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From a legal perspective, many people often confuse whether personal images are protected by copyright under Vietnam’s Intellectual Property Law. In fact, personal images are not protected by copyright in Vietnam, as copyright only applies to creative works in the fields of art, literature, and science. Instead, personal images are protected under the Civil Code and other related laws to ensure personal rights and privacy. This article will explain in detail the reasons and the scope of protection for personal images under the current legal framework.
Legal provisions on works protected by copyright
Copyright, also known as author’s rights, is a legal right that protects human creative works in fields such as literature, art, and science. Copyright-protected works include literary works like books and poems, artistic works like paintings and sculptures, and scientific works like research papers. Copyright ensures that creators have the right to control the use, distribution, and development of these works, while also benefiting from their intellectual labor.
According to Article 18 of Document 11/VBHN-VPQH, which consolidates Vietnam’s Intellectual Property Law, copyright includes moral rights and property rights.
Moral rights are tied to the individual author, non-transferable, and related to the author’s honor and reputation. These rights include the right to name the work, the right to be credited when the work is published, the right to protect the integrity of the work, and the right to publish or allow others to publish the work.
Meanwhile, property rights are transferable and allow for the economic exploitation of the work, such as the right to reproduce the work, the right to distribute it, the right to perform it publicly, the right to communicate it to the public, and the right to make derivative works.
Property rights can be transferred or inherited and play a crucial role in economically benefiting from the work, while moral rights protect the identity and spiritual value of the author.
It can thus be concluded that copyright only applies to original creative works that fall within a defined category of creativity. This means that intellectual property law only protects works that reflect personal creativity and have certain artistic, scientific, or literary value. These works must be embodied in a material form and be reproducible.
Personal images are not considered creative works with artistic or scientific value like the works covered by the Intellectual Property Law. A portrait or an everyday image of a person is not seen as an original, unique creation, nor does it hold artistic value as required by intellectual property law to qualify for copyright protection.
Personal images are primarily related to personal rights and privacy, not the creative process or commercialization. However, it should be noted that the personal rights mentioned here are not the same as the moral rights under copyright law, just as the term property rights can have different meanings depending on the context and legal basis applied.
While copyright-protected works are often aimed at exploiting economic value or protecting the author’s rights, personal images are protected to ensure that the individual has control over how their image is used. This makes personal images fall under the protection of other laws, such as the Civil Code, rather than the Intellectual Property Law.
Legal basis for the protection of personal images in Vietnam
Article 32 of the 2015 Civil Code No. 91/2015/QH13 (“2015 Civil Code“) provides for individuals’ rights to their own images. Specifically, individuals have full rights over their own images. Any party wishing to use a personal image must obtain the individual’s consent. When personal images are used for commercial purposes, compensation must be paid to the person depicted, unless otherwise agreed.
The regulation on personal images in the Civil Code aims to protect each individual’s personal rights, ensuring that their image is not misused or causing harm to their honor or reputation. This provision helps prevent the abuse of personal images, such as unauthorized commercial use or distortion of the image that could affect the person.
Compared to the previous regulation in Article 31 of the 2005 Civil Code No. 33/2005/QH11 (“2005 Civil Code“), the 2015 Civil Code has established stricter protection mechanisms and sanctions for personal images and acts that infringe on personal images.
Notably, Clause 2, Article 32 of the 2015 Civil Code allows for the use of personal images without the individual’s consent in certain cases, such as when the image is used for the benefit of the nation, the public, or when the image is derived from public activities, provided it does not harm the honor, dignity, or reputation of the person depicted.
If an image is used in violation of the law, the person whose image is used may request that the court order the violator, organization, or individual involved to withdraw, destroy, or cease using the image, compensate for damages, and apply other remedies in accordance with the law.
Personal images are part of an individual’s personal rights and are considered one of the fundamental personal data protected by various legal documents. For example, Vietnam has recently issued Decree No. 13/2023/ND-CP on the protection of personal data, which took effect in July 2023. It clearly states that personal images are one type of personal data protected under the law.
Learn more about Decree No. 13/2023/ND-CP here.
In case of infringement, the data subject must report the violation to the competent authorities for handling and resolution. According to Decree No. 13, there are two sanctions for personal data infringement: administrative penalties and criminal prosecution.
Clause 30, Article 1 of Decree No. 14/2022/ND-CP stipulates that those committing personal data infringement can be fined up to 70 million VND.
In particularly serious cases, violators may be criminally prosecuted under Articles 159 and 288 of the 2015 Penal Code No. 100/2015/QH13 for crimes such as violating the privacy or safety of communications or unlawfully obtaining or using information from computer networks or telecommunications networks. The maximum penalty is 7 years in prison.
In addition to the Civil Code and Decree No. 13/2023/ND-CP, several other legal documents play a role in protecting the right to personal images. The Cybersecurity Law provides for the protection of personal data, including images, to prevent the illegal collection or use of personal data online.
The Press Law also includes provisions on protecting individual privacy, especially when collecting and using images in news articles. Notably, the 2013 Constitution is the highest legal document, with Article 21(1) stating that “Everyone has the right to inviolability of private life, personal secrets, and family secrets, and to protect their honor and reputation. Information about private life, personal secrets, and family secrets is secured by law.”
These provisions ensure the safety of personal information and prevent the misuse of personal images in mass media communication.
Copyright Protection and Protection of Rights to Personal Images
Copyright and the right to personal images have different goals and scopes of protection. Copyright focuses on protecting the economic and creative rights of authors over intellectual works such as literature, art, and science.
The Intellectual Property Law protects creative works, allowing authors to commercially exploit and benefit economically from their intellectual products. Copyright also ensures that authors control how their works are used and distributed, preventing unauthorized use or infringement.
In contrast, the protection of rights to personal images focuses on personal rights, protecting an individual’s privacy and dignity. The aim is not to exploit the commercial value of the image but to protect the individual’s right to decide how their image is used. This ensures that personal images are not abused or misused, especially in ways that could harm the individual’s honor, reputation, or privacy. This right is not about economic benefits but is mainly concerned with protecting the individual’s dignity and freedom.
Therefore, the right to personal images is often confused with moral rights under copyright or author’s rights. However, despite some similarities, these two concepts are distinct and cannot be treated as one.
For instance, there have been cases where photographers sued individuals photographed for using the photos without permission, particularly common when the subject is a celebrity or an influential figure.
This is because the photograph is protected by copyright under the Intellectual Property Law and belongs to the photographer. As a result, even if someone is the subject of the photograph, they cannot automatically use the image without the photographer’s consent.
On the other hand, if a photographer edits a photo using tools that distort the image in a way that insults the honor or dignity of the individual, the photographer would be violating the individual’s right to protect their personal image.
Copyright and the right to personal images serve different protective purposes: copyright protects economic and creative interests, while the protection of personal images focuses on personal rights and privacy. The handling of violations of these rights also varies significantly, depending on the nature and consequences of the violation.
If you encounter difficulties in protecting your rights related to personal images but are unsure how to proceed, please contact the legal advisory team at ASL LAW for detailed guidance specific to your case.
ASL Law is a leading full-service and independent Vietnamese law firm made up of experienced and talented lawyers. ASL Law is ranked as the top tier Law Firm in Vietnam by Legal500, Asia Law, WTR, and Asia Business Law Journal. Based in both Hanoi and Ho Chi Minh City in Vietnam, the firm’s main purpose is to provide the most practical, efficient and lawful advice to its domestic and international clients. If we can be of assistance, please email to [email protected].
ASL LAW is the top-tier Vietnam law firm for Intellectual Property Services. If you need any advice, please contact us for further information or collaboration.
