| Intangible cultural heritage (ICH), was, is, and will be crucial to a nation for it helps shape the national identity, and carries forward the national spirit. Originating from people’s social life, among the people, such heritage develops and gains its popularity. In such process it is assigned the cultural connotations, which, therefore, not only shapes its cultural identity but also provides the vitality and cohesion for the state like Chinese knot. In today’s trend of globalization, ICH represents difference, i.e. Chinese way of thinking, which is considered as the basis of cultural sovereignty and people’s cultural identity.Chinese government has attached great importance to the legal protection to the intangible intellectual properties since opening-up. The lack of protection awareness, resulted from traditional Chinese social mode-an agricultural pattern, together with the impact of obligation standard. That makes an unbalanced development of legal system, i.e. the public law is sound while the private law lags far behind. Law on Intangible Cultural Heritage of PRC, issued in2011, is one-sided not taking cultural identity and obligee rights into full consideration. As for the ICH protection, the public law and the private law take equal importance. Deficiency of the latter will definitely have a negative impact on its inheritance and development. This thesis, focusing on the private law of ICH protection, makes an insight study on the ICH protection models and the current condition of private law protection so as to illustrate the necessity of its legal protection, based on which, some suggestions are put forward. Besides the Introduction at the beginning and Conclusion in the end, the whole thesis includes four parts.The first part is a general view of the ICH, including the evolution of its definition at different historical periods, and its legal characteristics. The definition, after half a century’s disputes, finally gained the agreement as was written into Convention on the ICH Protection approved by UNESCO. ICH stands differently from the tangible heritage in several aspects. Firstly, it is intangible and resides in people minds as knowledge or skill. Only through retelling, performing, or manual making by the inheritors, can it be felt and perceived. Secondly, it relies highly on the teacher’s oral teaching and the student’s inspiration to be passed down from generation to generation. Thirdly, it is flexible in development for it achieves self-improvement through innovation and learning step by step. Lastly, it involves in many fields ranging from agriculture, folk art, medicine, literature and arts. On the other hand, it takes in varied forms from oral legend, performing arts, rites, celebrations and so on.The second part mainly focused on the analysis of the current condition of ICH protection in China. In terms of law-making, China adopted a mode of public law protection, i.e. to protect ICH by administrative means in accordance with the public laws. Hence the government takes the initiative. Law on Intangible Cultural Heritage of PRC, issued in2011, only includes two items involving the private law protection on ICH:Article5and Item1st of Article44, which is far more enough to meet the ends.Furthermore, ICH, most frequently, fell into crisis for survival, i.e. being improperly used or distorted, or even with its relevant materials being transferred abroad illegally by someone. The reasons behind, for one thing, under the impact of modern civilization and foreign culture, people’s perception of ICH seems to be diversified; for the other, the national investment on ICH protection is far more enough, coupled with a space for the improvement of legal system. Therefore, it is very urgent to improve such conditions so as to stimulate the initiatives of the obligees, which further promotes a better work and better use of ICH.Next part probes into an analysis on the arguments of ICH protection by private law, introducing relevant experience learned from some international organizations and countries. ICH has a dual structure, whose protection highly relies on how the third party perceives, respect and make use of it. This is different from the cybernetic theory of obligee on intellectual property, originated from modern IPR System. Such difference results in the arguments centered on the collectivity of ICH subject on one hand, and time uncertainty of private property protection and time certainty of modern IPR System on the other. The thesis holds the view that lessons learned from some international organizations and countries, instead of the reform on IPR System, are the best way to settle down the arguments, with which, w can find out our one scientific and systematic approach, suitable to the national conditions, so as to better protect ICH by private laws.The last part finds the blue print to improve the ICH in terms of private laws. Firstly, some special laws, including the establishment of registration system, Prior Informed Consent system, benefits sharing mechanism, origin marking system and indefinite duration protection system, should be introduced for ICH protection for they can well deal with those arguments put forward in the third chapter. Secondly, intangible art, though different from traditional capital like money or asset, should be identified as means of investment. Such items should be written into the civil and commercial laws like The Contract Law, Company Law Partnership Enterprise Law and so on. In this way, the inheritor’s rights can be protection once the ICH proceeds to the production and circulation stage. Finally, entrusted authentication and public interests litigation items should be added to the litigation system on ICH protection. The substantial law should work with theo procedural law, i.e. we should make full use of the latter to guarantee a sound implementation of the former. |
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