Do you have a Copyright and Related Rights Question
According to Article 49(1) in the Copyrights and Related Rights section of the Intellectual Property Law (hereinafter referred to as the "IP Law"), copyright registration is the filing of an application by the owner to the Copyright Office in order for information about works, authors, and owners of works to be recorded.
Copyright registration is not a compulsory procedure to be entitled the copyrights. Copyright registration is not required to establish copyrights; the copyrights are still protected even if the work was not registered. However, copyright registration is necessary for copyright protection, especially proving the existence of copyrights in disputes.
According to Article 49(2) in the Copyrights and Related Rights section of the IP Law, copyright holders do not have to prove the copyright in question belongs to them in disputes, unless there is proof against them. The Certificate of Copyright Registration is used as evidence to verify the owner's status by default.
If the copyright is not registered, authors or owners must prove their copyright to the work in question when a dispute arises. They must offer proof on their own to demonstrate their copyright to the work in dispute. Sometimes, it is very difficult for an author or a copyright holder to prove his/her rights, or even that he/she is the author or copyright holder of the work in dispute.
The procedure for copyright registration is not too complicated, and the fee is fairly cheap compared to the practical benefits it provides.
As a result, authors and copyright holders should register their copyright as soon as possible when creating works, particularly those that are creative, have financial value, and are likely to be illegally exploited or stolen.
Copyrights include moral rights and economic rights.
Moral rights include the following: to title their works; To attach their real names or pseudonyms to their works; to have their real names or pseudonyms acknowledged when their works are published or used; To publish their works or authorize other persons to publish their works; To protect the integrity of their works, and to prevent other persons from modifying, mutilating, or distorting their works in whatever form is prejudicial to their honor and reputation.
- The author, who is not concurrently the owner of the work, has moral rights to the work he/she creates, including: To title their works; To attach their real names or pseudonyms to their works; To protect the integrity of their works, and to prevent other persons from modifying, mutilating or distorting their works in whatever form prejudicial to their honor and reputation.
- The owner, of the work who is not concurrently author, has the moral rights to the work, including: To publish their works or authorize other persons to publish their works, exclude there are otherwise agreements between the author and the owner; To allow or not allow others to use the work under their ownership, exclude there are otherwise agreements between the author and the owner (Article 19 of the IP Law, Article 21 of Decree 22/2018/ND-CP).
Economic rights include the following:
(i) The author, who is also the owner of the work, has the right to make derivative works; To display their works to the public; To reproduce their works; To distribute or import original works or copies thereof; To communicate their works to the public by wire or wireless means, electronic information networks or any other technical means; To lease original cinematographic works and computer programs or copies thereof.
(ii) The author, who is not concurrently the owner of the work, has property rights to the work of which he is the author, including: the right to be paid royalties; receive remuneration when the work is used; and receive an award for a work of which he is the author.
(iii) The owner, who is not concurrently the author of the work, has material benefits from the use of the work in the forms of publication, reproduction, display, exhibition, performance, radio, television, sound or video recording, taking pictures; translating, adapting, and renting (Article 22 of the Law on Intellectual Property, Article 21 of Decree 22/2018/ND-CP).
Related rights are those of organizations, individuals for performances, recordings, videos, broadcasts, and encrypted program-carrying satellite signals.
Types of works covered by copyright (according to Article 14 IP Law)
- Literary and scientific works covered by copyright include:
a/ Literary and scientific works, textbooks, teaching courses and other works expressed in written languages or other characters;
b/ Lectures, addresses and other sermons;
c/ Press works;
d/ Musical works;
e/ Dramatic works;
f/ Cinematographic works and works created by a process analogous to cinematography (hereinafter referred to collectively as cinematographic works);
g/ Plastic-art works and works of applied art;
h/ Photographic works;
i/ Architectural works;
j/ Sketches, plans, maps and drawings related to topography or scientific works;
k/ Folklore and folk art works of folk culture;
l/ Computer programs and compilations of data.
- Derivative works shall be protected according to the provisions of Clause 1 of this Article only if it is not prejudicial to the copyright to works used to create such derivative works.
