TYGlobe

Contents

I. Introduction

II. Predicaments in Copyright Protection of Intangible Cultural Heritage

(I) The threshold for right confirmation is relatively high.

(II) Absence of Rights Exercise Procedures

(III) Extremely High Difficulty in Rights Protection

III. Causes of Dilemmas in Copyright Protection of Intangible Cultural Heritage

(I) Legislative Lag Caused by Value Conflicts

II. Limited Support from Judicial Adjudications

1. The requirements for the determination of originality are relatively high.

2. Strict determination as to whether a work is constituted

3. The determination of substantial similarity is strict.

(III) The Insufficiency of Legal Remedy Capacity for Copyright

IV. Improvement and Selection of Legal Protection Paths for Intangible Cultural Heritage

(I) Strengthen Legal Interpretation and Application

(II) Strengthen Judicial Protection

(III) Selection of Diverse Means of Remedy

References

Reference Cases

Author:

Shanghai TYGlobe (Beijing) Law Firm, Lawyer Guo Yongying

Shanghai TYGlobe Law Firm Attorney Liu Xijing

### Abstract This paper focuses on the copyright protection of intangible cultural heritage (ICH), and conducts in-depth discussion on its existing dilemmas, forming causes and solutions. The research difficulty lies in the essential differences between ICH and copyright protection in multiple aspects, which lead to obstacles in ownership confirmation, right exercise and rights protection. The dilemmas are specifically manifested as follows: First, the threshold for ownership confirmation is high. The difference in protection characteristics between ICH and copyright makes the ownership confirmation link ambiguous. Second, the right exercise procedure is deficient, as current laws have no clear provisions on right exercise for right holders. Third, rights protection is extremely difficult: the characteristics of ICH creation materials give rise to doubts over the originality of relevant works and low damages awards. The causes of the above dilemmas include legislative lag caused by value conflicts, limited support from judicial adjudication, strict requirements for originality and work identification, and insufficient capacity of copyright legal relief. In response, the following measures shall be taken: First, strengthen legal interpretation and application, improve the copyright system and set up dedicated authorities for administration. Second, enhance judicial protection, clarify adjudication standards and increase damages awards. Third, adopt diversified relief measures, such as trademark registration and application of the *Anti-Unfair Competition Law*. In conclusion, the copyright protection of ICH is a complex issue. At present, relevant legislation and judicature in China lag behind actual demands, so it is necessary to adopt diversified protection paths to build a full-coverage protection system.

Keywords: Intangible Cultural Heritage; Copyright; Copyright Protection of Intangible Cultural Heritage.

I. Introduction

Intangible Cultural Heritage (abbreviated as "ICH", hereinafter uniformly referred to as "ICH") is the counterpart of tangible cultural heritage. It refers to various forms of traditional cultural expression passed down from generation to generation by people of all ethnic groups and recognized as an integral part of their cultural heritage, as well as physical objects and sites associated with such forms of traditional cultural expression. The *Convention for the Safeguarding of the Intangible Cultural Heritage* (hereinafter referred to as "the Convention"), adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2003, put forward the concept of ICH for the first time and provided its official definition. In China, the definition stipulated in the *Intangible Cultural Heritage Law of the People's Republic of China* (hereinafter referred to as the "ICH Law") is basically consistent with that in the Convention. Meanwhile, Article 2 of the ICH Law enumerates the forms of ICH as follows: "ICH includes: (1) traditional oral literature and the languages that serve as their carriers; (2) traditional fine arts, calligraphy, music, dance, drama, quyi and acrobatics; (3) traditional skills, medicine and calendars; (4) folk customs such as traditional etiquettes and festivals; (5) traditional sports and recreational activities; (6) other intangible cultural heritage."

Intangible Cultural Heritage (ICH) is of great value to human society. In the agricultural economy era, its value is mainly embodied as "use value", while in the industrial economy era, it gains "economic value". As we step into the knowledge economy era, ICH is further featured by "coexistence of cultural value and use value", which provides ICH with the interest basis for property right protection. Although there have long been numerous controversies over the protection of ICH property rights, including disputes over adopting pure public right protection or a combination of public and private right protection, intellectual property rights, especially copyright, as an effective way to protect the economic interests of ICH, have not been uncommon in judicial practice. Works with original expression created by using ICH techniques fall within the scope of protection under the Copyright Law, and generally are categorized as "works of folk literature and art" as prescribed in Article 6 of the *Copyright Law of the People's Republic of China* (hereinafter referred to as the Copyright Law). As "intellectual property protection has been gradually internalized into the conscious conduct of ICH inheritors", copyright protection plays a more prominent role in the inheritance of ICH. However, relevant right holders often encounter major challenges in the practice of right confirmation, right exercise and rights safeguarding.

This paper starts from the predicaments confronting the copyright protection of intangible cultural heritage, analyzes the causes of the aforesaid predicaments and their manifestations in practice, and finally explores appropriate paths for the realization of relevant rights from the perspectives of legislation and judicature.

