30 November 2011
On 20 September 2011, the Vietnamese Government issued Decree No. 85/2011/ND-CP (Decree 85) amending Decree No. 100/2006/ND-CP dated 21 July 2006 (Decree 100) which provides guidance on the implementation of a number of articles relating to copyright and other such rights in the Civil Code and the Law on Intellectual Property (IP Law). The new provisions in Decree 85 strengthen the protection of intellectual property in certain areas.
The key provisions of Decree 85 are presented below.
Copyright in computer programs
Formerly copyright in computer programs was not covered but Decree 85 introduces new provisions specifically covering computer programs. Under the new provisions the authors of computer programs are entitled to the following moral rights:
- to title their works;
- to attach their real names (or pseudonyms) to their works and to have their real names (or pseudonyms) acknowledged when their works are published or used; and
- to protect the integrity of their works, to forbid other persons to modify, edit or distort their works in any form, thereby damaging the honour and reputation of the author.
The copyright holder, as opposed to the author, is defined as the organisation or individual that makes a financial investment in, or uses its material and technical facilities to create, a computer program. The author of the computer program may reach agreement with the copyright holder regarding the right to name it, modify or upgrade it and regarding the author's entitlement to royalties.
An organisation or individual entitled to legally use a copy of a computer program is permitted to make no more than one back-up copy to use as a replacement in the event their copy is lost, damaged or becomes unusable.
Copyright in folklore and folk art works
Decree 85 has broadened the protection for holders of the copyright in folklore and folk art works by affirming that the right to reproduce such works by any means and in any form, including electronic ones, constitutes one of the exclusive economic rights of copyright holders or their authorised persons.
Use of broadcasts
Decree 85 defines the owner of a broadcast as a broadcasting organisation which invests its own financial resources and material and technical facilities in the broadcast.
When using works, audio or video recordings to produce broadcasts, the broadcasting organisation must observe the obligations owed to the copyright holders and related rights holders in accordance with the law. Any modification or editing of the broadcast of another broadcasting organisation for the purpose of re-transmission or for any other form of transmission must have the prior consent of the broadcast owner.
Length of protection
The length of protection of economic and moral rights for posthumous work is now 50 years from the date of first publication.
Economic and moral rights to a photographic work, or a work of applied art, are also now protected for 50 years after first publication. If the work is not published within 50 years it shall be protected for 50 years from the date of its fixation.
For a dramatic work for which the term of protection under the IP Law has not yet expired, the term of protection is now the lifetime of the author plus 50 years after his or her death.
Works by a Foreigner
A foreign individual or organisation will be deemed an 'author' of works, and so be entitled to the rights granted to authors, if the work is considered as first published in Vietnam. Decree 85 stipulates that such a work will be considered being first published in Vietnam if it has not yet been published in any other country prior to its publication in Vietnam.
Payment of royalties, remuneration and other material benefits
In addition to royalties and remuneration, authors and holders of copyright or related rights are entitled to other material benefits, which Decree 85 defines as including "prizes, gift books or invitation tickets to performances, public presentation of cinematographic works, displays or exhibitions".
Under Decree 85, payment of royalties, remuneration and material benefits must ensure the interests of authors, users and the public and must be consistent with the realities in Vietnam. The amount of royalties, remuneration and material benefits must be based on the type, form, quality, quantity or volume, and rate of use of the work in question. Co-authors, or a community of authors, may reach agreement on specific rates for division of royalties and remuneration depending on the level of their creative work.
The use of copyright and related rights and payment of royalties, remuneration and material benefits must be conducted in accordance with written contracts which comply with law.
Competence to issue copyright certificates
The Copyright Office of Vietnam has the authority to issue, re-issue, exchange and rescind registered copyright certificates and registered related rights certificates. For the sake of convenience, Decree 85 allows authors, copyright holders and related rights holders to send their application files directly or by post to the Copyright Office of Vietnam or its representative office in Ho Chi Minh City or Da Nang City or the Department of Culture, Sports and Tourism in the place where they reside or are headquartered.
Decree 85 became effective as from 10 November 2011.
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