[Guo Ting] Some thoughts on the protection of intangible cultural heritage and the protection of minority rights
[Abstract] This paper starts with the hot topic of "protection of intangible cultural heritage" currently discussed in the international community, and discusses issues such as the status and rights protection of minorities in the process of protection of intangible cultural heritage.
This paper believes that whether or not to protect and how to protect the intangible cultural heritage created by minority groups should mainly depend on the decisions of minority communities; in the process of protecting these heritage, the development rights of minorities should be fully respected and guaranteed.
This paper also analyzes the protection of intangible cultural heritage and the development model of minority communities from the perspective of safeguarding minority rights, and triggers thinking on issues such as intellectual property protection of intangible cultural heritage and cultural education of minority people.
A.
Oral traditions and expressions, including language as a medium of intangible cultural heritage; -States should take the necessary measures to ensure that persons belonging to minorities can fully and effectively exercise all their human rights and fundamental freedoms without any discrimination and in full equality before the law.
(Article 4, paragraph 1) The so-called intangible cultural heritage that is on the verge of extinction means that this heritage has lost its sustainability and vitality under the current circumstances.
It attempts to use external interference or even in the name of protecting human diversity to prevent the community from respecting culture.
Innovation not only may destroy the precious and valuable characteristics of intangible culture, but also seriously violate international human rights norms.
Finally, the development of communities is their birthright, and no one has the right to interfere or even deprive the development of a minority for whatever purpose.
Humanity achieves progress through inheritance and innovation.
Intangible cultural heritage is also a continuous process of creation that includes time, place, and human factors.
Communities enjoy the right to freely choose in the process of cultural creation.
"Protecting cultural factors that no longer play a role in cultural life cannot undermine the social process of a community." (Editor, UNESCO, 2002:148) Although anthropology, folklore, and history have always maintained a focus on the cultural heritage of the community, they hope to help future generations understand more about the wisdom and wisdom of their ancestors by maintaining the continuity of intangible culture.
Life, this concept itself is worthy of recognition.
However, if the preservation of intangible cultural heritage "goes beyond the typical significance of providing empirical materials for the diversity of human historical existence, but spreads into a universal effort"(Chen Qingde et al., 2001:75), even in order to protect intangible cultural heritage, the community is required to adhere to a lifestyle that has been "dusty" for many years and is not conducive to the development of the community, this practice is actually depriving the community of its right to development and runs counter to anthropological care for "human nature".
Generally speaking, intellectual property is an individual concept, while the intangible cultural heritage created by a few people exists in communities and is often not created individually by individuals.
Different from the past when "intangible cultural heritage" was regarded as "work of mankind", the latest view is to regard "intangible cultural heritage" as a "living system of nature and culture, including the inheritors, their living habits, and places of residence."(LIVING SYSTEM), individuals in the community continue to make different interpretations of the connotation of intangible cultural heritage, and foreign cultures in turn impact the values and aesthetic trends of the community, causing intangible cultural heritage to continue to undergo mutation and deformation in the process of inheritance.
It can be said that intangible cultural heritage is an expression under the joint action of culture inside and outside the community.
Like cultural and natural heritage, it is the common wealth of all mankind and has always been regarded as a part of the "PUBLIC DOMAIN".
Enjoy by the world.
Most intellectual property laws are based on the protection of individual rights and control the use of knowledge, especially commercial use, to encourage rights holders to engage in knowledge re-creation.
There is a contradiction between the objects of intellectual property protection-individuals, and the creators and users of intangible cultural heritage-groups.
Since intangible cultural heritage must undergo a creation-innovation development process, it is the product of the joint efforts of several generations, and In this process, it may be divided into several different expressions due to community migration and environmental changes.
How to determine the owners and beneficiaries of intangible cultural heritage intellectual property rights is currently controversial.
Moreover, international intellectual property law limits the protection period of a certain object to 50 years.
After this period, the protection will expire.
However, generally speaking, intangible cultural heritage can only form a relatively stable state after being passed down by three generations, and can it be recognized by the community as a kind of "heritage".
Differences in these basic understandings have caused delays in legal formulation.
Once intangible cultural heritage, such as the totems and logos of the community, is wantonly copied, imitated, or even slandered, or used at will by others for commercial purposes, or even registered as a trademark first, the culture passed down by the community over generations will easily become a tool for others to seek benefits, and even the historical facts of the entire community creating and inheriting intangible cultural heritage will be maliciously rewritten.
Not only are communities deprived of their cultural rights, but even if such behavior is sanctioned by law, due to the dispersion and non-uniqueness of the community, the creator of intangible cultural heritage, it is difficult to determine the specific beneficiaries of compensation received.