II. Predicaments in Copyright Protection of Intangible Cultural Heritage

(I) The threshold for confirmation of rights is relatively high.

As mentioned above, under the overall framework of current cultural protection, copyright protection has become a mainstream approach for the protection of Intangible Cultural Heritage (ICH). However, in-depth exploration reveals that based on the unique nature of ICH itself, the established scope of copyright protection and the design of the current legal system, not all ICH can be smoothly incorporated into the scope of copyright protection. This status quo is clearly manifested in multiple aspects.

First of all, there are essential differences between the purposes of intangible cultural heritage (hereinafter referred to as ICH) protection and copyright protection. From the perspective of ICH protection, its purpose is explicitly defined as "inheriting and carrying forward" the fine traditional culture of the Chinese nation, while strengthening the "protection and preservation" of ICH. As stipulated in Article 1 of the *Law of the People's Republic of China on Intangible Cultural Heritage*: "This Law is enacted for the purposes of inheriting and carrying forward the fine traditional culture of the Chinese nation, promoting socialist cultural and ethical progress, and strengthening the protection and preservation of intangible cultural heritage." This clearly indicates that ICH protection focuses on in-depth research and exploration of historical culture, and all-out efforts to prevent ICH from being lost or no longer passed down. Its core lies in safeguarding the inheritance of public historical culture, with a view to the long-term development and continuity of the entire national culture. Copyright protection, by contrast, has a distinctly different focus. It is mainly designed to protect "the copyright of authors of literary, artistic and scientific works", has a strong attribute of private right, and lays greater emphasis on protecting the individual rights and interests of creators. By granting creators exclusive rights for a fixed term, it encourages them to carry out creative activities to promote the innovation and dissemination of culture and knowledge. Such difference in purposes leads to fundamental conceptual conflicts when ICH seeks copyright protection.

Secondly, there are significant differences between the protection of intangible cultural heritage (ICH) and copyright protection. The scope of ICH protection is extremely broad: it covers not only "works" or "performances" that conform to the definitions under the Copyright Law of China, but also a variety of unique fields such as skills, medicine, calendars and folk customs. Take traditional skills as an example. Many ICH skills have been passed down through generations and formed unique techniques and production methods. Only when the works or performances generated by such skills are original can they be protected by copyright. However, ICH skills per se and traditional knowledge in the public domain, due to their long history and extensive sources, can hardly meet the requirement of originality stipulated in the Copyright Law, and thus cannot be effectively protected under the copyright system. This has led to a large quantity of ICH content being excluded from the scope of copyright protection, which subjects ICH to substantive restrictions when seeking legal protection.

Furthermore, there are also significant differences between the protection approaches for intangible cultural heritage (ICH) and copyright. The protection methods for ICH cover more public power measures such as "confirmation, recording and archiving". Government authorities play a leading role in ICH protection: they organize expert reviews, confirm ICH items, keep detailed records and establish archives for ICH, and carry out various protection activities, among other measures, to ensure the inheritance and development of ICH. In contrast, copyright protection mainly relies on the exclusive rights granted to authors by law, and the protection is realized through the authors' independent exercise of rights or authorization of others to use their works. Such a difference in protection means makes it difficult to find a matching operation mode when protecting ICH under the copyright system.

Finally, the terms of protection for intangible cultural heritage (ICH) and copyright are also completely different. Copyright is subject to a specified term of protection. Within the term prescribed by law, the author enjoys exclusive rights to the work. Upon expiration of the term, the work enters the public domain and may be freely used by any person. Intangible cultural heritage, by contrast, is dedicated to the permanent protection of public history and culture. It carries the memory and wisdom of a nation, serves as a precious treasure of human civilization, and requires long-term inheritance and development. Such discrepancy in protection terms leaves intangible cultural heritage confronted with the problem of mismatched protection periods when it seeks copyright protection.

Precisely due to the aforementioned various differences, the forms of Intangible Cultural Heritage (ICH) eligible for copyright protection are rather limited. Gray areas are more prone to emerge in the right confirmation processes of ICH works, including copyright registration, publication of works and contractual stipulations. Take copyright registration as an example. As the creation subjects of ICH are generally characterized by collectiveness and intergenerational inheritance, it is difficult to identify a definite author, which creates obstacles to copyright registration. In addition, the ICH-specific right confirmation criteria such as inheritor identification and application for inclusion in ICH catalogues, as well as the subsequent supporting policies, are not uniform across different regions of China. As a result, not all ICH works are entitled to the special protection designated for ICH. The existence of these issues has posed enormous difficulties to the subsequent exercise of rights and rights protection of ICH works.

(II) Deficiency in Procedures for the Exercise of Rights

Difficulties in title confirmation are one of the major causes for the absence of procedures for the exercise of rights related to intangible cultural heritage (ICH). Due to multiple difficulties in ICH title confirmation, right holders such as ICH inheritors are often unable to exercise their rights on their own initiative or authorize third parties to use ICH works. Under China's current legal system, the main responsible entities for ICH protection are the state, the government and cultural competent departments at all levels, among others. The law imposes obligations including supporting and development on the aforesaid entities, and encourages them to take various measures to promote the protection and development of ICH. However, the law has not made express provisions on how ICH right holders exercise their rights, or whether corresponding management organizations shall be established to exercise such rights. As a result, ICH right holders lack direct legal basis and operational guidelines when involved in commercial activities.

