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The premise underlying this international conference is that cultural sustainability is interdependent with environmental, economic and social sustainability. The recognition of this interdependence is particularly important in a developing country, with a history of conflict, such as Vietnam. The discipline base for my paper is the sociology of art and cultural economics. The sociology of art provides the concept of the art world, as a set of relationships that define the characteristics of art, as a form of activity. In Vietnam, the establishment of Faculties of Art between 1913 and 1925 in the three regional capitals, Hanoi, Saigon and Hue, enabled the development of professional fine arts education which linked heritage culture with European modernism. These Faculties of Art urgently need re-investment in order to produce professionals, with the skills required in the global art world and a rapidly changing market. In particular, there is no model for the development of a sustainable art practice that would promote cultural sustainability in the rapidly changing economy in Vietnam. In this paper I draw on the UNESCO Declaration on the Status of the Artist (1980) which is supported by institutions, legislation and regulation in countries such as Australia and Canada.

The production, distribution and consumption of art, is not solely dependent on the artist. The art world and the art market involve many players on whose activities the aesthetic value of the artwork, and its financial value or price, depend. At present, the market for art in Vietnam is ostensibly organised as a national market, but the incursions of a more global market are already apparent. What is lacking in Vietnam, is more open discussion, and specific legislation and policy to establish the status of the artist, and to regulate the national market, so that more public recognition of both aesthetic and financial values would occur.

Professional Arts Practice and the Law in Vietnam

Recent developments in the law in Vietnam are relevant to the conditions of professional practice in the arts. On 1st July 2005, there were extensive amendments to Commercial Law, and on 1st January 2006, a new Civil Code came into force. This new broad framework of Common Law covers the sale and purchase of goods and services, and Contract Law which will affect the contracts between artists and dealers, or museums, and the consignment of artworks to dealers or galleries. There is also new Competition Law, which governs anti-competitive activities, including (1) Restraint of Competition and (2) Unfair Competition, which in this case could apply to imitations or fake art works. In addition, Vietnam has signed the Berne Convention on Intellectual Property Law. In the new information economy and knowledge society we need ways of organising, ordering and securing the trading of ideas and creative products that depend on both law and sustainable practices.

The market for art involves economic incentives for artists, dealers and collector-investors which need to be regulated in a market economy. At present in Vietnam, there are many galleries and tourist outlets which do not belong to any specific professional association to regulate their commercial activities and relationships with artists and collectors, such as the Australian Commercial Galleries Association ACGA, or the Art Dealers Association ADA in the United States. The Fine Arts Association, at the national and local level is primarily an exhibiting organisation to which artists, curators and museum directors, as well as dealers and gallerists belong. There are no auction houses in Vietnam, or indeed anywhere in South East Asia, now that Christies has closed it salerooms in Singapore. The Auction Sale establishes public prices for art and an index of prices, which functions in the same way as a stock exchange and other financial indices.

The size of the market in Vietnam is difficult to determine as there are few published national statistics, such as those compiled by the Australian Bureau of Statistics, ABS, which provide data on artists, identified through the census, and on the number and commercial size of dealer galleries. The population of Vietnam is 70 million people, of which only a very small proportion collect art or ceramics. There is, however a very large Vietnamese diaspora in the United States, Australia, France and Canada who do collect Vietnamese art and heritage. The Government of Vietnam currently assesses the contribution of tourism to the national economy, including return visits by the diaspora, as at least 22 per cent of national annual income. Although services account for a large part of this income, the purchase of art and design, and souvenirs which include the contemporary manufacture of traditional cultural items such as, ceramics, artefacts and clothing would be a significant percentage.

Intellectual Property Law and Copyright regimes depend on documentation that records who, what, where and when an art work is produced. A copy right regime in many developed countries is supplemented by Moral Rights legislation which is vested in the artist/ author as an individual, and depends on records of the art work for which moral rights are invoked. In many countries there are also copyright fee collection agencies, such as Vi$copy, an Australian agency, which holds reproduction rights and collects fees on behalf of individual visual artists. Vietnam already has law statutes which could be made to work more effectively in support of the sustainability of artists’ careers and the market in Vietnam

