FREQUENTLY ASKED QUESTIONS FOR INTELECTUAL PROPERTY IN VIETNAM
1. Definition of copyright and copyright-related rights?
“- Copyright means rights of organizations and individuals to works they have created or own.
- Copyright-related rights (hereinafter referred to as related rights) mean rights of organizations and individuals to performances, phonograms, video recordings, broadcasts and encrypted program- carrying satellite signals.” (Article 4.- Interpretation of terms, IP Law 2005)
Frequenty Asked Question For Intelectual Property In Viet Nam (Copyright)
2. Who are the authors and Copyright Owners?.
Copyright protection shall be given to an author who is defined as the person directly creating the whole or part of a literary, artistic, scientific work and as the person who have created derivative works from other’s works, including works translated from one language into another, recreated, transformed, adapted, compiled, annotated, or selected works
Apart from the author of a work, the legal owner of a work shall be also entitled to copyright protection. The legal owner of a work may be one of the following:
- The author or co-authors of the work;
- Organizations and individuals who assign tasks to authors or who enter into contracts with authors;
- A heir of the authors;
- The assignee of rights over the works; or
- The State, in certain cases.
In accordance with Vietnamese IP Law 50/2005, the author and copyright holders are defined as
- Vietnamese organizations and individuals;
- foreign organizations and individuals whose works to be protected were first published in Vietnam and not yet published in any other country, or whose works were published in Vietnam within thirty days from the date of the first publication in another country; and
- foreign organizations and individuals whose works have been protected in Vietnam in accordance with an international treaty on copyrights to which Vietnam is a member.
3. What are protectable works under the copyright law in Vietnam?.
Under Article 14 of IP Law, two types of works which are subject matters for copyright protection are (1) Literary, artistic and scientific works; and (2) derivative works.
“ Literary, artistic 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 include works of translation, adaptation, re-creations, arrangement, compilation, annotation, selection and other alteration from the original works.
4. Does Vietnam protect foreign works?
- . Foreign works are eligible for copyright protection in Vietnam if they are
(i) published for the first time in Vietnam but not in any other countries, or published simultaneously in Vietnam within 30 days from the first publication in other country; or
(ii) protected under international conventions of which Vietnam is a member.
Currently, Vietnam is member of the Bern Convention for the protection of litterary and artistic works; Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms; and Brussels Convention relating to the distribution of encrypted program-carrying satellite signals.
5. What rights are conferred from copyright protection?.
No. Registration of the copyright is not required to obtain protection, but it is a prima facie evidence of ownership.
6. How long does a copyright last?
According to 27 of the effective IP law of Vietnam, term of copyright protection in Vietnam is as follows:
- The moral rights provided for in Clauses 1, 2 and 4, Article 19 of this Law (the Right to title the works; the Right to attach real names or pseudonyms to the works; to have real names or pseudonyms acknowledged when the works are published or used; the Right 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) shall be protected for an indefinite term.
- The moral rights provided for in Clause 3, Article 19 (the Right to publish the works or authorize other persons to publish their works and the economic rights provided for in Article 20 of this Law enjoy the following term of protection:
a/ Cinematographic works, photographic works, works of applied art and anonymous works have a term of protection of seventy five years from the date of first publication. For cinematographic works, photographic works and works of applied art which remain unpublished within twenty five years from the date of fixation, the term of protection is one hundred years from the date of fixation. For anonymous works, when information on their authors is published, the term of protection will be calculated under Point b of this Clause.
b/ A work not specified at Point a of this Clause is protected for the whole life of the author and for fifty years after his/her death. For a work under joint authorship, the term of protection expires in the fiftieth year after the death of the last surviving co-author;
c/ The term of protection specified at Points a and b of this Clause expires at 24:00 hrs of December 31 of the year of expiration of the copyright protection term.”
7. Are there limitations on copyright protection?.
The use of copyrighted works without the owner’s permission are not considered as copyright infringement in cases defined by the IP Law. Such use may require the payment of royalties or not, but must not adversely affect the normal exploitation of the copyrighted work or prejudice the owner’s legitimate rights. Moreover, the author’s name and original work should be cited.
According to Article 24 of the IP Law, the following acts which constitute use of a copyrighted work without the owner’s permission and without payment of royalty are not considered as copyright infringement:
(i) reproduction in one single copy for educational, research, citation or information purposes;
(ii) non-profit public performance for propaganda purpose;
(iii) transcribe in Braille; and
(iv) import of copies for personal use. Nevertheless, such limitation is not applied to architectural and sculptural works and computer programs.
Broadcasting organisations can broadcast copyrighted works that have been published without the owner’s permission but have to pay remuneration and roylties to the copyright owner. This provision is however not applied to cinematographic and assimilated works.
8. What are remedies for copyright infringement?.
Different remedies are available when a copyright is infringed including administrative, civil and criminal proceedings.