sex, regional, inheritance and other characteristics, the difficulty of its legislation can be imagined.
Not long ago, by the State Copyright Administration, the China Federation of Literature and Culture Leading Group Office of intellectual property rights and the China Folk Literary and Artistic Association organized by the folk literature and art works of copyright protection seminar held in Beijing. Yan Xiaohong, deputy director of the General Administration of Press and Publication and deputy director of the State Copyright Administration, and Bai Gengsheng, member of the party group and secretary of the China Federation of Literary and Artistic Associations, as well as from the State Council Legislative Affairs Office and other relevant departments in charge of the part of the folk arts and culture experts attended the meeting. The experts and scholars at the meeting believed that the copyright legislation on folk literature and art works is an indispensable element in the construction of China's copyright legal system. At the same time, the experts also carried out in-depth exchanges and discussions on the resources, utilization, inheritance and protection of folk literature and art works, and put forward opinions and suggestions on the Regulations on the Protection of Copyright of Folk Literary and Artistic Works (Revised Draft).
The copyright ownership of the art brand "Mudman Zhang" is still controversial, according to a photo by Wang Yunlong
Developing a special regulation to protect folk literary and artistic works is necessary
Bai Gengsheng (vice chairman of the China Folk Literary and Artistic Artists' Association)
On the protection of the copyright of China's folk literary and artistic works, the copyright protection regulations promulgated in 1991 and implemented by the China Folk Literary and Artistic Artists' Association (CFALA) have been implemented. In 1991, the Copyright Law was promulgated and put into effect in Article 6, there is a provision that the State Council shall separately provide for the protection of the copyright of folk literary and artistic works, and Article 6 of the Copyright Law amended in 2001 still retains the formulation of regulations for the protection of the copyright of folk literary and artistic works. It can be seen that the legislation on folk literature and art works is an indispensable element in the construction of China's copyright legal system.
Folk literature and art is a valuable cultural heritage and spiritual wealth of mankind, China is a multi-ethnic country with a long history and splendid culture, folk literature and art resources are very rich. With the development of modern science and technology and the acceleration of the modernization process, on the one hand, some folk literature and art works are facing the danger of being lost, on the other hand, its potential cultural value and commercial value is becoming more and more prominent. The protection of folk literature and art works is not only related to the respect and protection of the legitimate rights and interests of the rights holders, but also to the inheritance and development of China's outstanding national culture, as well as the protection of the country's cultural security, which will help to excavate China's cultural heritage, carry forward the spirit of the nation, develop the national economy, and enhance national unity. Therefore, the formulation of special regulations to protect folk literature and art works is very necessary.
Last September, the State Copyright Administration held a meeting on the legislation of folk literature and art works, Yan Xiaohong, director of the meeting, pointed out that the copyright legislation of folk literature and art works have been included in the State Council's legislative program in the second tranche of the National Copyright Administration will actively promote this work, the China Federation of Literary and Art Circles and the China Association of Folk Literary and Artistic Folk have attached great importance to this, and has repeatedly asked the experts to participate in the symposiums and seminars of the State Copyright Administration and the Chinese Folk Literary and Artistic Association. The National Copyright Administration of the symposium and research activities, due to the diverse forms of folk literature and art works, which has a collective, national, regional, inheritance and other characteristics of its legislative difficulties can be imagined. Culture, including folk literature and art, is an important source of national cohesion and creativity, and an important factor of comprehensive national strength. The integration and protection of traditional culture and the innovation and development of culture are equally important to improving the soft power of national culture and realizing the great development and prosperity of socialist culture. We sincerely hope that through your research and discussion, we can promote the process of revision.
The narrator of oral literature should be regarded as the creator
Tao Yang (researcher of the China National Association for Citizenship and Human Rights)
The National Copyright Administration's draft regulations on copyright protection are concise and clear. However, I am afraid that some of the provisions are too general, and I would like to make a few comments.
