This article provides advice on how to protect your copyright in Vietnam, through a system that exists under the Berne Convention, adopted in 1886 and joined by Vietnam in 2004.
Through the enactment of law, decrees and circulars, including 17 government decrees and 19 ministerial and inter-ministerial circulars, Vietnam’s intellectual property legal system has moved closer to the intellectual property systems of developed countries, while achieving standards set by intellectual property treaties.
Law 50/2005/QH11 of November 29, 2005, on Intellectual Property, was recognized by the World Intellectual Property Organization (WIPO) as the main intellectual property law adopted by Vietnam.
This law was amended by Law 36/2009/QH12 of June 19, 2009 (Law 36), which revised several articles of the Law on Intellectual Property. In 2018, the Vietnamese Government issued Decree 22/2018/ND-CP (Decree 22), replacing Decree 100/2006/ND-CP with updated guidelines for numerous articles focusing on copyright under the Civil Code and the Law on Intellectual Property. The decree entered into effect on April 10, 2018.
What is copyright?
Copyright is the set of rights available to an author or his assigns (e.g., heirs, production companies), on the use of his original works. This right protects intellectual creations expressed materially in a particular form, in an original way, and resulting from a creative effort by the author. These are the three conditions which must be met in order for a work to be protected by copyright.
Intellectual property (IP) also includes the rights of the public over the use and reuse of these works under certain conditions. IP rights owners have rights which include copying, translation, adaptation and modification, communication to the public and performance before an audience, and the distribution, rent and lending of copies of works protected by copyright.
How copyright can be relevant for your company?
The essence of a business is most often the creation of value in various forms: a consulting firm publishes articles, a factory manufactures products, or an IT company creates software etc. Copyright is at the heart of creation. It must be protected before anyone else who can take hold of these creations. In order to protect their own creative expressions, companies must be able to prove that they are the authors. The proof of ownership that a company obtains by registering its copyright, while not legally necessary, can help it save time and money in the case of a copyright dispute. In some jurisdictions, copyright registration is required to sue for infringement (e.g., US).
Registration is therefore always recommended for companies in all sectors, not just the creative industry. This should be an integral part of a solid overall business strategy.
Copyright registration in Vietnam
The authority in Vietnam where copyright can be registered is the Copyright Office of Vietnam under the Ministry of Culture, Sports and Tourism. The work must be recorded in Vietnamese, for a cost ranging from VND 100,000 to VND 600,000 (USD 4-26). The only persons who can apply for copyright registration are the authors, copyright holders and holders of related rights.
Since the adoption of Decree 22, the Copyright Office of Vietnam must respond within 15 working days if it wishes to revoke a certificate of registration of copyright or a right.
The 15-day period starts on the date of receipt of:
✦ Judgment or decision of a competent authority, relating to offenses specified in the law on intellectual property; or,
✦ Request from organizations and individuals who have obtained a certificate of registration of copyright/related rights.
Cross-border copyright protection
As soon as a work is created in one of the countries parties to the Berne Convention, its protection automatically applies in all the other countries parties to the Convention.
But Vietnam is also part of the following agreements, which widen the scope of protection of works protected by copyright in Vietnam:
✦ Brussels Convention relating to the Distribution of Program-Carrying Signals Transmitted by Satellite, since October 12, 2005;
✦ Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms, since April 6, 2005;
✦ Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, since March 1, 2007;
✦ World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights - TRIPS, since January 11, 2007;
✦ Vietnam-United States Copyright Agreement;
✦ Vietnam-Switzerland Bilateral Agreement; and,
✦ Vietnam-United States Trade Agreement.
What can be protected by copyright?
Copyright protects only the tangible expression of an idea, not the idea itself. Ideas and concepts are therefore not automatically protected by copyright. Below is a table of what can be protected by copyright in Vietnam, and what cannot be.
How long is a copyright valid?
The duration of a copyright depends on the laws of each country. Most of the time, the duration also depends on each type of work. This is the case in Vietnam, where cinematographic works, photographic works, works of applied art and anonymous works, are protected by copyright for 75 years, starting from the date of first publication, according to Law 36.
For cinematographic works, photographic works and works of applied art which remain unpublished for 25 years from their creation, the term of protection is 100 years from the date of creation.
Other works are protected during the author's lifetime and for 50 years after his death.
For a work with several authors, protection expires during the 50th year after the death of the last surviving co-author.
Protection expires at midnight on December 31 of the year in which the copyright protection period ends.
What rights does copyright confer?
In Southeast Asia, as in the European Union, copyright protection has main prerogatives:
✦ Moral rights protect the reputation of a creator. These rights include the rights of:
- Attribution of authorship;
- Publication of the work in the public domain;
- Modification of the work; and
- Preservation of the integrity of the work.
