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 China 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, Yunnan 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 Kunming, 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 Yunnan Provincial Museum. 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, Jinghong 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, Mengla County 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 Lijiang. On Sunday, November 1, the WIPO delegation first visited the old town of Lijiang, 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,