非物质文化遗产的公共属性

Public Nature of Intangible Culture Heritage·

非物质文化遗产具有文化本位性和公共物品的属性,关系公共利益,公权保护是最适合的保护方式。我国应该尽快立法,明确由政府承担保护非物质文化遗产的主要责任,以公权为基础,主要运用公法手段,在政府的主导下采取各种措施为非物质文化遗产的传承和发展提供平台、创造条件。非物质文化遗产的开发利用与保护是不同性质、不同领域的问题,政府应当引导和规范非物质文化遗产的开发利用和产业化,保证公共利益不被损害。

Intangible culture heritage has the value and function of protecting cultural diversity and increasing group identification. The protection of intangible culture heritage which plays an im- portant role in the development of human society reflects the growing of man^s spiritual and cul- tural demand after their material life is basically satisfied. There are a lot of problems in the theory and practice of China＇s intangible cultural heritage protection. In theory, some scholars confuse the intangible cultural heritage with its manifesta- tion and try to realize the protection of intangible cultural heritage through private rights. In prac- tice, some local governments and enterprises industrialize intangible cultural heritage in the name of protecting it, only focusing on its economic benefits and neglecting its cultural character. Such practice has divorced intangible culture heritage from its original cultural environment and made it lose its original substance and essence. Intangible culture heritage, relating to the public interest, is of the nature of culture role and public goods, therefore, to protect it through public authority is the most appropriate mode. Al- though private rights can protect the manifestations of intangible cultural heritage and may thus protect it indirectly, there are many serious limitations in it. Private rights are to protect private interest, and can not play a fundamental role in protecting public interest. Meanwhile, the market rules can only resolve the problem of interest assignment of intangible cultural heritage and can not resolve the problem of its declination. Therefore, the government, as the representative of public interest, is to assume the respon- sibility to protect intangible cultural heritage. Relevant laws should be made to stipulate the re- sponsibility of government and adopt various public law measures to support and guide the protec- tion of intangible cultural heritage. The government should provide a platform and create necessa- ry conditions for the protection of it so as to promote its inheritance and innovation. Besides, the government should actively guide and standardize the development, utilization and industrializa- tion of intangible culture heritage and prevent improper utilization of it so as to protect the public interest from being infringed.