Pham Thi Kim Oanh, LL.M.
Deputy Director General of the Copyright Office of Vietnam
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| An international seminar on protection of book copyright in the cyberspace held on September 15__Photo: VNA |
Books constitute a type of works eligible for copyright protection under Article 14 of the 2005 Intellectual Property Law. From the commercial aspect, book copyright is an essential input element of publishing activities. Article 21 of the 2012 Publication Law stipulates: “The publication of works and documents and republication of published matters may only be carried out when written permission of authors or copyright holders is obtained in accordance with law.”.
Just like other specialized domains of copyright protection, book copyright is being negatively affected by the Fourth Industrial Revolution, especially in the cyberspace. In the digital era, the advent of such digital technologies as the Internet, digital cameras, smart phones, smart television, social media, scanners, e-books, etc., has created favorable conditions for the creation, storage, reproduction and publicization of works in digital fixation and digital spaces and new methods of supplying and making books available to the public as well as exploiting and using books. In such context, the cyberspace has been used as an intermediary environment for acts infringing upon book copyright to be committed in a more rampant and easy manner. This has posed not a few challenges to book copyright protection.
Legislation on book copyright protection
Vietnam’s regulations on book copyright
In order to meet the practical demand and institutionalize the Party’s and the State’s policies on protection of intellectual property rights (IPRs) in the new period and realize Vietnam’s international commitments, the country’s legal system on IPRs in general and copyright in particular has been improved for higher specificity and transparency. The Intellectual Property Law was enacted in 2005 and revised in 2009, 2019 and 2022 (the IP Law). The IP Law’s guiding texts include Government Decree 17/2023/ND-CP dated April 26, 2023, detailing a number of articles of, and providing measures to implement, the IP Law’s provisions on copyright and related rights, and the Ministry of Culture, Sports and Tourism’s Circular 08/2023/TT-BVHTTDL dated June 2, 2023, providing forms of copyright and related rights registration.
Book copyright consists of the following moral rights and economic rights:
Moral rights[1] of a book’s author include: the right to title the book; the right to attach his name or pseudonym to the book or have his real name or pseudonym acknowledged when the book is published or used; the right to publish the book; and the right to protect the integrity of the book and to prevent other persons from modifying, mutilating or distorting the book in whatever form prejudicial to his honor and reputation. These rights exist throughout the author’s life and cannot be transferred to other persons, except the case of transfer of the right to publish and transfer of the right to title the book to another organization or individual that has received the economic rights to the book.
Economic rights[2] of a book’s author include: the right to make derivative works of the book; the right to display the book to the public; the right to reproduce the book; the right to distribute or import the book for distribution; and the right to broadcast or communicate the book to the public. These economic rights may be exclusively exercised by the author or copyright holder. Any organization or individual that wishes to exploit or use the book is required to obtain permission of the copyright holder and pay a royalty and other material benefits (if any) to the copyright holder, except some cases of rights limitation or exception as specified by law. Infringements upon these economic rights of copyright holders will be treated as copyright infringements and subject to civil, administrative or criminal penalties depending on their severity.
Regarding measures to protect IPRs, the IP Law’s Article 198 provides that IPRs holders may themselves apply or authorize other entities to apply the following measures to protect their IPRs: (i) applying technological measures to protect their IPRs, providing IPRs management information or applying other technological measures to prevent acts infringing upon their IPRs; (ii) requesting organizations and individuals that commit acts of infringing upon their IPRs to terminate such acts, remove and delete infringing contents in the telecommunications network environment and the Internet, make public apologies and corrections, and pay damages; (iii) requesting competent state agencies to handle acts infringing upon their IPRs in accordance with this Law and other relevant regulations; and (iv) initiating lawsuits at courts or arbitration centers to protect their lawful rights and interests.
Among the above provisions, provisions on application of technological measures, provision of IPRs management information and requesting infringers to remove or delete infringing contents in the telecommunications network environment and the Internet directly concern the digital environment and cyberspace. Any acts of intentionally cancelling or deactivating effective technological measures, intentionally deleting, arbitrarily removing or modifying IPRs management information and some other related acts will also be treated as copyright infringing acts under Article 28 of the IP Law.
