Understanding Copyright in the Vietnam IP Law in 10 Minutes

Email: vinh@bross.vn

Legal Nature of Copyright

Copyright[1] is the exclusive right to prevent others from making copies of a literary and artistic work created by the author, as well as the right to control the possibility of this work to be published, distorted, mutilated, quoted, made available to the public, communicated to the public, performed, or otherwise modified without the permit by the author or stakeholder. For example, the movie Trạng Tý phiêu lưu ký (Trang Ty adventure) was adapted from the renown comic series Than Dong Dat Viet authored by artist Le Linh but owned by Phan Thi Co., Ltd.[2]

Copyright comprises moral rights and economic rights. Moral rights as non-economic rights consist of such 3 types of exclusive rights as right of publication, right of attribution (known as right of paternity) and right of integrity, wherein right of publication is protected in a definite period and alienable but the other two are perpetually protected and inalienable.

The author, right holder has also the rights, as economic rights, to control the activities of exploiting the work in the form of copying, making derivative works, distributing, renting, performing, communicating to the public. For example: the late poet Huu Loan, the author of the famous poem "Màu tím hoa sim" (the Purple Color of the Sim Flowers) is credited as authorship of this poem, but he/his heir is no longer the owner of the copyright to it because he already assigned all copyright ownership to Vitek VTB Company against 100 million VND.[3]

Criteria of Protection of Copyright

Copyright is always associated with a specific literary and artistic work, such as written works (comics, novels, poems, software), cinematographic works, architectural works, works of applied art (logo, brand identity), etc. Copyright is automatically protected regardless of its quality, content and non-registration as long as the work satisfies 2 conditions: (1) fixation requirement: it was expressed in the physical world in the form of handwritten notes, records, photographs, etc., or in other word that it was fixed in a tangible medium of expression; and (2) originality requirement: it was created by the author himself.

Who is the First Owner of a Copyrighted Work?

The person who directly created a literary and artistic work and has not yet transferred the economic rights to another shall be both author and owner of such copyrighted work. However, in the event that the work is made on the ground of a commissioning contract (independent contractor), employment contract, or assignment contract, then the commissioning parties, employer, or assignee would by default become the first copyright owner, unless otherwise agreed by the parties. Despite this fact, the right of paternity and right of integrity against possible non-credit, distortion, mutilation of the work would accompany the author perpetually. For example, artist Le Linh is only the author of Than Dong Dat Viet comic series because the copyright owner was automatically assigned to Phan Thi Co., Ltd pursuant to the labor contract.[4]

Term of Protection of Copyright

Except for the right of attribution and the right of integrity that are permanently protected and inalienable, term of protection of a copyrighted work varies depending on the categories of work. Specifically, for most literary and artistic works, economic rights are protected for the whole life of the author plus 50 years after the author's death. Cinematographic work, photographic work and applied-art work are protected for 75 years from the date of fist publication, or 100 years from the date of fixation where they are not published in a period of 20 years.

Enforcement of Copyright

Except for the limitations and exceptions said in last section below, acts of appropriation, impersonation, unauthorized publication, distortion of the work, reproduction, distribution, rental, communication to the public, performance, etc. without the permit of author or copyright owner, shall be considered a copyright infringement.[5]

A copyright infringement can be handled by administrative sanction with a fine of up to VND 500 million, or by means of a civil lawsuit with unlimited damage depending on the actual damage, or even being prosecuted for criminal liability with a fine of up to 1 billion VND or imprisonment for up to 3 years.[6]

6. 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.[7] Specifically, the act of copying, quoting, performing, recording a published work will not be regarded a copyright infringement even without permission, without paying royalties to the author provided that the above acts do not conflict with the normal exploitation of the work, and also do not unreasonably prejudice the legitimate interests of the author. For example: self-reproducing a copy for scientific research, reasonably citing the work without falsifying the author's intention to comment or illustrate his work, photographing architectural works displayed in public places to introduce the image of that work.

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.

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