Part 2/3: Copyright under the Vietnamese Legislation in the Format Q&A
11. Are architectural works protected by copyright? How?
Yes. Architectural works may be protected in two forms: either a design drawing of a building or a complex of buildings, interior, landscape or in the form of an architectural building per se, according to Decree No. 22/2018/ND-CP which has been in effect since 10 April 2018.
12. Are performance rights covered by copyright? How?
No. Other than copyright, performance rights are classified into a group of related rights (also known as neighbouring rights). These subject matters are also protected the same as those of copyrighted ones provided that they are fixed or displayed and not prejudicial to copyright.
13. Are ‘neighbouring rights’ recognised? How?
Related rights or neighbouring rights that are eligible for protection have three types of subject matter: (a) performance (by artist, singer, or commonly called performers), (b) audio and visual fixation (sound or image recordings), and (c) broadcasting; they are protected under the laws of Vietnam as an independent protectability subject matter other than copyright.
14. Are moral rights recognised?
Yes. See question 7.
15. Is there a requirement of copyright notice?
No provision or requirements are available under the current laws and regulations.
16. What are the consequences for failure to display a copyright notice?
There are no consequences as there is no provision on the same.
17. Is there a requirement of copyright deposit?
There is no requirement for copyright deposit.
18. What are the consequences for failure to make a copyright deposit?
19. Is there a system for copyright registration?
Yes. Upon request, a certificate of registered copyright or a certificate of registered related rights may be granted by the COV. However, such a certificate shall not be a compulsory pre-requisite for entitlement to copyright or related rights. Indeed, concerned parties are recommended to register since those who are granted certificates of registered copyright or certificates of registered related rights shall not bear the burden of proving such copyright or related rights in a dispute.
20. Is copyright registration mandatory?
No. See question 19.
21. How do you apply for a copyright registration?
When seeking to obtain a registration of copyright or related right, the applicant (authors, copyright holders or related right holders) has to submit a required dossier with COV, thereby such dossier basically contains:
a request for registration of copyright or related rights. Such request must be made in Vietnamese and duly signed by the author, copy- right holder, related rights holder or person authorised to file the application, fully stating the information on the applicant, author, copyright holder or related rights holder; summarising the content of the work, performance, phonogram, video recording or broad- cast; the name of the author, the title of the work used to make derivative work in cases where the work to be registered is a derivative work; the date, place and form of publication; a undertaking accepting liability for information stated in the application;
two copies of the work subject to application for copyright registration, or two copies of the fixed object subject to the related right registration;
a letter of authorisation, where the applicant is the authorised person;
documents proving the right to file application where the applicant acquires such right due to inheritance, succession from or assignment by another person;
written consent of co-authors, for works under joint authorship; and
written consent of co-owners if the copyright or related rights are under joint ownership.
22. What are the fees to apply for a copyright registration?
The official charges are generally insignificant – between US$4 and US$22 depending on the type of work or related right subject seeking registration.
23. What are consequences for failure to register a copyrighted work?
There are almost no consequences for failure to register a copyrighted work. As explained in question 20, it is not mandatory to register copy- right or related right. However, the registration is highly recommended to help the stakeholder bearing the burden of proof.
24. Who is the owner of a copyrighted work?
Basically, an author is deemed as the first owner of a copyright. Section 36 of the IP Law defines the copyright owner as an organisation or individual who holds one, several or all of the economic rights. Further, where there is evidence that authors are duly those who used their own time, finance and material or technical facilities to create works then they would enjoy protection under both section 19 on moral rights and section 20 on economic rights.
25. May an employer own a copyrighted work made by an employee?
Yes. Where any organisation assigns the task of creating a work to an author who belongs to such organisation, the organisation shall be the owner of the copyright entitled to hold all economic rights under section 20, plus one of the four moral rights under section 19, being the right to publish his or her works or to authorise other persons to publish his or her works, unless otherwise agreed.
26. May a hiring party own a copyrighted work made by an independent contractor?
Yes. In the case that any organisation or individual enters into a contract with an author (other than the author whose creation is formed while performing on the basis of an employee-employer relationship) for the creation of a work, that organisation or individual shall be the owner of all economic rights under section 20, plus one of the four moral rights under section 19, being the right to publish his or her works or to authorise other persons to publish his or her works, unless otherwise agreed.
27. May a copyrighted work be co-owned?
Yes. Section 38(1) of the IP Law provides that co-authors who use their time, finance and material or technical facilities to jointly create works shall share the rights to such works stipulated in section 19 (moral rights) and section 20 (economic rights). Section 38(2) further defines that co-authorship means two or more than two authors that jointly create a work and this provision also ascertains the rule that each of the joint authors who own their joint moral and economic rights may exploit or use independently his or her rights on the condition that such independent use may be detachable and does not prejudice the parts of the work of the other co-authors.
28. May rights be transferred?
Yes. All of the economic rights pertaining to copyright or related rights are assignable. For moral rights, only one of four rights under section 19 are transferrable, this being the right to publication or to permit others to publish. See question 7.
29. May rights be licensed?
Yes, except for moral rights (excluding the right to publication or to permit others to publish) that are prohibited from licensing. These prohibited licensing rights are stated in section 19 comprising the right to (a) to give titles to their works, to attach their real names or pseudonyms to their works, (b) to have their real names or pseudonyms acknowledged when their works are published or used, (c) to protect the integrity of their works, and to forbid other persons from modifying, editing or distorting the work in whatever form, causing harm to the honour and reputation of the author, and in section 47(2) consisting of the right to (a) to have the name acknowledged when performing, when distributing audio and visual fixation or when broadcasting performances, (b) to protect the integrity of the imagery of the performance, and to prevent others from modifying, editing or distorting the work in any way prejudicial to the honour and reputation of the performer.
30. Are compulsory licences? What are they?
Yes. As per section 26 of the IP Law, compulsory licences, known as non-voluntary licences, are available except for cinematographic works. Whereby it is understood to mean cases when published works may be used without having to seek permission but royalties or remuneration must be paid on the condition that such use does not conflict with a nor- mal exploitation of the work or related rights and does not unreason- ably prejudice the legitimate interests of the author; and it must also provide the author’s name and the source and origin of the work.
31. Are licences administered by performing rights societies? How?
Generally, yes. Up to now, most common types of works have been managing and granting licences to use by the collective management of copyright and related rights or also known as collective management organisations (CMOs), such as the Vietnam Literary Copyright Center (VLCC), the Recording Industry Association of Vietnam (RIAV), the Vietnam Center for Protection of Music Copyright (VCPMC), the Vietnam Reproduction Rights Organization (VIETRRO) and the Association for Rights Protection of Music Performing Artists (APPA). The names of each of the collective management bodies basically describe the types of works that each one grants licences to.
32. Is there any provision for the termination of transfers of rights?
The termination of transfer of rights is merely subject to the terms and conditions agreed in the fiduciary licence agreement signed between CMOs and copyright holders. In practice, for different reasons, copy- right holders may unilaterally terminate the signed contract with CMOs.
33. Can documents evidencing transfers and other transactions be recorded with a government agency?
No provisions are available.
To be continued
Should you have needs, please contact us at Email: email@example.com; 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.