2. Copyright registration in Vietnam
In conformity with Berne Convention, the IP Law of Vietnam also provides, under Article 6.1, that “Copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered”. The aforesaid legislation means that copyright registration is not a pre-requisite for entitlement of copyright protection and proceeding with legal actions. A work is automatically protected in Vietnam without having to register it with Vietnamese competent authority.
Despite not legally obligatory, by virtue of the Vietnamese’s limited knowledge of copyright law, the certificate of copyright registration is persuasive proof of the protection. The Copyright Registration Certificate constitutes prima facie evidence of the validity of the copyright in a work.
2.1. Requirements for copyright registration in Vietnam
Information required for copyright registration in Vietnam
Documents required for copyright registration in Vietnam
Notes: Original documents are required at the time of filing.
Timeline for copyright registration in Vietnam
In general it takes 10 - 20 working days from the date of filing to the issuance of the copyright certificate. During this period the application will be examined as to form and eligibility for protection.
2.2 Copyrighted Works
Per Article 14 of the 2005 IP Law, as revised in 2009, copyright protection is given to literary, artistic or scientific works which fall within any of the following categories:
(i) Literary and scientific works, textbooks, teaching materials, and other works expressed written letters or other characters;
(ii) Lectures, addresses, and other speeches;
(iii) Press works;
(iv) Musical works; (v) Dramatic works; (vi) Cinematographic works and works created by similar methods; (vii) Fine art works and applied art works; (viii) Photographic works
(ix) Architectural works; (x) Sketches, plans, maps, and drawings relevant to topography or scientific works; (xi) Folklore and folk art works; (xii) Computer programs and data collections.
(xiii) Derivative works (it is of note that derivative works shall only be protected if such protection is not prejudicial to the copyright in the works used to create such derivative works).
To qualify for protection, a work must be original. The current copyright rules expressly state that copyright protection for a work is granted upon creation of the work in a given work, without subject to publication or registration. The protection is also given to the work irrespective of its form of embodiment and quality.
2.3 Authors and Copyright Owners
Per Article 14 of the 2005 IP Law, as revised in 2009, copyright protection shall be given to an author who is defined as the person directly creating the whole or part of a literary, artistic, scientific work and as the person who have created derivative works from other’s works, including works translated from one language into another, recreated, transformed, adapted, compiled, annotated, or selected works.
Apart from the author of a work, the legal owner of a work shall be also entitled to copyright protection. The legal owner of a work may be one of the following:
(i) The author or co-authors of the work;
(ii) Organizations and individuals who assign tasks to authors or who enter into contracts with authors;
In accordance with Vietnamese IP Law 50/2005, the author and copyright holders are defined as (i) Vietnamese organizations and individuals; (ii) foreign organizations and individuals whose works to be protected were first published in Vietnam and not yet published in any other country, or whose works were published in Vietnam within thirty days from the date of the first publication in another country; and (iii) foreign organizations and individuals whose works have been protected in Vietnam in accordance with an international treaty on copyrights to which Vietnam is a member.
Per Article 14 of the 2005 IP Law, as revised in 2009, the following subject matter shall be excluded from copyrights protection
2.5 Property and Personal Rights of Copyright Owners and/or Authors
An author and/or copyright owner shall be entitled to certain "property" rights and "personal" rights, as the case may be.
Personal rights per Article 19 of the 2005 IP Law, as revised in 2009 include (1) to name the work; (2) to have real names or pen names put on the work or have real names or pen names cited when the work is published or used; (3) to publish the work, or permit others to do so; (4) to protect the integrity of the work, to allow or not allow other persons to alter, garble or distort the contents of the work by any means that prejudice against author’s honor and prestige.
Per Article 20 of the 2005 IP Law, as revised in 2009, property rights include (1) to make the derivative works; (2) to display the works to the public; (3) to reproduce the works; (4) to distribute or import the originals and copies of the works; (5) to disseminate the works to the public via radio, television, internet or by any other technical means; and (6) to lease the original or copies of a cinematographic works or computer programs. Organizations, individuals who wishes to exploit or use one, several or all of property rights and rights of publication of work are obligated to ask for permission from the copyright owners and pay royalties, remuneration and other material benefits.
