Everyone is a Curator: Digitally Empowering Ethnic Minority Music Sustainability in China

Intellectual Property and ICH

To a culture that has struggled to maintain its customs, traditions, languages, and knowledge from the force of colonization and assimilation there is sometimes an urgency to record or create a tangible record of oral histories, songs, dances, and traditional knowledge before the knowledge keepers have passed away. However, the very act of recording as a way of maintaining their culture for future generations introduces an element of vulnerability because they are now tangible and could be lost, or worse, stolen and sold for commercial gain. The ECura project aims to drive the digital development and sustainable growth of ethnic minority music by harnessing the increasing engagement of communities on social media platforms. The ECura project analyzes the terminology and definitions related to the culture of ethnic minorities in mainland China. It then explores current efforts by organizations like UNESCO and ICH to protect the music cultures of these communities. Following this, the project analyzes the challenges and opportunities facing ethnic minority music cultures from the perspective of copyright management on social media and summarizes the insights gained. Finally, based on these discussions, reflections are provided on ECura’s copyright management practices, along with recommendations for improvement.

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Key Terminology：Indigenous population, indigenous people and minority people?

_{Indigenous populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them and, by conquest, settlement, or other means, reduced them to a non-dominant or colonial condition. These populations today live more in conformity with their particular social, economic, and cultural customs and traditions than with the institutions of the country of which they now form part, under a state structure which incorporates mainly the national, social, and cultural characteristics of other segments of the population that are predominant.[1]}

According to the “UNDP and Indigenous Peoples: A Policy of Engagement” prepared by the United Nations Development Programme (UNDP), the definition of indigenous people:

_{(a) indigenous peoples usually live within (or maintain attachments to) geographically distinct ancestral territories; (b) they tend to maintain distinct social, economic, and political institutions within their territories; (c) they typically aspire to remain distinct culturally, geographically and institutionally rather than assimilate fully into national society; and (d) they self-identify as indigenous or tribal. Despite common characteristics, there does not exist any single accepted definition of indigenous peoples that captures their diversity as peoples. Self-identification as indigenous or tribal is usually regarded as a fundamental criterion for determining whether groups are indigenous or tribal, sometimes in combination with other variables such as “language spoken,” and “geographic location or concentration.[2]}

The 2023 Edition of the IGC’s Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions:

_{The term “Indigenous” Peoples has long been a subject of extensive deliberation and discussion, with no universally accepted definition.}

_{The United Nations Declaration on the Rights of Indigenous Peoples (2007) recognizes the equal human rights of Indigenous Peoples to be free from cultural discrimination and seeks to promote mutual respect and harmonious relations between Indigenous Peoples and States. However, the Declaration does not provide a definition of “Indigenous Peoples.” Globally, the term “Indigenous Peoples” is used, while within mainland China, the term “ethnic minorities” is used.}

_{The term “boriginal People” is a related term. The Oxford Dictionary defines “aboriginal” as: (1) referring to people, plants, and animals that first lived or existed in a land; strictly indigenous, native; (2) inhabiting or occupying a country before the arrival of European colonists and the people brought by them; (3) belonging to the indigenous or earliest known inhabitants of a place; (4) belonging to or characteristic of the Indigenous People of Australia or their languages.}

Indigenous peoples are often defined by their historical continuity with pre-colonial societies, distinct social, economic, and cultural systems, and self-identification as indigenous. The concept of indigenous peoples, as defined by international law, focuses on historical continuity, distinctiveness, and attachment to specific lands. While these criteria could theoretically apply to some Chinese ethnic groups, the complexity of ethnic situations and government reluctance make the application of indigenous rights in China unclear (Wang 2015).[3] In China, the term “ethnic minority” (shaoshu minzu) refers to the 55 officially recognized groups distinct from the Han majority. Although the Chinese government officially declared in the 1990s that there are no Indigenous people in China and used the term ethnic minorities instead, some authoritative organizations like the United Nations (UN) include these Chinese ethnic groups as Indigenous peoples (Hathaway, 2016).[4]

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Regulations on Protecting Indigenous Knowledge and Cultural Expressions: Traditiaonl Knowledge (TK), traditional cultural expressions (TCEs) and Intangible cultural heritage

According to World Intellectual Property Organization (WIPO):

_{Traditional knowledge (TK): know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.[5]}

_{Traditional Cultural Expressions (TCEs): also called “expressions of folklore”, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.[6]}

The federal government is changing its terminology from “traditional knowledge (TK)” to “Indigenous knowledge (IK)”. Protection of Indigenous knowledge and cultural expressions is included in the UN Declaration on the Rights of Indigenous Peoples Article 31:

_{Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.}

_{In conjunction with Indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.}

According to UNESCO Intangible Cultural Heritage:

