Report by the World Intellectual Property Organization (WIPO)

Fact-Finding Mission on the Legal Protection of National Folklore

China

November 28 to December 4, 2002

The Mission was conducted by Mr. Wend Wendland, Head, Traditional Creativity and Cultural Expressions Section, Traditional Knowledge Division, and Ms. Helga Tabuchi, Assistant Legal Officer, Copyright Law Division, Copyright and Related Rights Sector, of the World Intellectual Property Organization (WIPO).

WIPO’s meetings and activities in were facilitated and coordinated by the Ministry of Culture of the Chinese Government. The WIPO representatives were accompanied throughout the mission by Mr. Lei Xining, Deputy Director General, Bureau of Policy and Regulation, Ministry of Culture; Mr. Ye Qi Lian, Vice Director, Department of Culture, Education, Science, Culture and Public Health Committee, National People’s Congress; Ms. Zhao Weiying, Division of Multilateral Affairs, Bureau for External Cultural Relations, Ministry of Culture; Miss Wang Heyun, Department of Policy and Law, Ministry of Culture; and, Mr. Cai Yenghui, Provincial Department of Culture (in Yunnan only).

Beijing

The WIPO delegation arrived in Beijing on November 28, 2002, where they were met by the above officials. The WIPO and Chinese officials departed on that same day for , Yunnan Province, the province in which the fact-finding mission took place.

./. The Terms of Reference for this mission are attached.

Kunming

On Thursday, November 28, upon arrival in Kunming, the WIPO delegation and the Ministry of Culture officials participated in a dinner hosted by the Yunnan Provincial Department of Culture. Among the local officials hosting the dinner were Ms. Zhao Zi Zhuang, Deputy Director of the Department. The WIPO delegation discussed WIPO’s work regarding the legal protection of traditional cultural expressions, and explained the purpose of the mission. The officials expressed great interest inter alia in receiving information on national and local experiences in other countries, and the WIPO delegation undertook to send to them relevant documents and materials.

On Friday, November 29, the delegation participated in a meeting hosted by the Yunnan Provincial Department of Culture, in the Department’s meeting room in the . There were approximately 12 local participants, including Mr. Guo Jing, Director of the Yunnan Provincial Museum, Professor Yin Shaoting, Director, Anthropology Department of Yunnan University and Ms. Zhao. A traditional paper cutter and sculptor, both Report by the World Intellectual Property Organization (WIPO), Fact-Finding Mission on the Legal Protection of National Folklore, China, November 28 to December 4, 2002 2 ______honored under provincial cultural heritage legislation for their contributions to the preservation and promotion of traditional and folk culture, were also present. Mr. Lei introduced the purposes of and Terms of Reference for the mission, after which the WIPO delegation broadly described the origins and most recent developments in WIPO’s work relating to the legal protection of traditional cultural expressions. The local officials made an extensive presentation on the various cultures, geology, religions and economy of the Yunnan Province. Yunnan Province is home to 25 distinct ethnic groups, which make up a third of the Province’s 43 million inhabitants. The preservation and promotion of the Province’s ethnic cultures is an important pillar of the Province’s strategic planning. It was stated that with the growing market economy in China, traditional cultures were subject to misappropriation, and an example was given of a Taiwanese man who has published ethnic music on the internet and charged for downloading it.

Ms. Zhao and the other participants suggested that there was a great need for awareness raising among ethnic communities of the need for both the preservation and promotion, as well as the legal protection, of traditional cultural expressions. While extensive work is being done on the preservation, promotion and dissemination of traditional cultures, there is less awareness of the need for their legal protection, in the intellectual property sense.

Ms. Zhao concluded by providing information on the Yunnan Province’s regulations on the protection of traditional and folk traditional culture issued in May 2000. This was the first local regulation in this field in China. Another topic discussed was a participatory video education project “Learn Our Own Tradition” conducted in the Yunnan Province. The participants were very interested in WIPO’s work examining the relationship between, on the one hand, the documentation and recordal of folklore and, on the other, its legal protection.

Ganlanba, City

Following this meeting, the WIPO and Chinese officials departed, by air, for Xishuangbanna, Ganlanba, Jinghong City. During the visit to Xishuangbanna, the mission was accompanied by Mr. Huang Zhong Xing, Director of the Yunnan Province Xishuangbanna Cultural and Gymnastics Bureau.

