State and Law Institute of Vietnam
In Vietnam, intellectual property is understood to cover two basic domains: author’s rights and industrial property rights.
Since the country embarked on national renewal (“doi moi”), building a market economy and international integration and adopting an open-door policy, increasing importance has been attached to the protection of intellectual property rights with a view to bringing into full play human creativity and domestic and foreign resources. In such context, the legal institutions on copyright and industrial property rights have been formulated and improved.
The 1992 Constitution (Article 60) provides: “The citizens have the right to conduct scientific and technical research; to make inventions, innovations in improving technology and production rationalization, and literary and artistic creations and criticism; and to participate in other cultural activities. The State protects copyright and industrial property rights.”
On copyright, the State has promulgated numerous legal documents, recognizing and protecting the personal rights and material benefits of authors so as to create conditions under which every citizen may promote his/her talents and creativity in the fields of culture, arts, and scientific research, as well as contribute to the cause of national industrialization and modernization.
The first systematic legal document on copyright in Vietnam is the Ordinance on Protection of Copyright, which was passed on December 2, 1994, by the National Assembly Standing Committee and promulgated on December 10, 1994, by the State President. It has 47 articles arranged in seven chapters:
Chapter I.- General Provisions.
Chapter II.- Copyrights, which sets forth copyright, duration of copyright protection, and the transfer of copyright.
Chapter III.- Contracts on the use of works.
Chapter IV.- Rights of performers, organizations producing audio tapes and discs and/or video tapes and discs, and radio and/or television broadcasting organizations.
Chapter V.- State management of copyright protection.
Chapter VI.- Settlement of complaints and disputes, and handling of violations.
Chapter VII.- Implementation provisions.
With the emergence of the 1995 Civil Code, the institutions on copyright were substantially developed and improved. The Code devotes an entire part to copyright, Part Six: Intellectual Property Rights and Technology Transfer, with three chapters and 81 articles (from Articles 745 thru 825).
Besides, copyright has also been provided for in various normative documents of the Government, of which the most important is Government Decree No. 76/CP of November 29, 1996.
Along with formulating and perfecting domestic legal documents, Vietnam has actively acceded to international treaties. So far, it has signed or acceded to the Agreement on Intellectual Property Rights Protection with Switzerland, the Agreement on Establishment of Copyright Ties with the US, and the Berne Convention on Protection of Literary and Artistic Works.
Under Vietnamese legislation, the subjects of copyright embrace the following:
1. Authors, including
- Persons who create literary, artistic or scientific works. If a work is created jointly by two or more individuals, they shall be called co-authors.
- Persons who collect works of others to publish selected works or collections. The copyrights of these persons shall not affect the copyrights of the original works.
- Persons who translate, recreate, compile, transform or adapt works of others. They shall have the copyright over the translated, recreated, compiled, transformed or adapted works, but must clearly inscribe the names of the authors of the original works and must not inscribe their names on the same rank with the authors of the original works.
Individuals and organizations that provide support, opinions and/or materials for other people to create works are not authors.
2. Owners of works who are not authors. If works are created on assignment by agencies or organizations or under contracts on orders placed by other persons, or authors have transferred their ownership rights to others, such agencies, organizations, contract signers or work ownership transferees shall be owners of such works, i.e., the owners of the copyright.
3. Testamentary heirs or heirs at law of authors of works.
Regarding the objects of copyright, Article 747 of the Civil Code provides for forms of protected works, including written works; lectures and speeches; theatrical works and other forms of artistic performance; cinematographic and video works; radio and television works; press works; musical works; architectural works; plastic art works and applied fine art works; photographic works; scientific works, textbooks, and teaching materials; graphics, drawings, sketches and maps related to topography, architecture or scientific projects; translated, adapted, rewritten, transformed, compiled, annotated, selected and anthological works; computer software; and other works prescribed by law.
Works with contents opposing the Vietnamese State; undermining national unity; propagating violence, inducing hostility among nations and peoples of countries; disseminating reactionary ideologies and cultures, lustful and depraved lifestyle, criminal acts, social evils, superstition and/or undermining fine traditions and customs; or hurting the prestige of organizations or honor and dignity of individuals shall not be protected by law. Persons who own these works must be answerable to law and are not entitled to enjoy copyright.
A Closer Look at Author’s Rights Under the Current Legislation
According to Article 751 of the Civil Code and Article 10 of the Ordinance on Protection of Copyright, authors have the following rights:
To have ownership over works they have created.
To put their real names or pseudonyms on their works; or to have their real names or pseudonyms mentioned when their works are used.
