Intellectual Property Perspective on the Protection of Folk Art

Author: Guan Yuying
Publisher:
Publishing Date: 2006-11-01
Features: This book introduces the progress and research achievements of discussions on the protection of folk arts and intellectual property both domestically and internationally, highlighting the significant role of the intellectual property system in the legal protection of folk arts. It elaborates on various aspects of the existing intellectual property system, particularly the role of copyright in protecting folk arts, analyzes the shortcomings or disadvantages of the current system in protecting folk arts, and points out the necessity and feasibility of providing special rights protection for folk arts within the field of intellectual property. Finally, it proposes recommendations for improving the existing intellectual property legal system to protect folk arts in the short term and establishing a special rights protection model for folk arts in the long term, based on China's specific national conditions. The book is divided into three parts.
Part 1 discusses the origin and development of the issue of "the protection of folk arts and intellectual property."
Chapter 1 introduces the international discussions on the protection of traditional knowledge, particularly the several models of folk arts protection that have emerged so far and the new research findings on folk arts protection issues reached by the "Intergovernmental Committee on Genetic Resources, Traditional Knowledge, Folk Arts and Intellectual Property" (IGC) established by the World Intellectual Property Organization (WIPO).
Chapter 2 discusses the significant importance of protecting folk arts for cultural heritage and economic development in China, noting that current research and legislative efforts on the legal protection of folk arts in China are still limited to administrative protection under the "Intangible Cultural Heritage." Therefore, Chapter 3 elaborates on the necessity of discussing the protection of folk arts within the field of intellectual property: the existing intellectual property system lacks regulation on the use of traditional resource information, a problem that has been preliminarily addressed in the field of genetic resources by adjusting the intellectual property system to protect the holders of genetic resources. Similarly, in the field of folk arts, there is an issue of imbalanced commercial interests due to commercialization, which should be addressed promptly.
Part 2 discusses the current state of protection for folk arts under the existing intellectual property system.
Chapter 1 introduces the international and domestic experiences in providing protection for folk arts and their derivative works through copyright, particularly reviewing some copyright cases involving folk arts in China, pointing out that the current copyright law has shortcomings in regulating the interests related to folk arts, as it only considers the rights of individual holders of derivative works while ignoring the interests of the vast majority of folk arts holders.
Chapter 2 introduces the international experience in providing trademark protection for folk arts and their related factors, analyzing the shortcomings of China's current trademark law in regulating the interests related to folk arts and the consequences thereof, and proposing that the existing trademark system should be adjusted to provide stronger legal protection for folk arts holders.
Chapter 3 reviews the potential protection that other branches of the existing intellectual property system, such as patent law, industrial design protection law, anti-unfair competition law, and database protection law, may offer to folk arts.
Part 3 discusses how to establish a legal protection system for folk arts that suits China's actual needs.
Chapter 1 analyzes the misconceptions about the "public domain" and the main reasons why intellectual property law is not suitable for protecting folk arts as a whole, reiterating the importance of private rights-based interests generated in the commercialization of folk arts and the necessity of regulating these relationships through the intellectual property system.
Chapter 2 elaborates on the legal relationships in folk arts intellectual property protection, pointing out that folk arts, like other products of human wisdom and experience, should be subject to intellectual property protection; the owners of this special subject are the folk arts communities that created or hold them; and the holders, re-creators, inheritors, performers, and recorders of folk arts should adhere to corresponding rights and obligations.
Chapter 3 proposes a plan for establishing and improving the folk arts protection system based on China's national conditions, suggesting that in the short term, every opportunity for revising or drafting the intellectual property law should be seized to add provisions favorable to folk arts protection and remove unfavorable ones; and in the long term, a special rights protection law for folk arts should be established when conditions are ripe.