Upon arrival in Xishuangbanna, the mission visited the hamlet of the Dai ethnic group in Ganlanba.

That evening, the WIPO delegation dined with the Vice Governor of the Peoples Government of Xishuangbanna, Mrs. Dao Lin Yin.

Menglun Town,

On the following day, Saturday, November 30, the mission visited the Modeng village of the Aini ethnic group in the town of Menglun in Mengla County. At the Modeng village, the mission participated in a meeting with the head of the village, Mr. Huang, and members of the village, including three singers. The head of the village commenced the meeting with an informative presentation on the ethnic groups living in the county and the county’s various cultural activities. Each village in the county has a cultural centre, and the county’s cultural office hosts a library, film centre, bookstore and museum, exhibiting traditional costumes, ornaments, relics and musical instruments. The WIPO delegation made a brief presentation Report by the World Intellectual Property Organization (WIPO), Fact-Finding Mission on the Legal Protection of National Folklore, China, November 28 to December 4, 2002 3 ______on the legal protection of traditional cultural expressions, following which an interesting discussion on this subject took place. The villagers stated that there were occasions on which the designs of their costumes had been copied to make cheap souvenirs, and of their performances being recorded and new works being made based on them. They were unhappy with this, and did not see it as a form of welcome promotion of their cultural heritage. The local regulation provides that commercialization of traditional cultural expressions should be subject to permission and that it should not offend the feelings of the people. The head of the village also explained that the village had made a digital video recording of their music but that they had been unable to obtain copyright protection because they “couldn’t afford the fee” for doing so. The WIPO delegation explained that copyright protection arises automatically without the necessity of any formalities, such as the payment of fees. In discussion with the singers, the WIPO delegation established that the songs they sing today are generally newly created but tradition-based. While the music may be old, the singers have added new lyrics. While the music is regarded as belonging to all, the singers and the villagers believed that the words would belong to their authors. Costume designs were felt to belong to the whole community. The delegation was advised that there are more than 20 000 folk songs in Yunnan Province. Different ethnic groups exchange folk songs and other cultural expressions with other ethnic groups in the Yunnan Province as well as in the neighboring countries that share a border with that Province.

Baka Village, Jinghong City

That afternoon, the mission visited the Xiangbaka village of the Jinuo ethnic group. The WIPO delegation and the Chinese officials first visited the village’s museum, after which a meeting was held with the head of the village, the head of the museum and other villagers. The villagers spoke of their wish to revitalize their cultural heritage which was disappearing. The immediate concern was not to commercialize their cultural expressions, but rather to preserve and revitalize them. As was the case with the previous village visited, a discussion on tradition-based music took place. The villagers were unclear as to the “ownership” of newly created songs or tradition-based songs. The villagers also stated that none of the ethnic groups in that area had relevant customary laws relating to the protection of their cultural heritage. As was the case with visits to many of the villages, the village head made an extensive presentation to the WIPO delegation, and WIPO received a written copy of the presentation.

Lijiang

That evening, the WIPO delegation departed, by air, for . On Sunday, November 1, the WIPO delegation first visited the , proclaimed a World Heritage Site. On its visit to Lijiang the WIPO delegation was accompanied by Mr. Li Xi, Director and Associate Research Fellow, of the Lijiang Dongba Cultural Museum.

That afternoon, the delegation visited the Lijiang Naxi Dongba Cultural Heritage Museum, accompanied by Mr. Li and Mr. Zhang Sai Dong, Director, Cultural Bureau, Naxi Autonomous County. Thereafter, a meeting was held at the museum, with Mr. Li, Mr. Zhang and five other participants. Mr. Lei, from the Ministry of Culture, introduced the Terms of Reference and purpose of the mission, after which Mr. Zhang gave a presentation on the Naxi ethnic group, Dongba culture and the area’s strategies for promoting tourism and development based on rich cultural activities and environment-friendly policies. Mr. Zhang spoke also of Report by the World Intellectual Property Organization (WIPO), Fact-Finding Mission on the Legal Protection of National Folklore, China, November 28 to December 4, 2002 4 ______the importance of Naxi ancient music. Mr. Zhang made available copies of a paper on Lijiang culture, as well as a “Regulation on the Protection of the Dongba Culture, Lijiang Naxi Autonomous County, Yunnan Province” and a “Regulation for the Protection of Naxi Ancient Music of Lijiang County”. These regulations and other documents testified to the enormous importance devoted to cultural heritage preservation, promotion and transmission. The WIPO delegation made a brief presentation on the legal protection of expressions of culture. Mr. Li and the other local participants expressed great interest in what was for them a new issue. Mr. Li and the other participants stated that their music, dance and handicrafts all needed protection, and that legal protection, in addition to preservation, was a very important issue. The WIPO delegation was also informed that piracy of Naxi music on CDs had become a problem.

