Copyright and Intangible Cultural Heritages in China: Conflict, Compatibility, and Coexistence

Abstract

The Chinese Intangible Cultural Heritages (ICH) Law was passed in 2011, followed by the Regulation on Copyright Protection of Folk Literature and Art Works (Draft calling for comments) released in 2014, which finally called for opinions from experts and practitioners again in 2024. This article examines the challenges in directly applying copyright law to protect ICHs in Mainland China, emphasising the fundamental differences in the rationales of ICHs and copyright, despite partial overlap in their subject matters. Although copyright is not suitable for directly safeguarding ICHs, it can play a constructive role in protecting derivative works and creative expressions embodying ICHs. When granting copyright to the creations, certain limitations should be imposed on the exercise of these rights, particularly respecting the local communities and avoiding distorting the original cultural expressions of the ICHs. Such a design could benefit the preservation of Chinese ICHs and also promote the exchange of culture. It also provides a reference to other nations to avoid directly transplanting copyright law onto ICH protection without adaptation. In light of recent international developments, the findings contribute to comparative and cross-border debates on international collaborations, fair remuneration and benefit-sharing, supporting more equitable and sustainable global preservation of ICHs.

1. Introduction

The intangible cultural heritages (ICHs) have existed for thousands of years, and are inherited, recreated, and spread generation by generation. By the end of 2024, China had a total of 44 items inscribed on the lists of the United Nations Educational, Scientific and Cultural Organization (UNESCO), the highest number in the world (Xinhua News Agency 2024), including Chinese paper cutting and Chinese Korean Farmers’ Dance. Significant progress has been made in Mainland China in safeguarding ICHs in the last three decades, including the legislation and governmental guidelines. However, due to the inherent diversity and complexity of ICHs, they have not been fully protected, and some are even in danger of disappearing (Piao and Piao 2020). How to effectively protect and ensure the cultural transmission of the ICHs remains an issue of paramount concern, requiring a clearer plan and more developed legal frameworks.

The Chinese Intangible Cultural Heritage Law (ICH Law) was promulgated in 2011, offering legal protection of ICHs (National People’s Congress 2011). However, a detailed explanation is not included on how ICHs can be effectively protected, particularly when intellectual property (IP) related concerns arise. Article 44 of the ICH Law says that if the use of ICHs involves IP rights, the provisions of the relevant laws and administrative regulations shall apply. In spite of this, existing IP rules in China have not provided sufficient clarity or mechanisms to address the interaction between ICHs and IP, especially the overlaps in the subject matters of copyright and those of ICHs, such as traditional dancing and music.

The most recent third amendment of the Chinese Copyright Law was passed in November 2020 and came into effect in June 2021 (National People’s Congress 2020). After a decade of discussion, although the third amendment updates certain provisions, it does not introduce specific measures for the protection of folk literature and artistic works, which constitute part of ICHs. Article 6 of the Copyright Law provides that methods for protecting these works will be separately made by the State Council. However, to date, no such rules or measures have been released yet.

This article analyses whether the Chinese Copyright Law can be applied to protect the Chinese ICHs, given that ICHs share certain similar characteristics and features with copyright materials, such as intangibility and creativity. It first introduces the current legal framework of ICHs, including the concept of ICHs and regulatory rules in Mainland China. Then it discusses the difficulties of using copyright to directly protect ICHs. This article argues that copyright law cannot serve as a direct tool to protect ICHs, given the different approaches of the IHC Law and the Copyright Law, and the temporally restricted nature of copyright protection.

Instead, this article recommends that copyright law may serve as a tool to protect products and creative works generated from and/or inspired by ICHs. In addition, the exploitation of such copyrighted works should respect the originating communities’ traditions and values and should avoid distorting the cultural meanings embodied in heritages.

