Paper cutting is a popular folk art in China. Photo: TUCHONG

Folk literary and artistic works, as cultural treasures of humanity, merit sound legal protection. Today, many countries confront a two-fold challenge: the rapid disappearance of traditional cultural heritage and the arbitrary exploitation and distortion of numerous folk literary and artistic works by individuals outside the source community. In response, the Chinese government has officially begun drafting the Regulations on Copyright Protection of Folk Literary and Artistic Works (hereinafter referred to as “the Regulations”). The copyright protection of these works involves navigating complex interests. 

First, the interests of the source community must be considered. Folk literary and artistic works are created by a particular community or its individual members. They are passed on by oral tradition over time and reflect the traditional cultural characteristics of the community. According to customary law, the rights to folk literary and artistic works are shared and collectively exercised by the source community. 

Chinese courts typically hold that ancient folk literary and artistic works have entered the public domain and can be freely used. However, some argue that directly incorporating folk literary and artistic works that have never been protected by copyright into the public domain is unfair to the source community. Appropriate compensation should be paid to the source community when folk literary and artistic works are used for profit by non-community members. 

Second, the interests of the members of the source community are significant. These members, who play a constructive role in the creation, inheritance, and protection of folk literary and artistic works, enjoy independent interests. For example, community members have the right to earn a living by performing these works or creating folk handicrafts. Under customary law, community members are exempt from paying fees for the use of folk literary and artistic works, whether for profit or not. They have the right to protect relevant copyrights through legal proceedings when these works are illegally used by non-community members. 

Third, the interests of creators of derivative folk literature and artistic works must be acknowledged. Derivative works are those adapted, translated, annotated, or organized based on original folk literary and artistic works. While these creators should respect the copyright of the source community, their interests should be also protected by law given their invested labor. However, creators of derivative works only hold the copyright to their original contributions, not to the entire piece of work. They cannot prevent others from creating new derivative works based on the same original folk work.

Fourth, the interests of inheritors of folk literary and artistic works must be taken into account. Inheritors of folk literary and artistic works are members of the source community who bear the responsibility for the protection and inheritance of these works, thus their interests should be considered in the legislative process. Inheritors can hold the copyright on derivative works they create based on original folk literary and artistic works. They are also entitled to performers’ rights in accordance with China’s Copyright Law when performing these works. Individuals who are not members of the source community should obtain permission from the inheritors before recording or using their performance. 

Fifth, the interests of individuals collecting and recording folk literary and artistic works should be recognized. Since Chinese Copyright Law only protects the interests of creators and distributors of original works, it is difficult to protect the interests of collectors and record keepers under existing laws. The Regulations can address this by requiring others to obtain permission from and pay remuneration to collectors and record keepers when using collected or recorded material. 

Sixth, the interests of distributors of folk literary and artistic works or derivative works must be considered. Performers, record producers, and broadcast and television networks invest human, material, or financial resources in the distribution of these works. Their neighboring rights should be protected in accordance with the Copyright Law. 

Seventh, the interests of the general public are important. To facilitate society-wide distribution and utilization of folk literary and artistic works as well as promote the development of the cultural industry, copyright protection can be properly limited by stipulating fair use cases. These cases may include using folk works for teaching, learning, or research purposes, or, preserving, displaying, studying, or introducing folk literary and artistic works in public cultural venues such as archives, libraries, museums, and cultural centers for the purpose of benefiting the public. Under fair use, the source and name of the work should be indicated, the normal use of the work should not be affected, and the rights and interests of the source community should not be harmed. 

Eighth, the interests of rights holders of foreign folk literary and artistic works must be addressed. In the context of globalization, the copyright protection of these works transcends domestic legal frameworks. The principle of national treatment, adopted by both the Berne Convention for the Protection of Literary and Artistic Works and the Draft Provisions for the Protection of Traditional Cultural Expressions proposed by the World Intellectual Property Organization, guides international copyright protection. As a party to the Berne Convention, China should adhere to the principle of national treatment when handling international copyright cases involving folk literary and artistic works and ensure the protection of foreign works based on the principle of reciprocity. 

Hu Kaizhong is a professor from the Law School at Zhongnan University of Economics and Law. 

Edited by WANG YOURAN