The Intellectual Property Law Protection Of Traditional Cultural Expressions

Nowadays, developed industrial countries are keen to push the elaboration of intellectual property treaties and enforcement systems which are increasingly strict. China as one ancient civilization, in order to become more internationally competitive, should correspondently take actions to protect the intellectual property right(IPR) of Traditional Cultural Expressions(TCE). Two problematic issues are essential in terms of the IP protection of TCE: the first is the definition of TCE; the second is the protection model of TCE. This thesis in the perspective of Wu Su Li case, introduces the discussions and the legislations of the international organizations, national judicial experiences concerning these issues.The discussion of the definition of TCE is initiated from the revision of Berne Convention in 1967 Stockholm. Although developing countries, especially India, passionately promoted the protection of TCE, Berne Convention still deliberately did no utilize the concept of Folklore. Instead, it defined the protection of orphan works. Thus TCE are partially protected by Berne Convention.In 1982, WIPO and UNESCO adopted the Model Provision for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions. It can be regarded as the most symbolic legislation in respect of the protection of TCE. However, it is a pity that this legislation is not binding international treaty, but just recommendation. It defined and listed the detailed definition of TCE, moreover, a lot of states have been implemented this recommendation in their own legislative practice.Recently, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore established the result of October 13 to 17 2013 Geneva twenty-fifths session. Though decades of truth finding, legislative judicial experiences and communication, the draft of treaty was concluded in this session. In terms of TCE, it offered two recommendations both emphasized the core position of Indigenous People. This treaty draft implied that maybe binding international treaty will be adopted soon.Correspondently, there are two ways of TCE protection model, one is existing IPR protection model, and the other is special IPR protection model. Concerning the existing protection model, this thesis introduces the copyright protection model which is directly connected with Wu Su Li case. Concerning the special protection model, starting with the most symbolic 1982 Model Provision, subsequently introducing the protection model recommended by the latest treaty draft which the WIPO IGC committee adopted.First introducing the copyright protection of TCE, although the economic and moral rights it offered, for instance the right of reproduce, publication, signature, etc, are fitted with the needs of indigenous people of TCE protection. The protection of copyright model is facing some kinds of dilemmas: the “work” defined in Berne Convention, first threshold is formality requirement, namely it should be fixed in some tangible forms; second threshold is the identity of authorship and the originality requirement; finally even some TCE get the copyright protection by fitting these thresholds, the time limit of copyright protection will devastate the TCE protection, because of their long history.Second is the special protection model. 1982 Model Provision offered another perspective in respect of IPR protection of TCE, first, regardless of the formality of the work, tangible, intangible, oral or written, it will be the object of protection; second, the subject of IPR of TCE is defined as indigenous people; finally stipulating the infinite protection of TCE.Even though the latest treaty draft of WIPO IGC is similar with the 1982 Model Provision, they are all special protection model. But this draft, compared with its precedence: first, it specified the definition of beneficiary who is the holder of TCE IPR; second, it listed the IPR of TCE which beneficiary can have; last, the draft stipulated the detailed enforcement approaches of IPR of TCE.Finally, from the perspective of this case, according to the foreign judicial experiences, try to discuss how to build up the Chinese TCE IPR protection model.All in all, this thesis introduces the definition and protection model of TCE via three essential international documents in respect field. Just as the original intention of the WIPO and IGC to discuss and research in this field: Mutual Understanding.