18/05/2020
LEGAL PROTECTION OF VIETNAMESE FOLKLORE (Part 1)
Vietnam’s traditional cultural expressions are abundant and diverse. Foreign tourists are always attracted by the beautiful lyrics and tunes of quan họ, ca trù, and nhạc cung đình Huế (Hue royal court music). They are also interested in the distinctive architectural styles of traditional houses and buildings of Vietnamese people. There are a great number of carnivals offering different attractive religious rituals, music, dances, games and other actions to tourists. Quan họ, ca trù, nhạc cung đình Huế, chèo, cải lương, tranh đông hồ (d**g ho paintings), nhà rông and other folkloric expressions of Vietnam are those of intangible value which can be used as cultural mysteries to inspire tourists to come to Vietnam to discover.
However, Vietnamese folklore cannot be commercialized safely and efficiently unless it is appropriately protected. Therefore, our article will discuss how to provide legal protection for Vietnamese folklore in order for efficient commercialization of it as well as preservation of its diversity and integrity. This article is divided into three sections. The first section will define what folklore is. The second section will answer the question whether the types of conventional intellectual property are appropriate to protect Vietnamese folklore. The third section will recommend an alternative system to protect folklore.
1. Vietnamese Folklore
1.1. Definition of Folklore
According to Mariaan De Beer, folklore would seem to include both traditional expressions of culture which have existed over generations, and more recently developed and developing reflections of the community in which they are developed (Mariaan De Beer, 2006, p99). As defined by the American Folklore Society (what is Folklore 2016):
Folklore is the traditional art, literature, knowledge, and practice that is disseminated largely through oral communication and behavioral example. Every group with a sense of its own identity shares, as a central part of that identity, folk traditions–the things that people traditionally believe (planting practices, family traditions, and other elements of worldview), do (dance, make music, sew clothing), know (how to build an irrigation dam, how to nurse an ailment, how to prepare barbecue), make (architecture, art, craft), and say (personal experience stories, riddles, song lyrics). As these examples indicate, in most instances there is no hard-and-fast separation of these categories, whether in everyday life or in folklorists’ work.
The above definition provides a wide-ranging coverage of traditional cultural items incorporated into folklore. Similarly, the definitions of folklore by UNESCO and WIPO do not provide a close-ended list of expressions of folklore. In the view of UNESCO, folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group of individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means (UNESCO, 1989 as cited in Justice Ronald Sackville, 2003, p.716). As explained by WIPO, the term “traditional culture expressions” and the term “expression of folklore” are used interchangeably, and abbreviated to “TCEs”. WIPO conceptualized “TCEs” as follows: (a) are the products of creative intellectual activity, (b) have been handed down from one generation to another, either orally or by imitation, (c) reflect a community’s cultural and social identity, (d) consist of characteristic elements of a community’s heritage, (e) are made by authors unknown and/or unlocatable and/or by communities, (f) are often primarily created for spiritual and religious purposes, (g) often make use of natural resources in their creation and reproduction, and (h) are constantly evolving, developing and being recreated within the community (The protection of Traditional Cultural Expressions: Draft Gap Analysis 2008).
The definition given by WIPO is broad enough to cover all cultural creations made by an unknown individual author or a community which are handed down from generation to generation, reflect a community’ cultural and social identity, and bear the characteristics elements of a community’s heritage. Under this definition, the creations are not required to be fixed in a tangible medium to obtain the protection. Therefore, a country may protect a broad range of traditional creations as folklore at its own discretion.
With its thousand-year history, Vietnam has inherited rich folklore coming from Kinh and its brother ethnic groups. Vietnamese folkloric expressions exist in both tangible medium and intangible medium. In Vietnam, the types of folkloric expression are very diverse. They encompass folktales, legends, myths, proverbs, folk poems, traditional music, rituals, dances, and musical instruments, designs of traditional clothing, architectural forms, traditional foods, crafts, sewing, and so forth. Therefore, it could be recommended that Vietnam should borrow the definition of “expression of folklore” developed by WIPO to conceptualize “expression of folklore” in its own law.
(To be continued)
References
English documents
1. Alexander Bussey (2014), Traditional Cultural Expressions and the U.S. Constitution, 10 Buff. Intell. Prop. L.J. 1.
2. Amos Saurombe (2009), The Protection of Indigenous Traditional Knowledge through the Intellectual Property System and the 2008 South African Intellectual Property Law Amendment Bill, 4 J. Int'l Com. L. & Tech. 196.
3. Bryan A. Garner (2001), Black’s Law Dictionary, Second Pocket Edition, West Group, A Thomson Company, St. Paul. Minn.
4. Deming Liu (2005), Can Copyright Lend its Cinderellaic Magic to Chinese Folklore? 5 J. Marshall Rev. Intell. Prop. L. i 2005-2006
5. Dr. Silke von Lewinski (2003), The Protection of Folklore, 11 Cardozo J. Int'l & Comp. L. 747 2003-2004.
6. Gertrude Torkornoo (2012), Creating Capital from Culture – Rethinking the Provisions on Expressions of Folklore in Ghanna’s Copyright Law, 18 Ann. Surv. Int'l & Comp. L. 1.
