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On the State's Registration Of A POSTCOLONIAL PERSPECTIVE ON THE STATE’S REGISTRATION OF TRADITIONAL CULTURAL EXPRESSIONS By Chun-Chi Hung Submitted in partial fulfillment of the requirements of the Degree of Doctor of Philosophy 1 Statement of Originality I, Chun-Chi Hung, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party’s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. Signature: Chun-Chi Hung Date: 2019/06/12 Details of collaboration and publications: NA 2 Abstract This thesis draws upon postcolonial theory to examine to what extent the state’s registration system is an appropriate approach to protecting indigenous people’s traditional cultural expressions (TCEs). It specifically includes a case study on the performance of the state’s registration system in Taiwan in accordance with Taiwan’s Protection Act for the Traditional Intellectual Creations of Indigenous Peoples. A number of countries have established sui generis systems that provide for registration as a condition of acquiring exclusive rights over registered TCEs. Yet, the state will inevitably involve the legal acknowledgement of TCEs by registration. This mechanism has been criticised because it may manipulate the indigenous people’s tradition and identity. This thesis will explore this unresolved issue and expand upon the following research questions: How do we understand the legal protection of TCEs? Is the state’s involvement in the protection of TCEs really a negative measure which perpetuates the control over indigenous peoples’ cultures? Can registration of TCEs, which is influenced by the colonial history of intellectual property (IP) law and the modern state’s colonial control, become a platform for indigenous peoples’ negotiation with the state and for protecting TCEs as hybridity? The research methods are qualitative, beginning with an analysis of the characteristics of TCEs and international negotiations regarding the legal protections of TCEs. Observing Taiwanese indigenous peoples’ actions in the process of registration of TCEs, this 3 research finds that the emphasis of TCEs as hybridity can challenge the Orientalist imagination related to tradition and culture in conventional IP law. Moreover, a well- designed registration system of TCEs can be the platform for indigenous peoples to actively negotiate their cultural and historical perspectives with the modern state. 4 Acknowledgements I wish most of all to thank my supervisors, Professor Johanna Gibson and Dr Gaetano Dimita, for their great support and encouragement. In addition, sincere thanks to my viva examiners, Professor Guido Westkamp and Dr Shane Burke. They provided valuable suggestions on my thesis and agreed that my PhD viva could pass unconditionally, with no corrections. I would also like to thank Professor Tzu-Yi Lin, who supervised my master thesis at the National Taiwan University and, as a role model, continues to encourage my pursuit of academic excellence. I would like to express my gratitude to the people from Skikun and L.muan, two Taiwanese indigenous tribes in Datung Township, Yilan County and Father Rizzi Celestino, who was in charge of the churches in Skikun and L.muan. Ten summers staying with them made me, a naïve student with no indigenous background, realise the sublime in indigenous cultures. I also dedicate my greatest respect to the indigenous activists: Mr Mayaw Biho, Ms Panai Kusui and Mr Nabu Husungan. They have occupied Ketagalan Boulevard in front of the Presidential Office Building and 228 Peace Memorial Park for more than two years in order to protest the loss of indigenous peoples’ traditional territories. Their patience and courage remind me of the importance of researching indigenous peoples’ sovereignty and legal rights. I thank my Pangcah friend Ado Kaliting Pacidal, a hard-to-be-defined indigenous artist, singer, songwriter and social activist. Her artworks and actions are always my inspiration. 5 I am grateful to my sponsors: this thesis is sponsored by the Ministry of Education, Taiwan and the Chiang Ching-kuo Foundation for International Scholarly Exchange. Without their generous scholarship, I could not have completed my PhD adventure. On a more personal note, I am thankful to London’s theatres and museums. I will miss them a lot after leaving the UK, as they always heal and inspire my soul. In addition, I thank Hiroki Nanami (七海ひろき), the most charming otokoyaku of the Takarazuka Revue in Japan. Over the year of writing-up, her attractive performance on the stage supported my weak spirit and urged me to complete the thesis as soon as possible in order to see more shows performed by her. My sincere thanks goes to my colleagues in Queen Mary, Bob Kao and Pinar Oruç, for their friendship; Malcolm Langley of the IP Archive, QMUL, for his professional support; Drs Ming-Sung Kuo and Hui-Wen Chen for their company from Boston to London; my parents, my sister Chun-wei, and her two lovely children, for their love. I also thank my friends from the Formosa Salon (倫敦講臺), who always share brilliant ideas with me. Finally, I would like to thank Yawen, my best partner in academia and life. 6 Table of Contents Statement of Originality ................................................................................................................ 2 Abstract ............................................................................................................................................... 3 Acknowledgements ......................................................................................................................... 5 Table of Contents ............................................................................................................................. 7 Introduction ..................................................................................................................................... 12 Overview of the Problem ............................................................................................... 12 Objectives and Scope of Study ....................................................................................... 15 Research Methods and Limitations ............................................................................... 16 Chapter Outlines ............................................................................................................. 20 Part 1: TCEs and Postcolonial Theory .................................................................................... 24 1 Concepts and Perspectives ..................................................................................................... 24 1.1 Traditional Cultural Expressions ................................................................ 24 1.2 Sui Generis Rights and Registration............................................................. 27 1.3 Characteristics of Traditional Cultural Expressions .............................................. 32 1.3.1 The Entanglement of Dichotomy and Similarity ................................. 33 1.3.1.1 Dichotomy .................................................................................. 33 1.3.1.2 Similarity .................................................................................... 35 1.3.2 TCEs as Hybridity .................................................................................. 37 1.3.2.1 Hybrid Subject Matter: Disruption of Traditional and Modern ................................................................................................................. 37 1.3.2.2 Hybrid Holders of TCEs: Merging of Original and Artificial ... 45 1.3.2.3 Hybrid Protections of TCEs: Merging of Transnational and Local ....................................................................................................... 47 1.4 Postcolonial Theory and TCEs ................................................................................. 50 1.4.1 Why Postcolonial Theory? .................................................................... 50 1.4.2 Bhabha’s ‘Hybridity’ and TCEs ............................................................. 58 1.4.2.1 ‘Traditional’................................................................................ 59 7 1.4.2.2 ‘Cultural’ .................................................................................... 63 1.4.2.3 ‘Expressions’.............................................................................. 65 1.4.3 Bhabha’s ‘Negotiation’ and Registration of TCEs ............................... 69 1.5 Taiwanese Indigenous Peoples and Colonialism .................................................. 81 1.6 Moving on ................................................................................................................. 89 Part 2:
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