For example, some inheritors of intangible cultural heritage (ICH) possess unique skills and works, and hope to carry out commercial development through cooperation with enterprises, so as to introduce ICH to a broader market. However, due to the absence of explicit legal provisions, they often face multiple problems when signing cooperation agreements with enterprises, such as ownership of rights, scope of authorization, distribution of proceeds, etc. If these problems are not properly resolved, they will not only dampen the enthusiasm of ICH inheritors, but also hinder the commercial development of ICH. In addition, due to the lack of corresponding management organizations, ICH right holders often find it difficult to form effective joint efforts for rights protection when facing infringements, as a result of which infringements cannot be stopped and punished in a timely manner.

(III) Extremely High Difficulty in Safeguarding Legitimate Rights and Interests

Intangible cultural heritage (ICH) creations are based on traditional historical and cultural elements, a feature that poses enormous challenges in the subsequent rights protection process. As most of the materials for ICH creations are derived from traditional knowledge and cultural elements in the public domain, such creations will inevitably be questioned on their originality during rights protection. Infringing parties often challenge the legal basis of the creators' rights on the ground that ICH creations lack originality, which greatly increases the rights protection risks for creators. For example, after some traditional folk tales are adapted into film and television works, the inheritors and creators of the original stories often face defenses raised by infringing parties on the ground that the stories originate from the public domain during rights protection, which causes great difficulties to rights protection work.

In addition, the overall level of damages awarded in intellectual property rights (IPR) cases in current judicial practice has also exerted adverse impacts on the rights protection of intangible cultural heritage (ICH). Even if ICH creators can successfully safeguard their rights, the compensation they receive can hardly match the economic losses they have suffered and the rights protection costs they have incurred. In some ICH infringement cases, the infringing parties have obtained huge economic benefits by illegally using ICH works, while the creators can only receive meager compensation. This unreasonable compensation mechanism dampens the willingness of creators to protect their rights, which in turn leads to increasingly rampant infringement acts. It is precisely because some lawbreakers are aware of the difficulties and risks of ICH rights protection that they dare to wantonly infringe upon the lawful rights and interests of the subjects of ICH rights.

III. Causes of Dilemmas in Copyright Protection of Intangible Cultural Heritage

(I) Legislative Lag Caused by Value Conflicts

There are fundamental contradictions and conflicts between the value of copyright protection and the value of intangible cultural heritage (ICH), which are specifically embodied as follows: First, copyright protects the value of private rights, while ICH is public in nature. The historical and cultural elements contained in ICH works have long been in the public domain. All persons are entitled to free use of such elements, and extensive use is actually more conducive to the dissemination and inheritance of relevant content. Incorporating content in the public domain into the scope of copyright regulation violates basic legal principles. Second, ICH culture is the crystallization of collective wisdom. In many cases, the author cannot be easily identified, which makes copyright protection inapplicable. Third, the dissemination of ICH culture relies on extensive public participation. Although the intervention of the *Copyright Law of the People's Republic of China* regulates commercial utilization, it inevitably restricts the free circulation of relevant content. The above-mentioned fundamental contradictions make China quite prudent in formulating ICH-related copyright legislation. Although it has been explicitly stipulated in copyright laws since 1990 that "works of folk literature and art" shall be governed by special legal norms, the relevant detailed rules have not been introduced for a long time. The *Law of the People's Republic of China on Intangible Cultural Heritage* which came into force on June 1, 2011 and the *Regulations on the Protection of Traditional Arts and Crafts* revised and promulgated on July 18, 2013 both focus on administrative regulation. The *Regulations on the Copyright Protection of Works of Folk Literature and Art (Draft for Comments)* sets out relatively detailed provisions on the content of rights, authorization mechanisms, authorization of adapted works and benefit distribution for ICH folk literary and artistic works. However, since the draft was released for public comment on September 2, 2014, there have been numerous disputes over issues such as the feasibility of copyright protection, right holders, protection of moral rights of works, protection of economic rights and protection of the public domain, resulting in its failure to be officially promulgated and implemented to date. As a result, there is still no specific and clear legal basis for copyright protection of ICH works so far. Right confirmation and right exercise face great difficulties, and relevant parties can only seek ex post relief in accordance with the basic provisions of the *Copyright Law of the People's Republic of China*. In addition to the lack of basis for the protection of works themselves, the current laws and regulations also cannot clearly define the concurrence between the protection of the interests of ICH inheritors and the protection of the economic interests of the works themselves, which is in urgent need of further research.

(II) The level of support from judicial adjudications is limited.

The absence of specific legal basis has further resulted in an excessively strict standard of judicial adjudication. The burden of proof for obtaining protection under the Copyright Law is considerably high, causing enormous difficulties in rights protection.