7. Juan Andés Fuentes (2003), Protecting the Rights of Indigenous Cultures under the Current Intellectual Property System: Is It a Good Idea? 3 J. Marshall Rev. Intell. Prop. L. i 2003-2004.
8. Justice Ronald Sackville (2003), Legal Protection of Indigenous Culture in Australia, 11 Cardozo J. Int'l & Comp. L. 711 2003-2004.
9. Lucy M. Moran (1997), Intellectual Property Law Protection for Traditional and Sacred “Folklife expression” – Will Remedies become available to Cultural Authors and Communities, 6 U. Balt. Intell. Prop. L.J. 99 1997-1998.
10. Mariaan De Beer (2006), Protecting Echoes of the Past: Intellectual Property and Expressions of Culture, 12 Canterbury L. Rev. 94.
11. Meghan Ruesch (2007), Creating Culture: Protection of Traditional Cultural Expressions and Folklore and the Impact on Creation and Innovation in the Marketplace of Ideas, 35 Syracuse J. Int'l L. & Com. 369 2007-2008.
12. Meghana RaoRane (2006), Aiming Straight: The Use of Indigenous Customary Law to Protect Traditional Cultural Expressions, 15 Pac. Rim L. & Pol'y J. 827.
13. Molly Torsen (2008), Intellectual Property and Traditional Cultural Expressions: Synopsis of Current Issues, 3 Intercultural Hum. Rts. L. Rev. 199.
14. Rosa Giannina Alvarez Núnuez (2008), Intellectual Property and the Protection of Traditional Knowledge, Genetic Resources and Folklore: The Peruvian Experience, 12 Max Planck Y.B. U.N. L. 487.
15. Srividhya Ragavan (2001), Protection of Traditional Knowledge, 2 Minn. Intell. Prop. Rev. 1.
16. Teshager Dagne (2012), The Protection of Traditional Knowledge in the Knowledge Economy: Cross-Cutting Challenges in International Intellectual Property Law, 14 Int'l Comm. L. Rev. 137.
17. Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Thirteenth Session, The protection of Traditional Cultural Expressions: Draft Gap Analysis, Document prepared by the Secretariat, WIPO/GRTKF/IC/13/4(b) Rev. (October 11, 2008), available at www.wipo.int/edocs/.../wipo_grtkf_ic_13_4_b_rev.pdf
18. http://www.afsnet.org/?page=WhatIsFolklore
19. http://www.wipo.int/wipolex/en/text.jsp?file_id=186459
Vietnamese documents
1. Đăng Trường & Hoài Thu (2013), Trang phục truyền thống của các dân tộc Việt Nam, Nhà xuất bản Văn hóa – Thông tin.
2. Ngô Đức Thịnh (2009), Bản sắc văn hóa vùng ở Việt Nam, Nhà xuất bản Giáo dục Việt Nam.
3. An Bang (2016), 90% món ăn cung đình Huế là "dỏm", (last visited on May 09, 2016).
4. Chí Kiên (2016), Công bố nhãn hiệu tập thể Nón Chuông, http://hanoimoi.com.vn/…/cong-bo-nhan-hieu-tap-the-non-chuo… (last visit May 28, 2016).
5. Danh sách các chỉ dẫn địa lý đã được bảo hộ tại Việt Nam được cập nhật đến ngày 26/7/2013,
http://www.noip.gov.vn/web/noip/home/vn…
6. Ngô Khắc Lịch (2016), Nghề dệt thổ cẩm ngày càng gặp khó khăn, http://baolamd**g.vn/…/nghe-det-tho-cam-ngay-cang-gap-kho-…/ (last visited on May 09, 2016).
7. Phát triển Nước mắm Phú Yên thành thương hiệu mạnh (2016), http://congan.phuyen.gov.vn/…/199-phat-trin-nuc-mm-phu-yen-… (last visit May 28, 2016).
8. Quốc Hồng (2016), Bắt giữ lô hàng thổ cẩm Trung Quốc nhập lậu, http://www.nhandan.com.vn/…/26849202-bat-giu-lo-hang-tho-ca… (last visited on May 09, 2016).
9. Sở Công Thương Tỉnh Hà Nam (2016), Làng nghề Hà Nam xây dựng thương hiệu Bánh đa nem làng Chều, http://www.moit.gov.vn/…/lang-nghe-ha-nam-xay-dung-thuong-h… (last visit May 28, 2016).
10. Việt Nga (2016), Nỗi buồn thổ cẩm , (last visited on May 09, 2016).
This paper was written and presented by Do Minh Tuan and Nguyen Hong Hanh at the Conference Proceeding - Exploitation of Local Intellectual Assets in Tourism Development – FTU, NOIP, NEU & General Department of Tourism in 2016.
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