2.6 Fair Use
An individual or organization may use a published copyright work for "non-commercial purposes" without the permission of the author and without paying royalties provided such use does not adversely affect the normal exploitation of the work and does not cause any detriment to the author's enjoyment of copyright in the work. The author's name and the origin of the work must, however, be mentioned.
Article 25 of the 2005 IP Law, as revised in 2009, provides for “cases when published works may be used without having to seek permission or pay royalties or remuneration” as follows:
(i) Making one copy of the work of an author for the purposes of science research and individual teaching;
(ii) Reasonably quoting a work in order to comment on or illustrate one’s own works, without falsifying the author’s views;
(iii) Quoting from a work in order to write an article published in a newspaper or periodical, in a radio or television broadcast or in a documentary, without falsifying the author’s views;
(iv) Quoting from a work in school or university for lecturing purposes without falsifying the author’s views and not for commercial purposes;
(v) Copying a work for archival in the library and for the purposes of research;
(vi) Performing a dramatic works or other art work in mass cultural, communication or mobilization activities without collecting fees in any form;
(vii) Audio-visual recording or a performance in order to report current events or for teaching purposes;
(viii) Photographing or televising a work of fine-art, architecture, photograph, or a work of applied fine-art displayed at a public place in order to present images of such work;
(ix) Transforming a work into Braille or into characters of other languages for the blind;
(x) Importing 1 copy of others’ works for personal use.
However, the above-mentioned uses shall not apply to the architectural works, fine-art works and computer software.
2.7 Term of Protection
Term of copyright protection for cinematographic, photographic, works of applied art and anonymous works shall be extended up to 75 years under the terms of the amended IP Law (previously 50 years) from the date of first publication, or 100 years from the date of fixation if such works (except anonymous works) have not been published within 25 years from its fixation. Simultaneously, copyright for dramatic works shall apply for the whole of the author’s lifetime and for 50 years after his death (the previously applying term is not based on lifetime basis but only 50 years).
2.8 Assignment and Licensing of Copyright
An author or copyright holder of a work can transfer all or any of the property rights and the right to publish the work, or given written permission to others to do so in respect of that work to another person or to license another person to use such copyrights or related rights. A licensee to the licensed copyrights or related rights over the work may sub-license such rights in respect of that work upon the consent of the author (or of the copyright holder).
Where a work, performance, audio and visual fixation, or broadcast is under joint ownership, the licensing of copyright or related rights therein must be agreed upon by all co-owners. If a work, performance, audio and visual fixation or broadcast is composed of separate parts that have been separately created by different authors or owned by different copyright/related right holders, such authors or copyright/related right holders may license their copyrights or related rights with respect to their separate parts to other organizations or individuals.
2.9 Contract for Assignment and Use of Copyrighted Works
A contract for the assignment of copyright or related rights must be made in writing and include provisions which specify the following matters: the names and addresses of the assignor/licensor and the assignee/licensee; the grounds for the assignment/license; the scope of the license (for the licensing of copyright or related right); the price and method of payment; the rights and obligations of the parties; and the liability for contractual breach. Such contracts are not subject to registration to be legally effective. Of note, personal rights are not subject to transfer/licensing, except the right of publication of the work.
3.1. Act of copyright infringement
Per Article 28 of the 2005 IP Law, as revised in 2009, an author or owner of a copyrighted work is entitled to enforce against copyright infringement if any of the following acts is conducted in respect of that work without his/her consent:
Where his/her copyrights are infringed, the author or owner of the work shall be entitled to apply the following measures for protecting their copyrights:
(i) Taking technological measures to prevent infringement of copyrights;
(ii) Requesting the infringer to cease the infringement, apologize publicly, issue a public rectification, and/or compensate for damage suffered;
(iii) Requesting the competent authorities to handle the infringement;
(iv) Initiating a lawsuit at a competent court or an arbitrator to protect their legitimate rights and interests.
The authors and copyright holders shall be entitled: (i) to take technological measures to prevent acts of infringement of copyrights; (ii) to request the accused infringers to terminate the infringing acts, publicly apologize for and rectify the infringement, and pay compensation for damages; (iii) to request the State competent authorities to handle the copyright infringement; and (iv) to initiate a lawsuit before a competent court or arbitration proceedings to protect their legitimate rights and interests.
