Regulationson the Copyright Protection of Folk Literary and Artistic Works (Draft forComment) was released on the official website of the national copyrightadministration. Folk Literary and Artistic Works eventually get the specificlegal protection after more than 20 years’ waiting.

Previously,the protection of Chinese Folk Literary and Artistic Works is in an awkwardposition. In the 1990’s, at the beginning of the issuing of Copyright Law, itstated that the protection measures on copyright of Folk Literary and ArtisticWorks should be established separately by the State Council. But until now, it hasn’testablished any specific legal protection systems on Folk Literary and ArtisticWorks. The reason is the unsure connotation and denotation of Folk Literary andArtistic Works in this industry. In addition, it is controversial on thesubject and object of protection, the content of right, the period ofprotection and the exercise principle and methods of rights.

Thereleased Draft for Comment aims at protecting the copyright of Folk Literaryand Artistic Works, encouraging the heritage and development of folk literatureand art. The full text contains 21 articles, stipulating the concept,connotation, ownership, attribution of right, right content,authorization mechanism and profit distribution. The release of this draftattracted the attention of extensive folk literary and artistic workers,scholars and legal professions. An intense intense discussion is held amongthem on the background, significance of this regulation and identification ofthe copyright owner and the payment of management remuneration.

It is necessary to legislate separately

Thereleased Draft for Comment stipulates that Folk Literary and Artistic Worksrefer to the expression of literature and art created collectively and passedon from generation to generation by specific nationality, ethnic group or the unspecifiedmembers in the community, reflecting traditional concepts and cultural values.In terms of the concept, it conforms to the copyright law on the definition of"work" which should be protected by the copyright law system. As itis, why does it need to legislate separately?

FolkLiterary and Artistic Works have characteristics of sources uncertainty,subject groupment, creative dynamic and expression dissimilarity, so thecopyright law couldn’t simply apply to them. For example, some folk dances andarts are not created individually but by the joint effort of specificnationality or group. When it comes to the issue of authorization using, ifpeople can’t get the permission from the specific nationality or group, the authorizationway of concentrated permission should be used. In addition, the creation of FolkLiterary and Artistic Works generally does not terminate over time but evolvesand develops continuously. If these works are limited by the protection period consistingof the author's lifetime and 50 years after the author’s death, it violates thedynamic rule of creation. Therefore, when the National Copyright Administrationdrafted the conservation ordinance on copyright of Folk Literary and ArtisticWorks, it pays special attention to adhere to both the basic principles ofcopyright law system and the particularity of Folk Literary and Artistic Works,designing system and provisions practically and realistically.

There aremany practical reasons on separate legislation on Folk Literary and ArtisticWorks. On one hand, the issues on the collection, sorting, inheritance, use,promoting and development of folk literature and art are increasingly prominentwith the increase development of China’s economy and society. Relevant civillitigation cases increase rapidly and are going to expand further. In order tosolve these problems, it should set the regulation on the protection of FolkLiterary and Artistic Works from legislative angle. On the other hand, it isnot only the requirement to implement the current copyright law and relevantlaws, but also the requirement to participate in the rule-making ofinternational rules to strengthen the legislation on the protection of FolkLiterary and Artistic Works.

It isnecessary to set legislative protection on Folk Literary and Artistic Works. Onone hand, the spiritual values, cultural values and market values of FolkLiterary and Artistic Works haven’t got the respect they deserve because of thelack of law. Many of our excellent works are commercially used withoutcompensation by foreign organizations or individuals, which is really unfair.On the other hand, China's intangible cultural heritages get a serious lost,which unexpectedly receives little attention. From the angle of inheriting andprotection, it is also necessary to legislate specifically. 

Date:2014.10.21

Source:China’sNational Copyright Administration