2. Regulatory Dimensions of Intangible Cultural Heritages in China

2.1. Concept of Intangible Cultural Heritages

Compared to other international copyright treaties, such as the Berne Convention, which emerged in the 18th century, discussions surrounding the protection of ICHs just started in the 20th century. ‘Intangible heritage’ was first officially used at the World Conference on Cultural Policies held in 1982. In 1985, UNESCO and the World Intellectual Property Organization (WIPO) worked together and passed the UNESCO-WIPO Model Provisions for National Laws to better protect traditional cultural expressions (TCEs). After more than a decade, the intergovernmental committee (IGC) was developed by WIPO to develop international legal instruments for the protection of TCEs, as well as genetic resources, traditional knowledge, and folklore (Torsen and Anderson 2010; Lixinski 2013). As one of the most important international organisations in IP, WIPO has conducted research and discussed IP and the protection of ICHs (World Intellectual Property Organization 2002). For example, it was pointed out that ‘requiring some form of prior documentation and/or registration in order to establish IP rights, may contradict the oral, intangible and ‘living’ nature of many TCEs.’

The concept of ‘intangible cultural heritage’ was preliminarily proposed at the 30th UNESCO General Conference in November 1999. Subsequently, the Convention for the Safeguarding of the Intangible Cultural Heritage (the Convention) was enacted by UNESCO in 2003, in which intangible cultural heritage is defined as: ‘the practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artefacts and cultural spaces associated therewith—that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.’ (Convention for the Safeguarding of the Intangible Cultural Heritage 2003).

According to the Convention, intangible cultural heritages generally include five domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship. The Convention clearly identified the values of cultural diversity, recognising that its protection, promotion, and safeguarding are beneficial to both present and future generations.

2.2. The Protection of ICHs in China

China has a long history of various types of ICHs and has progressively developed a legal framework dedicated to their protection. For instance, rules were put in place to manage the knowledge and practice of imperial craft production dating back to the Ming Dynasty in the 13th century (Xu et al. 2022). In the modern Chinese legal framework, legislative and administrative regulations have been introduced in recent decades to protect ICHs. The protection of cultural heritages was recognised in the Constitution (National People’s Congress 2018). Similar general principles are included in the Law of the People’s Republic of China on Regional National Autonomy in 2001 (National People’s Congress 2001). In addition, the Regulation on Protection of Traditional Arts and Crafts was enacted in 1997, marking the first formal inclusion of ICH protection at the domestic level, and was followed by the early drafts of the current ICH Law. In May 2001, UNESCO announced the first list of ‘Masterpieces of the Oral and Intangible Heritage of Humanity’, and Kun Qu Opera was included (United Nations Educational, Scientific and Cultural Organization 2006). This represented the first formal inclusion of a Chinese ICH on the list.

For decades, both international organisations and individual countries have been involved in the protection of ICHs, among which China has played an increasingly active role. After the adoption of the 2003 Convention, China became a State Party in 2004. Consistent with the Convention’s guiding principles, China introduced the Interim Procedures for Application and Assessment of National Intangible Cultural Heritage Masterpieces in 2005 (General Office of the State Council 2005). In this document, ICHs were defined as various traditional cultural manifestations transmitted from generation to generation and closely connected with community life. The first batch of national ICHs list was announced in 2006 (State Council of the People’s Republic of China 2006).

A significant milestone in the legal protection of ICHs in China is the promulgation of the ICH Law in 2011. To be specific, Article 1 of the ICH Law sets out the objectives of the law, including inheriting and carrying forward the brilliant traditional culture of the Chinese nation, promoting the development of the socialist spiritual civilisation, and strengthening the protection and preservation of ICHs. These objectives carry both political and legal significance in Mainland China, and it is argued that the most important aim of the ICH Law is to promote the construction of the socialist spiritual civilisation (Lei 2013). The legislation clarifies the necessity of legal protection for ICHs and offers a basic framework for their legal protection.

