Recommendations for Improving the Law on Copyright Protection for Folk Literature Works

Chapter 3‌

SOME RECOMMENDATIONS TO IMPROVE THE LAW ON PROTECTION OF FOLKLITERARY WORKS AND IMPROVE

EFFECTIVENESS OF IMPLEMENTATION OF PROTECTION MEASURES

Copyright protection for folklore works is not a problem for any country. However, for our country, copyright protection for folklore works is a difficult problem. In the current situation of our country, it is not feasible to completely eliminate copyright infringement for folklore works, but only to find solutions to limit and reduce copyright infringement to the most reasonable level. Therefore, we would like to make some recommendations to improve the law on copyright protection for folklore works and improve the effectiveness of implementing protection measures as follows:

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3.1. RECOMMENDATIONS FOR IMPROVING THE LAW ON COPYRIGHT PROTECTION FOR FOLKLITERARY WORKS

3.1.1. Some issues to note when considering the protection of folklore works

Folk literature plays an important role in the lives of ethnic communities throughout Vietnam from the past to the present. They exist and develop along with the economic development of the country, it can be said that each folk literature work is imbued with the national cultural identity. However, facing the current situation where protection policies are not enough to help maintain the existence and healthy development of folk literature works as they are today. Therefore, we need to further promote finding solutions to contribute to better protecting and preserving the cultural quintessence of the nation, preventing those works from being lost and gradually losing their inherent value.

Furthermore, folk literature works of each nation are one of the most important cultural and artistic achievements that form the basis for the construction and development of the culture and art of that nation. Therefore, in order to contribute to the protection of folk literature works in particular and traditional knowledge in general, and to provide satisfactory and appropriate solutions, we should consider some necessary issues in the protection of a folk literature work as follows:

Firstly, a folklore work is a work with extremely special characteristics, with the specificity that the author cannot be identified and is mainly transmitted orally, so it is a variant. Therefore, when protecting a folklore work, we must find a way to protect these works in the most comprehensive way.

Second , because the characteristics of folk literature are collective creations, transmitted orally and have many different versions, we must consider the appropriate form of protection for folk literature works. At the same time, it is necessary to balance between avoiding distortion and falsification of folk literature works and ensuring the creativity of the works. That means we must find a suitable form of protection for folk literature works, only then can we ensure the protection and healthy development of the works while avoiding the inhibition of development and encouraging the creative freedom of individuals and groups when exploiting them. However, folk literature works have characteristics that are different from other traditional knowledge works, so it may not be necessary to limit protection to a certain standard form.

Third , the competent authority grants a license for use: When the law stipulates that a license is required for use, it must be clearly stated which authority has the authority to grant the license or whether the licensing is left to the community.

Keeping that work, licensing fees (if any), I think there should be an agency assigned this responsibility.

Fourth, clearly define the types of acts of infringement on the protection of folklore works, thereby determining the appropriate sanctions for such infringement. Determining the infringement is a core issue in protecting a folklore work. Based on the types of infringement, we can easily carry out protection, and at the same time, there is no difficulty in determining the damage, as a basis for applying appropriate sanctions.

3.1.2. Solutions to perfect legal regulations on copyright for folk literature works

Folk literature plays an important role in the lives of communities across Vietnam. The birth and existence of folk literature is still passed down to this day and develops along with the economic development of the country. However, facing the reality that current protection policies are not enough to maintain the existence and healthy development of folk literature works. Therefore, we need to further promote the search for effective solutions to better protect the quintessential cultural values of the nation, preserve the purity of the Vietnamese language and the Vietnamese soul.

On the basis of the above, the law on copyright protection for folk literature works needs to be further improved to meet the needs of the current socio-economic development of our country. From the issues that need to be considered, I have a few views on finding solutions to protect folk literature works as follows:

Firstly , folk literature works are created and exist by oral transmission, so they have many different versions. Therefore, to avoid overlap and confusion in the protection of folk literature works,

In folklore, we should protect the content of the work, that is, the "plot", in order to ensure the comprehensiveness of the entire work, to protect all versions when we base it on a common, unified core. Although each work has a few different details, if they still ensure the "core", they are of course protected, we also ensure the complete development of a work, at the same time not restraining the creativity of those who exploit and use them.

On the other hand, according to the provisions on copyright protection conditions for works in general of the Intellectual Property Law 2005, they are originality and creative form. However, folklore works cannot be protected in the old form of protection. If the conditions for protection of folklore works must ensure originality, then the oral and variant attributes will no longer be inherent characteristics. On the other hand, copyright does not protect the content of the work, so when the issue of protecting the "plot" arises, it means that the form of copyright protection will not be applied to folklore works. The form of folklore works (especially the verbal type) is mostly undetermined, while their content is sometimes not different at all (the main differences are in the minor details: circumstances, locations, etc.). Therefore, we should protect the content of folk literature works. As long as users do not distort the content, there will be no infringement.

Second , each subject of protection of folk literature works should have its own protection regulations to suit that subject, because each group of subjects has different characteristics. We should learn the regulations of the Model Regulations, some regulations on licensing agencies, monitoring agencies, infringements, and sanctions. Separate the regulations on protection of folk literature works in particular and protection of traditional knowledge in general.

into a separate chapter in the Intellectual Property Law. This is necessary when protecting copyright for folklore works. Folklore works have their own characteristics unlike other forms of protection and they do not have a standard.

