The Research On Legal Protection Of Folk Literature And Art

Folk literature and art works are different from the general literature and art works in the uncertainty of the creation subject,the time of creation,and the national and regional characteristics of the work content.General literary and artistic works of copyright protection and identification,can be strictly applicable to the Copyright Law,but in consideration of the particularity of folk literature and art works,the Copyright Law grants that the State Council shall formulate administrative regulations to protect the copyrights of folk literature and art works.The State council have not formulate any administrative regulations yet since the Copyright Law was enacted in 1990.The Supreme People's court also does not have any judicial interpretation on the protection of the folk literature and art works.Once the works of folk literature and art are violated,it's not only the focus of justice,also the focus of academic debate of how to define the copyright subject,how to identify the qualification of parties,how to determine the subject of litigation claims of the party.Since the special provisions have not had the protection of the folklore,the typical judicial cases will guide and strengthen the legal protection for works of folk literature and art,and deepen the academic study on the copyright protection of folk literature and art works.In this paper,the main discussion focuses on the famous copyright infringement case of "Wusuli boat song" between the Hezhen Township People's government in Helongjiang Province and Beijing CCTV,Guo song,Beichen shopping center.Based on the focus of controversy,the author analyzes the particularity of the copyright rights of the folk literature and art works,litigation subject qualification,litigation subject request scope,combining with the "copyright law","Civil Procedure Law" and relevant international treaties,puts forward some suggestions on the legal protection of the folk literature and art works copyright.The main content of this paper consists of five parts.The first part is the brief introduction on the case and the focus of controversy.Though the brief introduction of the case,the author analyzes the claims and counterplea of the plaintiff and the defendant,and the court opinion of the final judgment.Based on that,the author summarizes some problems in the legal protection of folk literature and art works.The second part is an overview of folk literature and art works.Through the different definitions of folk literature and art,this article defines the concept of folk literature and art from the perspective of the protection of copyright law,and summarizes the characteristics of folk literary and artistic works,including the rights of the particularity of the subject,the object of the right of the historical heritage and the diversity of the works form of realization of,so as to provide legal and factual basis for special legal protection.The third part is the comparative study of folk literature and art works and the analysis of the status quo of the protection of the comparative law.This part lists the developing countries,as well as Japan and South Korea,the United States and other developed countries on the legal protection of folk literature and art works,the scope and mode of the protection of the folklore in foreign countries and organizations.Meanwhile,the author will introduce the current status of the protection on folk literature and art works in foreign countries and China,to demonstrate the necessity and urgency of making "works of folk literature and art the" Regulations for the protection of the.The fourth part discusses the "case of the" Wusuli boat song "and the legislative value of the works of folk literature and Art Protection Ordinance".Through this part of the cited case,the author analyzes the focus of controversy one by one,from the works of folk literature and art copyright identity,to joining the litigation qualification play theory,break through the existing copyright law and civil law,makes suggestions on China Music Copyright Association and other related industries or public welfare organizations bear litigation subject qualification.This kind of litigation is similar to the public interest litigation,the plaintiff's right of action and the scope of the request should be subject to certain restrictions.The fifth part is the conclusion of this paper.Through the detailed interpretation and analysis of the previous parts,this part puts forward some legislative suggestions on the legal protection of folk literature and art works.