1. The requirements for the determination of originality are relatively high.

The attribute of intangible cultural heritage (ICH) as public cultural content has long put the "independent completion" element in its originality determination under question. There exists a certain objective gap between ICH art creators' understanding of "creativity" of works and the requirements of the Copyright Law of China. Therefore, whether ICH works possess originality in the sense of copyright law is a fundamental challenge in every rights enforcement case. In the copyright infringement dispute case of Hong Fuyuan and Deng Chunxiang v. Guizhou Wufufang Food Co., Ltd. and Guizhou Jincai Ethnic Culture Research and Development Co., Ltd., the two parties disputed over whether the work involved in the case has originality. The defendant contended that the bird patterns, Ruyi patterns and bronze drum patterns in the work involved all derived from the "original forms" of Gejia batik in Huangping, Guizhou, and the bird patterns in the plaintiff's work also originated from traditional Guizhou batik. As these elements are all traditional ICH elements, the plaintiff's work involved in the case does not have originality. Upon trial, the court ascertained that the plaintiff Hong Fuyuan has been engaged in batik art design and creation for many years, and was successively awarded the honorary titles of "Top Ten Folk Artists of China" and "Advanced Individual in Intangible Cultural Heritage Protection" by the Ministry of Culture of China. In August 2009, his work *Twelve Scenes of Harmonious Coexistence* was published in the book *Fuyuan Batik Art* released by Guizhou People's Publishing House. This work draws on the features of natural patterns and geometric patterns of traditional batik art, adopts indigo as the main color, and depicts a harmonious picture of coexistence of flowers and birds. Despite reference to traditional elements, the work supplements the shape of the bird, enriches the lines of the bird's eyes and mouth to make the bird pattern more expressive, and integrates the author's personal original creation into the design of the bird's neck and feathers to make the bird pattern more vivid. The bronze drum pattern in the middle also incorporates the author's own conception and is different from traditional batik art patterns. Therefore, the work has originality and constitutes a work within the meaning of the Copyright Law of China.

2. Strict standards are applied in the determination of whether a work is constituted.

Apart from originality, elements of intangible cultural heritage can only be protected as works provided that they have specific carriers and forms of expression. This is a difficult issue that is generally not encountered in copyright cases other than those involving intangible cultural heritage-related works. In copyright enforcement cases where the right holders' claims were upheld, the works involved all have concrete carriers such as publications and videos, and efforts have even been made to consolidate the basis of rights through approaches including design patent applications and copyright registration. Mere expressions of traditional knowledge such as traditional operas, folk customs and traditional sports shall not be deemed as works.

"China's First Intangible Cultural Heritage Protection Case", namely the dispute over the right of authorship between Anshun Municipal Bureau of Culture of Guizhou Province, director Zhang Yimou, producer Zhang Weiping, and the production party Beijing New Picture Film Co., Ltd., illustrates the difficulties in the determination of intangible cultural heritage works. The case arose from the film *Riding Alone for Thousands of Miles* directed by Zhang Yimou, in which "Anshun Dixi Opera", the intangible cultural heritage unique to Anshun, was wrongfully labeled as "Yunnan Mask Opera", and its true identity was not clarified in the film or in public occasions, which triggered dissatisfaction and litigation from the Anshun Municipal Bureau of Culture. As a folk opera with a history of more than 600 years, Anshun Dixi Opera is honored as the "living fossil of Chinese opera" and has been included in the first batch of China's national intangible cultural heritage list. In 2005, the film *Riding Alone for Thousands of Miles* was screened to great popularity. The film takes "Yunnan Mask Opera" as a clue running through the whole plot, but in fact, the performance content, performers, masks and other relevant elements of the aforementioned "mask opera" are all derived from Anshun Dixi Opera. Eight Dixi Opera performers including Zhan Xueyan from Zhanjiatun, Anshun, were invited to participate in the filming of the film, but after the film was released, the true identity of Anshun Dixi Opera was not clearly indicated. The focus of this case is whether Anshun Dixi Opera enjoys the right of authorship, and whether the film *Riding Alone for Thousands of Miles* has infringed upon the right of authorship of Anshun Dixi Opera. During the trial, the court held that the right of authorship refers to the right of an author to indicate his identity as the author and to sign his name on the work. As an opera genre, Anshun Dixi Opera is a classification of drama categories, rather than an expression of specific ideas. Therefore, it does not constitute a work protected by the *Copyright Law of the People's Republic of China*, nor does it enjoy the right of authorship. After 1 year and 4 months of trial, the Xicheng District People's Court of Beijing rendered a judgment of first instance in May 2011, rejecting all the litigation claims of the plaintiff, Anshun Municipal Bureau of Culture. The court held that although Anshun Dixi Opera, as a national intangible cultural heritage, shall be protected by law, the film *Riding Alone for Thousands of Miles* used Anshun Dixi Opera as a material for literary and artistic creation, which did not produce such negative effects as distortion, derogation, or misleading and confusion prohibited by law, and the defendants had no subjective intent or negligence to infringe upon intangible cultural heritage. Accordingly, the court ruled that the plaintiff lost the case.

