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Official Gazette

Saturday, December 7, 2019

Amended regulations on copyright

Updated: 15:50’ - 27/10/2011

The Prime Minister signed last month Decree No. 85/2011/ND-CP (the Decree) to revise Government Decree No. 100/2006/ND-CP of July 21, 2006, guiding a numbers of articles of the Civil Code and the Intellectual Property Law regarding copyright and related rights.

With numerous amendments to current regulations, the Decree is expected to help solve existing problems on copyright and related rights, pending a thorough revision of the Intellectual Property Law. The Decree will come into force on November 10.

Copyright to computer programs

Under Decree No. 100, authors and investors of computer programs may agree on the titling and development of such computer programs. Meanwhile, moral rights to a work, under the Intellectual Property Law, are untransferable and perpetually belong to the person or group of persons who directly create the work. In other words, a business that funds or hires or assigns someone to create a work cannot acquire moral rights to it, even though it is acknowledged by law as the owner of such work.

The principle that moral rights are untransferable has somehow obstructed the utilization and exploitation of works, especially computer software, making the situation more complicated and confusing involved parties.

For instance, a software engineer who holds moral rights to a software program he has written may request acknowledgement of the right to title this program and have it published under his name. He can even disallow the software company for which he works to modify the software, arguing that such modification may break the “integrity of the work” and his prestige.

In reality, software can hardly be written by a single author but often developed by a group. Within the current legal framework, it is unclear whether the holder of copyright to a computer program has to ask every author for permission to modify and further develop it?

To clarify this matter, the Decree has a new article (Article 19) on copyright to computer programs. Accordingly, authors of a computer program and investors that provide funds or prepare physical and technical conditions for the development of such program may reach a software development deal with specific terms on the right to title such program and the payment of royalties, remuneration and other material benefits to authors. Authors will hold moral rights under the Intellectual Property Law while investors will be recognized as owners of copyright and exclusive economic rights according to regulations.

To deal with the rampant use of pirated software, the Decree states that each entity entitled to use a computer program may make only one back-up copy of the program for use in case the copy currently in use is lost, damaged or unusable.

Folk literary and artistic works

As required by the Intellectual Property Law, users of folk literary and artistic works must quote their sources and preserve their true values. Decree No. 100 further explains that use of folk literary and artistic works means the research into, collection and introduction of true values of folk literary and artistic works.

These provisions have unfortunately restricted the use of folk literary and artistic works to research, collection and introduction activities, while neglecting other practices such as performance, reproduction or archival, including those carried out electronically.

The Decree adds a separate article to specify genres of folk literary and artistic works. It also affirms that the right to reproduce works by any means and in any forms, including electronic ones, constitutes one of exclusive economic rights of copyright holders or their authorized persons.

Use of broadcasts

Under the Decree, owners of broadcasts are broadcasting organizations that make financial investment in and use their physical-technical foundations for broadcasting activities.

When using works, phonograms or video recordings to produce broadcasts, broadcasting organizations are required to perform obligations toward holders of copyright and related rights according to regulations.

Those who relay, re-broadcast or transmit via telecommunications or electronic communication networks or by any technical devices broadcasts of other organizations must comply with their agreements and relevant laws. Any modification or supplementation of broadcasts for re-broadcasting or transmission via telecommunications or electronic communication networks or by any technical devices must be permitted by owners of such broadcasts.

Competence to grant copyright certificates

At present, the Copyright Office of Vietnam is the sole agency that receives applications for copyright or related rights registration certificates. For the sake of convenience, the Decree offers more choices for applicants who may send their applications directly or by post to the Copyright Office of Vietnam or its representative offices in Ho Chi Minh City or Da Nang city or provincial-level Culture, Sports and Tourism Departments of localities in which they reside or are headquartered.

Terms of protection

The Intellectual Property Law’s provisions on terms of protection of economic and moral rights were once revised under its 2009 amendments. However, as the revised law was promulgated after Decree No. 100, no specific guidance has been provided yet.

This matter is now clarified under the Decree.

Accordingly, the term of protection of economic and moral rights to a posthumous work will be 50 years as from the date of its first publication.

Economic and moral rights to a photographic work or a work of applied art will also be protected within 50 years after its first publication. Within 50 years after the fixation of a work, if it has not yet been published, the term of protection will be 50 years from the date of its fixation.

For  a dramatic work for which the term of protection under the Intellectual Property Law has not yet expired, the term of protection is the whole lifetime of its author plus 50 years after his/her death.

Regarding publication of foreign works in Vietnam, the Decree stipulates that a work of a foreign individual or organization will be considered being first published in Vietnam if it has not yet been published in any country before its publication in Vietnam.

Meanwhile, a foreign work which is published in Vietnam within 30 days after its first publication in any country will be considered being simultaneously published.

Payment of royalties, remuneration and other material benefits        

In addition to royalties and remuneration, authors and holders of copyright or related rights are entitled to other material benefits, which, as defined in the Decree, include prizes, gift books or invitation tickets to performances, public presentation of cinematographic works, displays or exhibitions as agreed upon by involved parties in written contracts.

According to Article 45a of the Decree, payment of royalties, remuneration and material benefits must assure the harmony of interests among authors, businesses and the public and suit the practical situation in the country. The level of royalties, remuneration and material benefits will depend on the category, form, quality, quantity or use frequency of works. Co-authors or collectives of authors may reach agreement on specific rates for division of royalties and remuneration based on their creative work.

Higher levels of royalties, remuneration and materials benefits will be paid to authors of works and organizations and persons that carry out performances or make phonograms, video recordings or broadcasts for children or ethnic minority people; Vietnamese creating works in a foreign language or an ethnic minority language other than their mother tongue; and persons creating works under difficult or dangerous conditions.-

VNL_KH1 

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