Copyright protection in Vietnam under new legislation

Like many developing countries where the marketplace is dominated by piracy, Vietnam has yet to introduce and maintain an effective system of copyright protection. In the recent years, however, the country has made considerable international integration efforts in this field by joining the Berne Convention for the protection of litterary and artistic works in 2004 and the Geneva Phonograms Convention in 2005.

In one of the latest developments, on November 19, 2005, the National Assembly of Vietnam enacted the Law on Intellectual Property (IP Law) devoting the whole Part II on the protection of copyright and related rights. These IP rights are thereby protected under the Civil Code 2005 (Part IV), which came into effect as of January 1, 2006 and the IP Law (Part II), which will be effective from July 1, 2006.

Below are the main features of the new legislation with regard to copyright and related rights:

According to the IP Law, copyright owner is the author i.e. person who has created the works or (i) co-authors; (ii) individuals or organisations who have assigned a task to or signed a contract with the author; (iii) heirs; (iv) the State (in some cases).

Foreign individuals and organisations are eligible for protection of copyright in Vietnam if they have works that are (i) published for the first time in Vietnam but not in any other countries, or published simultaneously in Vietnam within 30 days from the first publication in other country; or (ii) protected under international conventions of which Vietnam is a member.

Articles 14 of the IP Law enumerates the types of work that may be protected under copyright. It provides clear distinction between original and derivative works by affirming that derivative works are to be protected only if they are not prejudicial to the original works. The Civil Code 1995 did not mention the term «derivative work» and therefore did not clearly distinguish «works of translation, adaptation, re-creations, arrangement, compilation, annotation, selection and other alteration» from the original works.

The special state protection under the Civil Code 1995 for folkloric works, media news and state organs’ official documents and the translation of such documents no longer exists under the new legislation i.e. Media news and state organs’ official documents are no longer protected under copyright, while folkloric works are protected according to general provisions.

Copyright grants personality rights and property rights to the owner. The personality (or moral) rights under the IP Law no longer includes “the right to permit or not to permit other persons to use the work” as provided for in the Civil Code 1995.

More inportantly, the IP Law states for the first time that property (or economic) rights are “exclusive rights”. According to Article 20, exclusive rights include: (i) making derivative works; (ii) public performance of protected works; (iii) reproducing protected works; (iv) distributing and importing original protected works or their copies; (v) transmiting protected works by radio, television, internet or by any other technical means; and (vi) leasing original or copy of cinematographic works or computer programs. Individuals and organisations should have the owner’s authorisation to exploit or use one or more exlusive rights mentioned above and must pay remuneration, royalty and other economic interests to the owner.

In addition, the IP Law provides a special protection for cinematographic and theatrical works, computer programs, database and folkloric works. According to Article 21, the owner of a cinematographic work shall be individuals or organisations which have made financial investment in its production, while its authors (inluding film maker, scenario writer, music composer, artists in charge of sound or lighting…) shall be granted some moral rights. Protection of computer program and database is provided for in Article 22. According to it, database protection does not cover the data themselves and its exercice must not prejudice the copyright over these data.

The use of copyrighted works without the owner’s permission are not considered as copyright infringement in cases defined by the IP Law. Such use may require the payment of royalties or not, but must not adversely affect the normal exploitation of the copyrighted work or prejudice the owner’s legitimate rights. Moreover, the author’s name and original work should be cited.

According to Article 24 of the IP Law, the following acts which constitute use of a copyrighted work without the owner’s permission and without payment of royalty are not considered as copyright infringement: (i) reproduction in one single copy for educational, research, citation or information purposes; (ii) non-profit public performance for propaganda purpose; (iii) transcribe in Braille; and (iv) import of copies for personal use. Nevertheless, such limitation is not applied to architectural and sculptural works and computer programs.

Broadcasting organisations can broadcast copyrighted works that have been published without the owner’s permission but have to pay remuneration and roylties to the copyright owner. This provision is however not applied to cinematographic and assimilated works.

In general, copyright is protected during the whole life of the author plus 50 years after his death. The moral rights, except the right of disclosure, of the work are perpetual.

Concerning cinematographic, photographic and theatrical works, applied art works and anonymous works, the term of protection is 50 years counting from the date of the first publication. For the works which have not been published, the term of protection is 50 years counting from the date of its creation.

The IP Law determines for the first time what constitutes copyright infringement. Article 27 includes a list of acts deemed as infringing moral and economic rights of author and copyright owner. According to it, most of acts constituting the use of works without the author or the owner’s permission, such as disclosure, exposition, reproduction, publication, import, export, distrubution of the works… may be considered as copyright infringement.

Author and copyright owner have the right (i) to assign the works or (ii) to grant license to use the works to a third party.

a) Copyright Assignment: Author or copyright owner can transfer the ownership of copyright to other individuals or organisations by an assignment agreement. Moral rights are not subject to transfer except the right of disclosure of the work.

b) Copyright Licensing: Author or copyright owner can grant licence for use of one or more moral and economic rights to other individuals and organisations. The licensee may grant a sub-licence to third parties if it is permitted by the licensor. Moral rights are not subject to lisensing, except the right of disclosure of the work.

c) Validity conditions: To be valid, assignement and license argreements must be made in writing and must include the minimum contents such as name and address of assignor/licensor and assignee/licensee; subject to be assigned/licensed; scope of assignment/licence; price and term of payment; rights and obligations of each party; obligations in case of contract violation.

The implementation, amendment and cancellation of assignement/license agreements are governed by the Civil Code.

The Civil Code 2005 and the IP Law make clear distinction between copyright and related rights. This is the first time the term «related rights» is spelt out in law in Vietnam. In fact, the Civil Code 1995 includes provisions on «rights and obligations of performers, producers of phonograms and videograms and broadcasting organizations». However, such rights have not been named as «related rights». The IP Law define «related rights» as including «performance, sound and image recording, broadcast, encrypted program-carrying satellite signal».

Though the protection system of related rights is similar to that of copyright, scope of protection of related rights is generally more restrict and depends on the type of protected works. For example, performer also enjoys personal and economic rights, but his moral rights include only (i) the right to cite his name during performances or broadcasts and (ii) the right to object to any distortion, mutilation or other modification which would be prejudicial to his honor or reputation; The performer’s economic rights are limited and do not include exclusive right to make derivative works. Image and sound recorder and broadcaster are granted only some limited economic rights, defined in Articles 29 and 30. The term of protection of related rights is 50 years counting from the date of the first publication or creation.

Registration is not an obligation, however, the owner of registered copyright/related rights has not to prove their ownership in case of dispute (except where there is proof to the contrary).