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China’s Copyright Law stipulates, “Measures for the copyright protection on works of folk literature and art shall be established separately by the State Council.” Since then, although the authorities had held several meetings and conducted a wide range of research to discuss in depth the legal protection of folklore works, no related regulations were instituted. How to define folk literature and art works and how to protect such works have become the concerns of academic and judicial organs.
Cognizance on Infringement
China IP consulted with Feng Gang, the acting president of the IP Division of the Beijing No.2 Intermediate People’s Court. As to the infringement of such cases, Feng proposed the concept of “Copyright of Folk Art,” that is, in the process of creation, if a work was bestowed with unique characteristics and connotations, it thus obtained “Copyright of Folk Art.” In determining the copyright issues of traditional art works, the judicial point is based on whether the works are new creations or simple reproductions. Although Peking Opera facial makeup originates from folk art, the painter endows the work “Copyright of Folk Art” which thus enjoys copyright protection. Embroidery as an art form is a kind of carrier of paintings. Though the embroidery is particular about the stitch and silk fineness, it is a copy of a painting, and thus is judged as a violation of the painter’s copyright.
A copyright infringer always makes some changes on the involved works. Therefore, the identification of infringement in practice is an extremely complex process. Judge Feng raised the concept of “access plus substantial similarity.” In judicial practice, copying can be divided into simple copying and complex copying. The latter is hard to define. The law, in an institutional sense, can only define the core conceptions in a uniform definition. The marginal details represent ambiguity and are hardly defined by laws. As for the cognizance on the infringement of traditional arts, it is also a highly technical issue. It is easy to see that copyright issues have become unavoidable in traditional folk arts. On one hand, the collision between thousands of years of history and the modern legal system is testing the vitality and adaptability of traditional folk arts. Conversely, the legal awareness of the public should be increased and the emphasis on copyright should be strengthened. Reflections and reform within the industry need efforts from all walks of life. Whether there will be changes in the current pattern and whether traditional arts can walk out of the shadow of copyright disputes, will perhaps be answered in time.
(Translated by Sarah Luo)
By Aimee Wang
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