- Protected works defined in Clauses 1 and 2 of this Article must be created personally by authors through their intellectual labor without copying others’ works.
- The Government shall guide in detail the types of works specified in Clause 1 of this Article.
According to Article 47(2.c) IP Law: The term of protection specified at Points a and b of this Clause shall expire at 24:00 hrs of December 31 of the year of expiration of copyright protection term.
According to Article 35(1) of Decree No. 22/2018/ND-CP dated February 23, 2018 detailing a number of articles and measures to implement the Intellectual Property Law of the year: “The Ministry of Culture, Sports and Tourism (Copyright Office) competent to grant, re-grant, renew or revoke such certificates, as regulated in clauses 1 and 2, Article 51 of the Intellectual Property Law”.
Thus, at present, the Copyright Office is competent to re-grant copyright registration certificates and related rights registration certificates.
Conditions to the re-granting of the Copyright Registration Certificate, Related Rights Registration Certificate:
- In case the Copyright Registration Certificate, the Related Rights Registration Certificate is lost.
- In case the Copyright Registration Certificate, the Related Rights Registration Certificate is torn.
According to Article 6(1) IP Law: “Copyright shall arise at the moment when a work is created and fixed in a certain material form, irrespective of its content, quality, presentation, means of fixation, language and whether or not it has been published or registered.”
Thus, copyright does not arise at the moment when the author forms a creative idea in his head, but only at the time the work is created, expressed in a certain material form, and the author does not need to register to get copyright protection.
It is very important to determine whether a work has been published or not:
First, determining whether a work has been published or not means determining the publication date of the work in question. This date has an important meaning, as a basis for calculating the protection term of the work.
Second, determining whether a work has been published or not includes determining the territorial limit within which the work is protected because the scope of copyright protection is territorial.
Third, determining whether a work has been published or not includes determining the limits of the copyright and related rights.
The limit of protection in copyright and related rights is the cases of using the work without asking for permission, without paying royalties and remuneration as regulated in Articles 25 and 32 of the IP Law. Only "published" works can apply the two provisions mentioned above.
The publication date becomes even more important for works whose term of protection is not subject to the principle of human life, such as cinematographic works, posthumous works, works of unknown or anonymous authors, and broadcasting works.
The state is the copyright holder of Anonymous works; Works, of which terms of protection have not expired but their copyright holders die in default of heirs, heirs renounce succession or are deprived of the right to succession; Works, over which the ownership right has been assigned by their copyright holders to the State. (according to article 42 of the IP Law).
First of all, it is necessary to understand that copyright includes moral rights (regulated in Article 19) and economic rights (regulated in Article 20). When a work is composed by more than one author, the determination of rights for each author is based on the fact that the co-authors have used their time, money, material facilities, and techniques to co-create the work, and they share the same rights as regulated in Articles 19 and 20 of the IP Law.
Specifically, co-authors are entitled to the same moral rights as the right to title their works; To attach their real names or pseudonyms to their works; to have their real names or pseudonyms acknowledged when their works are published or used; to protect the integrity of their works, and to prevent other persons from modifying, mutilating, or distorting their works in whatever form is prejudicial to their honor and reputation; as well as economic rights such as rights to make derivative works; to display their works to the public; to reproduce their works; to distribute or import original works or copies thereof; to communicate their works to the public by wire or wireless means, electronic information networks, or any other technical means; to lease original cinematographic works and computer programs or copies thereof.
In addition, co-authors have the exclusive right to use or permit others to use their economic rights. Individuals and organizations, when exploiting and using a part or entire of these economic rights, must obtain permission and pay royalties, remunerations, and other material benefits to co-authors.
According to the provisions of Article 53 of the IP Law, the validity of registered copyright certificates and registered related rights certificates is specified as follows:
“1. Registered copyright certificates and registered related rights certificates shall be valid throughout the Vietnamese territory.
- Registered copyright certificates and registered related rights certificates, which have been granted by the state management agency in charge of copyright and related rights before the effective date of this Law shall continue to be valid.”
