China’s new law to protect intangible cultural heritage.

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Yesterday, China Daily and People’s Daily reported that a draft law for the protection of intangible cultural heritage was submitted to the National People’s Congress for deliberation. Intangible cultural heritage has been a relatively hot topic in China since 2006, and has been a significant topic in IP circles as well.

Of course, this new law serves to protect and preserve intangible cultural heritage, ranging from minority languages, music forms, craftsmanship, etc. However, the question, as always, is how to really make this happen. First, the law stipulates the establishment of a national office for the protection of intangible cultural heritage, under the Ministry of Culture. Provinces should also establish provincial-level offices. This is standard fare in China, where the establishment of new government offices seems to be a standard first solution to most policy problems. The second step is to make a catalogue of all specific items of intangible cultural heritage to be included, as well as of the “transmitters” (传承人), who are apparently obliged on the new law to train successors.

Then, the law stipulates that local governments are supposed to provide funding for venues and activities for transmitting intangible cultural heritage to a new generation. However, at the same time, it is made clear that the object must be preservation, rather than commercialization. Now, here is where I do see some problems. Local government finances are a big problem in the best of cases, either through endemic corruption or true poverty (and of course, sometimes both). If the object is truly to protect intangible cultural heritage, funding will have to be forthcoming, either through market income or through fiscal means. If the national government does not wish to fund certain items of heritage, and the locality in which it is present is not allowed to raise capital through commercialization, than the community will simply paying for the preservation of its own cultural heritage, something that it was unable to do in the first place, or the heritage would not be threatened with extinction, right?

Now, I do realize that the funding of cultural heritage is always a heated discussion, and I would be the first to argue that crass commercialization (and the concomitant Disneyfication) should be avoided. However, it would perhaps be intelligent to look towards pragmatic solutions for different situations. If traditional culture is disappearing from its native communities due to economic circumstances, or lack of venues and occasions, it might be revived through public performances, for example in the case of traditional music. Traditional craftwork could be partly maintained through the selling of craft products, if there is enough demand for it. However, this would need a certain amount of IP-like protection, perhaps comparable to that afforded to geographical indications. This seems at least an approach which has gained significant traction in WIPO recently.

However, in the Chinese context, there might be a bigger problem. Some expressions of intangible cultural heritage, such as language and rituals, may be closely linked to ethnic or minority identity. The preservation of Gaelic in Ireland was as much informed by political reasons – resisting the British influence – as by cultural reasons. The Catalan region in Spain is fiercely protecting its separate identity and language, not in the least because of the strong separatist tendency. Truly protecting intangible cultural heritage will mean protecting Tibetan and Uyghur heritage as well, reconfirming their (ethnic? national?) identity. Is the central government willing to do this?

Lastly, the new law restricts foreign influence in studying and surveying intangible cultural heritage. Briefly speaking, foreign organizations wishing to survey intangible cultural heritage, can only do so together with domestic organizations after obtaining approval. In case of non-compliance, the law provides for punitive provisions, including fines. This in order to prevent foreigners wantonly benefiting from the exploitation of Chinese intangible cultural heritage. The discussion where care for heritage could be taken best is of course highly charged (think about the Elgin Marbles), so I will limit myself to say that if this is something that the Chinese government wants to do itself, I truly hope they will do a better job of it in the future than they have in the previous 60 years.

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