That evening, the delegation discussed matters further over dinner with the Governor and Deputy Governor of Lijiang county, Mr. Li, Mr. Zhang and others. Following the dinner, the delegation attended a performance of ancient Naxi music.

Sanyvan and Shuhe Villages, Baisha Town

On Monday, December 2, a visit took place to villages in Baisha Town where the delegation viewed ancient Naxi frescoes. A meeting with a leatherworker took place, and relevant issues were discussed with him. He follows traditional designs and also makes new creations, making belts, pouches, hats and other leather products. The delegation met also with Dr. Ho, at his Jade Dragon Snow Mountain Chinese Herbal Medicine Clinic.

Xinhua Village, , Dali Prefecture

Thereafter, interesting discussions were held with Mr. Cun Fablao, Senior Artist for Local Nationalities of Yunnan Province, Invited Professor of Yunnan Nationalities Institute and Director of Xinhua Hand Art-Crafts Mill of Yunnan Province, in the Bai nationality village of Xinhua. Mr. Cun is an artisan who had applied for and received industrial design protection in 1998 for one of his silver-tea sets. He had applied for design protection through the Provincial Office of the Chinese State Intellectual Property Office (SIPO). Mr. Cun explained that in his work he followed traditional designs but also added his own innovative elements, in respect of which he regarded himself as the owner. He had sought industrial design protection to prevent others from copying his handicrafts. In practice, however, he permitted those from his own village and neighboring villages to copy his handicrafts, but would take legal action against persons from other parts of China or other countries if they were to copy his works. Mr. Cun, however, was not aware that copyright protection could also be available for his works. A second artisan was also visited, and similarly interesting discussions were held with him. His works were mostly faithful copies of old pre-existing designs. The technique used for his works was kept as a trade secret. It was stated that the villages of the Bai nationality had no customary laws relating to the protection of their cultural heritage.

Following the meetings with these artisans, the delegation traveled by bus to Dali. Report by the World Intellectual Property Organization (WIPO), Fact-Finding Mission on the Legal Protection of National Folklore, China, November 28 to December 4, 2002 5 ______

Xizhou and Zhoucheng, Heqing County, Dali Prefecture

On Tuesday, December 3, the delegation visited the museum of the Dali Prefecture, residence of the Bai ethnic group, and visited and interviewed folk artisans in Xizhou and Zhoucheng. Discussions were held with traditional paper cutters, costume designers, tie- dyers and embroiders. One of the paper cutters, Mr. Yang Zongshuai explained that the majority of his works are traditional and he follows traditional rules in making them. When he has time, however, he creates his own works based on traditions, either to express his own creativity or to meet particular customer demands. However the distinction between traditional works and tradition-based works was not clear, he said. Perhaps only the basic designs were rule based, whereas the rest of the works were “new”. An interview was also held with the head of the cultural centre of Zhoucheng, Mrs. Zhou. She was not aware of any copying of the traditional paper cutting designs or costume designs, saying that they were popular only in that area and that they were not useful or interesting to outsiders, in her view. However, she added, if the designs were copied and commercialized by others, then she and the cultural centre would like to take action. The WIPO delegation explained the possible protection obtainable under current copyright and industrial design laws, and gave examples from other countries in which costume designs had been registered as industrial designs. As with most of the other people interviewed in this mission, Mrs. Zhou and the other members of the cultural centre were unaware of intellectual property laws and were very interested in learning more about them. Regarding the traditional dress designs, the traditional dresses are handmade and follow established patterns, although the dresses have become simpler than in the past. Mrs. Zhou stated that if it was possible to register the dress designs, then the application would be made by the cultural bureau of the provincial local government on behalf of the Bai people who would be the rightsholders.

