Moral Rights under the 2022 Intellectual Property Law of Vietnam

By attorney Le Quang Vinh – Bross & Partners

Email: vinh@bross.vn

“Moral rights” that is a translation of the French term "droit moral" is an integral part of copyright (more exactly as “authors’ rights”). To comply with the international commitments after joining the new generation trade agreements including CPTPP, EVFTA and RCEP, Vietnam has revised quite a lot of regulations on copyrights and related rights[1] under the Third Amendment to the 2005 IP Law (the “2022 IP Law”) which has just been passed by the National Assembly on June 16, 2022 and will come into effect from January 1, 2023. However, it is to be noted that provisions on sound marks that was already effective since January 14, 2022, while those on protection of experimental data for agricultural chemical products will be effective from January 14, 2024. Below Bross & Partners would like to update some crucial changes concerning moral rights.

Definitions of authorship and co-authorship

The 2022 IP Law first time defines authorship and co-authorship. Specifically, it stipulates that an author is the person who directly creates the work. Co-authors are recognized only when there are more than 2 creators directly creating the work, provided that their contributions to the work are combined into a complete whole. The 2022 IP Law does not recognize authorship or co-authorship for those who support, give comments, or provide materials for other people to produce works.

Except for where the work consists of detachable parts, each of which can be used separately from others without prejudice to the part of other co-authors, or the law otherwise provides, the 2022 IP Law states that the exercise of moral rights and economic rights for the works created by co-authors would require a consensus amongst the co-authors.

Scope of Moral Rights Revised

Moral rights are nonmaterial rights and protected under the 2005 IP Law including 4 exclusive rights: (1) to name works; (2) to put real name or pseudonym in works, have real name or pseudonym mentioned when such work is published or used; (3) to publish work or authorize another person to do so; (4) to protect the integrity of works, object to any alteration, mutilation, distortion or other modification in any form which prejudice against the author’s honor and prestige. Except for the right to publication, which is transferable and protected for a definite period, the other three moral rights are protected perpetually and non-transferable.

It seems that the 2022 IP Law tries to confine unassignable attribute of the right to naming works to new provision stating that an author can transfer the right to use such right to naming a work to organizations or individuals as the transferees of economic rights. The 2022 IP Law seemingly attempts to redefine the scope of right of integrity of works in a bid to avert potential conflicts with economic rights, especially the rights to make derivative works. Particularly, the amended Article 19.4 puts the element of "distortion" right after the phrase "protect the integrity of works", and additionally changes the element "alteration" to "modification".

Conflict Between Right to Make Derivative Works and Right of Integrity Resolved?

The right to make derivative works is one of six exclusive economic rights that are protected in a limited period and transferable. Making a derivative work is generally understood as the act of transforming (eg. translating, adapting, modifying, transforming, compiling, annotating, selecting) an existing work into a new work having new author’s individual character while the new work can associate with the previous work. The 2005 IP Law stipulates that derivative works are protected only when they do not prejudice the copyrights of the work used to create such derivative works.

It appears that the 2022 IP Law strives to find a way to resolve the possible conflict between the right to create derivative works and the right of integrity of works when it first provides in Article 19.4 that acts of creating a derivative work that affect the right of integrity must be consented in writing by the author.

Moral Rights to Cinematographic Works

A wide variety of positions (eg. directors, screenwriters, cameramen, stage managers, composers, art-designers, soundmen, lighting-men, studio artists, studio-instrument managers, high-tech makers and other creators) under the 2005 IP Law are entitled to hold all moral rights (except for the right to publication) when creating a cinematographic work.

However, the 2022 IP Law redetermines the entitlement to beneficiary of moral rights to cinematographic works in order to restrict their absolute nature. Specifically, the 2022 IP Law stipulates those organizations and individuals which invest finance, other material and technical facilities in making cinematographic works are copyright stakeholders owing all economic rights and one moral right – right to publication, unless otherwise agreed in writing. To minimize the possibility of conflict with other moral rights, the 2022 IP Law allows those organizations and individuals making financial investment to negotiate with screenwriters and directors on naming and altering works.

The 2022 IP Law states that authors (who are not simultaneously copyright owners) participating in filming, editing, composing music, designing art, designing sound, lighting, effects, actors/actresses, and those who perform other creative jobs related to cinematographic works are entitled to only one moral right under Article 19.2 - the right to put their real names or pseudonyms in the work, or have their real names or pseudonyms mentioned when the work is published or used.

The 2022 IP Law also sets out that where a script or musical work in a cinematographic work is used independently, authors or copyright holders of such script or musical work are entitled to copyrights to that script or musical work independently, unless otherwise agreed in writing.

Moral Rights to Theatrical Works

The 2005 IP Law grants full moral rights (except for the right to publication) to many individual subjects (not copyright holders) who are directors, editors, choreographer, composers, art-designers, soundmen, lighting-men, stage artists, stage-instrument managers, high-tech makers and others doing creative jobs related to theatrical works. However, the 2022 IP Law only grants the full entitlement to moral rights (except for the right to publication) to scriptwriters while authors of literary works, musical works, and individual subjects engaged in directing, conducting, choreographing, designing stages, designing costumes, or other creative works are only entitled to one moral right, which is the right to have their names mentioned when the work is used or published. It should also be noted that in cases where a script or musical work in a theatrical work is used independently, authors or copyright holders of such script or musical work are entitled to copyrights to that script or musical work independently, unless otherwise agreed in writing.

Organizations and individuals that invest finance, other material and technical facilities in making theatrical works are copyright owners holding all property rights and one moral right solely – right to publication, unless otherwise agreed in writing.

Similar to cinematographic works, the 2022 IP Law implies on allowing organizations and individuals to invest finance and other material and technical facilities in making theatrical works to negotiate with screenwriters on naming and altering works.

Moral Rights to Computer Programs

Computer programs are protected the same as literary works, irrespective of whether the computer programs are expressed in the form of source codes or machine codes. In order to minimize the possibility of conflict between moral rights and property rights, the 2022 IP Law grants that authors and copyright holders to a computer program may agree in writing on modifying and upgrading such computer program.

Bross & Partners, an intellectual property company ranked First (Tier 1) by Legal 500 Asia Pacific, has experience in resolving complicated IP disputes including trademarks, domain name, copyrights, patents, plant varieties.

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