In the case of Qiu Moumou v. Li Moumou concerning disputes over copyright ownership and infringement, the plaintiff produced "Jianzhan" (Jian Kiln black porcelain tea bowl) with "Ceshao" (side firing), an intangible cultural heritage (ICH) technique. He not only released the work through videos, but also completed copyright registration and applied for a design patent. This traditional handicraft has original expression derived from technological innovation, as well as the aesthetic value and artistic creation level required for a work of fine art, and may be granted copyright protection as a work of fine art. In the case of Liang Jilan v. Longkou Beima Wangkun General Store and other parties concerning disputes over copyright ownership and infringement, the plaintiff created a large number of circular fan patterns based on traditional ICH elements and published relevant books. Although the defendant claimed that similar patterns had existed since ancient times, the books, as the carrier of works of fine art, led the court to finally hold that the aforesaid circular fan patterns were eligible for copyright protection.

3. The determination of substantial similarity is subject to strict standards.

Most judgments embody extremely high requirements for the comparison of works. Only where the works are "substantially identical" or "completely identical" in all respects can "substantial similarity" be constituted and infringement be affirmed.

This strict standard is embodied in the copyright infringement dispute between Nanjing Yunjin Research Institute Co., Ltd. and Nanjing Yigongfang Yunjin Weaving Factory. The creator of the work *A Myriad of Colors* included in the *Peony Sketch Materials* dated July 1977 submitted by the plaintiff Nanjing Yunjin Research Institute Co., Ltd. (hereinafter referred to as Nanjing Yunjin Company) is Zhu Mou, who was an employee of the said company. Nanjing Yunjin Company asserted that it was the copyright holder of the work involved, and that Nanjing Yigongfang Yunjin Weaving Factory (hereinafter referred to as Yigongfang Weaving Factory) had infringed the copyright of its work by producing and selling the alleged infringing yunjin products without authorization. Yigongfang Weaving Factory submitted the yunjin peony series works under Jiangsu Copyright Registration No. Suzuodengzi-2013-F-00017896 to prove that it enjoyed the copyright of the alleged infringing yunjin work involved. Prior to the registration of the alleged infringing yunjin work, the work *A Myriad of Colors* had been produced as yunjin gifts for presentation, sold as commercial yunjin products, and exhibited and awarded in relevant events. The court held that upon comparison, Nanjing Yunjin Company's yunjin work *A Myriad of Colors* and the alleged infringing yunjin work had slight differences in partial colors and shapes of individual petals and stamens, but their means and content of expression were basically identical as a whole. Production techniques such as "Jinbaodi" (a traditional yunjin craft using gold threads as the weaving base) used in the production process reproduced the expression of the artistic work. Yigongfang Weaving Factory had infringed the rights Nanjing Yunjin Company enjoyed over the work involved, including the right of reproduction, the right to remuneration and related moral rights. The production techniques of yunjin mainly cover five links: pattern design, pattern knotting, loom setup, raw material preparation and weaving. In the creation process of yunjin works, creation outcomes at relevant stages, including line drawing works, colored works and yunjin products finished with techniques such as "Jinbaodi", are protected by the Copyright Law of the People's Republic of China. As an intangible cultural heritage with distinctive Nanjing characteristics, the creation of yunjin works is a process of inheritance, innovation and development. Appropriate reference to existing achievements is permitted during creation, provided that the work contains its own original expression and meets the originality requirement for works under the Copyright Law, so as to obtain protection under the Copyright Law. In addition, an act can be finally determined as infringement only when the original product and the alleged infringing product are "basically identical" in terms of production techniques, overall means and content of expression.

In another case, namely the copyright infringement dispute between Nanjing Brocade Research Institute Co., Ltd. (hereinafter referred to as "Nanjing Brocade Company") and Nanjing Yigongfang Brocade Weaving Factory (hereinafter referred to as "Yigongfang Weaving Factory"), the court, in the examination of substantial similarity, carefully compared the relative size, relative position, layout and arrangement, overall form, visual effect and color processing of various elements, and finally ruled that Yigongfang Weaving Factory had infringed upon rights including the right of reproduction, right to remuneration and relevant moral rights enjoyed by Nanjing Brocade Company over the work involved.

However, as for the more prevalent scenario in the market, where an infringing work copies the basic design of the original work but falls short of achieving identical visual effects therewith, relevant claims shall not be upheld by judicial decisions.

(III) Insufficiency of the Capacity to Exercise Legal Remedy Rights for Copyright

The aforesaid judicial decisions indicate that the particularity of intangible cultural heritage (ICH) has caused considerable difficulties in the protection of ICH under the copyright system. At present, judicial decisions apply strict determination standards with respect to whether the relevant content has originality, whether it has a work carrier, and whether the use and expression of public domain elements are similar. Under such circumstances, protection is granted on the basis of other rights in some cases.

