Wednesday, March 30, 2011

Landmark in China: Law on Intangible Cultural Heritages

On 25 February, 2011, China announced a law on intangible cultural heritages for the first time: Law of the People’s Republic of China on Intangible Cultural Heritages, which was regarded as a landmark in protection of intangible cultural heritages. This new law will come into force on 1 June, 2011. A word 'protection' was mentioned for dozens of times in this law. And it embraced a message of 'protection' from general rules to a concrete single article. This new law had several highlights.

First of all, this new law gave more specific scope of intangible cultural heritages in definition. Compared with that in previous regulations, this law specifically added some categories into the scope such as traditional medicine, traditional calendar, traditional sports and traditional carnivals, which were close with Chinese people’s lives but was ignored to protect in the past.

Secondly, this law requested to strictly manage investigations on intangible cultural heritages from oversea organizations and oversea individuals in China. Article 15 ruled:

'oversea organizations or oversea individuals shall be approved by cultural department of people’s government of provincial level or municipal level or autonomous level whenever investigation on intangible cultural heritages in China; if investigation in two or above provinces or autonomous regions or municipality cities, shall be approved by cultural department of the State Council; after investigation finished, shall submit investigation report and copies on materials and pictures of objects obtained in investigation to cultural department which approves investigation.'

And it also regulated that ‘oversea organizations shall cooperate with academic and research institutions of Chinese intangible cultural heritages when investigating in China’.

Thirdly, it can be found that all the social members are encouraged to participate in protection of intangible cultural heritages in this law. Not only the law regulated that governments shall play a main role in protection of intangible cultural heritages, but also encouraged citizens, legal persons and other organizations to attend protecting undertakings. Besides, this law requested to spread the protection department being from cultural department of governments and academic institutions to other public cultural departments and educational institutions such as schools.

Fourthly, this new law advocated reasonable utilization of representative project of intangible cultural heritages and exploitation of cultural products and cultural services with regional features, nationality features and potential market, under the effective protection. The highlight was ‘effective protection’. This law clearly demonstrated that the attitude of the state was that only if the intangible cultural heritages were effectively protected, the state could encourage the exploitation and industrialization. Besides, this law regulated that anyone ‘who exploits and utilizes representative projects of intangible cultural heritages shall support representative inheritors to hold succession activities and protect objects and places being component of the project’. If saying effective protection is a premise of exploitation representative projects of intangible cultural heritages, this regulation can be regarded as a continue condition in the process of exploitation. It means that the subject of exploitation shall have responsibility to support succession activities and avoid intangible cultural heritages destroyed after exploitation and utilization. Additionally, it regulated that the local government shall support units which reasonably utilize representative project of intangible cultural heritages. Meanwhile, these units shall enjoy tax preference.

At last, this law regulated to include protection expenses into financial budget, which achieved that there is a stable financial supports for protection of intangible cultural heritages. Additionally, this law had new cohesion rule referring to intellectual property, traditional medicine and traditional handicraft arts.

All in all, although this law still has some contents without specific rules, which may result some further issues in operation, this law has its milestone meaning in protection of intangible cultural heritages in China.


Luke McD said...

Interesting post. I have a question - Is it significant that the Chinese have defined 'intangible cultural heritage' rather than using 'traditional knowledge' or 'traditional cultural expressions'? (i.e. they appear to have used the language of UNESCO rather than WIPO)

Luo Li said...

There are a lot of legal documents, which can be found that China really had paid attention to research and enact legislations about it since 2003. In these documents, they more like use the term ‘intangible cultural heritage’ rather than TK or TCE. Definitely, TK and TCE are both belong to intangible cultural heritage. Use of this term in law may avoid some Chinese traditional cultural categories exclude the protective scope. After all, it is still in the exploration process for legal protection of traditional culture in China. The legislators shall firstly embrace various categories of Chinese traditional cultural heritages into legal rules as much as they can, then enact a law which may be general protection for every category. And then after practice and research, they may consider to design laws especially for TK or TCE. Besides, in WIPO, discuss on protection of TK or TCE is mainly around intellectual property protection. However, this law is administrative law, which did not refer any content of any private law. And all of previous legal documents or legal rules about traditional culture are nearly administrative rules. Hence, it is not necessary to design an administrative law special for TK or TCE, because nearly all the intangible cultural heritages would be protected by the same governmental administrative measures. Most of differences in protection may appear in area of private legal protection. That is the issue that many Chinese scholars are researching now. I hope my answer is helpful.

Luke McD said...

Thank you Luo, that is helpful