Abstract: The issue of protection of intellectual property and traditional resource has been under international discussion coordinated by WIPO for more than twenty years. There is a gap between the Treaty on GRATK, which is achieved based on the consensus of source-disclosure principle and the defensive protection against wrongful patent grants, and the “Access & Benefit Sharing” mechanism proposed by Convention on Biological Diversity. For the traditional cultural expressions or folklores available in the public domain, the copyright-like protection is controversial since the divergence is obvious between the view of exclusive right protection and that of free public domain. Looking from the trend of negotiations on an international instrument, a shift from the expectation of a “license & royalty” to the “attribution & moral rights” as bottom line might be more realistic for the protection of folklores already in the public domain. The adjustment is also needed in domestic law to safeguard the transmission and utilization of traditional cultural expressions, if necessary. 

Keywords: folklore; GRATK Treaty; international consensus; copyright; moral right 

Author: Guan Yuying, research fellow, CASS Institute of Law; director, CASS Center of Intellectual Property Studies.

Source: 1 (2025) China Copyright.