The Study Of Legitimacy Of Traditional Culture Intellectual Property Protection

Traditional culture is the common acknowledgement of the human race inherited through thousands of years, and is the essence of human's wisdom filled with vitality and creativity.The inheritance of traditional culture needs strong support of law system. It is only by giving the obligee exclusive rights can we improve the usage of traditional culture and constant culture development. And the aim of intellectual property system is to protect creator's right of his wisdom property. It is legitimate to use intellectual property system to protect traditional culture.First, the basic concept of traditional culture has some similarities with the object of intellectual property system, and traditional culture is somewhat coincident in the range of the objects of intellectual property from the aspects of property, time, private rights. Therefore the existence and development of traditional culture depends on intellectual property system.Second, the legitimacy is supported by the theory of intellectual property law, nomology and economic law. In intellectual property law, the identification of the legitimacy is mainly using Copyright Law, Patent Law, Trademark Law, and also Anti-unfair Competition Law in addition. These four systems have their own advantages and limitation. In nomology, there is a special goal of value using intellectual property to protect traditional culture. And the theories of natural rights and balancing of interests could reasonably explain the legitimacy above. In international law, using intellectual property to protect traditional culture could contribute to biological and cultural diversity. In economic law, the essential attributes of traditional culture and intellectual property are affected by the economic development. And the economic theories of prospecting and rent dissipation could fully explain the relating problems of intellectual property system, and validly illustrate in theory about the legitimacy of using intellectual property to protect traditional culture.Furthermore, in the process of identifying the legitimacy of bringing traditional culture into intellectual property system, there is a main existing law problem which is how to divide the subject of right and exercise, how to clarify the standards and ways to identify objects, and to limit the rights of the subject of right in order to avoid unreasonable monopoly right of intellectual property etc. There are also some principles we should follow when using intellectual property to protect traditional culture, and the main principles are the ones of fidelity, flexibility, comprehensive protection and respecting all the existing rules.The existing protecting modes of traditional culture include defensive and active modes.These two modes have their own advantages and disadvantages. It is only by designing new modes on the basis of reforming the existing ones can we actually protect traditional culture using intellectual property.Therefore the existence and development of traditional culture depends on intellectual property system, meanwhile the intellectual property system is being continuously perfected with the changes of its protecting objects. There is still a long way to go in the research of identifying the legitimacy of using intellectual property to protect traditional culture.