How has Chinese Traditional Culture an Impact on China’s Intellectual Property Legal System? Would this Influence be a Problem in the Protection of Folklore by the Intellectual Property Legal System?

Abstract

After the analysis of the Chinese intellectual property system in aspects of the legislation, the execution and the law abidance, this article proves that the Chinese intellectual property system is still more or less influenced by its traditional culture. The passive transplantation under the external power and the law instrumentalism mindset in traditional political culture result that there is a little bit radical ideology in the process of Chinese intellectual property legislation. In execution level, the strong administration and weak judicature in traditional political culture and the Confucianism both play the important role in affecting China’s Double Track System. Moreover, the law abidance comprises two aspects which are the obligations and the rights. After the process of accession of WTO and the experiences on international intellectual property conflicts between China and other Western countries, Chinese public know the intellectual property much better than before. However, the acknowledge of the intellectual property for most Chinese still stay in the stage of piracy and anti-piracy rather than know the real meaning of IP. Many people are still affected by Confucianism. In Confucianism, there is no concept of private property on spiritual properties. Meanwhile, the Confucian scholars also think that it is a good thing to share their minds in public. The rule of “Li” in Confucianism results that it is difficult for the public to arise the strong consciousness of standard of right. They also do not think that the action of piracy is as same as stealing other people’s real properties such as cash. More importantly, the intellectual property legal system suffers continual influences coming from this strongly traditional culture, which not only results that the typical intellectual property objects can not be protected by intellectual property law in China very well, but it also embeds a bomb for protection of folklore by intellectual property system in the future.