The revised Intellectual Property Law of 2022 in Vietnam has come into effect since the beginning of 2023. Accordingly, a number of provisions on copyright have been amended and supplemented.
Definition of author, co-author
According to the revised Vietnam IP Law 2022, the definition of co-author has been revised as follows:
“1. An author is a person who directly creates a work. Where two or more people directly create a work with the intention that their contributions are combined into a complete whole, those are co-authors.
2. Persons who support, comment, or provide materials for other people to create works are not authors or co-authors.
3. The exercise of moral rights and property rights for works with co-authors must be agreed upon by co-authors, except for cases where the work has separate parts that can be separated for independent use without to the detriment of other co-authors or otherwise provided for by law.”
In addition, the copyright for works specified in the revised Intellectual Property Law in 2022 also includes moral rights and property rights.
Accordingly, moral rights include:
“1. Name the work. The author has the right to transfer the right to use the right to name the work to the organizations or individuals that receive the transfer of the property rights specified in Clause 1, Article 20 of the Intellectual Property Law;
2. Put your real name or pseudonym on the work; be given a real name or a pseudonym when the work is published or used;
3. Publish the work or allow others to publish the work;
Protect the integrity of the work from being misrepresented by others; not allow others to modify or mutilate the work in any way that is prejudicial to the honor and reputation of the author.”
Property rights include:
“a) Making derivative works;
b) Performing the work to the public directly or indirectly through phonograms, video recordings, or any other technical means in a location accessible to the public, but where the public cannot freely choose the time and parts of the work;;
c) Copy directly or indirectly all or part of the work by any means or form;
d) Distributing, importing for distribution to the public through sale or other forms of transfer of ownership of originals or copies of works in tangible form;
d) Broadcasting or communicating to the public the work by wire, radio, electronic information network, or any other technical means, including making the work available to the public in such a way that accessible to the public at a place and time of their choosing;
e) Renting out originals or copies of cinematographic works and computer programs, unless such computer program is not the main object of the rental.”
Exceptions that do not infringe copyrights
According to the provisions of the revised IP Law 2022, the use cases of published works do not require permission, do not have to pay royalties, but must provide information about the author’s name and the origin and origin of the work, including: :
“a) Self-reproduce a copy for scientific research, personal study, and not for commercial purposes. This provision does not apply in the case of copying by copying equipment;
b) Reasonably copying part of a work using a copying device for scientific research and personal study and for non-commercial purposes;
c) Reasonable use of works for illustration in lectures, publications, performances, phonograms, video recordings, and broadcasts for teaching purposes. This use may include making available on an internal computer network provided that technical measures are taken to ensure that only learners and instructors in the session have access to this work;
d) Using works in official activities of state agencies;
dd) Reasonably cite works without misleading the author’s intention to comment, introduce or illustrate in his work; for newspaper writing, use in periodicals, broadcasts, and documentaries;
e) Use the work in non-commercial librarianship, including copying the work stored in the library for preservation, provided that the copy is marked as an archival copy and restricted limit the object of access in accordance with the law on libraries and archives; reasonably copy part of a work by means of a copying device for another person to serve research and study; copy or transmit a work held for inter-library use over a computer network, provided that the number of readers at one time does not exceed the number of copies of the work held by the aforementioned libraries hold, except as authorized by the right holder and not where the work has been made available on the market in digital form;
g) Performing theatrical, musical, dance, and other art performances in cultural activities, and propaganda activities for non-commercial purposes;
h) Take photos and broadcast works of fine art, architecture, photography, or applied art displayed in public places to introduce the image of such work, not for commercial purposes;
i) Importing copies of other people’s works for personal, non-commercial use;
k) Reproduction by republishing in newspapers, periodicals, broadcasting, or other forms of communication to the public of lectures, speeches, and other speeches are presented to the public to the extent appropriate for current news purposes, except where the author claims to hold the copyright;;
l) Taking pictures, recording, recording and broadcasting events for the purpose of news reporting, including using works heard or seen in that event;
m) People with visual disabilities, people with disabilities who cannot read print, and other disabled people who cannot access works to read in the usual way (hereinafter referred to as disabled people), caregivers, care for people with disabilities, organizations that meet the conditions prescribed by the Government to use works as prescribed in Article 25a of the Intellectual Property Law.”
The revised IP Law in 2022 stipulates that the use cases of published works do not require permission but must pay royalties, information about the author’s name and the origin and origin of the work include:
“a) The broadcasting organization uses the published work, which has been permitted by the copyright owner to be fixed on phonograms or video recordings published for commercial purposes for sponsored broadcasting, advertise or collect money in any form without permission but must pay royalties to the copyright owner from the time of use. The amount of royalties and payment methods shall be agreed upon by the parties; In case no agreement is reached, the Government’s regulations shall apply.
Broadcasting organizations use published works, works that have been allowed by copyright owners to be fixed on phonograms, and video recordings published for commercial purposes to broadcast without sponsorship or do not collect money in any form without asking for permission but must pay royalties to the copyright owner from the time of use in accordance with the Government’s regulations;
b) Where the work has been permitted by the copyright owner to be fixed on phonograms or video recordings published for commercial purposes, organizations and individuals may use these phonograms or video recordings in their business, commercial activities do not require permission but must pay royalties to the copyright owner of that work as agreed upon from the time of use; in case no agreement is reached, the Government’s regulations shall apply.”
In addition, the use of the work specified in Clause 1, Article 26 must not conflict with the normal exploitation of the work and not unreasonably cause damage to the legitimate interests of the author or owner.
The use of works in the cases specified in Clause 1, Article 26 does not apply to cinematographic works.
Vietnamese organizations and individuals enjoy the privileges accorded to developing countries for the right to translate works from foreign languages into Vietnamese and the right to copy them for teaching and research purposes, not for commercial purposes as prescribed in Article 2 of this Decree. International treaties to which the Socialist Republic of Vietnam is a signatory shall comply with the Government’s regulations.
Organizations and individuals wishing to exploit and use published works of Vietnamese organizations or individuals but cannot find or identify the copyright owner shall comply with the provisions of the Government.
Acts of copyright infringement
According to the IP Law 2022, acts of copyright infringement include:
“1. Infringement of moral rights specified in Article 19 of the Intellectual Property Law.
2. Infringement of property rights specified in Article 20 of the Intellectual Property Law.
3. Failing to perform or incompletely perform the obligations specified in Articles 25, 25a, and 26 of the Intellectual Property Law.
4. Deliberately canceling or invalidating effective technological measures taken by authors or copyright holders to protect copyright in their works in order to commit acts specified in this Article and Article 35 of the Intellectual Property Law.
5. Manufacture, distribute, import, offer for sale, sell, promote, advertise, market, rent or possess for commercial purposes equipment, products or components, introduce or supply services when knowing or having grounds to know that such equipment, products, components or services are manufactured or used to nullify an effective technological measure protecting copyright.
6. Deliberately deleting, removing, or changing rights management information without the permission of the author or copyright owner when knowing or having grounds to know that the performance of such act will incite, create the possibility of ability, facilitate, or conceal acts of copyright infringement as prescribed by law.
7. Intentionally distributing, importing for distribution, broadcasting, communicating, or providing to the public a copy of a work when knowing or having grounds to know that rights management information has been deleted, removed, or changed without the permission of the copyright owner; knowing or having grounds to know that the performance of such acts will instigate, enable, facilitate or conceal acts of copyright infringement as prescribed by law.
8. Failing to perform or incompletely perform the provisions to be exempted from legal liability of the intermediary service provider specified in Clause 3, Article 198b of the Intellectual Property Law.”