The Vietnam Intellectual Property Law 2022 (amended IP Law 2022) shall be effective from January 01, 2023, has supplemented and amended many contents of the Intellectual Property Law 2005 (IP Law 2005). This article aims at showing some significant changes in the protection of copyright in Vietnam IP Law 2022.
1. Supplementing a number of new terms
Compared with the IP Law 2005, the amended Vietnam IP Law 2022 has added the following terms on copyright and related rights:
– Royalties are payments for the creation or transfer of copyright or related rights to works, performances, phonograms, video recordings, broadcasts, including royalties, remunerations (Article 4.10a).
– Technological measures for rights protection are measures that use any technique, technology, equipment or component during normal operation with the main function to protect copyright and related rights to acts performed without the permission of the copyright owners, the related right holders (Article 4.10b).
– Effective technological measures are technological measures to protect rights whereby the holder of copyright or related rights controls the use of works, performances, phonograms, broadcast, satellite signal carrying encrypted program through access control applications, protection procedures or copy control mechanisms (Article 4.10c).
– Rights management information means identifying information about works, performances, phonograms, broadcasts, encrypted program-carrying satellite signals; about authors, performers, copyright owners, related rights holders and conditions for exploitation and use; numberand codes showing the above information . Rights management information must be associated with copies or appear concurrently with works, performances, phonograms, broadcasts when the works, performances, phonograms, broadcasts are transmitted to the public (Article 4.10d).
– Communicating to the public is the transmission to the public of the works; sounds and images of the performance; sound, image or representation of sound, image fixed in sound recordings or video recordings by any means other than broadcasting. (Article 4.11a).
2. Amending and supplementing definition of authors and co-authors
The supplements the definition to clarify the meaning of authors and co-authors as prescribed in Article 12.a of the Vietnam amended IP Law 2022. Authors and co-authors must directly create the works, and those who only support, comment or provide documents for others’ creation of works are not considered “authors” or “co-authors” under the amended IP Law. In principle, the exercise of all moral rights and property rights in the works must be agreed upon by all co-authors, except where the works can be divided without harming other co-authors or as stipulated by laws.
This amendment and supplement will contribute to limiting arising disputes, better protecting the legitimate and legitimate rights and interests of authors and co-authors.
3. Amending and supplementing regulations on moral rights and asset rights
3.1. Moral rights (Article 19)
The amended IP Law 2022 retains the same moral rights as the IP Law 2005 but amends and supplements, specifically, the author has the right to transfer the right to use the right to name the work to the organization or individual that receives the assignee of property rights.
So, in addition to the property rights, the transferee may also have the right to name the work upon agreement with the author.
Prior to the above regulation, the owner, in the process of using and exploiting the work, if there is a need to change the name of the work, must obtain a written confirmation of the change of the name of the work of the author. This complicates and makes it difficult for the owner in case the author is far away, the health condition is not guaranteed. The new regulation not only ensures the inherent moral rights of the author, but also creates more convenient and faster conditions for the owner when it is necessary to change the name of the work.
3.2. Property rights (Article 20)
Compared with the IP Law 2005, the amended IP Law 2022 has revised the regulations on property rights in the direction of concretizing and supplementing the property rights, for example:
– The right to perform a work in public is concretized, by directly or indirectly, through phonograms, video recordings or any other technical means at a place accessible to the public but the public cannot freely choose the time and part of the work;
– The right to reproduction is concretized by direct or indirect reproducing of the work in whole or in part;
– The right to distribute and import is specified for the purpose of distribution to the public through sale or other form of ownership transfer for the original or copy of the work in tangible form (except in some cases under the provisions of law);
– Supplement of the right to broadcast, make the work available to the public in a manner accessible to the public at a place and time of their choosing;
– Limitation of the right to rent an original or a copy of a cinematographic work or a computer program in cases where the computer program is not the principal object of the rental.
In addition, the amended 2022 Vietnam IP Law adds some cases where copyright owners do not have the right to prevent other organizations and individuals from reproducing and distributing works, namely:
– The reproduction of the work solely to exercise other rights under this IP Law, temporary reproduction according to a technological process, during the operation of devices for transmission in a network between third parties through intermediaries or legal use of the work, without separately economic purpose and copies are automatically deleted and cannot be restored;
– The subsequent distribution, import for distribution of the original or copy of the work has been done or authorized by the copyright owner to make distribution
3.3. Performers’ rights in regulation of the amended Vietnam IP Law 2022
The amended IP Law 2022 stipulates that performers have moral rights and property rights to the performance.