To protect the integrity of their works, and to permit or not to permit other persons to amend their works.
To publish, disseminate or allow others to publish or disseminate their works.
To enjoy royalties or remunerations when their works are used.
To permit or not to permit others to use their works and enjoy material benefits from the use thereof.
Authors who are not also owners of works, according to Article 752 of the Civil Code, have the following rights:
To name their works.
To register the works under their real names or pseudonyms when the works are published, used or disseminated.
To protect the integrity of their works, and to permit or not permit others to alter contents of their works.
To receive royalties or remunerations when their works are used, and to receive awards for works of which they are authors.
Under Article 753 of the Civil Code, work owners who are not also authors have the following rights:
To publish, disseminate or to permit others to publish or disseminate their works, and to permit or not permit others to use their works, except otherwise agreed upon between authors and owners of the works.
To enjoy material benefits from the use of works in various forms such as publication, re-publication, display, exhibition, performance, radio broadcast, television broadcast, audio and visual recording, photographing, translation, adaptation, transformation, re-writing, and leasing.
To transfer part or whole of the use rights over works in order to enjoy material benefits from such transfer.
At the same time, the rights of work owners who are not also authors are subject to the following restrictions:
Not to put their names or pseudonyms on works, not to name the works, not to have their names or pseudonyms mentioned when the works are used.
Not to alter contents of works nor permit others to alter them.
Not to receive awards (if any) for works, as this right belongs to authors.
Regarding time limits for protection of author’s rights, Article 766 of the Civil Code provides that some author’s rights are protected indefinitely while others are protected definitely. The indefinitely protected rights include the personal rights closely associated to authors, which are irremovable and unchangeable, such as the right to put their names or pseudonyms on their works, the right to have their names or pseudonyms mentioned when their works are used, the right to protect the integrity of their works, and the right to name their works.
Meanwhile, the definitely protected rights of authors include the right to publish, disseminate or permit others to publish or disseminate their works, to permit or not to permit others to use their works, and the property rights (royalties and remunerations when works are used and material benefits from permitting others to use works in forms of publication, display, exhibition, performance, radio broadcast, television broadcast, audio recording, visual recording, photographing, translation, adaptation, transformation, re-writing, leasing, and award reception). These rights shall be protected for the lifetime of the authors and for another fifty years after the death of the authors. Particularly, the time ending the 50 year- protection of cinematographic, radio or television-broadcasting, video works of production organizations shall be counted from the date the works are publicized for the first time.
According to Article 762 of the Civil Code, authors or owners of works may file applications for copyright registration. The applicants must produce necessary documentation to prove that they are authors or owners of the works and pay registration fees. Authors or owners of works may authorize other individuals or legal persons to carry out procedures to register their author’s rights or ownership rights.
Regarding contracts for the use of works, Article 767 of the Civil Code states: “A contract for the use of a work is an agreement under which the author or owner of such work shall transfer the work under his/her ownership to another individual or organization for the use of the work.”
Under such contracts, authors or owners of works may request the users of their works to mention their names or pseudonyms when the works are used and request users of works to pay royalties or remuneration according to agreed time limits and modes. At the same time, the authors or owners of works shall have the following obligations:
To transfer the works to the work users within the agreed time limits.
Not to transfer the works to other individuals or organizations for use without the written consents of the work users, except as otherwise agreed upon by the two parties.
Meanwhile, the work users shall have the following obligations:
To use the works in accordance with the manner, scope and time limits agreed upon.
To pay royalties and remunerations as agreed upon.
In recent years, the Vietnamese State has been better aware of the importance and urgency of copyright protection. As a result, many legal documents on copyright protection have been promulgated, laying legal foundations for the organization of copyright registration and the fight against copyright infringement which has lingered and become serious for many years now in Vietnam. A greater respect for copyright contributes to the cause of “doi moi” and international integration and the realization of an open-door policy.
Nevertheless, Vietnamese legislation on copyright protection still has many shortcomings and weaknesses with inadequate, overlapping, contradictory and unspecific provisions which fail to match developments at home and abroad or accord with international treaties law and practice. These shortcomings and weaknesses are attributable to the following:
- In Vietnam, the domains of copyright and copyright protection legislation are quite new perceptively, theoretically and practically.
- When formulating legal provisions on copyright protection, Vietnam has not yet fully acceded to important international conventions.
- Upon the formulation of legal provisions on copyright protection in Vietnam, due attention has not been paid to the provisions on procedures to ensure enforcement. In reality, almost all disputes over copyright have been settled at administrative agencies, and only few cases were brought to court for adjudication.-