In general, administrative, civil, and criminal remedies are available to enforce copyrights in the event of infringement.
As regards administrative remedies, the principal administrative sanctioning form being imposed on a copyright infringer is the monetary fine. Apart from the principal sanctioning form, one or more of the following remedies may be imposed on copyright infringers: (i) forcible bringing out of the territory of Vietnam or forcible re-export of goods, articles or means; (ii) forcible destruction of goods or articles harmful to human health, domestic animals, plants and environment, or cultural products with harmful contents; (iii) forcible correction of untruthful or misleading information; (iv) forcible removal of infringing elements from goods, goods packages, business means or articles; (v) forcible correction of author’s name, name of the work, name of performers; (vi) forcible withdrawal of certificate of copyright registration, certificate of related-right registration; (vii) forcibly removing copies of works, performances, phonograms, video recordings, or broadcasts which are infringed in electronic form, on internet and digital environment; (viii) forcible refund of royalties, remuneration, or material benefits obtained from committing violation, to copyright or related right holders.
As regards civil remedies, Vietnamese courts shall apply the following civil remedies in handling organizations and individuals that have committed acts of infringing upon copy rights: (i) compelling the termination of infringing acts; (ii) compelling the public apology and rectification; (iii) compelling the performance of civil obligations; (iv) compelling the payment of damages; (v) compelling destruction, distribution or use for non-commercial purposes of goods, raw materials, materials and means used largely for the production or trading of infringing goods, provided that such destruction, distribution or use does not affect the exploitation of rights by copy right holders.
As regards criminal remedies, it is duly noted that the criminal liability imposed on copyright and related right violations limit only to the deliberate acts of: (i) reproducing works, phonograms or video recordings; and (ii) distributing to the public copies of works, phonograms or video recordings.
For the infringer who is an individual, one of the following main criminal penalties may be imposed on a copyright infringer: (i) a fine of from VND 50 to 300 million or a penalty of up to 03 years' community sentence in cases of infringement upon copyrights and related rights protected in Vietnam on commercial scale or earning an illegal profit of from VND 50 to under 300 million or causing a loss of from VND 100 to 500 million to the holders of such copyrights and related rights or the violating goods assessed at from VND 100 to under 500 million; (ii) a fine of from VND 300 million to 1 billion or a penalty of 6 – 36 months' imprisonment if the offence committed in any of the following cases: a) the offence is committed by an organized group; b) the offence has been committed more than once; c) the illegal profit reaped is VND 300 million or over; d) the loss incurred by the holders of copyrights and related rights is VND 500 million or over; e) the illegal goods are assessed at VND 500 million or over. Apart from the main criminal penalties, the individual offender may be additionally subjected to a fine of from VND 20 to 200 million in case the monetary fine is not applied in the main criminal penalties, be prohibited from holding certain positions or doing certain works for 1 - 5 years.
For the infringer who is a legal entity, criminal remedies are as follows: (i) a fine of from VND 300 million to 1 billion if such entity infringes copyrights and related rights on commercial scale or earns an illegal profit of from VND 200 to under 300 million or causes a loss of from VND 300 to under 500 million to the holders of such copyrights and related rights, or the violating goods assessed at from VND 300 to under 500 million; earns an illegal profit of from VND 100 to under 200 million or causes a loss of from VND 100 to under 300 million to the holders of such copyrights and related rights, or the violating goods assessed at from VND 100 to under 300 million while having incurred an administrative penalty for any of the offences or having an unspent conviction for the same offence; (ii) a fine from VND 1 to 3 billion or suspension of operation for 6 - 24 months if the offense committed in any of the following cases: a) the offence is committed by an organized group; b) the offence has been committed more than once; c) the illegal profit reaped is VND 300 million or over; d) the loss incurred by the holders of copyrights and related rights is VND 500 million or over; e) the illegal goods are assessed at VND 500 million or over. Apart from the main criminal penalties, the infringing legal entity might also be liable to a fine of from VND 100 to 300 million in case the monetary fine is not applied in the main criminal penalties, be prohibited from operating in certain fields or raising capital for 1 - 3 years
4. Copyright Protection of Foreign Works in Vietnam
4.1 International Conventions and Treaties
Vietnam is currently the member of the following international convention on copyright protection:
(i) Berne Convention for the Protection of Literary and Artistic Works;
(ii) Brussels Convention relating to the distribution of program-carrying signals transmitted by satellite;
(iii) Geneva Convention for the protection of producers of phonograms against unauthorized duplication of their phonograms;
(iv) Rome Convention for the protection of performers, producers of phonograms and broadcasting organizations.