Copyright and Moral Rights of Vietnamese Artists

Copyright, contrary to popular belief, arises automatically.[1] However an important pre-requisite to the existence of copyright in a work is that the work meet the criterion of ‘originality’. The notion of ‘originality’ embodied within Copyright regimes reflects the centred position of the author as the source of art.[2] The author is the sole creator, the source and inspiration of a work. As noted by Brad Sherman, originality therefore, tends to be conceived of in terms of the relationship between the author and the work rather than by focussing upon the work itself; ‘the work must not be copied from another work – that it should originate from the author.’[3] This view of originality marginalises the role that external influences, such as tradition, imitation and culture, can play in the creation process of art, or the reproductions of the stories and culture of generations, contributed to by each generation. In Vietnam, western art media techniques and heritage culture have been intricately interlaced for over one hundred years. The themes of the village, the landscape, heritage buildings and streetscapes are as prevalent as abstraction. However, whereas external influences in the production of western art are suppressed via the individuality of the artist, and the recognition of authorship, the collector in Vietnam often does not recognise the ownership and creation of imagery, rather they seek to purchase a generic image, or work of art or design, which represents a lost homeland, in the case of the diaspora, or a souvenir to the tourist. This situation is reflective of the continuing tenuous position that the art of the third world holds in the western conception of ‘real art’. This suggests that where originality is placed in dispute, the onus on a Vietnamese artist who has utilised traditional images and designs in their work may remain heavier than for an artist who has, for example, painted French provincial gardens in the style of the French Impressionists.

In Vietnam the demands of the tourist market are so strong that copying of the original works of professional artists is commonplace in major tourist resorts such as Hoi An, Nha Trang, and Can Tho. Although the artist may not be able to prove that they have suffered any direct personal economic loss, the damage done in respect of the effect of the infringing copies on the freshness of the original artwork (or series of works), due to its reproduction, advertisement and promotion is considerable. The professional artist has the education and training to enable them to contribute to the contemporary culture, in a country in a process of rapid change. The personal suffering and insult they experience at the reproduction of their work, as either inferior art works or decorative items should not be discounted, as under other copyright regimes they would be compensated. An award of damages to the artist would also reflect the need to deter manufacturers from using original art in breach of copyright, and be of an exemplary or punitive nature too.

The right of authorship of a work, allows the artist to take action where their work has been subject to derogatory treatment which is neither reasonable in the circumstances, nor done with the artist’s consent. Derogatory treatment of artistic works includes anything that results in the material distortion of, the destruction or mutilation of, or a material alteration to, the work which is prejudicial to the author’s honour or reputation. The artist’s honour and reputation are prejudiced where their right to produce artwork in a certain style is compromised through imitation or inferior reproduction. Reputation is extremely important in any art world, it governs the processes by which work is collected, exhibited and documented as historically significant. Currently, most writing on the history of art in Vietnam is in Vietnamese, and therefore not readily accessible to other curators and historians. This limitation on the accuracy of records compounds the injury to the Vietnamese artist, many of whom now seek exhibition and collection abroad.

There is an additional complication to copyright infringement in Vietnam. There are fifty-four distinct minority groups whose culture and imagery is part of the appeal of Vietnam to the foreign tourist. Unauthorised and inappropriate use, distorts, diminishes and damages their distinct ethnic identity, threatening the sustainability of their community’s entire cultural and belief system. In some cases the Viet majority artist has been granted permission to depict minority imagery in their work. Such artists spend time in areas such as Tay Nguyen and Sapa living with minority peoples so that they understand the culture and their art work is accepted. Not all members of the Viet majority are entitled to depict the stories, culture and traditions of minority communities in artworks, but where such rights are granted, they are not absolute; permission to use is granted with an accompanying share of responsibility.

The demands of the tourist market results in a widespread need to generate designs for textiles, artefacts and souvenir art and craft. In copyright, the central question is whether a design or work that draws significantly from an original copyright work, does so to an extent that it adopts or copies the ‘substance’ or ‘essence’ of the original or a substantial part of the original.[4] If so then it will breach copyright. The question of whether a person has ‘copied’ another’s work involves a subjective and an objective element. The subjective element denotes that the reproduction must bear a sufficient resemblance to the copyright work. This is a question of fact. When determining whether a work is a copy or reproduction in circumstances where the work is not an identical replica, the focus must be on the quality rather the quantity of what has been copied.[5] The objective element requires actual use of the copyright work or a causal connection between it and the reproduction. A person who produces a substantially similar work from independent efforts, without having seen or copied a copyright work will not have infringed copyright. A substantial similarity though, between the copyright work and the subsequent work, does provide prima facie evidence of copying which can be contested.

In assessing the ways in which an art work or design can be copied, the decision is often based on whether the overall impression of the viewer is so similar that, unless they examined the design in detail, they would be likely to confuse one with the other. Often an imitation can reproduce the substance of the design by using a similar subject to the same scale, by reproducing borders or other decorative elements, or even by adopting very similar titles for the copy. In some cases the copy will rearrange the original composition or design, but copyright may still occur in those cases where the imitation reproduces the substance or essence of the original design. Unauthorised use often occurs in situations where the owner or collector, even a museum, believes that ownership entitles them to reproduction rights. In the most egregious cases, the art and artefacts are accompanied by falsified signatures or are sold as authentic artistic or cultural art works or designs.