Article 2 of the ICH Law defines ICHs as traditional cultural manifestations, together with related physical objects and premises. In the context of Chinese culture, ICHs mainly refer to the practices, performances, knowledge and skills that are preserved in intangible forms. In addition to the domains of oral literature, festivals, etc., defined by the Convention, the Chinese ICH Law further includes traditional medicine and traditional sports (Article 2(5)), and other ICHs (Article 2(6)). This broader categorisation demonstrates that the ICH Law adopts a wider scope of ICH protection than the Convention. Moreover, the open-ended formulation in Article 2(6) of the ICH Law allows for the inclusion of additional forms of knowledge and skills that could fall within the definitions of ICHs in the legal context. Overall, the ICH Law provides a comprehensive definitional framework that covers a wide range of traditional cultural practices.

Despite the legislative efforts outlined above to protect ICH, certain aspects of ICH protection remain insufficiently specified or clarified. For instance, when traditional operas are performed, they are the expression of the local community’s culture. Such cultural expressions bear similarities to the expression of ideas recognised in copyright law as they embody creativity and cultural meaning. However, the ICH Law does not explain how the interests of the originating communities are to be safeguarded in these circumstances. As a result, while the ICH Law establishes a basic framework of the legal protection of ICHs, it has not provided clear clues governing the protection of IP interests arising from the use, adaptation and/or dissemination of such works.

In recent decades, debates surrounding ICHs have remained unresolved (Wei 2010). In 2021, the General Office of the Chinese Communist Party Central Committee and the General Office of the State Council released proposed changes, including amending the ICH Law and regulatory rules and strengthening IP protection for ICHs (Xinhua News Agency 2021). However, no concrete details of these reforms have been finalised to date. In early 2024, the authorities resumed discussions on copyright protection for folk art, inviting practitioners and experts’ opinions on the Regulation on the Protection of Copyright for Folk Literature and Art Works (the Draft). Notably, this draft is not entirely new, as the draft calling for comments was already released in 2014. Due to persistent difficulties in clarifying the interaction between ICHs and copyright, such as issues of authorship, duration of protection and rights allocation, no consensus has been reached even after more than a decade of discussion.

Given the growing need to provide effective protection for ICHs, examining the interactions between ICHs and IP, particularly copyright, would be essential. Such analysis not only clarifies why conventional copyright mechanisms struggle to fit the intergenerational nature of ICHs but also explores possible solutions by assessing whether, and to what extent, copyright can function as an effective complementary tool for the preservation of ICHs.

2.3. The Interface Between Copyright and ICH Safeguarding

The subject matters of ICHs and the use of ICHs increasingly overlap with copyright regimes. Such an interface arises mainly for the following reasons. Since a certain number of ICHs fall within the scope of copyright subject matters, there have been discussions on the possibility of protecting ICHs through IP rules. For instance, oral literature classified as an ICH may fall into the category of oral works as defined in Article 3(2) of the Chinese Copyright Law. Similarly, traditional dramas recognised as ICHs may be covered as dramatic works under Article 3(3) of the Chinese Copyright Law. In addition, most of the use of ICHs is also closely connected with copyright matters. For instance, performances of traditional operas are particularly relevant to copyright protection for dramas in practice (Gan and Liu 2009).

Because of these similarities in subject matter between ICHs and copyright-protected works, some efforts have been made to explore the protection of ICHs from a copyright perspective, but no consensus has been reached. From a regulatory perspective, existing legislation and administrative rules provide only limited and fragmented guidance on the IP protection of ICHs. Relevant provisions tend to be general and principle-based, offering little clarification on key issues such as the scope of protection, the identification of right holders, or the allocation and exercise of rights in practice. To illustrate, Article 44 of the ICH Law regulates that the uses of ICHs involving IP rights refer to relevant regulations and administrative rules. Yet Article 6 of the Chinese Copyright Law offers the only relevant provision in this regard. It merely states that regulations for the protection of copyright in expressions of folklore would be separately set by the State Council. To date, copyright protection for folklore remains in draft form, leaving the legal framework for the IP protection of ICHs insufficient. As a result, the current legal framework has not provided a coherent and systematic approach to addressing the specific characteristics and protection needs of ICHs.