For example, protection may be obtained under the *Anti-Unfair Competition Law of the People's Republic of China*. In the dispute over right of portrait and unfair competition where Wang Zengshi, an inheritor of intangible cultural heritage (ICH), sued a shopping platform and Wen, a merchant operating a store on the platform, the defendant used the image and influence of the ICH inheritor for sales promotion, and was finally adjudged to have committed infringement. The plaintiff Wang Zengshi holds the honorary title of "Representative Inheritor of National Intangible Cultural Heritage: Miao Medicine (Therapy for Bone Injuries and Snake Bites)", and serves as the spokesperson for the national intangible cultural heritage representative project of Miao medicine within the jurisdiction of Leishan County. In 2022, Wang Zengshi found that a store from Jiangxi Province selling "ancestral secret recipe folk formula hair growth liquid", which sold a hair growth and nourishment product on a well-known e-commerce platform, had extensively used his portrait on the product detail pages, accompanied by pictures of him receiving interviews, teaching diagnosis and treatment techniques and other relevant content. The pictures were also marked with phrases such as "our own medicine, inherited for a century" and "ancestral anti-hair loss, hair growth and hair nourishment". The plaintiff has never authorized any party to manufacture or sell products other than Miao medicine for bone injuries and snake bites in his name. Finally, the court held that the defendant's acts infringed upon the plaintiff's right of portrait and constituted unfair competition.

In addition, the protection approach of registering intangible cultural heritage (ICH) symbols as trademarks is widely adopted in practice. ICH symbols usually carry rich historical, cultural and ethnic characteristics. Registering such symbols as trademarks can not only provide legal protection for ICH projects, but also promote the dissemination and development of ICH culture to a certain extent. Through trademark registration, ICH projects can establish their unique brand identity and enhance market competitiveness, while helping to prevent others from abusing or misappropriating ICH symbols, so as to safeguard the legitimate rights and interests of ICH projects. For example, the production process of "Guzhang Maojian" in Xiangxi, Hunan Province is an ICH item, and the geographical indication trademark for it has been registered.

IV. Improvement and Selection of Legal Protection Paths for Intangible Cultural Heritage

(I) Strengthen the Interpretation and Application of Laws

In the legal protection system for China's intangible cultural heritage (ICH), copyright protection is a vitally important component. However, in current practical application, due to the absence of specific legal basis, judicial protection is inadequate in the field of ICH copyright protection, and can hardly give full play to its due functions. Accordingly, it is extremely urgent to further strengthen the formulation of relevant detailed rules.

In respect of the improvement of the copyright legal system, efforts may be made respectively from the two key aspects of copyright in the narrow sense and neighboring rights, so as to comprehensively advance relevant work.

First, with regard to copyright in a narrow sense. The promulgation of the *Regulations on Works of Folk Literature and Art* is of undeniable significance for improving the legal system of copyright protection for intangible cultural heritage (hereinafter referred to as ICH). Works of folk literature and art, as an important component of ICH, have been explicitly stipulated in the *Copyright Law of the People's Republic of China*. It is imperative to conduct research on disputed contents as soon as possible, speed up the promulgation of the *Regulations on Works of Folk Literature and Art*, and clarify key issues concerning works of folk literature and art including copyright ownership, content of rights and term of protection. In the meantime, it is also highly necessary to establish the specialized institution designated by the copyright administration department under the State Council as mentioned in the Regulations as soon as possible, which shall be responsible for administering the distribution of relevant property interests. Works of folk literature and art usually involve a large number of creators and inheritors, making the distribution of property interests rather complicated. Without administration by a specialized institution, interest disputes are highly likely to arise, which will impair the inheritance and development of works of folk literature and art. The establishment of a specialized institution and a scientific and reasonable property interest distribution mechanism can guarantee the fairness, impartiality and rationality of interest distribution, and motivate the enthusiasm of creators and inheritors. In addition, introducing provisions on the connection between moral rights protection and the Copyright Law is of great significance for fully protecting the spiritual value of ICH. ICH not only carries economic value, but also boasts profound spiritual and cultural value. In some cases, certain enterprises have improperly interpreted and used ICH when applying ICH elements to commercial publicity, which has damaged the cultural connotation and national emotions embodied in ICH. Therefore, adding relevant provisions on moral rights protection in the Copyright Law, and clarifying moral rights enjoyed by ICH right holders including the right of attribution and the right of integrity, can better protect the spiritual value of ICH.

Next, with respect to the section on neighboring rights: Proceeding from the deductive characteristics of intangible cultural heritage (ICH), it is a viable protection approach to regard works in fixed forms among expressions of folklore as objects of neighboring rights under the Copyright Law of China. At the operational level of legislation, a new category of neighboring right may be added to the section on neighboring rights of the Copyright Law of China, to specifically design and stipulate the copyright contents and rules on the exercise of rights concerning ICH, in particular works of folklore. The subject of the aforesaid neighboring right shall be explicitly specified as ICH inheritors, for the living protection of ICH cannot be realized without inheritors, whose artistic practices encompass both inheritance and innovation. Inheritors carry forward and develop ICH works through their own performances, displays and other means. Confirming and protecting the artistic practices of inheritors via the neighboring right system can create a sound legal environment for the inheritance and dissemination of ICH.

