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Part 1/3: Copyright under the Vietnamese Legislation in the Format Q&A
(Ngày đăng: 2020-09-15)

Part 1/3: Copyright under the Vietnamese Legislation in the Format Q&A

 

Email: vinh@bross.vn

 

  1. What is the relevant legislation?

 

The Civil Code of 2015 (only general rules stated in sections 8, 115, 221, 222 and 683); the Law on Intellectual Property of 2005 as amended in 2009 and 2019 (IP Law); the Criminal Code of 2015 as amended in 2017 (section 225); and the Law on Customs of 2014 (sections 73, 74, 75 and 76).

 

  1. Who enforces it?

 

Under section 200 of the IP Law, the state bodies that have the competence to deal with acts of infringement of intellectual property rights may be bodies such as courts, inspectorates, market management offices, customs offices, police offices or people’s committees at all levels.

 

  1. Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

 

Basically the answer is no. The main reason is that Vietnam has not yet acceded to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which update and supplement the unsettled new problems by the Berne Convention, namely, the latest developments of the internet and digital technologies. However, some acts relating to copyright and related rights, how- ever indirect and incomplete, may be deemed as an infringement, such as duplicating, producing copies of, distributing, displaying or communicating a work to the public via a communications network or digital means without permission from the copyright holder.

 

  1. Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

 

There are no provisions in the IP Law on extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright. However, at the sub-law level, such extraterritorial application rule on foreign-owned or foreign-operated websites that infringe copyright may be found in article 5(4) of Decree No. 105/2006/ND-CP as amended, stating that an act under consideration shall also be deemed to have been committed in Vietnam if it was committed on the internet and aimed at consumers or people using information in Vietnam.

 

  1. Is there a centralised copyright agency? What does this agency do?

 

Yes. The Copyright Office of Vietnam (COV), an agency under the Ministry of Culture, Sports and Tourism, is responsible for the state administration of the copyright and related rights sector nationwide, including Collective Management of Copyright and Related Rights (CMOs), the granting and cancellation of copyright registration certificates as requested. However, based on section 200 IP Law, the COV is basically not an intellectual property rights enforcement body.

 

  1. What types of works are copyrightable?

 

Any work that is created and fixed in any tangible medium of expression with originality is copyrighted. Subject matters protectable as copyright by section 14 the IP Law comprise:

  • literary works, scientific works, textbooks, teaching courses and other works expressed in written language or other characters;
  • lectures, addresses and other speeches;
  • press works;
  • musical works;
  • stage works;
  • cinematographic works and works created by a process analogous to cinematography;
  • plastic art works and applied art works;
  • photographic works;
  • architectural works;
  • sketches, plans, maps and drawings related to topography or scientific works;
  • folklore and folk art works; and
  • computer programs and collections of data.

 

Derivative works shall only be protected if such protection is not prejudicial to the copyright in the works used to create such derivative works.

 

7.What types of rights are covered by copyright?
 

The rights conferred upon copyrighted works consist of moral rights and economic rights. Under section 19 of the IP Law, except for the transferable right to publish or permit others to publish works (under moral rights), the remaining moral rights comprise the non-transferable exclusive rights: to name works, to attach real names or pseudonyms to works, to attribute (to be given credit to) creator’s real names or pseudonyms when works are published or used by others, to protect the integrity of works and to prevent others from modifying, mutilating or distorting works in any form prejudicial to their honour and reputation. Economic rights under section 20 include rights to create derivative works, perform the work for the public, reproduce the work, distribute or import original works or copies thereof, communicate the work to the public by wire or wireless means through electronic information net- works or by any other technical means, lease the original or copies of a cinematographic work or a computer program.

 

 

8.What may not be protected by copyright?
 

Vietnam does not accept protection in favor of three types of subject matters: (a) daily news as mere items of information; (b) legal instruments, administrative and other documents in the judicial domain, and official translations of such documents; and (c) processes, systems, operational methods, concepts, principles and data.