^{Cultural heritage does not end at monuments and collections of objects. It also includes traditions or living expressions inherited from our ancestors and passed on to our descendants, such as oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature and the universe or the knowledge and skills to produce traditional crafts.}

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Efforts in Protecting Intellectual Property Rights and Traditional Culture of Indigenous Peoples/Ethnic Minorities

• Traditional Knowledge Registries (Declaration) or Creation

Article 16 of Peru’s Law No. 27811, “Law on the Protection of Collective Knowledge Originating from Biological Resources of Indigenous Peoples,” establishes a protective framework for the collective knowledge of indigenous peoples related to biological resources, focusing on recognizing their rights, ensuring informed consent, and promoting equitable benefit-sharing：

https://www.wipo.int/wipolex/en/legislation/details/3420

Indigenous peoples’ collective knowledge can be registered in three types of registries:

_{(a) National Public Registry of Indigenous Peoples’ Collective Knowledge.}

_{(b) National Confidential Registry of Indigenous Peoples’ Collective Knowledge.}

_{(c) Local Registry of Indigenous Peoples’ Collective Knowledge.}

• Indian Traditional Knowledge Database

• Intellectual Property Rights

Intangible Cultural Heritage (ICH) see more on：https://ich.unesco.org/en/home

Intellectual Property Rights (IPR)

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Intersection and Challenges of Three Major Conventions

• The protection of traditional cultural expressions raises issues related to the preservation and safeguarding of cultural heritage, primarily falling under the United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Convention (1972).
• The Convention for the Safeguarding of the Intangible Cultural Heritage (2003).
• The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005).

The challenges are the potential issues encountered in the practical implementation of these conventions, despite their aim to protect and preserve cultural heritage. These challenges may include defining heritage, determining ownership rights, establishing implementation mechanisms, among others, which could result in less-than-ideal outcomes in the enforcement of these conventions.

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China’s Primary Methods for Protecting Intangible Cultural Heritage (Including Traditional Songs of Ethnic Minorities)

Law of the People’s Republic of China on Intangible Cultural Heritage: This law stipulates that the protection of intangible cultural heritage should respect the rights of its inheritors and encourage the transmission and development of such heritage. The protection approach prioritizes preservation and rescue, combining both holistic and key protection strategies, as well as integrating material and intangible protections.

Intangible Cultural Heritage List: The Ministry of Education and the Ministry of Culture and Tourism of the People’s Republic of China jointly publish and maintain the Intangible Cultural Heritage List, which is categorized at the national, provincial, municipal, and county levels. Projects listed receive special protection and support from both national and local governments.

Inheritors of Intangible Cultural Heritage: Recognized inheritors by the Chinese government play a crucial role in the preservation, transmission, and promotion of intangible cultural heritage. They are vital components of the protection efforts.

Protection Zones and Exhibition Venues for Intangible Cultural Heritage: The Chinese government has established protection zones and exhibition venues across various regions to preserve and showcase intangible cultural heritage. These sites also serve as centers for research and educational activities related to heritage preservation.

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Related resources

Anderson, Jane. “Indigenous knowledge, intellectual property, libraries and archives: Crises of access, control and future utility.” Australian Academic & Research Libraries 36, no. 2 (2005): 83-94.

Brown, Deidre, and George Nicholas. “Protecting indigenous cultural property in the age of digital democracy: Institutional and communal responses to Canadian First Nations and Māori heritage concerns.” Journal of Material Culture 17, no. 3 (2012): 307-324.

Graber, Christoph Beat, and Mira Burri Nenova, eds. Intellectual property and traditional cultural expressions in a digital environment. Edward Elgar Publishing, 2008.

Moahi, Kgomotso H., I. N. Mazonde, and P. Thomas. “Copyright in the digital era and some implications for indigenous knowledge.” Indigenous Knowledge Systems and Intellectual Property in the Twenty-First Century (2007): 66-77.

Moahi, Kgomotso H., I. N. Mazonde, and P. Thomas. “Copyright in the digital era and some implications for indigenous knowledge.” Indigenous Knowledge Systems and Intellectual Property in the Twenty-First Century (2007): 66-77.

Zhu, Yujie, and Christina Maags. Heritage politics in China: The power of the past. Routledge, 2020.
Zhang, Juwen, and Xing Zhou.

Introduction: The Essentials of Intangible Cultural Heritage Practices in China: The Inherent Logic and Transmission Mechanism of Chinese Tradition.” Western Folklore 76, no. 2 (2017): 133–49.

An, Deming, and Lihui Yang. “Chinese folklore since the late 1970s: Achievements, difficulties, and challenges.” Asian Ethnology 74, no. 2 (2015): 273-290.

You, Ziying. Folk Literati, Contested Tradition, and Heritage in Contemporary China: Incense Is Kept Burning. Indiana University Press, 2020.

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Collected, organized and edited by Keyi Liu