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Bross & Partners’ Proposal Regarding Limitations and Exceptions to Copyright Already Included in the Latest Draft Law Revision to the Vietnamese IP Law
(Ngày đăng: 2021-07-22)

Bross & Partners’ Proposal Regarding Limitations and Exceptions to Copyright

Already Included in the Latest Draft Law Revision to the Vietnamese IP Law

 

Email: vinh@bross.vn

 

Limitations and Exceptions to Copyright as a Fair Use Defense against Infringement Claim

 

Limitations and exceptions (L&Es) to copyright are the legal principles set forth in Article 9(2) of the Berne Convention and Article 13 TRIPs[1] with the aim of limiting the exclusivity of holders of copyright and neighboring rights, and of protecting the public's right to access information. The 2005 Intellectual Property Law as amended twice in 2009 and 2019 (the "IP Law") transposed the above legal principles into two pairs of provisions, ie. Articles 25-26 related to copyright and Articles 32-33 relating to related rights (neighboring rights), wherein the pair Article 25-32 are of the exceptions and the other pair Articles 26-33 are the limitations. [2]

 

The L&Es to copyright are significant provisions under the IP Law because it would have no copyright infringement if an act of use, reproduction or exploitation of copyrighted materials is deemed to have fallen into one of the special circumstances called as fair use listed by the IP Law.

 

Bross & Partners’ Comments on Amendments of L&Es Found in the Latest Draft Law Revision

 

The titles of “Articles 25 - Cases when published works may be used without having to seek permission, without paying royalties or remuneration and of Articles 32- Cases when related rights may be used without having to seek permission, without having to pay royalties or remuneration in the Draft Law Revision  (even the current IP Law) does not represent accurately the nature of L&Es to copyright because the name of articles only invokes the act of "use", while the body of the article lists out such many different acts as making a copy in the form of "self-reproducing", "reproduction", "quotation", "performance", "photographing", "transformation of format", etc. Therefore, we proposed to change the name of the pair of Articles 25-32 to: Article 25. Exceptions to copyright and Article 32. Exceptions to related right”.

 

Similar to the exceptions pair of Articles 25-32, the titles of the pair of Articles 26-33 in the Draft Law Revision "Article 26 - Cases when published works may be used without having to seek permission but royalties or remuneration must be paid" and "Article 33 - Cases when related rights may be used without having to seek permission but royalties or remuneration must be paid” respectively are also unreasonable on account of: Articles 26-33 are of the nature of compulsory license (non-voluntary license) with an aim of restricting (narrowing) the scope of enforcement of IP rights, that is, literally, you can freely exploit it but having to pay; the concept of "use" of the published work, "use" of a published subject of related rights is too narrow and easily confused because in practice there are always such multiple acts as exploiting, making a copy (eg, sharing links, peer-to-peer networks, downloading, uploading, etc.,) of the published work / subject of published related rights, but not always and purely as the "use"; the lack of precondition of “published” applicable for the subject of related rights in the title of Article 33. For that reason, we recommended to change the name of the pair of Articles 26-33 to: Article 26. Restrictions on exclusive right over the published works” and “Article 33. Restrictions on exclusive right over the published subjects of related rights”.

 

Three-step test set forth at Article 9(2) of the Berne Convention has two legal significances. The first is to avoid the abuse of exploitation/use of copies of published works/subjects of published related rights without permission and without payment. The second is to set a borderline between the infringement and non-infringement. Three-step test comprises: Step 1 – it is permitted to make reproduction in some special cases governed by national law; and Step 2 - the act of making such reproduction does not conflict with a normal exploitation of the work; and Step 3 - such reproduction must not unreasonably prejudice the legitimate interests of the author. The fact that the Draft Law Revision (even though the current IP Law) arranged to combine step 2 and step 3 of the three-step test in clause 2 of Articles 25, 26 and 32 or in clause 3 of Article 33 can cause to misunderstanding during the application of law. The Bench Court of the Supreme People's Court made a mistake when adjudicating the copyright dispute between two late scholars researching the Tale of Kieu according to the appellate judgment no. 127/DSPT dated June 14, 2007.[3]

 

We highly appreciate that the Drafting Committee has accepted most of our comments, specially including the proposal to reverse step 2 and step 3 of the three-step test in two pairs of articles 25-32 and 26-33. and at the same time combined with the corresponding clause 1. Below is the full text of two pairs of articles: Articles 25 & 32 on non-infringement exceptions and Articles 26 & 33 on restrictions on intellectual property rights contained in the latest Draft IP Law that is going to be submitted to the National Assembly.

