Some Comments on the Draft Amendment 8
to the Vietnamese Law on Motion Picture
We assume that some terms and concepts in the Draft Amendment 8 to the Law on cinematography (“Draft 8”) being reviewed by the National Assembly's Committee on Culture and Education are similar in nature to many types of economic rights pertaining to cinematographic work that are currently protected by the 2005 Intellectual Property Law (IP Law). However, those terms are defined differently from the IP Law which may result in possible conflict between the Cinematography Law and the IP Law. For example:
1. "Disseminating movies" and "disseminating movies in the cyberspace" in Article 3(8) and Article 3(15) of Draft 8 are essentially activities of exploiting the economic rights of cinematographic works set out in Article 20 of the IP Law (eg. the right to rental of the original or copy, or the right to make available to the public).
2. “Movie owner” in article 3(11) of Draft 8 is defined differently from the concept of owner of copyright (author’s right) of cinematographic work in article 36 of the IP Law, although the Draft 8’s intention appears to refer to the ownership of copyright in a particular cinematographic work (ownership in this case is not only attached to a tangible physical object containing the film but also to any tangible physical including a copy or a transformed version of the motion picture) rather than referring to the ownership of a sole object containing such film (ownership in this case over a solely tangible physical object containing the film).
3. “Film distribution” in article 3(7) also refers to the exploitation of economic rights of cinematographic works such as the exclusive right of distribution (including sale, rental, import, export, of original or copy of the cinematographic work).
The principal subject matters of the Law on Cinematography is the state management of cinematographic activities such as the production, distribution, dissemination, storage, depository and promotion of films. Accordingly, in terms of the name of this Law, it appears that its name should be changed as the Law on state management of cinematic activities seems to exactly reflect the applicable subject matters.
The main subject matters of the IP Law are a bunch of intellectual property rights, including copyright in cinematographic works. Copyright subsisted on a cinematographic work is an exclusive right accorded to the right holder (copyright owners, authors) to prevent others from making copies of the cinematographic work, as well as including the right to control the possibility that a cinematographic work is published, distributed, made available to the public, performed, distorted, mutilated, quoted, or otherwise modified without the permission of the author, the copyright holder.
Although the Cinematography Law and IP Law are two independent laws, they have an interrelated relationship with each other and have a part of the scope of applicability of intersection and overlap with each other. Draft 8 does not mention this relationship, so it may lead to a conflict between the two laws, making it difficult for practical application and dispute resolution. In fact, there has been a recent conflict and controversy between the Vietnam Cinema Department and Vietnam Film Institute around the fact that the latter’s film dissemination to its channel Youtube and was accused by the former to be infringing copyright.
To address the Draft 8’s shortcomings when leaving out the principles of law application and settlement of conflict, we have 2 recommendations:
1. A provision “applicability of law” should be added before Article 4 within Draft 8 with aim to deal with possible conflicts, for example, it may provide for:
Article 4. Application of the law
1. In case there is any difference between the provisions on intellectual property of this Law and those in the IP Law, the provisions of the IP Law shall prevail.
2. In case an international treaty to which the Socialist Republic of Vietnam is a contracting party contains provisions different from those of this Law, the provisions of such international treaty shall apply.
2. Review all provisions related to cinematographic activities that possibly connect with economic rights and moral rights under Articles 19 and 20 of the IP Law to ensure consistency, avoid possible conflict and overlap.
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