undoubted that wemust put emphasis on traditional culture and protection of folklore. Since1950’s, folklorehas been suggested to be protected by some countries and international organizations.After the1990s, China’s academia and the legal profession began to actively discuss andexplore. In recent years, the folklore disputes are frequently occurred, which illustratesthat more and more people generally recognize the value and significance of the protectionof folklore. After analyzing kinds of legislative practice, the thesis puts forward that weshould adopting a special right protection model of folklore to maximize the value.Starting from the meaning and characteristics of folklore, the thesis correctly definesfolklore in the context of intellectual property. Based on the summary of defects andshortcomings of the general intellectual property law protection mode, this part raises aspecial right protection model under the intellectual property framework. Chapter2specifically analyzes the subject, object and legal content of special right protection bycomparison with international law and domestic law. Section1precisely defines folklore’slegal object. In section2, folklore’s legal subject is divided into two types of traditionalcommunities and inheritors. Section3proposes a “Folklore Right” including “Traditionalmaterial Right” and “Expressions of folklore Right”, which is the core of this thesis.Chapter3describes how to use the existing intellectual property system to indirectlyprotect folklore and balance the interests of holders and users, in order to achieve thebenefit-sharing between preservation and development.The innovation point of this thesis here is to divide folklore into traditional materialand expressions of folklore. The former is something stationary which is handed downthrough the historical accumulation, such as motif, formal specification and otherprogrammable matters. The latter is what expressed outward by inheritors consciously or unconsciously in their daily lives generation by generation. On the basis of analysis above,chapter2parts the subject of folklore into traditional communities and inheritors, as wellas the division of “Traditional material Right” and “Expressions of folklore Right”. Thisclassification allows us to have a more clear understanding of folklore and better properlyprotect the legal rights of traditional communities and inheritors.