(v) Agreement on trade-related aspects of intellectual property rights (TRIPS Agreement)
Accordingly, works under the ownership of foreign individuals and juridical persons shall be protected in Vietnam if they fall within any of the following:
(i) Works were first published in Vietnam and not yet published in any other country, or works were published in Vietnam within thirty days from the date of the first publication in another country;
(ii) Works were created and expressed in a given material form in Vietnam;
(iii) Works have been protected in Vietnam in accordance with an international treaty on copyrights to which Vietnam is a member.
4.2 Vietnam-United States Copyright Agreement
On 27 June 1997, the United States and Vietnam entered into a bilateral copyright protection agreement (Agreement). The Agreement took effect on 23 December 1998 with an exchange of diplomatic notes between the two parties. The entering into force of the Agreement enables US copyright owners and authors to have a legal basis to take legal action against piracy of their works in Vietnam. The Vietnamese copyright owners and authors have the same rights in the US.
The Agreement protects: (i) works have been protected by either the US or Vietnamese government; (ii) works were first published in either the US or Vietnam; and (iii) works were first published in a country which is a member of a multilateral copyright treaty to which either the US or Vietnam is a member, provided the copyrights of such works were acquired by a US or Vietnamese copyright holder within one year following the date of the work's first publication.
The Agreement also states that the works of nationals or domiciliaries of the US or Vietnam, which were first published in either country before the Agreement comes into force, will be also given copyright protection, provided that such works have not yet become part of the public domain. However, any copyright infringement committed prior to the Agreement effective date shall not be considered as an act of copyright infringement.
For enforcement, the Agreement specifically requires the two parties, through their national laws, to provide full and effective enforcement of copyrights within their territories by:
(i) making available in the context of civil actions preliminary injunctive relief, permanent injunctive relief, damages, and the seizure and destruction of infringing goods and materials and machinery predominately used to create them;
(ii) enacting criminal procedures and penalties to defer infringers from engaging in copyright piracy on a commercial scale, including the imposition of fines and imprisonment sufficient to provide a deterrent, seizure and destruction of infringing goods and materials and machinery predominately used to create them; and
(iii) making available effective enforcement at their borders, providing for the seizure and destruction of infringing goods in transit or bound for import or export.
With such enforcement measures, the Agreement provides the US copyright holders a higher level of protection than that given to Vietnamese copyright holders by the Vietnamese laws.
4.3 Vietnam-Switzerland Bilateral Agreement
Vietnam also signed a bilateral agreement regarding intellectual property rights with Switzerland on 13 July, 1999. The Agreement came into force on 28 June 2000/ The purpose of the Agreement is to strengthen co-operation between the two countries in the field of IP protection. The Agreement provides that nationals and organizations of each country shall enjoy national treatment.
Apart from the above-mentioned international conventions and bilateral agreements on copyright protection, Vietnam also signed the following Memorandum:
(i) Memorandum of Understanding between Department of Intellectual Property of the Kingdom of Thailand and Agencies concerned the Socialist Republic of Vietnam on the Cooperation of the Promotion and protection of intellectual property;
(ii) Memorandum of Understanding between the Department of Intellectual Property of the Kingdom of Thailand and the Copyright Office of Vietnam on cooperation in the field of copyright and neighboring rights;
(iii) Memorandum Cooperation in Copyrights and Relevant Rights between the Copyright Office of the Socialist Republic of Vietnam and the National Copyright Bureau of the People’s Republic of China.
The signing of these Memorandums shall strengthen mutual protection of copyright and relevant rights in Vietnam and other countries.