First, oral literature includes stories, myths, epics and other kinds. Some writers have deleted the name of the narrator from their autographs, which I personally believe is tantamount to depriving others of their rights. Without the narrator, the story would not have survived, so the narrator should also be considered the creator.
Secondly, on the protection of folk dance, music and other arts. Article 11 of the draft regulations summarizes it well: "Adaptation, translation, annotation, arrangement, compilation, in accordance with the copyright law protection". Personally, I think that this article can be changed to read: "Editors, translators, annotators, collectors, organizers and compilers of folklore works shall be protected in accordance with the Copyright Law". In addition, it would be more appropriate to change the word "adaptation" to "editing". In popularizing folklore, editing is a very important task. Nowadays, many "adaptations", by their nature, should belong to the scope of creation by writers. I do not think that anything that is adapted belongs to folklore, but comes from folklore and is a new creation centered on folklore. For example, Lu Xun's New Compilation of Stories is a creation, not folklore.
Also, for editing and compilation, there should be some conditions and requirements to ensure the quality of the book.
First, oral literature should be faithfully recorded, and the original appearance of the work should be maintained to preserve its original flavor.
Secondly, when editing oral literature, the name of the narrator and recorder should be indicated in each piece, and attention should also be paid to the source of its circulation and the book or magazine from which it was taken. Without this, it is depriving others of their rights.
What I am saying is the result of many years of experience and the scientific method. The ins and outs of a work are clear, you can check its authenticity, and you can be assured when citing the work. Preserved in this way for a hundred years, a thousand years, ten thousand years are all reassuring works. If you engage in some of the authenticity of the work, to be passed on, will leave a great deal of trouble for future generations.
Legislative protection of folk arts and culture from Mudman Zhang's rights protection
Zhang Cheong (Professor and Dean of the Academy of Arts and Design, Tsinghua University)
I would like to talk about the importance of legislative protection of folk arts and culture through specific folk cases.
Folk literature and art is the mother culture of the Chinese nation, which is rooted in and grows and flourishes in the fertile soil of China, forming colorful art forms and unique aesthetic language, aesthetic style, aesthetic habits and aesthetic characteristics, embodying the national aesthetic interests and pursuits, and reflecting the preferences and tendencies of the national forms, with a strong characteristic of the local culture. However, nowadays, in the background of the so-called globalization, it is not only affected by the impact of strong culture, but also infringed by those disorderly and unfair competition in the process of marketization. For this reason, the folklore itself should not only be actively and dynamically explored in its artistic practice and discard those challenging negative factors, but also be protected by the law.
Folk literature and art copyright, in fact, is the protection of its intellectual property rights, intellectual property rights, it should be intellectual creativity to obtain the fruits of labor, and intellectual laborers to enjoy the fruits of a right according to law. This is particularly important in the current tide of commodity economy. Not long ago, by the Beijing Municipal Higher People's Court concluded the clay man Zhang lawsuit, is a typical case of infringement of proprietary rights.
It is well known that Zhang Mingshan in the late Qing Dynasty, the founder of the mud man Zhang is a hundred years of authentic Chinese folk art famous brand, has been inherited for six generations. However, a dispute over the right of use of Mud People Zhang occurred in Beijing in 2005, and on December 9, 2005, the fourth and fifth generations of Mud People Zhang and their affiliated company, Beijing Mud People Zhang Art Development Limited Liability Company, sued Zhang Tiecheng, the fourth generation of the so-called Beijing Mud People Zhang, and their affiliated company, for violating the plaintiffs' lawful rights and violating their legitimate business activities by using the name of Mud People Zhang to engage in business activities. On December 20, 2006, the Beijing Municipal No. 2 Intermediate Court concluded the case and ordered Zhang Tiecheng and his company to immediately stop using the name of Mudman Zhang and the name of the enterprise, and to immediately stop using the proprietary name of Mudman Zhang in the publicity of the enterprise. Zhang Tiecheng appealed to the Beijing Municipal Higher People's Court against the first-instance decision, and on September 20, 2007, the Beijing Municipal Higher People's Court made a final decision. The mud people Zhang this art brand, the treasure of Chinese folk art, the verdict became Beijing mud people Zhang and mud people Zhang two mud people Zhang, Zhang Tao and other appellants refused to accept the verdict, and on November 24, 2007 to the Beijing Municipal People's Procuratorate to protest, and was accepted.