In the Chinese legal framework, the State Council is typically in charge of drafting or making further detailed rules when primary legislation does not address all matters in full. In the case of the ICHs, the same principle applies. In 2014, the National Copyright Administration of the People’s Republic of China (NCAC) released the Draft calling for comments, to protect the copyright of folklore literature and arts and to promote the inheritance and development of those works (National Copyright Administration of the People’s Republic of China 2014). The draft indicated the authority’s positive stance towards copyright protection for ICHs. The 14th Five-Year Plan for Copyright Work, released by the NCAC in late 2021, also includes a project on improving the copyright legal framework, in which the Draft is listed. However, substantive progress remained limited for more than a decade. It was not until early 2024 that several workshops were held to revisit the topic and accelerate the drafting of the regulations, with a view toward establishing more comprehensive protection in this field (NCAC 2024).

It is unsurprising that the discussion has persisted for such a long time without a clear solution being reached, given the difficulties in protecting ICHs due to their unique characteristics. One of the biggest challenges lies in the evolving nature of ICHs, which are continuously developed over time. Unlike many copyrighted works that are usually completed by a person or a group of identifiable authors, ICHs were initially created by a group of community members and further developed by successive generations in that community. The ‘creators’ of an ICH therefore include those community members who contribute to the production and distribution of that ICH. Over time, practitioners and bearers of ICHs in that area collectively further shaped and refined the cultural expressions. As a result, ‘creators’ of an ICH cannot be equated with the identifiable authors of a copyrighted work, except orphan works, the authors of which cannot be located. In copyright law, authorship is generally fixed once a work is completed. From this perspective, it becomes impossible to locate a sole author or co-authors for an ICH. Consequently, determining moral rights, which in copyright law are attached to authors, becomes problematic in the context of ICHs.

Furthermore, the lack of physical or fixed forms results in additional difficulties in defining most of the ICHs and in clarifying the scope of legal protection. This is very different from a copyright-protected work in which the content of the work, such as a book, is typically finalised at the moment of creation. By comparison, continuous development and changes occur when ICHs are transmitted from generation to generation. ICHs are repeatedly developed and recreated by generations in that community. The uncertain and fluid forms have made it difficult to fix specific forms of ICHs and to provide effective protection for them.

Due to the above difficulties in protecting ICHs, debates continue regarding the applicability of copyright law in this context. The following section explains the reasons why copyright cannot be directly applied to the protection of ICHs but can serve a supportive role in protecting works that are inspired by or derived from ICHs.

3. Copyright Protection Towards Intangible Cultural Heritages

Although ICHs and certain copyright-protected materials share some similarities as discussed above, it is not easy to directly use copyright to protect ICHs. However, it does not mean that copyright is useless. This section first explains why the existing Chinese Copyright Law cannot, in its current form, provide direct support for ICHs. It then shows how copyright rules can nonetheless play a useful role in the commercialisation of derivative works created that are inspired by, adapted or reinterpreted ICH elements.

3.1. Copyright Rules Not Directly Applicable to ICH Protection

This article argues that the Chinese Copyright Law cannot be directly used to protect ICHs, mainly for the following reasons:

First, the Chinese ICH Law and the Copyright Law adopt different approaches, despite some overlap in their broad economic rationales. To be specific, the ICH Law prioritises and encourages the safeguarding of local cultures, whereas the Copyright Law is designed to incentivise creations. As discussed in Section 2, the objective of the ICH Law is to inherit traditional culture and strengthen the preservation of ICHs. More importantly, the cultural meanings embodied in ICHs, the local communities’ everyday habits, practices and modes of communication, etc., are often what safeguarding efforts seek to preserve. For instance, the significance of typical Chinese paper cutting lies not only in the finished paper cutting itself, but also in the artistic and social customs embedded in the works (Liu 2007, p. 27). In practice, this safeguarding framework may generate economic benefits for local communities. For example, through the performance of traditional operas or the production and sale of handicrafts.

