The legal protection of intangible cultural heritage

Abstract

This chapter focuses on the legal protection of intangible cultural heritage in Korean law, discussing whether the legal framework adequately protects such heritage. Defined as ‘the part of culture that cannot be touched … such as annual festivals, skills, song, dance, and cuisine’, intangible cultural heritage is protected by a specific piece of legislation, the Korean Intangible Cultural Heritage Act and general legislation protecting intellectual property. The former aims ‘to maintain the archetype of intangible cultural heritage, giving due consideration to the following: cultivation of the national identity; transmission and development of traditional culture; and realisation and enhancement of the value of intangible cultural heritage’. In this context, the transmission of the archetype of intangible cultural heritage is one of the pivotal factors for the Korean government to approve cultural heritage as intangible cultural heritage. This is because the term archetype refers to intrinsic features constituting the value of specific intangible cultural heritage. Whether or not intangible cultural heritage maintains and transmits its archetype depends upon whether its intrinsic features constituting the value of specific intangible cultural heritage are identical over several generations. However, to the extent to which intangible cultural heritage also constitutes the creation or creative activity of its holder(s), it can also be afforded intellectual property protection. In this context, this chapter discusses whether and to what extent intangible cultural heritage law and intellectual property laws converge or diverge in protecting intangible cultural heritage.