We have reservations about the judgment of the Beijing High Court. As a mud people Zhang such a century-old well-known brand, it is due to the mud people Zhang relevant inheritors, through artistic labor to create works and reputation at home and abroad, the formation of mud people Zhang well-known art brand. In this process, Mud People Zhang has been fairly and extensively reported and introduced in the relevant historical records, national museum-level displays of relevant art works, and media publicity. Because of this, Clay Figure Zhang enjoys a very high reputation at home and abroad, and because of this, whoever insists on Clay Figure Zhang should produce the relevant evidence during the court proceedings. However, as the so-called Beijing mudman Zhang, he could not get the relevant decent evidence.
First, the historical record. As a matter of history, there have been more than 160 years of inheritance, and the origin of the mudman Zhang should have begun during the Daoguang period. Therefore, as a mudman Zhang's authentic heir, he put the earliest Qing Daoguang years about the record of mudman Zhang, from the National Library to find the relevant written records of the Qing Zhang Tao, the introduction of the mudman Zhang how to shape the relevant facts of the history of the relevant introduction of the case of the relevant evidence to prove. In addition, as the Republic of China period, about the Tianjin local rule column, introduced the clay figure Zhang how to be good at molding, but also mentioned, involving the clay figure Zhang in the important history of history, such as the history of Chinese art, the history of Chinese arts and crafts, the whole collection of Chinese art, Chinese cultural history, sculpture and so on all aspects of the history of China, in particular, as a classic history of records inside the Dictionary of the Sea, to form a relevant chain of evidence related to the relevant records. For example, in the "Dictionary" involving the exclusive entry of the clay man Zhang, recorded in the clay man Zhang in the Qing Zhang Tao side of the record, forming a chain of evidence.
Secondly, as an inheritor, there is an orderly record of historical inheritance, and at the same time, there are representatives of its different inheritors, representative works, as well as style trends.
Thirdly, there are media reports about the mudman Zhang. However, the earliest record of the so-called Beijing Clay Figure Zhang was written after 1987, and the relevant organization only registered the name of Beijing Clay Figure Zhang in 1982.
The heirs of Mud People Zhang have created a famous brand of art at home and abroad with their wisdom, sweat and more than a hundred years of artistic practice, and have won a great reputation for the motherland. In addition, the mud man Zhang has been in the 1980s registered trademark, and recently fell into the Beijing Chongwen District three intangible cultural heritage protection list. Therefore, the Tianjin Higher People's Court in 1996 had a clear decision, mudman Zhang connotation refers to Zhang Mingshan himself and his descendants engaged in the art of colorful sculpture family members and Tianjin mudman Zhang studio of the general term. Mud People Zhang is a unique name and proprietary name, only Zhang Mingshan descendants engaged in the art of colorful sculpture and Tianjin Mud People Zhang colorful sculpture studio approved by the relevant departments have the right to use Mud People Zhang as part of the enterprise and institutional name. Both Zhang Mingshan's descendants who are engaged in the art of colorful sculpture and Tianjin Mud People Zhang Colorful Sculpture Studio are not allowed to transfer and license the name of Mud People Zhang to others without consensus. However, the so-called Beijing Mud People Zhang's partial use of Mud People Zhang as a business name was not authorized by the right holder, and therefore constituted infringement and unfair competition. Although Zhang Tiecheng claimed to be Beijing Mud People Zhang, but his network domain name is Mud People Zhang, his trademark registration is Mud People Zhang, his media publicity is Mud People Zhang, in the Canton Fair ordering contract, the production unit is Mud People Zhang, and so on, its malicious counterfeiting behavior is self-evident. This is precisely a violation of the regulations for the protection of copyright in folk literature and art works, Article 8, paragraph 4 of the relevant provisions of the source of counterfeit folk literature and art works, that is, the undisputed fact of the fake Mudman Zhang. In this regard, the appeal to the folk arts and culture legislation to protect and safeguard the legitimate rights and interests of the mud people Zhang and all folk arts and culture, defending the folk culture brand and protecting intellectual property rights from infringement is a pressing matter of urgency, but also all the folk arts and culture workers and the relevant departments of society as a whole are duty-bound to responsibility and obligation.