By contrast, copyright rules cannot protect ideas but only the expression of the ideas. As a result, ideas of the cultural understanding and shared knowledge underlying the ICHs generally fall outside the scope of copyright protection (Liu 2007, p. 27). A central objective of the Copyright Law is to encourage the creation and dissemination of works that contribute to the development of a socialist society that is advanced ethically and materially (Article 1). To achieve this, copyright owners are granted economic rights to be remunerated, together with moral rights. Under economic copyright theory, this rights-based structure is justified as a mechanism to reward authors while ultimately serving the public interest. To that extent, copyright’s economic logic partially overlaps with ICH safeguarding goals, which similarly seek to protect the interests of local communities and to further contribute to cultural development and communication. Nevertheless, because the two legal regimes are oriented toward different regulatory aims, which are preservation and continuity on one hand, and incentivising individual creative output on the other, it would be difficult to directly apply the Copyright Law to ICHs. Instead, how economic copyright may contribute to the preservation of ICHs would be explored in Section 3.3.

Second, the limited term of protection period under copyright does not meet the needs of long-lived ICHs. According to Article 23 of the current Chinese Copyright Law, protection expires after a specific limited period. To illustrate, the right of publication and economic rights shall last for the author’s lifetime plus fifty years after death. Unlike copyrighted outcomes, many forms of ICHs, such as folk culture, are accompanied by processing, supplement, development and improvement, and the creation is always ongoing and never comes to an end. Most of the Chinese ICHs have been preserved across generations over long periods, some of which have existed for hundreds or even thousands of years and may continue to develop under proper preservation. Neither the ICH Law nor the Convention specifies a fixed duration of the protection for ICHs. Given ICH’s long-lived character, the protection should be perpetual as long as there remain inheritors of ICHs, instead of expiring after a number of years. It would be unreasonable to set up a fixed term of protection on an ICH when the relevant community continues to preserve and develop it. Therefore, the copyright rule of time-limited protection should not be applied to the protection of ICHs themselves.

The copyright protection for ICHs remains an unresolved issue. The third amendment of the Chinese Copyright Law still does not clarify further details about the rules on folk literature or ICHs. The State Council has not published any regulations either. There is thus scope to explore IP-related protection regimes of ICHs. The following part analyses the similarities between the subject matters of copyrighted materials and ICHs and then provides recommendations on how copyright may be used to protect ICH-related products and derivative works, thereby contributing to the safeguarding and promotion of ICHs.

3.2. Similarities Between ICHs and Copyright-Protected Materials

The limitations of copyright as a direct protection mechanism mean that ICH requires more effective forms of protection and preservation. This need is particularly crucial in rural areas of China, where many ICH practices are concentrated, populations are shrinking, and fewer people acquire the skills required to transmit these traditions. In practice, ICHs can often be accessed, reproduced, and enjoyed with minimal costs and without permission, making it difficult to secure benefits for the communities and practitioners who sustain it. In some cases, even basic maintenance costs cannot be guaranteed (Tan et al. 2020). Considering such situations, when ICHs and ICH-inspired products are commercially used on different occasions such as performances and cultural tourism, payments and remuneration become important. Economic returns can at least provide the material basis for that community to continue maintaining and developing the heritage over time.

The copyright rationale of remunerating creative outputs aligns with the practical needs of ICH protection to some extent. First, there is a notable overlap between ICHs and subject matters protected under the Copyright Law. The first list of ICHs announced by the Ministry of Culture includes folk literature, music, dance, drama, folk opera, acrobatics & athletics, painting, craftsmanship, Chinese traditional medicine and folk customs. Many of these elements correspond to subject matter that copyright protects, such as literary works, artistic works, musical works and dramatic works. In addition, both ICHs and copyright protect intangible and intellectual outcomes, rather than physical objects. ICHs can be understood as the expression of spiritual and creative ideas. Some of their manifestation may therefore fall within the scope of copyright protection. At a broader level, both frameworks emphasise respect for moral rights as well as the promotion and development of the fields. Therefore, although copyright cannot straightforwardly protect ICHs, applying copyright in contexts where ICHs are expressed in identifiable works may help secure economic returns to inheritors, bearers and communities, thereby supporting the long-term safeguarding of ICHs.

