Snapshot of Neighboring Rights in the Vietnam IP Law

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Legal Nature of Neighboring Rights

Neighboring rights related to copyright[1] (“related rights”) are the exclusive right to prevent others from making unauthorized copies or illegal distributions of performances, phonograms, video recordings, broadcasts. Related rights also include the right to enjoin from making fixation of live performances on phonograms, video recordings; the right to preclude unauthorized decode, deliberate reception or further distribution of encrypted program-carrying satellite signals

Related rights are protected independently from copyright as long as they do not prejudice copyright.

Beneficiaries of exclusive rights to performances, phonograms, video recordings and broadcasts are performers (actors, singers, musicians, dancers), producers of phonograms, video recordings, and broadcasting organization respectively.

Moral Rights and Economic Rights of Related Rights

Moral rights of related rights are solely available for performers. There are no moral rights in favor of broadcasting organizations, producers of phonograms and video recordings. Moral rights of performers include two types of rights: the right of attribution (credit) and the right of integrity with respect to his/her performance image.

As far as economic rights are concerned, performers have 4 types of exclusive rights: (1) to make fixation of live performances on phonograms and video recordings; (2) to reproduce directly or indirectly his performance fixed on phonograms or video recordings; (3) to broadcast or otherwise transmit to the public unfixed performance to be accessible to by the public, except where such performance is for broadcasting purposes; and (4) to distribute to the public original and copy version of performance through sale, rental, or distribution by any technical means accessible to by the public.

Producers of phonograms and video recordings have such 2 types of exclusive rights as: (1) to reproduce directly or indirectly their phonograms or video recordings; (2) to import, distribute to the public original and copied versions of their phonograms and video recordings through sale, rental, or distribution by any technical means accessible to by the public.

Broadcasting organizations have 4 exclusive rights: (1) to broadcast and re-broadcast their broadcasts; (2) to distribute to the public their broadcasts; (3) to make fixation their broadcasts; (4) to reproduce copy of their broadcasting programs.

Criteria for Protection of Related Rights

Related rights always attach to performances, sound recordings, video recordings, broadcasts, and encrypted program-carrying satellite signals. Unlike copyright that requires both requirements of fixation and originality, related rights only demand fixation (fixed in a tangible medium of expression) while originality is not required.

Regarding the term of protection, the rights of performers are protected for 50 years calculated from the year following the year of fixation of performance. The rights of producers of phonograms and video recordings are protected for 50 years counted from the year following the year of publication or 50 years following the year of their fixation but not yet published. The rights of broadcasting organizations shall be protected for fifty (50) years calculated from the year following the year of broadcasting.

Enforcement of Related Rights

Except for the limitations and exceptions said in last section below, acts of appropriation, impersonation, unauthorized publication, distortion, copying, production, distribution of fixed performances, phonograms, video recordings, broadcasts without the consent of the author, would be considered an infringement of related rights.[2]

Acts of infringing upon performances, phonograms, video recordings and broadcasts may be handled by administrative sanctions with a fine of up to VND 500 million, or by means of a civil lawsuit along with an unlimited damage subject to the actual damage, or even criminally prosecuted with a fine of up to 1 billion VND or imprisonment up to 3 years.[3]

Fair Use

The IP law recognizes some special cases that are considered exceptions or limitations (fair use) that do not infringe copyright if complying with the three-step test.[4] In particular, acts of copying, quoting, performing, recording, making a temporary copy of published performances, sound recordings, video recordings, broadcasts would not be regarded as an infringement even without permission, without paying royalties to the right holder provided that the above acts do not conflict with the normal exploitation of related rights, and also do not unreasonably prejudice the legitimate interests of the right holder.

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.

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