And according to the provisions of Article 41 of Decree No. 22/2018/ND-CP, all kinds of registered copyright certificates and registered related rights certificates granted by the Vietnam Copyright Protection Brand, the Vietnam Copyright Protection Agency, the Copyright Office, the Office of Literary and Artistic Copyrights before the effective date of the IP Law shall continue to be maintained in effect.
- Appropriating copyright to literary, artistic or scientific works.
- Impersonating authors.
- Publishing or distributing works without permission of authors, co-authors (if any).
- Modifying, mutilating or distorting works in such a way as prejudicial to the honor and reputation of authors.
- Reproducing works without permission of authors or copyright holders, except for the cases specified at Points a and e, Clause 1, Article 25 of this Law.
- Making derivative works without permission of authors or holders of copyright to works used for the making of derivative works, except for the cases specified at Point i, Clause 1, Article 25 of this Law.
- Using works without permission of copyright holders, without paying royalties, remunerations or other material benefits according to the provisions of law, except for the cases specified in Clause 1, Article 25 of this Law.
- Leasing works without paying royalties, remunerations or other material benefits to authors or copyright holders.
- Duplicating, reproducing, distributing, displaying or communicating works to the public via communication networks and by digital means without permission of copyright holders.
- Publishing works without permission of copyright holders.
- Willingly canceling or deactivating technical solutions applied by copyright holders to protect copyright to their works.
- Willingly deleting or modifying right management information in electronic form in works.
- Manufacturing, assembling, transforming, distributing, importing, exporting, selling or leasing equipment when knowing or having grounds to know that such equipment may deactivate technical solutions applied by copyright holders to protect copyright to their works.
- Making and selling works with forged signatures of authors of original works.
- Exporting, importing or distributing copies of works without permission of copyright holders.
According to Article 31 of the IP Law, broadcasting organizations shall have the exclusive right to use or permit others to use the following rights:
- To broadcast or rebroadcast their broadcasts;
- To distribute to the public their broadcasts;
- To fix their broadcasts;
- To reproduce their fixed broadcasts.
Broadcasting organizations shall have material benefits when their broadcasts are recorded and distributed to the public.
According to Article 32 of the IP Law, cases of use of related rights where permission and payment of recording royalties and/or remunerations are not required include:
- Duplication of works by authors for scientific research purposes;
- Duplication of works by authors for teaching purpose, except for performances, phonograms, video recordings or broadcasts which have been published for teaching purpose;
- Reasonable recitation for informatory purpose;
- Making of provisional copies of works by broadcasting organizations themselves for broadcasting purposes when they enjoy the broadcasting right.
Organizations and individuals that use the rights specified above must not affect the normal utilization of performances, phonograms, video, or broadcasts, nor cause any prejudice to the rights of performers, producers of phonograms and video recordings, and broadcasting organizations.
According to the provisions of Article 16(3), Article 17(4) of the IP Law, organizations and individuals that first fix sounds and images of performances or other sounds and images are protected with related rights: “3. Organizations and individuals that first fix sounds and images of performances or other sounds and images (hereinafter referred to collectively as producers of phonograms and video recordings).”, “4. Performances, phonograms, video recordings, broadcasts and encrypted program-carrying satellite signals shall only be protected under the provisions of Clauses 1, 2 and 3 of this Article provided that they are not prejudicial to copyright.”
Performances on the stage, on the street, or any public places and community activities, have related rights protected according to the provisions of Clause 1, Clause 4 of Article 17 of the IP Law, the performance is protected in the following cases, as long as it does not infringe the copyright or the related rights:
a/ They are made by Vietnamese citizens in Vietnam or abroad;
b/ They are made by foreigners in Vietnam;
c/ They are fixed on phonograms or video recordings, and protected under the provisions of Article 30 of this Law;
d/ They have not yet been fixed on phonograms or video recordings but already been broadcast, and are protected under the provisions of Article 31 of this Law;
e/ They are protected under treaties to which the Socialist Republic of Vietnam is a contracting party.
According to Decree No. 131/2013/ND-CP dated October 16, 2013 and No. 28/2017/ND-CP dated March 20, 2017, the fine for the infringing copyrights and related rights is as follows:
- The maximum fine for infringing copyrights and related rights for individuals is 250,000,000 VND, for organizations, it is 500,000,000 VND.