 

Article 25. Copyright Exceptions

1. Under the following circumstances, a published work may be used without permission or royalty, provided that such exploitation or use does not conflict with a normal exploitation of the work, does not unreasonably prejudice to the legitimate interest of the author or copyright owner; information about the author's name and origin of the work shall be credited except for the compulsory cases on account of the mode of use of the work.

a) Self-copying of one copy for personal scientific research, study and not for commercial purposes. This provision does not apply in the following cases:

(i) Copying the whole or a substantial part of the work;

(ii) Copying by using automatic copying devices or other copying equipments installed for public use;

b) Reasonably copying of a part of the work for personal use with aim of directly teaching and not for commercial purposes, except where the work is published for teaching purpose;

c) Reasonably using of the work for illustration in publications, sound recordings, video recordings, broadcasts for teaching purposes. Such use may include the provision made by the local computer network provided that technical measures are to be taken to ensure that only students and teachers participating in learning and teaching during that session is able to access to these works;

d) Using works in official activities of state authorities;

dd) Reasonably quoting the work without misleading the author idea to comment, introduce or illustrate in one’s own work, to teach, to write newspapers, to adopt in periodicals, broadcasts, documentary films;

e) Copying the works in library operations include:

(i) Copying the works archived in the library for preservation, not for commercial purposes. This copy must be marked as an archive copy and restricted to the accessible audience according to the Government regulations

(ii) Reasonably copying of a part of the works in favor of the others for research and non-commercial purposes. In this case, the library that has reproduced the work must accompany a notice of copyright;

(iii) Copying or transmitting the work stored for use in the relevant libraries through the computer network, provided that the number of users at the same point of time does not exceed the number of copies of the work entitled by the aforementioned library; unless the work available on the market is made in digital form.

In the event that the library reproduces or transmit the works in digital form pursuant to the provisions of this point, the library must apply measures to prevent copyright infringement;

g) Performing theatrical, music, dance works and other types of art performance in cultural activities, propaganda activities for non-commercial purposes;

h) Taking photograph and broadcasting the works of art, architecture, photography and applied arts displayed in public places to introduce the images of those works;

i) Making and using easily-accessible copies of the works for visually impaired persons, disabled people who are unable to read printed version, and other disabled people (hereinafter collectively referred to as disabled people), including:

(1a) Disabled people or their caregivers are entitled to make reproduction of the works in the easily-accessible format for their personal use when they have legal access to the work;

(2b) An organization authorized by the Government has the right to make an accessible format copy of the work, to obtain an accessible format copy of the work from the respective organization that is a party of Marrakesh Treaty, and to provide this copy to disabled people in any form when the following conditions are met: The organization specified in this point has legal right to access to the work and the modification of the work is only to the extent necessary for disabled people to access to the work;

(3c) Any organization authorized by the Government has the right to make or receive reproduction, in easily-accessible format, of the works from the respective organizations which are the members of the Marrakesh Treaty, and to provide these reproductions in any form to the disabled persons on the conditions: The organization mentioned in this point has legal access to the work and the modification of the work is only to the extent necessary for the disabled to have access to the work;

(4d) Any organization authorized by the Government has the right to distribute or disseminate copies in an easily-accessible format of the work in favor of disabled people who are the members of the Marrakesh Treaty without the permission of the copyright holder provided that, prior to dissemination or distribution, the organization shall apply the necessary measures to ensure that copies in this accessible format are not used by anyone other than disabled persons;

(5e) Disabled people or their caregivers or any organization authorized by the Government to make copies of the work in an accessible format, have the right to import an accessible format copy of the work for benefits of disabled people without the permission of the right holder;

k) Importing copies of other's work for personal use;

l) Copying by republishing in newspapers, periodicals, broadcasts or other forms of communication, to the public, of lectures, talks, or other speeches presented to the public in reasonable scope for information purposes. This provision does not apply to make collection of the works mentioned above;

m) Taking pictures, recording sound, recording video and broadcasting the events for the purpose of reporting news wherein using the works viewable and audible in that event.

2. Reproduction specified in clause 1 of this Article does not apply for architectural works, art works or computer programs.

Article 32. Related Right Exceptions

1. Under the following circumstance, the published performances, phonograms, video recordings, broadcasts may be used without permission, without royalties, provided that such use is not conflict with normal exploitation of the performances, phonograms, video recordings, broadcasts, not unreasonably prejudice the legitimate interests of the relevant right holder, and information on performances, phonograms, video recordings, broadcasts must be credited, except for the compulsory cases on account of the mode of use of such performances, phonograms, video recordings or broadcasts:

a0) Live recording sound, video of a part of the performance for teaching purposes, not for commercial purposes or merely for reporting news;

a) Self-reproducing or assisting disabled people to copy a part of the performances, phonograms, video recordings, or broadcasting programs for scientific research, personal study, and non-commercial purposes.

b) Reasonably making reproduction of a part of the performances, phonograms, video recordings, broadcasts for directly teaching personally and non-commercial purposes, except where these performances, phonograms, video recordings, or broadcasts as published is of teaching purpose;

c) Reasonably quoting for the purpose of reporting news;

d) Broadcasting organization self-makes a temporary copy for broadcasting when it is entitled to broadcast..