For disseminators of works, given the important role they play in the process of dissemination and utilization of works, they shall also be granted disseminators' rights to protect their legitimate interests, so as to promote the wide dissemination of works of folk literature and art. For example, some cultural communication companies bring works of folk literature and art to a broader market and enable more people to learn about and understand intangible cultural heritage (ICH) by holding ICH exhibitions, performances and other activities. If the rights and interests of disseminators are not protected, their initiative will be dampened, which is detrimental to the dissemination and promotion of works of folk literature and art.

In addition, it is necessary to strengthen the coordination between administrative laws and regulations such as the *Intangible Cultural Heritage Law* and the copyright system, so as to form a more sound legal protection system. The *Intangible Cultural Heritage Law* mainly provides protection for intangible cultural heritage from the perspective of administrative management, while the copyright system focuses on protecting intangible cultural heritage from the perspective of civil rights. The two have their respective focuses in the protection of intangible cultural heritage, but there is also a certain degree of overlap and complementarity between them. Strengthening the coordination between the two can realize comprehensive and multi-level protection of intangible cultural heritage, and ensure that intangible cultural heritage can be effectively protected in different legal fields.

(II) Strengthen Judicial Protection Efforts

At present, the difficulties in the application of laws relating to intangible cultural heritage (ICH) have constrained the legal protection of ICH to a certain extent. Therefore, it is imperative to further intensify judicial protection. As the last line of defense for ICH protection, giving full play to the role of judicial protection is of great significance for safeguarding the legitimate rights and interests of ICH right holders and cracking down on infringements.

Judicial organs shall clarify adjudication standards and formulate clear and unified adjudication rules, so as to provide a clear basis for the trial of cases related to intangible cultural heritage (ICH). In ICH infringement cases, due to the lack of explicit adjudication standards, there may be significant discrepancies between the judgments of similar cases made by different courts in different regions. This not only undermines the impartiality and authority of the judiciary, but also leaves ICH right holders at a loss in the process of rights protection. For example, when determining whether an ICH work constitutes infringement, the criteria for the determination of "substantial similarity" are not sufficiently clear, resulting in some infringing acts failing to receive due punishment. Therefore, judicial organs shall clarify adjudication standards, unify adjudication scales, and provide clear guidance for the trial of ICH-related cases by issuing guiding cases, formulating judicial interpretations and other means.

In the meantime, the level of damage awards shall be raised, and acts infringing upon the rights and interests related to intangible cultural heritage (ICH) shall be severely punished. By increasing the cost of infringement, the occurrence of such infringing acts shall be effectively curbed. In some ICH infringement cases, the amount of damages awarded is relatively low, and the profits obtained by tortfeasors are far higher than their infringement costs. This emboldens some tortfeasors to take reckless risks and repeatedly infringe upon the legitimate rights and interests of ICH right holders. Therefore, judicial authorities shall reasonably determine the amount of damages awarded in light of factors including the nature, circumstances and consequences of the infringing act, raise the infringement cost borne by tortfeasors, and make tortfeasors pay their due price. For example, as for intentional infringement and repeated infringement, the intensity of damage awards shall be increased to deliver a deterrent effect.

In addition, judicial organs shall strengthen coordination and cooperation with other competent departments to form synergy for the protection of intangible cultural heritage (ICH). In ICH protection work, judicial organs shall establish collaboration mechanisms including information sharing, case transfer and joint law enforcement with departments in charge of culture, cultural heritage, market regulation and other relevant sectors, to jointly crack down on acts of infringement upon ICH-related rights and interests. For example, upon discovering clues of ICH infringement, cultural authorities shall transfer relevant information to judicial organs in a timely manner, and the judicial organs shall conduct investigation and handling in accordance with the law; where market regulation authorities find infringing products during market inspection, they shall carry out investigation and punishment without delay, and transfer the case to judicial organs for disposition. Strengthened coordination and cooperation can form strong synergy for ICH protection, and effectively safeguard the legitimate rights and interests of intangible cultural heritage.

(III) Adopt Diversified Remedies

In the process of intangible cultural heritage (ICH) rights protection, right holders shall, in due course, resort to a variety of legal means including those governed by the Trademark Law and the Anti-Unfair Competition Law for the protection and remedy of their rights. A single legal protection measure is often unable to meet the actual needs of ICH protection. Therefore, the adoption of diversified remedy approaches can expand the legal channels for ICH protection, and deliver more comprehensive and effective protection for ICH right holders.

