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原住民族傳統智慧創作之歸屬與運用:集體財產管理制度之探討
Journal article

原住民族傳統智慧創作之歸屬與運用:集體財產管理制度之探討

居正 黃 and 盈翠 邱
臺灣社會研究季刊, Vol.90, pp.1-42
2013

Abstract

原住民族傳統智慧創作;原住民族傳統智慧創作保護條例;集體管理;集體財產;特殊權利;Indigenous traditional cultural creations;Protection act for traditional intellectual creati;Collective management;Collective property;Sui generis

Under the indigenous property consciousness, the entitlement and conferment depend not upon the insertion of labor, but the evaluation and measurement of the tribal community through their communal philosophy. Therefore, consensus over such conferment is usually reflected in their collective management system over communal property, which includes the formality of ownership, the ways of utilization, and the benefit sharing. Multiculturalism and indigenous human rights consequently play indivisible roles in determining the entitlement, which also evidences the scope of public domain would not be decided upon single factor such as economic efficiency only.This article will start with the peculiarity of the indigenous property system including the traditional cultural creations, mainly their diversity to the civil law IP regime. Then the formation and context of collective management system would be deplored by way of comparing domestic and international materials. Finally, some field researches over current collective management practices pertaining to the application and licensing in the indigenous community in Taiwan will be introduced, so to conclude with suggestions both policy-wise and infrastructural-wise.

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