Particularly, in translating the relevant commitment in the EU-Vietnam Free Trade Agreement (EVFTA), Article 198b of the IP Law provides the exemption from legal liability (disclaimer) for intermediary service providers for exploitation and use activities in the cyberspace that provide technical tools and cyber links for users’ access and uploading of contents onto the network. In order to be exempted from legal liability for copyright and related rights infringements in the cyberspace related to the provision and use of their services, these service providers must satisfy the law-specified conditions and some of them are also obliged to remove/deny access to copyright-infringing digital information contents.
Decree 17/2023/ND-CP provides in Chapter VI specific guidance on technological measures to protect copyright, related rights and rights management information; copyright infringements occurring in the cyber environment against Vietnam-based consumers or digital information users which will be treated as infringements committed in Vietnam. It also guides contents of requests for handling of copyright and related rights infringements occurring in the cyber environment and accompanying documents and evidences; types of intermediary service providers and their responsibilities based on their functions and services they provide, and procedures to be carried out by them to implement measures to remove or deny access to copyright-infringing digital contents at the request of competent state agencies or rights holders.
Treaties which Vietnam has signed or acceded to
Vietnam has deepened its international integration through joining or accession to more and more free trade agreements and treaties concerning copyright and related rights, including the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), the 1996 WIPO Performances and Phonograms Treaty (WPPT), and the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled[3].
So far, the country has signed or acceded to eight multilateral treaties, two bilateral agreements, and 17 bilateral and multilateral economic and free trade agreements concerning copyright and related rights with different countries and economic blocs around the world[4].
Vietnam’s proactive international integration in the field of IP, copyright and related rights has brought about practical economic benefits for authors and rights holders in foreign markets and concurrently helped improve their competitive edge in the domestic market, thereby promoting innovation and development of physical foundations and resources for the innovation industry and contributing to promoting cultural and information exchange, technology transfer and entertainment industries.
Book copyright infringements under the IP Law
Copyright infringements are specified in Article 28 of the IP Law, including:
· Infringing upon the moral rights provided in Article 19 of the IP Law;
· Infringing upon the economic rights provided in Article 20 of the IP Law;
· Failing to perform or fully perform the obligations specified in Articles 25, 25a and 26 of the IP Law;
· Willingly canceling or deactivating effective technical measures applied by authors or copyright holders to protect copyright to their works in order to commit acts specified in Articles 28 and 35 of the IP Law;
· Manufacturing, distributing, importing, offering for sale, selling, promoting, advertising, marketing, leasing or stockpiling for commercial purposes equipment, products or components; introducing or providing services while knowing or having grounds to know that such equipment, products, components or services are manufactured or used to deactivate effective technical measures to protect copyright;
· Willingly deleting or modifying rights management information without permission of authors or copyright holders while knowing or having grounds to know that such acts, once committed, would instigate, enable, facilitate, or cover up copyright infringements in accordance with law;
· Willingly distributing, importing for distribution, broadcasting, communicating or making available to the public copies of works while knowing or having grounds to know that rights management information has been deleted, removed or modified without permission of copyright holders; or knowing or having grounds to know that such acts, once committed, would instigate, enable, facilitate, or cover up copyright infringements in accordance with law; and,
· Failing to comply or fully comply with Article 198b.3 of the IP Law in order to be exempt from legal liability of intermediary service providers.
The rapid technical and technological development has substantially transformed the traditional publishing sector, with more and more e-books and new methods of communication of works to the public more easily applied by means of electronic devices and via the Internet. Likewise, more and more copyright infringements have occurred in a complicated and hard-to-control manner. This situation has caused damage to publishers and copyright holders, inhibited creative activities, and limited the public’s access to valuable works.