Third , it is necessary to establish an agency with authority to represent the protection of folk literature works in particular and traditional knowledge in general under the Copyright Office. This agency will also be responsible for licensing the use of folk literature works as well as formulating appropriate policies to preserve and develop folk literature works. In addition, the protection of folk literature works also needs to be registered. Any community that wants its work to be protected must register with that agency and must provide evidence that the work belongs to their community. Furthermore, each community with a folk literature work will authorize the competent authority leading its community to act as its representative for registration and at the same time this agency will be allowed to collect fees for the use of folk literature works in particular and traditional knowledge in general. Those fees are used to preserve, maintain and develop that work. The agency under the Department will be responsible for supervising the implementation of regulations related to the use and collection of fees by the agency representing the community that preserves the work. Individuals and organizations wishing to use it must have the consent of the community where the work was created and must also request permission from the competent authority in that village community. During use, it is mandatory to cite the form and origin of the work. This method has also been mentioned in the Berne Convention: " In the case of unpublished works whose author is unknown, but where there is sufficient basis to assume that the author is a citizen of a member country of the Union, the law of the member country of the Union may designate an authority competent to represent the author and competent to protect and enforce copyright in the member countries of the Union" (point a, clause 4, Article 15 of the Berne Convention).

Fourth , we should learn some provisions of the Model Regulations which include two types of acts "illegal exploitation" and "other types of acts" and more specific provisions on acts of copyright infringement of folklore works. The act of “illegal exploitation” of a folklore work is understood to mean any use made for profit, outside the scope of tradition or custom and without the consent of the competent authority or the community concerned. Other acts that are harmful to the interests related to the use of folklore works, such as: use beyond the limits or contrary to the conditions of the license, are also considered as acts of infringement of unauthorized use, printed publication and any communication to the public of any identifiable folklore work, the source of which must be appropriately indicated, through noting the community or geographical location where the folk expression used arose. Use for public purposes that distorts a folklore work, in any way that directly or indirectly “harms the cultural interests of the community concerned”, is also considered as an act of infringement of the right to use folklore works, such as: is an act of infringement,...And also must exclude some acts that are not considered an infringement of the protection of folklore works.

Fifth , with the specific characteristics of folk literature works, it is necessary to define which acts are copyright infringements and list them specifically, thereby determining appropriate sanctions. This sanction can be used in common with intellectual property protection. If necessary, there are still specific regulations in the regulations on the protection of folk literature works and traditional knowledge.

3.2. MAIN RECOMMENDATIONS FOR THE IMPLEMENTATION OF MEASURES TO PROTECT COPYRIGHTS FOR FOLKLITERARY WORKS

3.2.1. Improve the capacity to inspect and handle copyright violations of folk literature works

Firstly , inspection and examination work plays a great role in detecting and preventing copyright infringement of folk literature works. Therefore, it is necessary to promote this work to inspect individuals, organizations, and businesses trading books as well as researching and collecting folk literature works. However, currently, inspection and examination are only conducted in big cities such as Hanoi, Ho Chi Minh City, etc. In fact, through inspection and examination, infringement has been pushed back a step, but if it is not done regularly and not synchronously, it will not be effective.

Second, encourage the use of folk literature works in state administrative activities, research and teaching activities in schools as well as for personal use instead of using illegal folk literature works. Only then can folk literature works be preserved and the cultural beauty of the nation developed. The State has also had policies to enhance and encourage the development of national literature through the following forms: establishing Ca Tru clubs, Cheo Tau singing, Do singing, Dam singing, Hue singing; Many collection, preservation and translation projects have achieved results such as collecting and researching the epics of the Central Highlands, etc.; Awarding the titles of "Golden Hand Artist", "People's Artist", "Folk Artist", etc.

3.2.2. Raising awareness of agencies, organizations, businesses and users

It is necessary to strengthen propaganda, dissemination and education activities on legal awareness of copyright in general and copyright for folk literature works in particular by the following measures:

Firstly , organize propaganda and dissemination of laws on copyright in general and copyright for folk literature works in particular through various forms such as: organizing dramatization competitions, seminars, forums, workshops... to raise awareness among the community, students, officials, civil servants and people about law compliance, as well as the rights and obligations of subjects in protecting copyright for folk literature works.

Second, although the specialized subject has been taught in colleges and universities for a long time, it is necessary to include this content in general teaching in social sciences. Disseminate copyright for folk literature works in books, newspapers, magazines, etc., and publicly announce on mass media the damages caused by violations so that users can realize the importance of copyright protection for folk literature works.

Third, diversify training forms in terms of content and richness in form, fully exploit teaching and learning aids, especially using the Internet, and strengthen the distance training system.

Fourthly , in addition, the Ministry of Culture, Sports and Tourism needs to organize free consultations for individuals and businesses on copyright protection for folklore works, helping them understand what constitutes infringement and the consequences of infringement. Consulting organizations need to be established and gathered into a network.

3.2.3. Improving the Court's adjudication capacity in resolving disputes and trying criminal cases regarding copyright infringement of folklore works

Intellectual property rights protection in Vietnam has only been of interest for the past 6 years, even in the Bachelor of Law training system, this subject is quite new. Therefore, almost the majority of current judges of

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