Updated: May 6, 2020
What are the laws for cultural fashion?
The aim of this new blog posts series run by the Cultural Intellectual Property Rights Initiative is to introduce our public to some of the wonderful and precious handmade crafts produced all over the World, which are the expression of ancient traditions and traditional knowledge. In addition to that, we will complement your reading with information on the legal protection provided by the Country of origin to its traditional cultural expressions and cultural heritage.
We start with Vietnam.
More than 50 ethnic groups compose Vietnam today (54 officially recognized by the Vietnamese government), each of them with their own cultural identity (language, lifestyle, cultural heritage). Given the rich Vietnamese traditional craft heritage, we can only present two of the most popular and recognizable cultural products, leaving the rest for you to personally research.
In the 18th century, during the civil war, the South of Vietnam was governed by the Lord Nguyen Phuc Khoat who amended a Decree whose purpose was to change the way in which his people dressed. Before that moment Vietnamese clothes were very similar to the Chinese ones and the Lord wanted to give the image of an independent land.
Thanks to that Decree, the Ao Dai was born in 1774 and when the North and South of Vietnam were unified in 1802 the Ao Dai became the traditional gown of the whole Country.
The Ao Dai is composed of a top flowing above long wide trousers, with a straight collar (or more rounded for men). It is handmade, usually in silk, and tailored to each wearer since it has to be comfortable and the trousers have to brush the floor.
At the beginning the gown had two flaps per each side: the two in the front represented the parents, the two in the back represented the parents in law. Inside the two flaps in the front there was another flap, representing the person who was wearing the Ao Dai; the overall meaning hence being: the family protecting their child.
The top also possessed five buttons, which indicated the five main principles of Confucianism: humanness, righteousness, proper rite, knowledge, and integrity.
Nowadays, the fifth flap is not present anymore and the other flaps have been sewn together so that in the modern Ao Dai we only encounter one flap in the front and one flap in the back. The Ao Dai is especially, but not only worn by women, and it can be designed with different patterns and colors; the different appearance usually takes into consideration the age and status of the wearer (the color white is used for younger girls, pastel colors for unmarried women and brighter colors for married ones).
The Vietnamese are free to decide when they want to wear the Ao Dai, but they usually do in some special occasions in order to respect their tradition: on weddings, ceremonies and important events, at least twice a week for schoolgirls (on Monday and on a freely chosen day), during teaching in class by high school female teachers.
The Non La, or conical hat, is the traditional Vietnamese hat which had its origin 3000 years ago. The myth narrates that a Goddess appeared to protect the territory and people of Vietnam from a deluge of rain, wearing on her head four palm leaves big as the sky. After the Goddess was gone, the population build a temple to honor her and tried to reproduce the hat she was wearing.
The Non La is made of palm leaves coming from the forest, then dried at the sun, flattened, worked on a bamboo loom, and then externally covered with varnish in order to protect the hat from external factors. A silk ribbon covers the chin to secure the hat onto the head.
The Non La is popular and used all over Vietnam, but the one with better quality is told to come from the village of Chuong, at the South West of Hanoi. The Non La coming from Hue is called Non Bai To, which means “poem hat”: in fact, under the layer of leaves there are designs or verses which can be seen only putting the hat under the light of the sun.
Originally thought to be used by peasants during work in rice-fields, the Non La is nowadays used for several occasions: it is perfect to keep protected from both the Sun and the Rain, but it is also used to carry food or water.
Vietnam has approx. 4.500 craft villages, employing around 12 million people for the production of handmade items which are also exported around the World. Crafts undoubtedly generate income for the Vietnamese economy and simultaneously help preserving and promoting the national heritage and fostering its spread. What is the legal approach towards the preservation of the Vietnamese Traditional Cultural Expression engaged in this type of commerce?
Folklore in Vietnam is protected by the Law No. 50/2005/QH11 of November 29th 2005 on Intellectual Property (hereinafter referred to as “the Law”).
Art works of folk culture are listed within article 14 of the Law, among the types of works covered by copyright protection.
Paragraph 2 of the same article also offers protection to art works of folk culture in relationship to derivative works: the latter ones will receive copyright protection only if they are not prejudicial to the economic and moral rights of the works used as inspiration for the derivate works. Generally speaking, the derivative works are works created adding the own creativity to the inspiration gotten from previous artworks (which, in turn can be either protected works or works which are in the public domain).
Therefore, in Vietnam, the derivate work inspired by the art works of folk culture is granted copyright protection only if it does not prejudice the original traditional cultural expression.
As established by article 27 (2) (b) the term of protection shall expire 50 years after the death of the author. Copyright protection is automatic, meaning that the work is protected from its birth and it is not necessary to file the application in order to obtain the economic and moral rights (art. 49.2 of the Law); nonetheless the certificate of registered copyright which eventually succeeds the application can be useful to count the 50 years term of protection.