Subject matters of book copyright infringements in the cyberspace are largely e-publications, including e-books, audio-books, interactive books, 3D-books, etc. At present, book copyright infringements in the cyberspace may be divided in the following groups:
(i) Infringements of the right to reproduce works[5], which include converting printed books into e-books, whether or not published in the cyber environment, without permission of, or payment of royalties to, book copyright holders; willingly using or downloading uncopyrighted e-books, audio-books, etc.;
(ii) Infringements of the right to communicate works to the public[6]: uploading e-books or audio-books in the cyber environment, sharing e-copies of books among groups, social networks and websites, and providing to users for viewing and downloading book copies with charges without permission of rights holders;
(iii) Infringements related to effective technological measures to protect copyright, related rights and rights management information[7]: In the cyber environment, many entities and individuals have intentionally employed technological tricks to crack or inactivate technological measures to protect e-copies of books such as preventing reproduction or downloading and installing passwords to limit access; or intentionally deleted or modified information about authors and rights holders on book covers and pages; and,
(iv) Other infringements against the right to protect the integrity of books (modification, distortion, mutilation or alteration of book contents), the right of authors to have their names recognized on books (lawful communication or sharing of copyrighted e-books without indicating sources or providing information about book authors and copyright holders, etc.).
Those book copyright infringements can be attributable mainly to the general public’s and readers’ poor awareness about their copyright-related responsibilities and obligations to fight uncopyrighted book copies, book authors’ and copyright holders’ lack of knowledge about copyright regulations and measures to protect their rights, and ineffective handling by responsible agencies of infringing acts.
Solutions to enhance book copyright protection in the cyberspace
Regarding improvement of laws and policies, the Party’s Socio-Economic Development Strategy for the 2021-30 period has set forth the general task of science and technology development and innovation, covering improvement of the legal system on IPRs protection and enhancement of IPRs protection and enforcement.
In furtherance of the 2022 revised IP Law and Decree 17/2023/ND-CP, the Copyright Office of Vietnam has been coordinating with related agencies in advising the Ministry of Culture, Sports and Tourism on formulating and submitting to the Government for promulgation a decree to supersede Decree 131/2013/ND-CP on administrative sanctioning of copyright and related rights infringements.
Regarding management and enforcement work, it is necessary to heighten the role and responsibility of the agency in charge of protection of copyright and related rights in the field of book publishing and distribution, enhance coordination in inspection work and handling of copyright and related rights infringements, particularly those in the cyberspace, and intensify the application of scientific and technological advances to copyright and related rights protection and enforcement.
Regarding the raising of awareness and capacity of rights holders, book authors and copyright holders should learn more about their protected rights to their intellectual assets; take measures to prevent infringements; make copyright registration; prepare and keep dossiers and evidences to prove their creation and work ownership; provide information for management of rights to their works; build a community of rights holders united in protecting their rights, sharing experiences, promoting creativity development and protecting themselves against infringements.
The copyright law dissemination and education should be carried out in a more diverse forms to better the awareness of book authors and rights holders, book publishers and readers as well as the general public about book copyright and related rights, while more training courses should be held for copyright enforcement personnel.-
[1] Article 19 of the IP Law.
[2] Article 20 of the IP Law.
[3] Vietnam joined these Treaties in 2022 and 2023.
[4] These treaties and agreements include the 1886 Berne Convention for the Protection of Literary and Artistic Works; the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement); the WCT, etc.
[5] As defined in the IP Law, reproduction means the making of copies of the whole or part of a work or phonogram or video recording by whatever mode or in whatever form.
[6] As defined in the IP Law, this right means broadcasting or communicating to the public a work by wire or wireless means, via the electronic information network or by any technical means, including also making such work available to the public in such a way that members of the public may access such work from a place and at a time they themselves select.
[7] Effective technological measures are measures applied by copyright and related rights holders to control the use of works by means of access control applications, protection processes or reproduction control mechanisms. Rights management information means information about works, authors, performers, copyright and related rights holders, and conditions for utilization of works as well as codes and ID numbers denoting such information. Rights management information must be attached to copies of, or appear together with, works while they are communicated to the public.
