The System of Taiwan's Cultural Heritage Preservation Act of Indigenous Peoples: The Comparison with International Conventions and Cultural Heritage Preservation Legal System of the U.S.

Autor:	Yu, Fang-Chen, 余芳珍
Rok vydání:	2014
Druh dokumentu:	學位論文 ; thesis
Popis:	102 Taiwan’s “Cultural Heritage Preservation Act” was enacted and enforced on May 26, 1982. It has been revised for seven times since then: the first revision was announced on January 22, 1997, the second revision was announced on May 14, 1997, the third revision was announced on February 9, 2000, the fourth revision was announced on June 12, 2002, the fifth revision was announced on February 5, 2005, the sixth revision was announced on November 9, 2011, and the seventh revision was announced on July 27, 2016. In the first four revisions, only some articles are revised; the fifth one is the first comprehensive revision and the seventh one is the second comprehensive revision. The seventh revision is also the widest in revision range since the lawmaking in 1982. The existing “Cultural Heritage Preservation Act” does not directly involve the cultural heritage of indigenous peoples; “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” refers to “traditional religious ceremonies, music, dance, songs, sculptures, weaving, patterns, clothing, folk crafts or any other expression of the cultural achievements of indigenous peoples” and does not contain the preservation of antiquities and monuments. “Regulations of Treatment of Cultural Heritage of Indigenous Peoples” was made on July 18, 2017, but its object of protection overlaps with that of “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples.” Therefore, the difference between “cultural property” and “intellectual property” is the motivation of this thesis. From the perspective of comparison, this thesis started with international conventions and American law related to cultural heritage to analyze and discuss the difference between “cultural property” and “intellectual property,” to further analyze the particularity of cultural heritage of indigenous peoples, in a hope that the feasible suggestions for revising the law of cultural heritage protection of indigenous peoples can be proposed. The “文化資產保存法” of Taiwan is translated into the Cultural Heritage Preservation Law, where "cultural heritage" means to protect the culture that is worth preserving and handing down to the future generations with the core of the inheritance from our ancestors. “文化資產” is translated into “cultural property,” which bears the implication of the property rights, aiming to protect the right of the owner. The Cultural Heritage Preservation Law of Taiwan is characteristic of the property rights. Therefore, in terms of its English translation, it is necessary to deliberate on it again to determine its legal issue of “cultural property.” Prior to the announcement and enforcement of “Regulations of Treatment of Cultural Heritage of Indigenous Peoples,” in terms of the preservation and maintenance of cultural heritage of indigenous peoples, “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” enacted and enforced on December 26, 2007 is the first law paying attention to this issue. If “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” and “Cultural Heritage Preservation Act” overlapping in implementation time are compared, the former’s subject of right is indigenous peoples, but their object of protection has the high similarity, namely it is necessary to narrate in details how the “intellectual creations” of “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” is distinguished from the “intangible cultural heritage” of “Cultural Heritage Preservation Act.” If the subject of right is limited to the indigenous peoples, and “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” and “Regulations of Treatment of Cultural Heritage of Indigenous Peoples” are compared, although the purpose of legislation of the two aforesaid acts is protecting the culture of indigenous peoples, the above-mentioned doubt still exists, namely the two objects of protection overlap mutually, which has been clearly stated in Article 13 (legislation reason) in “Regulations of Treatment of Cultural Heritage of Indigenous Peoples.” In spite of the stipulations of this article, “where the people are recognized and registered by ‘Protection Act for the Traditional Intellectual Creations of Indigenous Peoples’ as traditional intellectual creations before cultural heritage of indigenous peoples, their preserver shall take the people having the exclusive rights of traditional intellectual creations as a priority;” if the people are recognized and registered by “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” as traditional intellectual creations before cultural heritage of indigenous peoples, it is necessary to further think about carefully how to distinguish the expression of cultural achievements of indigenous peoples and intangible cultural heritage of indigenous peoples, which involves which kind of law is applicable to protect it. The cultural property mainly protects the tangible culture whose main topics are the retention, repartition, and preservation of the ownership. Different from the cultural property, the intellectual property that is also committed to protecting culture focuses on the commercial development of works and knowledge, as well as the control of the circulation of the object, thus characterized by the public domain. However, as the traditional knowledge and culture are also the object of portection of the intellectual property, in terms of the cultural heritage preservation of indigenous peoples, compared with the distinction between the intellectual property and the cultural property, it may be better to distinguish the intellectual property from the cultural heritage. In this way, the concept of the collective ownership of indigenous peoples will be more highlighted, so will their culture and characteristics inherited from their ancestors. In terms of the suggestions for revising the law, this thesis puts forward the following programs. 