Creative collectives and individuals should be remunerated
Duan Baolin (Professor and Director of the Center for Anthropological Folklore Studies at Peking University)
In the past, it was thought that folklore was a collective creation, that is to say, it was created collectively, circulated collectively, used collectively, and owned collectively by the collective ****. Its author is not an individual, but a collective.
I talked about this in the summary of folklore, collectivity and individuality is a pair of contradictions, but it is unified, unified where? Let's say that everyone can sing "The East is Red". But in order for it to be realized, it has to be sung by a singer who has been well studied and passed on, and who is best able to represent the content and formal characteristics of the work. Collective composition, its process of circulation is its process of creation. It is in the process of circulation to concentrate the wisdom of everyone, you change a little bit, to me, I change a little bit more, so constantly enrich, constantly refine, constantly develop. Therefore, the role of the individual can never be ignored.
The reality is that it has to be expressed through contact with the inheritors, but it's not enough just to be able to sing it, without someone to record it, it's lost. The recorders should also be paid, collectively.
The regulations take into account many features of folklore, but they should also be practical. I think practicability is important. We can collect the relevant cases and consider what method should be followed to solve it. This law is a method, and a method is a tool. The Americans made a blockbuster movie out of our Mulan Story and earned more than a billion dollars. After we made the law, they can't just use our stuff in the future, they have to pay for it.
Also I think that when TV and radio stations want to broadcast folklore, they should be paid once for broadcasting it. It is said that they don't have it now, they pay once and that's it, and some don't pay even once, which is even worse. So there should be specific rules for these things. Common violations, we should be even more specific.
Adaptation of works do not need special regulations to protect
Tao Lieven (director of the Center for Folk Culture of the Central University for Nationalities, professor)
I think how to define folklore is the first thing the regulations need to solve the problem. Because this involves the object of protection, but also involves the protection of the main body of what exactly.
Back to traditionally speaking, there are two aspects of defining folklore, one is the way of narration, which is expressed in two ways, one in what we call the style of writing, and the other in prose. Like folktales, myths and legends. Also, ballads, narrative poems, using the literary style is another category. In terms of genre, folklore, as you may ****know, mainly includes myths and legends, stories, ballads, narrative poems (narrative poems), and there are also proverbs and riddles in the genre of prose, which are all within the scope of folklore. I don't think there is much disagreement on this point. Folk art is mainly the folk performances that people talk about. Folk music includes vocal and instrumental music, and art includes painting and sculpture. Dance and theater include small plays, mainly small folk plays, and folk crafts, and should also include folk athletics, including martial arts and acrobatics. I think the scope is already very wide, so these aspects should be taken into account in the formulation of the ordinance.
Who is the main body of its inheritance? In terms of folk art, it's the folk artists we usually talk about, or call it a craftsman. It may be individual or collective. Here to distinguish, not that all the narrators and singers, artists, works are in our protection. The main body of our protection, the creator must be representative or outstanding inheritors.
