What exclusive rights is the holder of copyright entitled to

literary artistic and scientific works under the Vietnamese laws?

Email: vinh@bross.vn

What is the author’s rights and copyright under the laws of Vietnam?

Surely we are all familiar with the C symbol in the circle © that signifies a warning for the public that written works, novels, songs, comics, etc. are protected by copyright law. In English language, the legal terms of author’s rights, copyright, copyrighted work have different meaning and are capable of distinguishing one another, but in Vietnamese language these terms are worded in a –easily-confusable manner as “quyền tác giả” instead of the better accurate one as “quyền của tác giả”.

Vietnam endeavored to avoid this confusion by utilizing a general legal term “copyright” to cover both the moral rights attributing to authorship and the economic rights ascribing to the owner (holder) of a copyrighted work, then subsequently subject to legal context, the law would either bestow the moral rights on the author or the economic rights on the holder (owner) of that copyrighted work.

No direct definition of what the copyright is under the Vietnamese IP Law, but only indirect definition at Section 4(2) stating that copyright means rights of an organization or individual to works which such organization or individual created or owns.

How to differentiate amongst the author’s rights, copyright and holder of copyright?

A question is that the copyright is different from author’s rights? The answer is yes or no depending on the situation related to the origin or establishment basis of it. If a person directly composes a song and later he may directly invest his/her money on commercializing it through performances then he/she has both of the authorship rights and the copyright to that song. Another example, the renowned poet Huu Loan[1], who wrote the famous poem "The Purple Color of Sim Flowers” (Màu Tím Hoa Sim), will forever be credited as the author of the poem, but he no longer holds the copyright to the poem because he exhaustedly assigned all of his copyright to Vitek VTB in exchange of 100 million VND[2].

Accordingly, author means a person who has directly created a literary artistic scientific work protected by the laws, whose moral rights such as the right to claim authorship of a work (also known as the right of attribution, or the right of paternity), the right to object to any distortion or modification of a work (sometimes called the right of integrity) are protected unlimitedly and cannot be transferred or licensed.

Copyright (materially understood as the owner or holder of copyright), meanwhile, means all economic rights granted by the laws in favor of an individual or organization, who has three types of legal rights (right to possession, use and disposition) like an ownership of a tangible asset in any of 4 circumstances:

(a) that individual or organization hires and pays an author to create a commissioned work (commissioning contractual relationship), or

(b) that individual or organization  as an employer signs a labor agreement and pays his/her employee to generate a work (labor contractual relationship); or

(c) that individual or organization enters into a copyright assignment contract with the author (like the case of the poem the Purple Color of Sim Flowers); or

(d) that individual (only individual) is the natural person who is the direct creator of the work and has not yet transferred his/her copyright of the work to any third party.

6 types of exclusive rights to the holder of copyright protected under the current IP Laws

Under the laws, only the holder of copyright or any third entity or subject authorized by the holder is entitled to exploitation or use of a copyrighted work. Below are 6 types of exclusive rights in favor of the holder protectable under the laws of Vietnam[3]:

1. Right of reproduction. The right to reproduce, also known as the right to make a copy of a work, a most basic right amongst the economic rights thereby the holder has exclusive right to exercise or authorize others to make reproduction of the work by any way or form including electronic copy or digitalization.

2. Right of distribution of original or copy of the work (distribution of copies of the work). Distribution right is the exclusive right of the holder to exercise or allow others to perform in any form, technical means accessible to the public for sale, lease or other transfer method, the original or copy of the work. Under the Vietnamese IP law, distribution right also includes the right to import originals or copies of the work

3. Right of communication to the public (making available to the public) by means of wired, wireless, electronic information networks or any other technical means is the exclusive right of the holder to exercise or allow others perform making the work or its copies available to the public that is accessible by the public at their chosen place and time.

4. Right of rental (lease) the original or copy of a cinematographic work or computer program is the exclusive right of the holder to make or authorize others to get it leased to exploit or use the work for a limited period of time.

5. Right of making a derivative work. Activities to create a new work based on a previous work by translating, adapting, compiling, selecting is called as the one making a derivative work. However, right of making a derivative work is also the exclusive right bestowed on the holder and any of translating, adapting, compiling, selecting, making a derivative work shall be permitted by the holder.

6. Right of public performance of a work in public is the exclusive right of the holder to perform or permit others to perform the work directly or through copies of audio, video, audio and visual fixation, or any other means accessible to the public. Performing a work in front of the public includes performance of the work in any place where the public can access to.

Bross & Partners has intensive experience in assisting clients in defending against allegations of copyright infringement, related rights including a recent pending lawsuit where the client was claimed a damage amount of USD 1.5 million. Should you have specific needs, please contact: vinh@bross.vn; cellphone 84-903 287 057, 84-4-3555 3466; Wechat: wxid_56evtn82p2vf22; Skype: vinh.bross.

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.