從財產權理論看我國原住民族傳統智慧創作之審查實務

我國原住民族傳統文化表達因無法符合一般智慧財產權要件，而存之於公共領域，發生許多對大部分原住民族而言是文化挪用之情形，例如模仿使用或歪曲割裂使用等等。直至民國（下同）96年，「原住民族傳統智慧創作保護條例」制定後，原住民族傳統文化表達方受法律規範保護，他人不得再隨意侵害原住民族之文化成果，此法亦成為首部積極確認原住民族集體性權利之法律。「原住民族傳統智慧創作保護條例」採專用權模式及登記保護主義，原住民族傳統文化表達—在法條中稱作「原住民族傳統智慧創作」—須通過審查認定並登記後，方取得「原住民族傳統智慧創作專用權」而受到法律保護。不過，相關申請及審查規範於104年才公布施行，又直至106年10月方核發首批共七項原住民族傳統智慧創作專用權，當時其他多件申請案仍在審查階段，遭外界認為成效不彰；因此令人好奇原住民族傳統文化表達之保護是否有困難，若有困難又該如何解決？本文認為此問題有探究之必要。原住民族傳統智慧創作專用權雖有別於一般智慧財產權，惟其性質仍具財產權屬性，因此本文首先以美國學者Henry E. Smith之財產權理論，從應然面之角度分析原住民族傳統文化表達應如何管理並檢視目前規範，發現原住民族傳統文化表達因具高資訊成本，故管理上應傾向排除體制，而原住民族傳統智慧創作保護條例即是以排除體制為原則之混合體制；本文再進一步以資料檔案及文獻回顧、參與觀察法以及質性訪談法針對審查實務進行實證研究，從實然面之角度以財產權理論探討目前原住民族傳統智慧創作保護制度是否妥適，本文認為目前制度之資訊成本仍相當高，因此提出降低資訊成本之建議，期能提供未來實務操作、甚至修法之參考。

關鍵字

原住民族傳統文化表達；原住民族傳統智慧創作；財產權理論；排除體制；管理體制；溝通理論；模組理論

並列摘要

Traditional cultural expressions of indigenous peoples in Taiwan had been in public domain for not meeting the requirements of existing intellectual property laws. As a result, they had been copied and distorted by the public, which is considered by mostly indigenous peoples to be a cultural appropriation. Traditional cultural expressions of indigenous peoples had not been legally protected until “Protection Act for the Traditional Intellectual Creations of Indigenous Peoples”(Act) was legislated in 2007. Thus, the public cannot arbitrarily infringe them anymore. Moreover, this Act was the first positively confirmed Act for the collective rights of indigenous peoples ever legislated. The Act adopts “the exclusive right to use” mode and the registration system. To be more precise, “the exclusive right to use” shall not be obtained until traditional cultural expressions, which are called “traditional intellectual creations” in the Act, have been determined and approved by registration. Nevertheless, related collateral applicating regulations had not been implemented until 2015, and it was not until Oct. 2017 that the authorities approved “exclusive right to use” to the first batch of seven traditional intellectual creations in total. It was regarded to be unproductive that the authorities only approved seven applications, not to mention the fact that there were still many applications at determinative stage at that time. Therefore, critics have suspected the effectiveness of the system, as to wonder if there could possibly be any difficulties in protecting traditional cultural expressions of indigenous peoples, and how should the difficulties be resolved, which are both necessarily worth to discuss. The exclusive right to use intellectual creations is different from general intellectual property right. However, its nature is still of “property”. Hence, this Thesis will adopt Henry E. Smith’s Property Theory to analyze how traditional cultural expressions of indigenous peoples are supposed to be managed from oughtness, and this Thesis will argue that traditional cultural expressions of indigenous peoples are of high information cost so that they shall tend to be managed in exclusion regime. After scrutinizing the present law in Taiwan by the Property Theory, this Thesis will then argue that it is a mixed-regime based on the principle of exclusion. Next, this Thesis will argue that the information cost of present scheme of intellectual creations is still relatively high after doing an empirical research on present determination practices by literature review, participant observation and qualitative interview research methods. Finally, this Thesis will propose ways to lower the information cost based on the Property Theory and the result of empirical research, which might provide potential reference for future practices or even further amendments to the laws.