From the definition of folklore, I think it includes these aspects: the first is the scope, the second is the subject, the third is the way, the fourth is the time limit, and the fifth is the value. We have to make some judgment, what is the scope of it, what is the subject of its creation? In what way is it expressed, and is there any limitation on the time limit? The other is the value judgment, is it a heritage, is it a heritage that has a role to play in the history of this nation?
There is also the work of adaptation, which I don't think belongs to the scope of protection. If it's musical, it should be the responsibility of the musicians' association. That's in the copyright law. So the adaptation part, I think that should be taken out of the equation because it's two different natures. Wang Luobin's work, there is copyright to protect it. There are a lot of people who draw on the material "Ussuri Boat Song", "Liu Sanjie", also draws on folk stories, legends, folk songs created, both an adaptation of folk works, but also the creation of the writer, do not need special regulations to protect.
Protection of folk art should adhere to the principle of easy to operate
Li Yaozong (Professor of the Central University for Nationalities)
Firstly, the theoretical issues that have not yet been defined in general, we have to avoid them appropriately. The theoretical issues that can be defined, we should be unambiguous, some should have, but not for the time being should be discretionary supplement, sharpening the knife is not a mistake, I hope that more revisions, more consultation with the views of all parties.
Secondly, more orientation seminars. On the conceptual issues involved in the manuscript, including individual cases, categorization of the expression, to define.
Third, the level of writings, what is meant by collection, annotation, organization, compilation, including translation. This part should be counted as a folk category, and later interpreted, adapted, re-created, I personally think can not be counted as folk works. There should be this object in the statute.
Finally, the legal grasp. What is meant by plagiarism and what is meant by tampering? Does adaptation count as tampering? What is meant by counterfeiting? I hope to examine these questions in the context of many individual cases.
16 words: adhere to the principle, easy to operate, to leave flexibility, and improve. This is the overall hope for our Ordinance.
Protecting folk arts and culture should be people-oriented
Wang Feng (secretary of the China Television Association)
I personally believe that our current work is very basic, but there are still gaps, and we need to further refine and improve.
I would like to start by making two supplementary comments for reference on the purpose of legislation. First, the lack of a people-oriented spirit is suggested to be added on. Our purpose of protecting copyright is mainly to protect the rights and interests of copyright owners. This, and only through the protection of the rights and interests of copyright holders can we promote the prosperity of creation and the inheritance and promotion of traditional culture. In fact, it is enough to add a few words, that is, the first sentence "to protect the copyright of folk literature and art works and the rights and interests of copyright holders", reflecting this meaning in the people-oriented spirit advocated by the State. Second, the purpose of the law. Since we have the Copyright Law as a major law, how can we reflect the purpose of enacting the protection regulations? I think there are two aspects, one is to implement the copyright law, in the field of folk arts and culture can get more direct, more operable. And to the copyright law in some of the unexhausted rules to have more direct operation in this field.
Secondly, I very much agree with the expression of the scope of protection of the current protection regulations mentioned by the seniors and experts, which is indeed very controversial. I think the salient issue is actually the problem of our understanding of folklore. We are now using the term "folk art", and the title does not use "work", but "copyright", which reflects the copyright of the work. In fact, the core of this combination of words, I think we have to explain two issues, one is to explain the folk, how to identify the scope of protection? The second is to identify works, which are works?
Protection of the management of a basic core is the registration system, I raised a question: no registration of the work counts? Protection or not? If we say we only register without protection, is a practice, not that it can not be mentioned so. Of course, there is no registration of works will be very controversial, the future operation, the operation of the infringement of the determination will be more troublesome, but the legislation of the protection of the object can not be unregistered works are excluded from the scope of protection, which is probably not appropriate.
On the issue of paid use, there are a lot of conceptual ambiguities here, for example, adapted works do not belong to the category of folk works. I would like to add a point, for example, the issue of reproduction, I do not know where to start with the reproduction of folk oral stuff? If the reproduction of this legal concept is applied, then it is necessary to put the tangible reproducible things to be stipulated in the regulations.