Making it mine - copyright or copy wrong?

A woman paints decorative parts of palace lanterns in a factory in Pan'an, east China's Zhejiang province. Local palace lantern business saw a peak season as the traditional Chinese new year is approaching. The Chinese palace lantern is a popular decoration for the Spring Festival, Chinese new year on the Lunar calendar.  

Tuntou village's palace-lantern industry shines a light on China's need to develop well-conceived and detailed management systems of intellectual property rights and their role in cultural heritage preservation.

The settlement's industry has no doubt created a brilliant local economy. The average annual salary is 15,000 yuan ($2,400) a year. Few locals migrate to cities. Instead, farmers from other villages migrate to Tuntou, the Party chief told me last year.

Zhang Fengjun, the only provincially designated intangible cultural heritage inheritor of palace lantern-making, says that's partly because he owns nine patents related to the craft born in the Eastern Han Dynasty (AD 25-220).

"I've been successful in introducing this heritage to the market and industrializing it," Zhang told me.

What I wasn't able to divine during the interview is exactly how innovative Zhang's patents are. Yet there doesn't seem to be evidence they've inhibited the preservation of intangible cultural heritage's legacy in Hebei province's Gaocheng county, which produces 90 percent of the world's palace lanterns.

But the very fact they exist begs sobering questions about ownership and cultural heritage.

One is: What kind of a precedent do such cases create?

While Gaocheng's heritage hasn't visibly suffered and has seemingly benefited - although we can only speculate about how history may have played out without the patents - it seems likely intellectual property rights may hinder other Chinese cultural heritage forms in other places.

That's almost a certainty if the patents are too broad and aren't based on true innovations upon, but rather confiscations of, existing heritage forms.

Even entertaining the question of takers' "rights" departs from the ethos of cultural heritage. (Makers' rights is another question.)

China Art Institute researcher Yuan Li points out: "Intangible cultural heritage is regional, which means it belongs to many people in a specific area. Patents are exclusive. That runs against tradition and intangible cultural heritage's essence."

The country should look to how this question is playing out in other parts of the world to develop the best management - especially since other parts of the world may start claiming rights to China's cultural heritage.

Exhibit A: Time Warner Inc's Warner/Chappell Music is being sued by Good Morning to You Productions Corp to demand a refund of the $1,500 licensing fee it paid the corporation, the copyright owner of Happy Birthday to You - listed in the 2008 Guinness Book World Records of as the most recognized English-language song - contending the traditional tune belongs to the public domain.

Media report Warner claims exclusive rights to "every use in film, television, radio, anywhere open to the public, and for any group where a substantial number of those in attendance are not family or friends" and earned $2 million from the song in 2008.

Exhibit B: India's government has gone to the mat to fight US patents of yoga moves.

It argues "yoga theft" defies the very soul of the spiritual practice. Not only does yoga belong to the cultural commons but by no stretch of the imagination are the patents based on innovation. Rather, they're based on the usurpation of something that belongs to traditional and modern Indian culture, and, arguably, to us all.

While the Happy Birthday case shows what could happen if China allows cultural heritage to be patented provincially or nationally, the yoga case reveals the dangers if it doesn't protect itself from overseas entities' patenting.

If Americans can patent yoga moves, what's to stop a foreign entity from claiming property rights over the peacock dance's hand gestures? The patterns of particular traditional Chinese opera masks? Shandong brocade? (Yuan points out the brocade genre has already led to intellectual property lawsuits among Chinese companies.)

There is room for debate about whether true innovations on intangible cultural heritage should be available for patenting - that is, provided they're really innovations upon, rather than confiscations of, heritage. Both copyright and "copy left" advocates make good points on this.

But there's less space for debate when it comes to the question of takers versus makers - those who appropriate rather than create our cultural commons.