Many tourists who make up the bulk of consumers or art and design assert their preference for authentic works or designs, but few bother to inform themselves adequately about the origin of purchases, to find reputable outlets or to acknowledge that their estimate of the price they are willing to pay is based on an inequitable concept of artist’s incomes, compared to prices in developed economies. A campaign of marketing and education strategies could be adopted by the Government of Vietnam, including in-flight videos or pamphlets for incoming travellers, or brochures made available to tourist agencies or in-country tourist information centres. It is important to recognise the success of some campaigns conducted by Non-Government Agencies (NGOs) against the purchase of products such as carpets made with child labour, or campaigns against products that involve substances injurious to the health of workers, animals or the environment. They do work.

Management and Education Models for a Sustainable Arts Practice

There are many management and educational models of professional practice on which the Government of Vietnam could draw, to develop programs for its legislature and institutions. At the undergraduate level in Fine Arts and Law degrees, units which examine copyright cases and promote the observance and protection of copyright would strengthen existing statutes. The national legislature could research and prepare legislation on the status of the artist with the assistance of UNESCO agencies which are already working with the Government, on the Halong Bay World Heritage Area and in relation to heritage and tourism in Hoi An. Because of resistance to taxation and historical divisions, the census does not always provide accurate data. However, Government education campaigns which involve the art world, including commercial galleries and tourism outlets, could persuade the main players that better information could be used to strengthen their commercial situation. More reliable data is necessary for both legislation and management education.

There are no postgraduate programs in arts and cultural heritage management in Vietnam, but they are urgently needed. There is also no evidence that Vietnamese graduates are enrolling in such programs which are available in Australia, and may commence shortly in Singapore. Postgraduate programs are urgently needed for government cultural administrators in departments, museums and heritage sites, in the universities and in tourism. Entrepreneurs in the commercial art market and cultural tourism also need better education in their legal, ethical and documentation responsibilities. Ideally, postgraduate cultural management education would recruit from the public and private sector; it would work to establish professional support networks that could be sustained beyond the university, in order to solve some of the most pressing problems. Currently, all levels of the cultural and tourism employment sectors are characterised by low skill levels. The Government of Vietnam, as a communist government is aiming at job creation and full employment. However, low educational and skill levels are actually undermining environmental, economic and cultural sustainability in Vietnam.

The lack of professional skills is most apparent in museums, all of which come under the national government. There is little curatorial knowledge or skill among curators or museum directors, and furthermore there work is often subject to government committees and directives that do not recognise their professional autonomy. Work is hung in group exhibitions with little attempt to provide a curatorial rationale, and there are no catalogues which are essential as documentation. As a result, the level of display in commercial dealer galleries is also poor, with only one of two galleries in the two major cities exhibiting solo shows or retrospectives. The situation in commercial galleries results from the lack of professional models of display, and the lack of contracts between artists and dealers. Most city galleries will exhibit one or two works of the same artists, so that the audience, collectors and more sophisticated tourists quickly lose interest in doing a gallery circuit. Artists and dealers lose in this situation, as the dealer does not have the contractual right and obligation to maintain agreed prices for the artist, and artists often undercut dealers by selling their work directly from their studios.

Audience development is another important aspect of market development in the arts. Although school groups visit museums they gain very little from their visit, because their teachers and the museum do not provide any formal or informal education linked to their visit. There are no public program departments to develop educational or informative materials for visitors. There are no advertised lecture or talks programs for the local population, and for tourists, that would ensure repeat museum visits. The museums do not have the funds to develop a temporary or touring exhibition programs, although the cultural material available in Vietnam are extensive and enthralling. The consequence of this is that the majority of the population, who, born since the war are under thirty, and live in urban centres, often at a distance from their village or extended family, so that they are cut off from traditional patterns of social and cultural transmission. New programs for cultural education in schools, tertiary institutions and museums could be used to develop a more complex understanding of the links between the distinct environmental attributes and challenges in Vietnam, its heritage culture and forms of contemporary cultural expression that are local, not global.

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[1]Jill Mckeough, Andrew Stewart and Philip Griffith, Intellectual Property in Australia (3rd ed, 2004), 8.

[2]Brad Sherman, 'From the Non-Original to the Ab-Original: A History' in B Sherman and A Strowel (eds), Of Authors and Origins: Essays on Copyright Law (1994) 119.

[3]University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 603, 609.

[4]In King Features Syndicate Inc v O and M Kleeman Ltd [1941] AC 417, 424 Viscount Maugham cited Lord Shand in Hanfstaengl v Baines & Co [1895] AC 31 ‘such a degree of similarity as would lead one to say that the alleged infringement is a copy or reproduction of the original of the design – having adopted its essential features and substance.’

[5]Bulurru Australia Pty Ltd v Oliver (2000) 49 IPR 384, 388- 399.