The Intellectual Property Protection of Intangible Cultural Heritage

In the field of private law, intellectual property and intangible cultural heritage have the rather high similarity; therefore it determines that intellectual property protection in the current private law legal system is the most convenient and reasonable protection mode for intangible cultural heritage private law protection.Of course, there are various types of intangible cultural heritages, which should be distinguished based on types and applicable in protection of copyright, trademark right and trade secret right, respectively. The Legitimacy of Intangible Cultural Heritage Intellectual Property ProtectionThe Compatibility of Protective Objects of the Two.Intellectual property is the legal rights enjoyed by people for the intellectual and creative achievements in the field of science and technology and literature and art and the identifying markers and outcomes in the field of industry and commerce.The intellectual property is the knowledge product of object, which is reflected as certain information and is intangible and replicable.Intangible cultural heritage is not only the wisdom outcome created and inherited by specific ethnic group or a collective community in a particular area, but also the product of intellectual creation.The object of intangible cultural heritage, as an intellectual achievement, is compatible with the object of intellectual property protection.Both share the characteristics of intangible and replicable, so using intellectual property legal system to protect intangible cultural heritage protection is a more appropriate choice.In addition, the article 44of China's "Intangible Cultural Heritage Protection Law" stipulates: "the use of intangible cultural heritage related to intellectual property rights, is applicable for relevant laws and administrative regulations," which also affirmed the legitimacy of utilizing intellectual property legal system to protect intangible cultural heritage from the legislative level.The Similarity of Right Content of the Two.The content of intellectual property includes personal rights as well as property rights.It is most evident in copyright legal system.The reason for giving property right to right holder is for motivating creation behavior of the right holder and improving the level of innovation of the whole society and promoting the continuous development of society.The vest of personal rights does not only reflect the respect for the creative act of right holder.What even more important is the intellectual products created by right holder is firstly reflected as a spiritual product, which is the ideological and spiritual extension of the right holder who should be entitled to a certain moral rights, namely personal rights.Intangible cultural heritage also has these characteristics.Firstly, intangible cultural heritage is the spiritual wealth created collectively by a national or a group over the long history.It is also manifested as a spiritual product, so groups which created it or their successors should enjoy a certain moral rights; secondly, intangible cultural heritage at the same time is also economical.As we all know, our country folk literature "Mulan" was made into a Hollywood movie, which was a very popular animated film in the world and achieved a dramatic profit, while China, as the creating place of "Mulan", has not obtained any benefits.This is certainly unfair.The fact proves that the intangible cultural heritage not only has the economic value and the creating groups or their inheritors should enjoy the property rights, but also proves necessity and legitimacy of intellectual property protection over intangible cultural heritage.