In case a performer is not concurrently the right holder to the performance, the performer shall enjoy moral rights, the right holder to the performance shall enjoy the property rights as prescribed by law.
The above amendments and supplements are the legal basis for agreement and signing with the author, copyright owners and related rights holders when exploiting and using the work. This helps creators, investors, producers of phonograms, video recordings and performers to be protected effectively, transparently, openly, equally and accurately; increasing the society’s confidence in the strictness of the law, in the investment and business environment; increase the operational efficiency of the cultural market.
4. Amendmending and supplementing of regulations on limitation of copyright and related rights
The Vietnam IP Law 2022 revises and supplements the provisions on Limitation of copyright (Article 26) and Limitation of related rights (Article 33) with the following objectives:
– Harmonize interests between creators and the public’s right to access works, phonograms, video recordings and broadcasts..
– Protect the interests of creators and parties exploiting and using works, phonograms, video recordings and broadcasts.
In addition, the new Law also supplements regulations limiting special rights related to the National Flag, National Emblem and National Anthem, specifically: “The exercise of intellectual property rights shall not infringe upon the interests of the State, public interests, legitimate rights and interests of organizations and individuals and shall not violate other regulations of relevant laws. Organizations and individuals exercising intellectual property rights related to the National Flag, National Emblem and National Anthem of the Socialist Republic of Vietnam shall not prevent or obstruct the dissemination and use of the National Flag, National Emblem, National Anthem.” (Article 7).
This is a reasonable supplement to ensure the rights and interests of the State and the community.
5. Amending and supplementing regulations on “reproduction” of works
According to the amendments and supplements in Article 4.10 of the amended IP Law 2022: “To reproduce means the making copies of whole or a part of work or a phonogram in whatever mode or form.”
With this new regulation, copying part of an official work is considered an act of reproduction, creating a legal basis to overcome problems caused by unclear laws in many cases related to copyright before.
6. Supplement the regulations that copyright is the basis for refusing trademark protection
The amended IP Law 2022 has amended some signs that are not protected as a trademarks, including: “Signs identical with or confusingly similar to names and images of characters and images in works covered by copyright protection of other people have been widely known before the filing date, except with the permission of the owner of that work.” (Point (p), Clause 2, Article 74)
7. New point on presumption of copyright and related rights
Article 198.a of the amended IP Law 2022 has legalized the regulations of Decree No. 105/2006/ND-CP on the presumption of copyright and related rights. Specifically:
“In civil, administrative and criminal procedure on copyright and related rights, if there is no opposition proof is given, copyright and related rights are presumed as follows:
- Individuals and organizations named in the usual manner as authors, performers, producers of phonograms, broadcasting organizations, producers of cinematographic works, publishers are considered as copyright holders to work, performance, phonogram, broadcast;
- Naming in the usual manner prescribed in Clause 1 of this Article shall be construed as being named on the original work, the first fixation of the performance, phonograms, broadcasts and related documents (if any) or on the corresponding duly published copies in the case of the original work, the first fixation of the performance, phonograms, broadcasts and related documents no longer exists;
- Individuals and organizations stipulated in Clause 1 of this Article are entitled to corresponding copyright or related rights.”
This regulation is of great significance in protecting copyright and related rights in the 4.0 technology era with the global coverage of social media platforms.
8. Legal responsibilities of intermediary service providers in the protection of copyright and related rights
The VietnamIP Law amended 2022 has supplemented regulations on the legal responsibilities of intermediary service providers in the protection of copyright and related rights (Article 198.b).
Providers of intermediary services (such as e-commerce platforms Shopee, Lazada, Tiki, etc.) play a significant role in communicating and distributing works to the public. In the case of copyright infringement, these businesses are the first to have the ability to prevent infringement or create favorable conditions for infringement to take place. Therefore, it can be said that this is a subject that plays an important role in the communicating works and protection of copyright in Vietnam.
This new regulation has created an opportunity for copyright holders to be adequately compensated for damages, causing indirect infringers to consider when committing an infringement. The responsibility of the intermediary service provider has been enhanced, thereby increasing the effectiveness of preventing copyright and related rights infringement.