DEBATE OVER COPYRIGHTS
1.Overview of Intellectual Property in Vietnam
During the 1980s, intellectual property rights, the exclusive rights given to persons over the creations of their minds, were once a strange concept in Vietnam. Books and artworks back then were openly published without any copyright notice nor did anybody show concern about such an issue.
It was not until 2004 when Vietnam’s entry into the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) put an end to the unlawful exploitation of intellectual property in Vietnam – which had been largely ignored. Today, Vietnam is also a State Party to many other international intellectual property conventions including the Paris Convention for the Protection of Industrial Property, the Rome Convention, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the World Intellectual Property Organization, the Patent Cooperation Treaty, the Madrid Protocol and the recently signed Hague Agreement.
At first, in general, many people did not welcome the Government’s decision to join in those conventions as Vietnamese people in general then were not used to paying for the usage of intangible creative works. However, in recent years, Vietnamese have gained a better understanding of the importance of intellectual property protection and its role to promoting economic growth and development.
2. A Closer Look at Copyright in Vietnam
Since Vietnam is a signatory to the Berne Convention, the minimum copyright protection in Vietnam is set at 50 years from publication for cinematographic works, photographic works, dramatic works, works of applied art and anonymous works, and at 50 years after the death of the author for other works. The Copyright Office of Vietnam, under the Ministry of Culture, Sports, and Tourism, is the main Vietnamese office that is responsible for the management of copyright and related rights protection.
Progress on the legal and regulatory aspects copyright protection is one thing, having people to understand them is another. Here is one example to show that copyright knowledge in Vietnam still has much room to improve:
Recently, there has been a public debate regarding who is the “true” owner of a memoir. Accordingly, a publishing company re-published a memoir of a great figure of Vietnam, written by a famous Vietnamese writer, but both of them had passed away. The publisher only asked for permission from the great figure’s family to re-publish the memoir and they were also the only party that benefited from copyright royalties. A dispute arised when the writer’s family claimed that they should be the party who has the authority to grant permission for such work. (“Royalties” are payments made in exchange for the right to use another party’s assets or intellectual property)
According to the Law on Intellectual Property, copyright means “rights of an organization or individual to works which such organization or individual created or owns”. Organizations and individuals with works which are protected by copyright include persons that directly create such works, and copyright holders.
Unless there is any agreement stating otherwise, in most cases, the writer would be the actual owner of the work, as his work is the creation of his mind. On the other hand, the figure is character only supporting the writer to complete such work by providing him with self-materials. Without the creative thoughts of the writer, the materials provided by said figure remains as materials, not a memoir. The same applies for when a photographer takes photos of a beauty model. The copyrights of the photos are given to the photographer, not the beauty queen.
For such an actual case, many scenarios can happen:
(i) Under the law, copyrights to works include property rights and personal rights. The figure and the writer might have made an agreement in which the figure would grant the writer resources to write the book, then the great figure would be the owner of the book. He would be entitled to the property rights of the book (i.e., royalties); and the writer is the author of the book, thus entitled to the personal rights.
(ii) Another scenario is that if co-authorship had been agreed between the figure and the writer. Co-authors that use their time, finance and material-technical foundations to jointly create works will also jointly share the rights and interests.
When the “true” owner of the memoir dispute first captured public attention, many people immediately assumed that the figure character in the memoir undoubtedly must be the owner of the book. If a major publishing company can still have such fundamental misunderstanding, it is difficult to blame ordinary people for not knowing.
The practice of intellectual property rights in particular and copyright in general in Vietnam is still limited. Authorities need to make greater efforts to improve the relevant regulatory system as well as raise people’s awareness of this issue so that the rightful copyright holders receive their rights and interests for their created works.
This LBN newsletter are NOT legal advice. Readers are advised to retain a qualified lawyer, should they wish to seek legal advice. VCI Legal are certainly among those and happy to be retained, yet VCI Legal is not to be hold responsible should any reader choose to interpret/apply the regulations after reading this LBN without engaging a qualified lawyer.