Through trademark registration, trademark protection is granted to the identifying elements of intangible cultural heritage (ICH) to prevent malicious trademark squatting and infringing use by others. The identifying elements of ICH, such as names, patterns and logos of traditional skills, have high commercial value and cultural value. If such identifying elements are maliciously registered as trademarks by other parties, it will exert adverse impacts on the inheritance and development of ICH. For example, the names of local specialty snacks and traditional handicrafts in some regions have been maliciously squatted as trademarks by others, making local ICH inheritors unable to normally use such names for production and business activities. Accordingly, ICH right holders shall register the identifying elements of ICH as trademarks in a timely manner to obtain the exclusive right to use registered trademarks, so as to prevent malicious squatting and infringing use by others. Of course, it shall be noted that ICH products generally focus on inheritance and handicraft value, so not all ICH product owners are willing to seek protection by adding trademarks or logos. Even some consumers prefer handicrafts without additional commercial marks to pursue their collection value or uniqueness. The author holds that if identifying elements are added at appropriate or concealed positions, they can serve to prove the origin of products when disputes arise, so as to prevent infringement by others.

When facing acts of unfair competition, the legitimate status and interests of Intangible Cultural Heritage (ICH) in market competition shall be safeguarded pursuant to the relevant provisions of the Anti-Unfair Competition Law of the People's Republic of China. To obtain illegitimate benefits, some enterprises resort to unfair competition practices including counterfeiting ICH products and conducting false publicity in market competition, which undermine the legitimate rights and interests of ICH right holders. For example, some enterprises affix false ICH marks on product packaging to mislead consumers into mistakenly believing that their products are authentic ICH products. ICH right holders may initiate rights protection actions against the aforesaid acts of unfair competition in accordance with the relevant provisions of the Anti-Unfair Competition Law, so as to safeguard the legitimate status and interests of ICH in market competition.

In conclusion, the selection and improvement of legal protection approaches for intangible cultural heritage (ICH) constitute a systematic project. It is necessary to proceed from multiple aspects including strengthening legal interpretation and application, intensifying judicial protection, and adopting diversified remedies, so as to comprehensively promote the legal protection of ICH. Only by doing so can we better protect the inheritance and development of ICH, and enable it to glow with new vitality and vigor in modern society.

References

Li Zhiheng, *Trademark, Intangible Cultural Heritage and Intellectual Property: A Folklore Discussion Proceeding from Contemporary Judicial Practice*, Folk Culture Forum, Issue 1, 2024.

2. Nie Xin, "Research on the Intellectual Property Protection of Intangible Cultural Heritage and Its Boundaries", *Cultural Heritage*, No. 3, 2023.

3. Nie Xin, "Research on the Protection of Property Rights of Intangible Cultural Heritage from the Perspective of Institutional Rationality", *Cultural Heritage*, No. 4, 2021.

4. Luo Zongkui: Practice, Problems and Countermeasures of Trademark Protection for Intangible Cultural Heritage, published in *Cultural Heritage*, No. 2, 2020.

5. Shi Aidong: "Inherent Contradictions Between Intangible Cultural Heritage Protection and Copyright Protection of Folk Literary and Artistic Works", *Journal of Renmin University of China*, Issue 8, 2018.

6. Huang Yuye, On the Protection of Private Rights over Intangible Cultural Heritage, *China Legal Science*, Issue 5, 2008.

Reference Cases

1. Li Zhuoqian, Liu Guobin, Chen Lina: *Illuminating the Path of Intangible Cultural Heritage Protection with the Light of the Rule of Law: Leishan's Practice of Judicial Protection of Intangible Cultural Heritage*, published on the WeChat Official Account of *Democracy and Legal System* on January 23, 2025. Access link: https://mp.weixin.qq.com/s?src=11×tamp=1738343214&ver=5784&signature=KlYYJ2yA17lvgU2GQW*vBJhWYKWjsxojV0IVCgqcRP3A0Ivx2CXEiEe0qsYcrGRkdiPsckdXApqnXytqiwqeY1MyTg36BnwQCZvIpjd8J4noCFSp57-WF6RAL60FLBRH&new=1, Date of last access: January 23, 2025.

2. Fujian High People's Court: *Case No. 8 of the Top 10 Typical Cases of Judicial Protection of Intellectual Property Rights by Fujian Courts in 2023*, published on the WeChat Official Account of "Fujian High People's Court" on April 29, 2024, available at: http://mp.weixin.qq.com/s?__biz=MzAwODMyOTQ2Mw==&mid=2653375546&idx=2&sn=965c368e59f06d48326b7a55cfe61a3b&scene=0, last accessed on February 1, 2025.

3. Nanjing Intermediate People's Court: "Release: Typical Cases of Nanjing Courts on Judicial Protection of Intellectual Property Rights in the Field of Traditional Chinese Culture", published on the WeChat Official Account of Nanjing Intermediate People's Court on July 10, 2023, available at: https://mp.weixin.qq.com/s/aUlN5CNL8iOgfvi3aLZ1Pg, last visited on February 1, 2025.

4. Civil Judgment of Beijing Internet Court (2020) Jing 0491 Min Chu No. 1886

5. Civil Judgment (2015) Zhu Zhi Min Chu Zi No. 17 of Guiyang Intermediate People's Court of Guizhou Province, China