1. The purpose of legislation of “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” and “Regulations of Treatment of Cultural Heritage of Indigenous Peoples” is preserving and maintaining the culture of indigenous peoples, but their object of protection – “intellectual creations” of “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” and “intangible cultural heritage of indigenous peoples” of “Regulations of Treatment of Cultural Heritage of Indigenous Peoples” overlap mutually. The shortcoming of this overlapping has been stated clearly in Article 13 (legislation reason) in “Regulations of Treatment of Cultural Heritage of Indigenous Peoples.” This thesis believed that if the reproducibility and nonexcludability traits possessed by “intellectual creations” and the trait of incommensurability of “cultural property” are used as the argument basis to distinguish the two, the former’s top concern is market value and the latter’s core is the preservation, maintenance, authentication and return of cultural relics, or the more specific division can be proposed. 2. Since the definition of “object of antiquity” or items related to “archaeological resources” of indigenous peoples may not the same as non-indigenous peoples, it is necessary for non-indigenous peoples to discuss this topic with indigenous peoples, and then to legislate to preserve and mantain the cultural heritage of indigenous peoples in Taiwan. 3. In regard to the return of cultural relics of indigenous peoples, in the field of international laws, United Nations Educational, Scientific and Cultural Organization entrusted International Institute for the Unification of Private Law and Hague Conference on Private International Law to enact “UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects” in 1995. “UNIDROIT Convention” and “United Nations Declaration on the Rights of Indigenous Peoples” passed by United Nations Educational, Scientific and Cultural Organization in 2007 proposed the relevant stipulations on this issue. In the United States, “The National Museum of the American Indian Act of 1989” allowed the indigenous peoples’ cultural relics collected and preserved by Smithsonian Institution to be returned to American indigenous peoples, which is also the first time that the United States Congress has recognized that the Native Americans have the right to claim for the return of their cultural relics. “Native American Grave Protection and Repatriation Act of 1990” further expands it to all the institutions, museums and universities subsidized by the federal government and makes the more detailed legislative procedure for the return of cultural relics of Native Americans. However, Taiwan’s “Cultural Heritage Preservation Act,” “Regulations of Treatment of Cultural Heritage of Indigenous Peoples,” and “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” do not stipulate the issue of return of cultural relics of indigenous peoples; therefore, the making of the relevant laws and regulations should be based on the above-mentioned international laws and related American laws. 4. “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples” stipulates that the intellectual creators must have the identity of indigenous peoples. The legislative purpose of this article of law is to ensure the livelihood of indigenous peoples, but the ethnicity divides of indigenous peoples on this act follow the official view during Japanese colonial period, so it has the strong political complexion. With the perspective of the “theory of cultural essence,” this article gives tacit consent to the fact that each ethnic group has its unique culture to be used to protect the legislative foundation of protecting the culture of indigenous peoples. Thus, it not only differs greatly from the phenomenon that the cultural appropriation occurs in each ethnic group, but also easily causes the disadvantages of cultural rigidity to each ethnic group. Therefore, it is the directions of law revision to consider how to gain a balance between protecting the culture of indigenous peoples and guaranteeing indigenous peoples’ life, and gaining more creative ideas by brainstorm among various ethnic groups’ cultures, so as to further increase market potential. 5. In regard to the procedure of cultural heritage preservation, individuals or organizations can propose and report it actively, but the investigation power of cultural heritage must be exercised upon the delegation of competent authorities, namely people’s independent execution of power is not allowed. The specific operation method of review committees is determined by central governing authority, so it may cause the arbitrary exercise of administrative discretion. In terms of the selection and appointment of members of review committees, it is proposed that a certain proportion of citizen seats is set, the public’s auditing is opened in the final decision stage of committee meetings, and Bureau of Cultural Heritage is willing to formulate the Guildlines for the public’s auditing the committee meetings, especially “Regulations of Treatment of Cultural Heritage of Indigenous Peoples.” Although the representative seats of indigenous peoples in review committees have been stipulated expressly, the considerable guarantee seats should also be given in the public’s auditing, so as to avoid the situation that the experts and scholars monopolize the right to speak in cultural heritage preservation, which leads to the situation that the issue of cultural heritage preservation becomes the field for which the professionals fight in political power. 6. In terms of cultural heritage preservation and mentenance, the U.K. and the U.S. adopt national trust system to encourage all the people to work together to participate. At present, there is no national trust system in Taiwan, but it is feasible to apply Article 69 of “Trust Law” – “Charitable Trust” to realize the cultural heritage preservation and mentenance. In addition, Taiwan’s legislation of cultural heritage preservation of indigenous peoples can also refer to “Regulations Supervising the Permission for Charitable Trust of Culture” announced in 2002, which was formulated by “Charitable Trust” – Article 69 of “Trust Law,” as well as “Regulations Supervising the Permission for Charitable Trust of Environmental Protection” announced in 2003. 7. The indigenous people is a part of Taiwanese culture, so it is necessary to educate the culture of indigenous peoples in the schools at each level, so as to carry out the thought of Taiwan-centered subjectivity. The Article 16 of “Regulations of Treatment of Cultural Heritage of Indigenous Peoples” has elaborated the educational promotion of particularity of cultural heritage of indigenous peoples, but if the weekly teaching hours related to the knowledge of cultural heritage of indigenous peoples in the schools at each level are stipulated clearly, it will be beneficial for Taiwanese to understand the particularity of indigenous peoples’ culture and thought.
Databáze:	Networked Digital Library of Theses & Dissertations
Externí odkaz:	http://ndltd.ncl.edu.tw/handle/gh85nq Zobrazit plný text záznamu