Second, the ways of distributing and communicating copyrighted works are similar to those of ICHs. That is, there must be some forms through which the content is expressed, which might be orally, in writing, through performance or sometimes increasingly in digital formats. Most ICHs are preserved in different types of forms, which enable communities to transmit them from generation to generation. For example, the skills of paper cutting are preserved as ICHs, while paper cutting designs may qualify for copyright protection as artistic works once created and fixed in a tangible form. Similarly, traditional operas are recognised as ICHs, but when the performance is recorded as a recording and/or produced and edited as a film, the recording may be protected as sound recordings or audiovisual works under copyright.

Based on the similarities discussed above, it can be argued that the Chinese Copyright Law may serve as a tool to safeguard works embodying ICHs, which would indirectly contribute to the preservation and communication of ICHs. At least, the Copyright Law could provide protection for copyrightable outputs derived from ICHs and generate economic income for the relevant local communities. This may help incentivise community members in the area to contribute to the maintenance and development of ICHs.

Given the challenges of directly applying copyright law to ICHs, as well as some overlaps between ICHs and copyright-protected works, a more workable approach is to use copyright to protect ICH derivative works that meets copyright protection criteria of copyright protection. This would also benefit the commercialisation of cultural products and services in the fields of ICHs. The following section examines how copyright law can play a supportive role by protecting works derived from ICHs, contributing indirectly to their preservation and sustainable development.

3.3. Application of the Chinese Copyright Rules to Derivatives of ICHs

Although ICHs themselves cannot be directly protected by copyright, the products, photographs and/or videos generated from the practices of ICHs may secure copyright protection. With the growing popularity of social media, especially short-form video platforms, an increasing number of netizens share the production and performance of ICHs online. The wide circulation of videos and pictures brings some inspiration about how copyright can assist in the protection of ICHs. In the Chinese context, Article 3(6) in the third amendment of the Chinese Copyright Law in 2020 updated the types of audiovisual works, referring to films and other audiovisual works. This is different from Article 3(6) in the previous version (the Chinese Copyright Law 2012) that only covers films. This means that the videos of ICHs on digital platforms and social media may fall into the category of ‘other audiovisual works’, provided that they satisfy the protection requirement under the Chinese Copyright Law, including originality. When these conditions are met, videos and posts of ICHs should be granted copyright protection.

It is important to recognise the scale of the Chinese markets related to ICHs when exploring how copyright rules may contribute to the economic benefits. For instance, the market size of China’s ICHs was expected to reach 100 billion yuan in 2025 (Intangible Cultural Heritage Time-Honored Brand 2025). This commercial reality suggests that ICH protection in China cannot be limited to the preservation of ICHs as heritages in the abstract. Rather, the protection of ICHs increasingly involves the collaboration among local communities, the authorities, cultural industries, tourisms, etc (Ministry of Culture and Tourism of the People’s Republic of China 2023). If part of the income generated from copyrighted works embodying ICHs can be allocated to communities, bearers would at least be motivated to contribute to the preservation of ICHs in the long term.

Li Ziqi, a well-known Chinese video influencer, has attracted a huge number of followers. About ten years ago, before the massive popularity of short videos, Ziqi began sharing her videos online, in which traditional Chinese techniques are displayed. She rose to international fame through her captivating videos that showcase traditional Chinese rural life, crafts, and cuisine. Her unique content quickly garnered a massive following. After being quiet for about three years due to some commercial disputes with her agency company, Li restarted uploading her video works on social media platforms in November 2024, including Douyin (TikTok), Sina Weibo and YouTube, sharing how she turned a woodshed into a woodland cloakroom and her use of the ICH of Chinese lacquerware techniques. In just one day, the lacquerware video on YouTube earned more than 10 million views and more than 40,000 comments (Hang 2024). Li had 29.6 M subscribers on YouTube by January 2026.

