Using cultural heritage materials, or what some experts call using traditional knowledge in creation, is a strong trend, contributing to the strength of Vietnam's cultural and creative industry. Many products and works have created strong appeal such as "shows" about Mother Goddess worship introduced and promoted abroad; or recently, artist Soobin Hoang Son caused a "storm" with the MV "Muc ha vo nhan" exploiting Xam singing material. Hang Trong, Dong Ho, Kim Hoang paintings... are exploited by creators and businesses to create works of art or handicraft products. Many artists transform folk paintings into new materials such as silk, lacquer,... with handicraft products, the most famous of which are lamps, books, calendars, fans... Not only that, some businesses and creators, after exploiting the "capital" of traditional knowledge, have registered copyrights for their products.
According to the 2024 amended Law on Cultural Heritage, the subject of intangible cultural heritage is the community, group of people or individuals who create, inherit, own, hold, practice, transmit and reproduce intangible cultural heritage. However, many businesses and creators who are not the subject, not related to this cultural heritage, are profiting from heritage creation, while the rights of the true subject of the heritage are not mentioned or are ignored.
According to the Law on Intellectual Property (amended) 2022, subjects have two basic rights: Personal rights and property rights. The current law only stipulates personal rights for heritage subjects in Article 23. The concept of heritage is not mentioned directly, but instead is the term "folklore and artistic works", specifically: Organizations and individuals when using folklore and artistic works must cite the origin of that type of work and ensure the preservation of the true value of folklore and artistic works. The law has not yet mentioned property rights for folklore and artistic works.
Thus, according to the Law, producers and creators who create derivative works from the “capital” of heritage, which are folk literature and art works, are protected by law in terms of both personal rights and property rights if they register the copyright of the product or work. This reality shows a big gap in protecting the rights of heritage subjects. Because the “original” subject is not protected, while the “secondary” subject is protected in terms of both personal rights and property rights. Even when registering the product design, businesses and creators can sue the community that is the true subject of the heritage if a dispute arises.
Since the 1980s, the World Intellectual Property Organization (WIPO) has recommended that countries develop legal frameworks for traditional knowledge. In 2006, the IGC recommended: “Holders of traditional knowledge should enjoy a fair and equitable share of the benefits from any commercial or industrial use of such knowledge”; and “The use of traditional knowledge should be based on the principle of prior informed consent and negotiated agreements, including clear provisions on benefit-sharing mechanisms”. In implementing this recommendation, many countries have developed legal frameworks to protect both personal and property rights for traditional knowledge holders.
According to Master Nguyen Van Phuc (University of Law, Hue University), Vietnam can refer to the experience of protecting traditional knowledge of India, China, and Peru. There are two mechanisms, the first of which is "defensive protection". This mechanism builds a database of traditional knowledge to store and serve as evidence against illegally established inventions and trademarks in countries around the world originating from traditional knowledge of Vietnam. Next is active protection by perfecting intellectual property laws such as adding the definition of "traditional knowledge" and "indigenous communities", clearly defining the protected subjects and collective representative organizations for traditional knowledge; adding the subjects entitled to remuneration to the community that holds and manages traditional knowledge... and referring to a number of other solutions.
Reality also shows that the same subject but mentioned from different angles is creating certain differences. Some researchers often use the term "cultural heritage", the Intellectual Property Law uses the concept of "literary and folk art works". Meanwhile, WIPO uses the term "traditional knowledge". Therefore, it is necessary to unify the concept. Next, it is necessary to supplement regulations on property rights for traditional knowledge subjects in the Intellectual Property Law and related regulations.
Another important issue is the implementation of fair sharing, or in legal terms, property rights. Currently, experts and researchers are proposing three main trends: the State collects royalties and then pays them back to the subjects; the subjects of heritage elect associations or professional associations and these units are responsible for claiming rights; the claim is made through a third party - an organization representing collective copyright.
Regarding this issue, Dr. Le Tung Son (Lecturer of the Faculty of Management Science , University of Social Sciences and Humanities, Vietnam National University, Hanoi) said: “We lack a mechanism to protect the rights of intangible cultural heritage subjects, specifically the issue of sharing benefits from heritage creation. Among the trends in solving the issue of rights for subjects, having an organization representing the collective copyright is something that many countries in the world have had for a long time. This is a third party, responsible for collecting copyright fees for the collective heritage subjects. The subject entrusts this third party. They are the bridge between the creators and the heritage ownership community”.
Protecting property rights for traditional knowledge subjects plays an important role in preserving and promoting heritage values. Financial resources obtained from the creations of creators, businesses, artists, etc., returning to serve the preservation and promotion of heritage values will contribute to reducing the burden on the state budget. Along with that, the subjects of heritage/traditional knowledge, when receiving financial resources from the heritage they hold, will raise their awareness of preservation and protection. Therefore, protecting the personal rights and property rights of heritage subjects is also a solution to preserve and promote sustainable heritage values.
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(★) See Nhan Dan Newspaper from the issue dated November 29, 2025.
Source: https://nhandan.vn/bai-2-thuc-thi-chia-se-cong-bang-post926869.html
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