In Xizhou, traditional Bai architecture was viewed and a traditional performance and ceremony participated in. An exhibition by local artist Mr. Yang Long was also visited.

Discussions with villagers and the Chinese Ministry of Culture officials included also references to a commercial film “Mulan” which was, the WIPO delegation was told, based upon a Chinese tale. However, the film had distorted the original tale, and Chinese people had not received any benefits from the film.

On Wednesday, December 4, the delegation departed from Dali, by air, for Kunming, and later on the same day departed from Kunming for Beijing, by air.

Beijing

That evening, the delegation, joined by Miss Wang Binying, Director, Office of Strategic Planning and Policy Development, WIPO, met over dinner with senior officials from the Department of Policy and Regulation of the Ministry of Culture, Mr. Gao Shuxun, Director General and Mr. Hong Yongping, Deputy Director-General, in order to discuss the results of the mission and possible future follow-up activities.

On the following day, the WIPO delegation departed from China. The Legal Protection of National Folklore

Fact-finding Mission to China November 2002

Terms of Reference

Objectives

The first objective of the fact-finding mission (FFM) is to obtain information on national experiences with the legal protection of national folklore. Such information could include (i) examples of expressions of national folklore that have been or are being lost, abused, distorted and/or misappropriated; (ii) experiences with the use of existing intellectual property rights (IPRs) to protect national folklore; (iii) information on special legislative systems for the legal protection of national folklore, whether national, regional or local, that have been established or are being considered; (iv) information on other relevant legislation, such as cultural heritage and cultural relics legislation; (v) experiences with initiatives for the collection, collation and documentation of folklore, and the relationship between such initiatives and systems for the legal protection of folklore; (vi) information on incentives and other measures for the creation, preservation, vitalization, promotion and transmission to future generations of national folklore as tangible and intangible cultural heritage (such as measures for the protection of traditional consummate skills and the construction of pilot protection zones), and the relationship between these activities and the legal protection of national folklore; (vii) experiences, if any, with the collective management of rights and interests in expressions of folklore.

The second objective of the mission is for the WIPO Secretariat to disseminate information on and receive comments and input on recent developments within the context of its work program on IPRs and expressions of folklore. More particularly, copies of the most recent WIPO working documents in this area will be made available (WIPO/GRTKF/IC/3/10, WIPO/GRTKF/IC/4/3 and WIPO/GRTKF/IC/4/4), and information will be provided on forthcoming materials, such as the “WIPO Practical Guide on the Legal Protection of Traditional Cultural Expressions”, as well as a planned customary law study. Any comments and inputs will be welcomed. Scope

In general terms, the term “expressions of folklore” refers to traditional cultural expressions, such as described in the WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, 1982:

[. . . ] “expressions of folklore” means productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of [name of country] or by individuals reflecting the traditional artistic expectations of such a community, in particular:

(i) verbal expressions, such as folk tales, folk poetry and riddles;

(ii) musical expressions, such as folk songs and instrumental music;

(iii) expressions by actions, such as folk dances, plays and artistic forms or rituals; whether or not reduced to a material form; and

(iv) tangible expressions, such as:

(a) productions of folk art, in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewelry, basket weaving, needlework, textiles, carpets, costumes; (b) musical instruments; (c) [architectural forms].”

This is only a general description of the subject matter of the mission, however. The relevant terminology used in China and the meanings given to the term(s) will be used for purposes of this particular mission.

Activity

The methods of data-collection will be (i) gathering of documents, (ii) interviews and consultations, and (iii) participatory observation.

Output

The information gathered during the FFM will inform and enrich the ongoing program of WIPO in this area. This program includes (i) a technical cooperation program (as mandated by Member States of WIPO at the third session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore), (ii) the development of the Practical Guide referred to above and (iii) the conceptualization and initiation of the customary law study as also already referred to. For example, particular cases of the misappropriation of expressions of national folklore and experiences with special legislative systems for their legal protection may be referred to in future WIPO documents, guides, studies and other materials.

In addition, the results of the mission will be reported on at the fifth session of the Intergovernmental Committee in 2003.

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