2. The Government shall specify Clause 1 of this Article.

 

 

 

 

 

 

 

 

Article 26. Copyright Limitations[4]

1. Under the following circumstances, published works may be exploited, used without the copyright holder’s permit but royalties are to be paid, provided that such exploitation, use does not conflict with normal exploitation of the copyrighted works, does not unreasonably prejudice to the legitimate interest of the author or copyright owner; information about the author's name and origin of the work shall be credited, except for the compulsory cases on account of the mode of use of the work:

(a) Broadcasting organizations that exploit, use the published works to broadcast sponsored, to advertise or collect money in any form do not have to ask permission, but must pay royalties to the copyright holders since their use. The amount of royalty and mode of payment shall be agreed upon by the parties; in case that no agreement can be reached, the Government's regulations shall be applicable.

Broadcasting organizations that exploit, use the published works to broadcast without sponsorship, neither advertisement nor collection of money in any way do not have to ask for permission, but must pay royalties to the copyright holders counting the point of time of use in accordance with the provisions of the Government.

(b) Organizations and individuals that exploit, use the works fixed on the published phonograms, video recordings for commercial purposes in commercial activities are not required to obtain permission, but must pay royalties pursuant to the agreement to the copyright holder from the time of their use; in case no agreement can be reached, the Government's regulations shall apply.

2. Vietnamese organizations and individuals enjoying preferential treatment accorded to developing countries for the right to translate works from foreign languages into Vietnamese and the right to copy them for teaching and research purposes without commercial purposes may render according to the Government’s regulations.

3. Organizations and individuals wishing to exploit, use the published works of Vietnamese organizations or individuals but cannot find or identify the copyright owner shall comply with the Goverment’s provisions.

4. The use of the works under circumstances mentioned in Clause 1 of this Article does not apply to cinematographic works

Article 33. Related Rights Limitations[5]

1. Under the following circumstances, the published phonograms, video recordings for the commercial purpose may be exploited, used without the copyright holder’s permit but royalties are to be paid, provided that such exploitation, use does not conflict with normal exploitation of the copyrighted works, does not unreasonably prejudice to the legitimate interest of the owner of related rights; information about the performances, sound recordings, video recordings, broadcasting programs shall be credited, except for the compulsory cases on account of the mode of use of those performances, sound recordings, video recordings, broadcasting programs:

a) Organizations and individuals that exploit, use, directly or indirectly, the published phonograms, video recordings for commercial purposes to broadcast, advertise or collect money in any form do not have to ask for permission, but must pay royalties as agreed to performers, producers of phonograms, video recordings, and broadcasting organizations from the point of time of use; in case no agreement can be reached, the Government's regulations shall apply;

b) Organizations and individuals that exploit, use the published phonograms, video recordings for commercial purposes in commercial activities are not required to obtain permission, but must pay royalties as agreed upon to performers, producers of phonograms, video recordings, broadcasting organizations since the point of time of use; In case no agreement can be reached, the Government's regulations shall apply.

2. Organizations and individuals wishing to exploit, use the published phonograms, video recordings of the Vietnamese organizations or individuals but cannot find or identify the relevant rights holders shall comply with the Government’s regulations.

 

 

 

 

 

 

Bross & Partners, a Vietnam intellectual property law firm ranked Tier 1 in 2021 by Legal 500 Asia Pacific, has experience and capacity to resolve intellectual property rights complex disputes regarding trademark, copyright, patent, plant variety and domain name in Vietnam and abroad.

 

Should you need any assistance, please contact: vinh@bross.vn; mobile: 0903 287 057; Zalo: +84903287057; Skype: vinh.bross; Wechat: Vinhbross2603.

 

 

 


[1] See more “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

[2] The name of Article 25 “Cases when published works may be used without having to seek permission or pay royalties or remuneration

 The name of Article 32 “Cases when related rights may be exercised without having to seek permission or pay royalties or remuneration

[3] Like the arrangement in the Draft Law Revision and the current IP Law, the three-step test was laid out by combining step 2 and step 3 into Section 760 of the 1995 Civil Code (but step 1 was separated and put in Section 761). View more our comments on the mistake of the Bench Court of the Supreme People's Court (Court of Appeals) in article “The third classic intellectual property dispute in Vietnam viewed from a rarely occurred copyright dispute regarding fair use defense decided by the Vietnamese courts” at the link:

http://bross.vn/newsletter/ip-news-update/The-third-classic-intellectual-property-dispute-in-Vietnam-viewed-from-a-rarely--occurred-copyright-dispute-regarding-fair-use-defense-decided-by-the-Vietnamese-courts

[4] Bross & Partners suggested using the word “Restrictions” while the Drafting Committee used the word “Limitations”. The words “Restrictions” and “Limitations” have essentially the same legal meaning.

[5] As footnote 6

 

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