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10 types of exclusive rights ascribing to copyright and forcible limitations to the copyright holder’s enforcement of those exclusive rights
(Ngày đăng: 2019-12-21)

10 types of exclusive rights ascribing to copyright

and forcible limitations to the copyright holder’s enforcement of those exclusive rights

 

Email: vinh@bross.vn

 

10 exclusive rights regarding copyright

 

Copyright holder is granted up to 6 categories of materially exclusive rights that are commonly called property rights or economic rights[1] (right of reproduction, right of distribution, right of communication to the public, right of rental , right of making a derivative work, and right of public performance) and 4 types of exclusive rights that are non-material or are also referred to as moral rights[2] (right to name works; the right to name or right to name or pseudonym; right to publish a work or permit others to publish; and the right to protect the integrity of, prevent others from modifying, mutilating or penetrating the work) [3].

 

In summary, in consideration of both moral rights and property rights bestowed by the laws, the copyright owner is granted by the State up to 10 different types of exclusive rights in connection with literary artistic scientific work (ie. song, poem, painting, novel, stage work including performing arts, etc.) that he or she already created or owns. These 10 exclusive rights said above have obviously generated an overwhelmingly proprietary range that prevails the right of access of the public, or in other words, anyone who uses or exploits a copyrighted work without compensation and/or without permission by the right holder may lead to a copyright infringement.

 

The State unilaterally restricts copyright holder to exercise of exclusive rights

 

To protect the public’s right of access to information or the constitutional right to education, the laws need to find ways to limit the 10-exclusive rights said above by setting rules to limitations and exceptions to copyright infringement.

Limitations to copyright infringement mean that a person or organization who uses or makes reproduction of a copyright work, instead of having to obtain permission and pay remuneration to the right holder, is exempt from his/her obligation asking for permission but still has to pay remuneration for rights holder. Whereas, exceptions to copyright infringement mean that a third party uses or makes reproduction of a copyright work, whether in part or in full, in some circumstances under particular conditions may not constitute an infringement, even where the copyright right holder has not granted any permission. These limitations and exceptions to copyright infringement is also called as fair use[4].

 

Limitations and exceptions to copyright infringement is a legal principle widely recognized in the international law, eg. it is stipulated in the Berne Convention for the Protection of Literary and Artistic Works and Agreement on trade-related aspects of intellectual property rights (TRIPs Agreement)[5]

 

The existence of the limitations and exceptions to copyright infringement also imply that the State unilaterally intervenes in copyright in order to balance or confine the scope of enforcement of exclusive rights exercised by the right holder. Vietnam introduced this rule in Article 26 of the Vietnamese IP Law, stating that except for cinematographic works, the use of published works[6] by individuals, organizations or broadcast organizations (with sponsorship, advertisement or collection of money in any manner) are not considered as copyright infringement. However, they must pay remuneration or royalties to the author or copyright owner calculated from the time of their use of such published works upon agreement or based on Decree 21/2015/ND-CP on royalties (if no agreement is reached, they have the right to bring a lawsuit to court), provided that such use must ensure: (a) must not affect the normal exploitation of the published works; (b) not prejudice the rights of the author or the copyright owner; and (c) must credit the author's name and quote the origin of the published work.

 

Bross & Partners has intensive experience in assisting clients in defending against allegations of copyright infringement, related rights including a recent pending lawsuit where the client was claimed a damage amount of USD 1.5 million. Should you have specific needs, please contact: vinh@bross.vn; cellphone 84-903 287 057, 84-4-3555 3466; Wechat: wxid_56evtn82p2vf22; Skype: vinh.bross.

 

Bross & Partners, a renowned and qualified Patent, Design, Trademark and Copyright agent of Vietnam, constantly ranked and recommended by the Managing Intellectual Property (MIP), World Trademark Review (WTR), Legal 500 Asia Pacific, AsiaLaw Profiles, Asia IP and Asian Legal Business, is providing clients all over the world with the reliable, affordable contentious and non-contentious IP services including enforcement, anti-counterfeiting,  litigation regarding trademark, trade name, industrial design, patent, copyright and domain name.

 



[1] See Section 20 of the Vietnamese IP Law of 2005 as revised

[2] See Section 19 of the Vietnamese IP Law of 2005 as revised

[3] To understand the moral rights and property rights regarding copyright under the laws of Vietnam, you can refer to our previous article titled What exclusive rights is the holder of copyright entitled to literary artistic and scientific works under the Vietnamese laws?: http://bross.vn/newsletter/ip-news-update/What-exclusive-rights-is-the-holder-of-copyright-entitled-to--literary-artistic-and-scientific-works-under-the-Vietnamese-laws

[4] Readers those who are keen on the question of whether or not a reproduction or use of a published work is considered to constitute copyright infringement under Article 28 of the Vietnam IP Law can more find out the “three-step test” in our earlier article Is the three-step test as a fair use against copyright or related rights infringement claim forgotten in Vietnam”: http://bross.vn/newsletter/ip-news-update/IS-THE-THREESTEP-TEST-AS-DISMISSAL-OR-APPROVAL-OF-FAIR-USE-DEFENSE-AGAINST-COPYRIGHT-OR-RELATED-RIGHTS-INFRINGEMENT-CLAIM-FORGOTTEN-IN-VIETNAM

[5] See Articles 9, 10 and 10bis Berne Convention. Particularly, Article 13 the TRIPs agreement on the limitations and exceptions states:

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder

[6] Article 3(3) Berne Convention: The expression “published works” means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.

 

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