Comparative Legal Study of Intangible Cultural Heritage in the UK and China

Author:Fang Zhou
Pages:269-284
JICLT
Journal of International Commercial Law and Technology
Vol.9, No.4 (2014)
269
Comparative Legal Study of Intangible Cultural
Heritage in the UK and China
Fang Zhou
Intellectual Property Research Center, Xi’an Jiaotong
University
Shaanxi, People’s Republic of China
zhoufang@mail.xjtu.edu.cn
Abstract: In order to protect intangible cultural h eritage (ICH),
the United Kingdom (UK) an d China have issued a series of laws in
recent years. By comparing these two legal systems, this article analyses
the merits and demerits of th e two systems and explores a beneficial path
to optimize the legal system of ICH in China.
1. Introduction
The concept of ICH has become the focus of in ternational discussion, which has been
augmented by the United Nations Educational, Scientific and Cultural Organization
(UNESCO) and reflects growing concerns about the cultural impact of economic,
technological and political forces associated with globalization.1The UK and China
have a long history an d rich cultural heritage. In order to protect ICH, both countries
have issued a series of laws in recent years. Due to th e differences in legal tradition and
development in the status of economy and society between the two countries, there are
many obvious differences existing in their legal systems. In this context, the article
compares the two legal systems from various aspects such as protecting philosophy,
legal technologies and supporting systems, to law enforcement. It analyses th e merits
and demerits of each legal system on ICH and try to explore the best path to optimize
the Chinese ICH legal system.
2. Legal protection systems of ICH in China
Influenced by the tradition of Continental Law System, China mainly relies on the
functions of guidance and restriction of statute laws for legal practices. In the field of
ICH protection, 3 kinds of legislations have been enacted.
PhD, Associated Professor, Vice Dean of Inte llectual Property Research Center, Xi’an Jiaotong
University, PRC. Visiting professor o f Law School, University of Southampton, UK.
1 Frank Hassard. (2009). Intangible heritag e in the United Kindom- The dark side of
enlightenment?Laurajane Smith, Nats uko Akagawa. Intangible Heritage. Routledge, Taylor & Franc is
Group. p.270
270
2.1 The ICH Law
After more than ten years preparation, the 11th Standing Committee of the National
People's Congress (NPC) promulgated the ICH Law of the People's Republic of Ch ina2
on 25th February 2011(came into force on 1st June 2011). This law in cludes 45 articles
categorized as 6 chapters entitled as: General Provisions; Investigations of ICH;
Catalogue of the Representative Items of ICH; Inheritance and Spread of ICH; Legal
Liabilities; and Supplementary Provisions, respectively. The ICH Law is the basic law
in the field of Chinese ICH protection and is a milestone achievement. The law
explicitly stipulates the definition and range of ICH, the protection mode and powers of
governments.
Firstly, Article 2 of the ICH Law defines th e definition and range of ICH in China
and states that: “For the purposes of this Law, int angible cultural heritage shall mean
various traditional cultural manifestations which are handed down by the people of all
ethnicities from generation to generation and regarded as a constituent part of their
cultural h eritage, and physical objects an d premises related to the traditional cultural
manifestations, including:(1) Traditional oral literature and the language as a carrier
thereof;(2) Traditional fine arts, calligraphy, music, dance, drama, folk art and
acrobatics;(3) Traditional art istry, medicine and calendar;(4) Traditional rituals,
festivals and other folk customs;(5) Traditional sports and entertainment; and (6) Other
intangible cultural heritage. ”The definition is resembled with that in the UNESCO’s
Convention for the Safeguarding of Intangible Cultural Heritage (2003).3 At the same
time, it explains that the relevant provisions of the Law of the People's Republic of
China on the Protection of Cultural Relics shall apply to the physical objects and
premises that are a constituent part of the ICH and falling under the category of cultural
relics.4
Secondly, as to the protection mode of Chinese ICH, there is a general provision in
Chapter 1 of the law. “When protecting ICH, it should focus on its authenticity,
integrity and inheritance an d such protection shall be conducive to strengthening the
recognition of the culture of the Chinese nation, maintaining the unification of the
country and the unity of the nation and promoting social harmony and sustainable
development.”5On the other hand, Chapter 2 to 4 of the law provides th e basic
principles about the investigations of IC H, the catalogue of the r epresentative items of
ICH, and the inheritance and spread of ICH.
Thirdly, the ICH Law especially focuses on how to establish the leading role of
governments in ICH protection. There are 32 articles r elated to the powers of
governments.6 In the General Provisions of Chapter 1, the law designates the
department in charge of culture under the State Council shall be responsible for the
work concerning the protection and preservation of IC H thr oughout the country. The
departments in charge of cultur e of the local governments above th e county level are
responsible for the work concerning the protection and preservation of ICH within their
2 ICH Law. Available online at: http://ww w.gov.cn/jrzg/2011-02/26/content_1811128.htm. (Accessed
20 June 2013)
3 The Convention for the Safeguarding of ICH is a UNESCO treaty adopted by the UNES CO General
Conference on 17 October 2003 . Available online at: http://www.unesco.org/culture/ich/en/c onvention.
(Accessed 20 June 2013)
4 ICH Law, Article 2.
5 ICH Law, Article 4.
6 The ICH Law includes 45 articles in t otal, with more than 70% relating to governments’ pow ers.

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