A Research On The Subject Of The Copyright Of The Folklore

Folklore is an important part of traditional culture, which has a long history. It is an important spiritual nourishment to Chinese people of all nationalities in thousands of years. Today, folklore still has enormous political, economic and cultural values, so the state should introduce laws and policies to protect them. However, since the early 1990s China promulgated the "Copyright Law" and formulated the principle of the protection of folklore, they did not develop any further regulations on folklore. Until 2014 the Copyright Office drafted regulations to protect folklore, but they are still discussed. Scholars lively discussed on various issues of folklore in thirty years, due to the special nature of folklore, its copyright ownership issues is still not completely resolved. Scholars’views are varied and not uniform. So, if we want to find the most reasonable way to protect the folklore, we must first solve the problem of the owners of copyrights of folklore. Then we can make more scientific and more suitable recommendations for China by combine with the specific circumstances of the subject of rights.To confirm the owners of copyright of folklore, we can learn from the experience of the evolution of copyright subject system. In the modern sense of the copyright system had not been born, the countries protected the interests of publishers. Authors were treated as ordinary artisan, in addition to a small amount of compensation, they didn’t have any rights. Bourgeois revolution era gave birth to a large outbreak of Romanticism. The value of the spirit and creativity were taken seriously. Authors were no longer ordinary artisans, their creative activity brought huge economic benefits and their social status had risen considerably. Early 18th century, the "Queen Anne Act" was born, the author doctrine replaced publisher doctrine. In mid-20th century, the structuralism thought prevalent. More and more works were complete by collective creation. The individualism and collectivism coexist copyright subject system replaced the individualism system with the development of theory and practice.Although there are various contradictions between the existing copyright system and folklore, but that does not prevent us to build the structure of dualistic subject of rights for folklore, which learns from the individualism and collectivism coexist copyright subject system. Scholars have suggested a variety of modes to confirm the owners of copyright of folklore, but they all have problems. The structure of dualistic subject of rights for folklore learns the marrow of the various modes. The so-called dualistic subject of rights for folklore means that copyrights of folklore mainly attributable to its source groups, because they create and retain the folklore. If the inheritors create the new folklore works, which are qualified, they can be the owners of copyright of folklore. Only in very rare cases, for very special folklore, the state may exercise rights as a subject of copyrights and it has responsibilities to develop the folklore.Source groups based on the same sources of natural factors or social factor, the members product and live together in a long time and they have the same history and culture, the same production habits, the same social customs, relatively consistent values. According to area and ethnicity, source groups can be divided into mono-ethnic, inter-ethnic, specific area and inter-area. We can set up a total relationship in inter-ethnic and inter-area. They jointly own the copyrights of folklore. Source groups have many personal rights and property rights, for example, publicity rights, the rights to show the source, the rights to against vilify and insult and so on. Due to the large number of people, limited capacity and other factors, source groups need to establish the agency to help them. The agency can deal with many professional issues, just like infringement proceedings and commercial negotiations. It is a more reasonable choice to establish folklore copyright collective management organization rather than national management or trust management.Inheritors are another kind of the owners of copyright of folklore, but these inheritors should be the inheritors of the narrow concept to meet certain conditions. They are the members of source groups. Their new folklore works are based on folklore female and they inherit the basic characteristics and manifestations of folklore female. But the authors also inject their own ideas and novelty content. They created new folklore works, which are different from the female and have their own unique style. Inheritors also have many personal rights and property rights, for example, the rights to indicate their identity, the copyright of new folklore and the rights to remuneration for funding. Correspondingly, they have responsibility to propagate folklore and protect it. In practice, there are some people related to folklore. Their jobs are similar to the inheritors’, but they do not enjoy the same legal status as the inheritors. For the preservation and protection of folklore, their interests should also be concerned about.