From a legal perspective, the videos of Li Ziqi are not merely representations of ICHs. The videos meet all the protection criteria under the Chinese Copyright Law, including originality. The success of Li Ziqi shows a good example that can be learned to promote the preservation and communication of ICHs via copyright regimes. Economic rights under the Chinese Copyright Law could be applied to protect copyrighted videos that introduce or present ICHs. Her case demonstrates the practical pathway that while copyright cannot directly protect ICHs, it can protect original audiovisual works embodying and/or communicating ICHs. This would enable creators to receive economic remuneration through the reproduction and other use of the works. Considering that copyright owners and authors may not be the same, and copyright owners of the ICH videos may not be local community members, it would be important to set remuneration to communities when ICH elements are used in the creation of the derivative works. In this way, the copyright regime can play a constructive role in ensuring the creators’ benefits and indirectly contributing to the preservation of ICH and the promotion of cultural transmission and exchange.

When ICHs are expressed or commodified through the creation and/or recreation of derivative works, copyright may subsist in those works provided that they meet the copyright protection criteria. More importantly, the exercise of such rights must remain in compliance with applicable legal and ethical standards. For instance, Article 4 of the Chinese Copyright Law requires that in exercising their rights, copyright owners and copyright-related rights holders must not violate the Constitution or laws and must not harm the public interest. Also, the state would supervise and administer the publication and dissemination of works in accordance with the law. This means that the exercise of copyright related to ICHs should be balanced and should not override public interest. The requirement also shows respect for local communities. This is because an ICH was created and belongs to the whole community in that area, and it has been developed generation by generation and highly affected by the local surroundings, customs, and environment in that area (Su 2018). Accordingly, the use of ICHs in derivative works would be permitted on condition that they respect manners, customs and religious beliefs in the group. Such requirements would be useful and important when ICH-related content is massively distributed online to non-specialist audiences.

Except for financial benefits raised by economic copyright, the ‘identification’ of the ICHs should be acknowledged in the creations of derivative works, similar to the moral rights of copyrighted materials that belong to the authors. Creations derived from or inspired by ICHs should uphold and respect the cultural values embedded within the ICHs. This includes avoiding any distortion or misrepresentation of the original cultural expressions. In practice, audiovisual works and other forms of creative expression should clearly acknowledge the relevant ICH, including its name, origin and other necessary information. Such facts related to ICHs should not be altered. For example, when traditional folk music and operas are used in movies, the ICH-related facts should be identified and acknowledged (Hu 2023).

When exercising the right of adaptation or alteration, such modifications must not undermine or deviate from the essential meaning and cultural significance of ICHs. At a minimum, the original meaning and traditional context should be accurately conveyed to reduce the risk of misinterpretation by audiences. Furthermore, emphasis must be placed on safeguarding the moral and spiritual rights of the communities and cultural groups from which the ICH originates. Respect for the cultural integrity in the dissemination and commercialisation of ICHs would be important. This may not always be straightforward in practice, given that the contexts of ICHs may be understood differently across cultural and educational backgrounds. It may not be easy to set a clear boundary in law. However, a workable guiding principle is that such uses should not contradict the introductory guidance issued by relevant local authorities and communities. Official documentation and community-endorsed records may serve as references if disputes arise.

Meanwhile, it is important to keep a balance between the copyright protection of works embodying ICHs and the preservation of ICHs. The purpose of copyright is to balance public interest and individual benefits. The same principle should be applied to protect ICH-related copyright materials. One of the options is to allow the use of copyrighted works embodying ICHs under the principles of fair use, such as in academic research and private non-commercial uses. For commercial uses, fair negotiations are needed to determine the profit-sharing details with the community. To help ensure appropriate remuneration, local authorities and community representations could assist in negotiating and setting payment rates for allocating incomes in ICH derivative works, similar to the licencing practices commonly used in IP industries for artists and musicians. Since ICH safeguarding in China has historically been supported by government departments, local authorities would continue to play a coordinating role among stakeholders. In this way, economic benefits would remunerate community members for their contribution to the preservation of endangered ICHs.