- The fines specified in Chapter II of this Decree are applicable to individuals, except for the cases specified in Clauses 1, 2, 3 and 4, Article 5; Clause 1 and Point b, Clause 2, Article 7 of this Decree.
- For the same infringement, the fine for organizations is 2 times higher than the fine for individuals.
- The competence to impose fines of the titles specified in Chapter III of this Decree is the competence applicable to individuals.
- The competence to impose fines on organizations is equal to twice the level to impose fines on individuals.
The infringement of copyrights and related rights is regulated in Article 225 of the Criminal Code, as follows:
A individual who, without the permission of the copyright or related right holder, intentionally commits one of the following acts which are infringing the copyright or related rights being protected in Vietnam on a commercial scale, or obtaining an illegal profit of between 50,000,000 VND and under 300,000,000 VND or causing damage to the copyright or related right holders from 100,000,000 VND to under 500,000,000 VND or infringing goods valued at from 100,000,000 VND to under 500,000,000 VND, the offenders shall be fined of between 50,000,000 VND and 300,000,000 VND or renovation without central up to 3 years.
Besides the legal system having to be in line with international standards and the practical conditions of Vietnam, it should strictly handle copyright infringement in order for the copyright protection of visual and applied art works to be effective. The copyright of visual and applied art works is respected, and creators receive commensurate benefits when their works are used, which will be an economic incentive for authors to create more works of higher quality.
The Berne Convention is an international convention for the protection of literary and artistic works. This Convention signed on September 9, 1886 in Berne - the Swiss capital, established and protected copyright among sovereign states for the first time. This is the oldest convention on copyright protection and is still used today. The Convention has had eight amendments and additions in 1896, 1908, 1914, 1928, 1948, 1967, 1971, 1979. The current Convention is the Convention as amended on 24 July 1971 in Paris and added on 2 October 1979. The Convention consists of 38 main articles, 9 additional articles, and an appendix of 6 articles.
The Berne Convention was formed after the advocacy efforts of writer Victor Hugo. Before the Berne Convention, the copyright of foreign works was often denied. For example, a work published in one country is protected by copyright there, but can be copied and published freely without permission in another country.
States that comply with the Berne Convention recognize the copyright of works published in other countries that also comply with the convention. Copyright protection under the Berne Convention is automatic, and does not require registration. In addition, the member states of the Berne Convention may not impose administrative procedures on authors entitled to copyright.
The term of protection is provided for in the Berne Convention as follows:
In principle, the term of copyright protection is determined by national law, but according to the Berne Convention, this term is for the life of the author and 50 years after the author's death. This period is calculated from the end of the year in which the author died. However, for cinematographic works, the Member States of the Union may provide for the termination of the term of protection after 50 years from the date of publication, with the consent of the author, or if there is no such publication within 50 years from the date of creation of the work, the term of protection terminates 50 years after the work is created.
However, the Berne Convention stipulates that in some cases, the term of protection is not calculated according to the life of a person. For example, for photographic works or applied art works treated as artworks, the minimum term of protection is 25 years from the creation date of the work.
It should be noted that in any case, the term of protection will be determined by the law of the state in which protection is announced. However, unless the legislation of that nation states differently, the term of protection should not exceed the term specified in the law of the origin country.
The above provisions also apply to co-authored works, but the term of protection after death is taken into account when the last author dies.
According to Article 2 of the Berne Convention, “derivative works” are works derived from other existing works. Examples of derivative works include:
- Translation of works into another language;
- Adaptations of a work, for example writing a screenplay for a movie based on a novel;
- Arrangements of music, for example an orchestral piece that was originally written for the piano;
- Other alterations of a literary; for example a summary of a novel;
- Anthologies of literary and artistic works, e.g. encyclopedias, anthologies. In this case, the originality lies in the choice and arrangement of the contents of the work.
Note that before creating a derivative work, you must respect the copyright of the original work. For example, if an author wants to translate a novel into another language, permission must be obtained from the owner of the novel to be translated. Translating a work without the owner's permission exposes the translator to copyright infringement.