 

  1. Do the doctrines of ‘fair use’ or ‘fair dealing’ exist?

 

Yes. Fair use is included in section 25 and section 32 of the IP Law, whereby others may freely use published copyright or related rights without needing to seek permission and to pay royalties or remuneration from the copyright holder on the condition that such use does not conflict with a normal exploitation of the work or related rights and does not unreasonably prejudice the legitimate interests of the author[1].

 

The 10 defence circumstances on fair use relating to a published copyrighted work comprise:

  • making one copy of the work for scientific research or teaching purposes;
  • reasonable quoting from a work in order to comment on or illustrate one’s own works, without misrepresenting the author’s views;
  • quoting from a work in order to write an article published in a news- paper or periodical, in a radio or television broadcast or in a documentary, without misrepresenting the author’s views;
  • quoting from a work in a school or university for lecturing purposes without misrepresenting the author’s views and not for commercial purposes;
  • copying a work by a library for archival and research purposes;
  • performing of a stage work or other art work in mass cultural, communication or mobilisation activities without collecting fees in any form;
  • audio-visual recording of a performance in order to report current events or for teaching purposes;
  • photographing or televising plastic art, or an architectural, photo- graphic, or applied art work displayed in a public place in order to present images of such work;
  • transcribing a work into braille or into characters of other languages for the blind; and
  • importing copies of another’s work for personal use.

 

However, it is worth noting that the circumstances in (a) and (e) indicated above shall not be applied to architectural works, plastic works and computer programs.

 

The 4-defence circumstances as fair use regarding the published related rights consist of:

  • making one copy of a work for personal scientific research purposes;
  • making one copy of a work for teaching purposes, except for performances, audio-visual fixation or broadcasts which have been published for teaching purposes;
  • reasonable quoting from a work in order to provide information; and
  • making provisional copies of a work by a broadcasting organisation for broadcasting purposes when such organisation has the broad- casting right.

 

  1. What are the standards used in determining whether a particular use is fair?

 

In practice, in view of the current fair use provisions, Vietnam’s transposition of its Berne Convention and TRIPS members’ obligation is deemed obedient because these provisions incorporate the Berne-based three-step test[2] which provides that ‘members shall confine limitations and 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 rights holder’. Thus, readers should go through sections 25 and 32, especially their sub-sections 2 which state, for instance, that organisations and individuals who use the works stipulated in section 1 of this article must neither affect the normal use of such works nor cause prejudice to the rights of the author or copyright holder, and must provide information being the author’s name and the source and origin of the work, or organisations and individuals who use works stipulated in section 1 of this article must neither affect the normal use of performances, audio and visual fixation (sound and image recordings) or broadcasts, nor cause prejudice to the rights of performers, producers of audio and visual fixation, or broadcasting organisations[3].

 

To be continued

 

Should you have needs, please contact us at Email: vinh@bross.vn; Mobile: 0903 287 057; WeChat: Vinhbross2603; WhatsApp: +84903287057; Skype: vinh.bross; Zalo: +84903287057.

 

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 more our article Fair use, fair dealing or also known as “cases of use of published works where permission and payment of royalties and/or remunerations are not requiredunder the copyright legislation of Vietnam” at the link: http://bross.vn/newsletter/ip-news-update/Fair-use-fair-dealing-or-also-known-as-%E2%80%9Ccases-of-use-of-published-works-where-permission-and-payment-of-royalties-andor-remunerations-are-not-required%E2%80%9D-under-the-copyright-legislation-of-Vietnam

[2] View more the three-step test under the laws of Vietnam in the article Is the three-step test as a fair use against copyright or related rights infringement claim forgotten in Vietnam at the link: 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

[3] Fair use is rarely found in the judgments and decisions made by the court and other IPR enforcement bodies in Vietnam. You can refer, for example, to the case included in the article The third classic intellectual property dispute in Vietnam viewed from a rarely occurred dispute regarding fair use defense decided by the Vietnamese courts: https://www.mondaq.com/copyright/893408/the-third-classic-intellectual-property-dispute-in-vietnam-viewed-from-a-rarely-occurred-copyright-dispute-regarding-fair-use-defense-decided-by-the-vietnamese-courts

 

 

 

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