In summary, applying copyright rules to protect creations derived from ICHs would not just incentivise creative activities and remunerate the creators but also indirectly contribute to the preservation of ICHs. When existing ICH rules do not consistently provide sufficient incomes for local communities, copyright law can protect eligible outputs and benefit the fields economically. This method also provides a way to enhance the global dissemination of traditional Chinese culture and the international circulation of ICH-inspired works. In an increasingly interconnected digital environment, short videos and livestreams allow both domestic and international netizens access, learn about and even engage with various forms of Chinese ICHs. Social media offers a platform for introducing ICHs to wider audiences and fostering cross-cultural communication. Since China is already a member of international IP treaties such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement) and the Paris Convention, copyrighted works embodying ICHs, once completed, would receive protection in member states. The commercial success of figures such as Li Ziqi illustrates the significant market potential for ICH-related content and highlights the growing interest in traditional cultural expressions both within and beyond China. Ensuring copyright protection for these works would in return benefit the continued transmission and sustainable development of ICHs.

4. Conclusions

ICHs are valuable cultural heritages for human beings. Through reviewing the origins and development of legal protection for ICHs in Mainland China, this article highlights the importance of safeguarding ICHs. This article first concludes that although ICHs and copyrighted content overlap in some subject matters, the Chinese Copyright Law cannot be directly applied to protect ICHs, mainly due to fundamental differences in underlying approaches between the two laws, as well as limitations of copyright protection, such as the limited protection period. Having said this, after analysing the difficulties of protecting ICHs due to their unique characteristics, this article proposed the necessity of using copyright regimes to protect creations embodying ICHs. It argues that copyright can play a supplementary role in safeguarding the interests associated with ICHs, particularly when traditional cultural expressions are transformed into copyrightable outputs, including artistic works, sound recordings and audiovisual productions such as films. Remuneration to ICH communities in these works would be important.

By doing so, the copyright protection for works derived from ICHs would economically benefit both the communities and individuals associated with ICHs and the broader public, via preserving and enhancing societal understanding and appreciation of ICHs. Meanwhile, emphasis on moral rights helps ensure the use of ICHs in derivative works is framed not only for economic purposes but also for showing respect to cultural integrity, identification and community interests. Finally, the recommendations presented in this article may offer valuable insights for the ongoing discussion surrounding the Draft and future changes in the regulatory regimes in China.

Preserving, inheriting and developing ICHs is beneficial to safeguard national cultural diversity and promote the communication of cultures at an international level. This article clearly clarifies the unique legal nature of ICHs. Other nations can draw from this analysis to avoid directly transplanting copyright law onto ICH protection without adaptation. Using copyright law in a supplementary manner could provide a reference to other countries where copyright law is being considered for ICH preservation. The findings contribute to future comparative and cross-border discussions that aim to balance community interests in an increasingly globalised cultural economy. The Chinese example discussed in this paper further demonstrates the importance of collaboration between different stakeholders. In practice, cross-border licencing of works embodying ICHs can be more complex. International licencing and negotiations of such works require closer coordination between ICH regimes and IP frameworks. Cooperation from government bodies responsible for ICH safeguarding, non-profit organisations and local communities would be essential.

The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was adopted in May 2024. This article offers a reference for China when considering participating in such international agreements, enabling it to contribute to the global preservation of ICHs while protecting its domestic interests. In addition, fair remuneration and benefit-sharing with ICH communities, as emphasised in this article, suggest that future international legal frameworks of ICHs should move beyond symbolic recognition of ICHs and incorporate economic justice principles, ensuring that communities and individuals associated with ICHs receive equitable benefits from commercialised derivative works. This aligns with broader international discussions on community rights, access and benefit-sharing, and sustainable cultural preservation.