The definition of folklore and folk art works is contained in art. 23.1:
«Folklore or folk art works mean collective creations based on traditions of a community or individuals reflecting such community’s earnest expectations, of which the expression is appropriate to its cultural and social characteristics, and its standards and values, which have been handed down by imitation or other modes. […]»
In conjunction with the just transcribed article, which already mentions the collective feature of the works, article 13.1 establishes that both individuals and organizations that create works of art can be considered as the author of such products: in this way the Vietnamese Law recognizes both individual and collective authorship for folklore and folk art works of folk culture.
To underline the value behind cultural works and folklore, as well as the primary position of the authors (the artisans, in our case, but also singers, painters, and so on so forth), paragraph 2 of article 23 establishes that:
«Organizations and individuals using folklore and folk art works of folklore must refer to their sources and preserve their true values».
Furthermore, in order to counteract the homogenization process caused by the current globalization and to preserve the Vietnamese cultural diversity, the Government has taken different actions.
The Law on Cultural Heritage adopted on June 29th 2001 establishes that the State shall act to preserve, collect and translate the Vietnamese intangible cultural heritage and to foster its dissemination both nationally and internationally (art. 23, III). On November 11th 2002 the Government also enacted a Decree to implement some articles of the aforementioned Law.
To comply with the Decree the State has to carry on, among others, the following essential activities: organize and economically contribute to the development of projects for the research, inventory and protection of traditional cultural arts, in order to avoid the risk of loss or damage; increase the training of young generations in order to transmit to them the artisanal and artistic skills. Last but not least, Vietnamese artists which are the custodians of the traditional works and know-how are recognized for their mastery and preeminence by the State, which in turn shall confer medals, State titles of honor and it shall partially cover production, distribution or performance related costs especially in cases of poorest communities.
Complement your reading with Donna’s article on the VIETNAMESE AO DAI on hauteculturefashion.com, access the World Intellectual Property Rights Organization database on IP Laws and Treaties of Vietnam or simply take a trip to Vietnam and discover its amazing traditional cultural expressions!
Ø Vietnamese traditional dresses (Ao Dai) - symbol of Vietnamese culture, 2019, Ministry of culture, sports & tourism - Vietnam national administration of tourism, http://vietnamtourism.gov.vn/english/, accessed on 10 June 2019;
Ø Non La, Vietnam Online - See Vietnam at its purest, https://www.vietnamonline.com, accessed on 10 June 2019;
Ø Traditional handicrafts of Vietnam, 2013, The Voice of Vietnam – Vov World, http://vovworld.vn/en-US/colorful-vietnamvietnams-54-ethnic-groups/traditional-handicrafts-of-vietnam-155308.vov>, accessed on 10 June 2019;
Ø Vietnamese Traditional Hats, http://vietnameseartwork.com, accessed on 10 June 2019;
Ø Ao Dai, Vietnam Culture - Brings Vietnamese culture to the World, http://www.vietnam-culture.com, accessed on 10 June 2019;
Ø The Beauty of Vietnamese Conical Hat or Non La, Vietnam Culture - Brings Vietnamese culture to the World, http://www.vietnam-culture.com, accessed on 10 June 2019;
Ø List of ethnic groups in Vietnam, Wikipedia, https://en.wikipedia.org, accessed on 12 June 2019;
Ø Law No. 50/2005/QH11 of November 29, 2005, on Intellectual Property, Traditional Knowledge Laws: Viet Nam, https://wipolex.wipo.int, accessed on 12 June 2019;
Ø Nguyen Kim Dung, Expert Ministry of Culture and Information, Intangible Cultural Heritage Safeguarding System in Vietnam, https://ich.unesco.org/doc/src/00174-EN.pdf, accessed on 12 June 2019;
Ø Hue is known for its hats, 2017, Viet Nam News - The national English language daily, https://vietnamnews.vn, accessed on 12 June 2019;
 Art. 14 of the Law: “Types of works covered by copyright
1. Literary, artistic and scientific works covered by copyright include: a/ Literary and scientific works, textbooks, teaching courses and other works expressed in written languages or other characters; b/ Lectures, addresses and other sermons; c/ Press works; d/ Musical works; e/ Dramatic works; f/ Cinematographic works and works created by a process analogous to cinematography (hereinafter referred to collectively as cinematographic works); g/ Plastic-art works and works of applied art; h/ Photographic works; i/ Architectural works; j/ Sketches, plans, maps and drawings related to topography or scientific works; k/ Folklore and folk art works of folk culture; l/ Computer programs and compilations of data.
2. Derivative works shall be protected according to the provisions of Clause 1 of this Article only if it is not prejudicial to the copyright to works used to create such derivative works.
3. Protected works defined in Clauses 1 and 2 of this Article must be created personally by authors through their intellectual labor without copying others’ works.
4. The Government shall guide in detail the types of works specified in Clause 1 of this Article”.
 Art. 49.2 of the Law: “The filing of applications for grant of certificates of registered copyright or certificates of registered related rights is not a compulsory formality for enjoyment of copyright or related rights according to the provisions of this Law”.
 Art. 13.1 of the Law: “Authors and copyright holders that have works covered by copyright
1. Organizations and individuals that have works covered by copyright include persons who personally create such works and copyright holders defined in Articles 37 thru 42 of this Law”.