Moral rights are personal in nature and cannot be waived, licensed or transferred by the authors.
The moral rights of the author are violated if the author is not correctly identified, for instance, or if the work is published for the public without the author’s authorization.
✦ Economic rights give authors the exclusive right to exploit the work for economic purposes.
These include, for example, the right to reproduce, rent, exhibit, perform, project by visual projection, or the right to distribute the work.
An author has the exclusive right to exploit the work personally, to transfer it to other people, or to give others permission to use it in return for remuneration.
The economic rights of the copyright owner are violated if another person exploits the work without the owner’s authorization and when this exploitation is not considered to be "fair use" or does not have a copyright license. A fair use can be considered any copying of copyrighted material done for a limited and “transformative” purpose (e.g., comment upon, criticize, or parody a copyrighted work).
The equitable use of works is contemplated differently in each country, depending on the applicable law. For example, in Vietnam, the duplication of authors' works for scientific research or teaching is not considered a violation of copyright.
Collection and distribution of royalties
According to Vietnam’s copyright law, it is possible to use certain types of works without the owner's authorization, provided that the legal royalties are paid to the copyright holder. This is called a copyright license and is stringently regulated.
For example, broadcasters using works published in a radio program must pay royalties or fees to copyright holders in accordance with government regulations. These uses must neither affect the normal use of the works nor cause prejudice to the rights of authors or copyright holders. They must also indicate the name of the author, as well as the sources and origins of the works.
But according to Decree 22, individuals and organizations which use copyrighted works and are not required to obtain permission from the copyright owners, but have to pay royalties, must contact the rights holders or the relevant collecting societies in order to use their works. If they are unable to establish communication with them, they need to issue announcements in public media.
If copyrights belong to more than one organization which acts as a collecting society, the organizations may agree to allow a single entity to negotiate on their behalf for the licensing, collection, and distribution of royalties.
There are, however, published works for which it is not necessary to have an authorization or to pay a royalty. This category of work includes photography or the use on television of works of architectural, photographic, plastic or applied art exhibited in public places.
Copyright protection exists immediately as a work is created. Registration is a form of proof of ownership and can resolve disputes when ownership is contested. No registration is required, but as we see above, there are benefits to voluntarily registering copyrights.
The copyright of a work generally belongs to its creator or his employer. Without proof to the contrary, the person or entity whose name appears on the work is the copyright holder of the work.
There are scenarios where the copyright holders might not be clearly identified, possibly leading to confusion or even conflict:
Creation of a work by an employee
When drawings of product designs, engineering designs, software and other work are created by employees in the course of their employment, using the company's commercial resources, the employee usually holds the right of authorship, and the company has the economic rights to the service work.
Often, and to avoid doubt, terms of employment will make it clear that copyrights created during employment belong to the employer.
In case a work is created outside the workplace, the employee will generally be the owner of the copyright in this work.
Works created as part of an order
The copyright for an ordered work belongs to the party responsible for carrying out the order, unless there is a written agreement to the contrary. Thus, if a company commissions the creation of a work to a third party, it does not own the copyright. However, if the company wishes to own the copyright of a work it has ordered, it must include a provision on copyright ownership in the order contract. Likewise, if software development is carried out by employees of a foreign company’s branch, the subsidiary will hold the copyright to the software that was developed, unless there is a written agreement between the foreign company and its subsidiary to the contrary.
How to prove copyright ownership?
A registration certificate is presumptive proof of copyright ownership. However, when a copyright is not registered or copyright ownership is contested, sufficient evidence to prove ownership depends on the type of work. Most often, the owner is required to produce the original work or a certified copy and all relevant contracts. The original work must indicate the name of the author and the date of creation or first publication. The one who is not the original author of the work must provide evidence that he has obtained copyright by delegation, use, license, assignment, or inheritance.
How to acquire copyright?
If a company is neither the author of a work nor the employer of the creator, it can obtain the rights of creation by a license contract, an assignment, or an inheritance or by other contractual arrangements with the copyright holder.
How to enforce copyright if an infringement is discovered?
Although piracy and counterfeiting are widespread, few IP cases are brought before the court, as the amount of damages awarded rarely justifies the financial investment required to initiate legal proceedings. In addition, the effectiveness of raid actions can be compromised by leaks and by corruption. Thus, enforcing IP rights in Vietnam is difficult, but not impossible.
Rights holders can enforce their copyrights through criminal action, civil action, administrative action, or customs procedures.
The first step in enforcing copyright is to collect as much evidence as possible. These elements must prove that the counterfeiter was inspired by the work of the actual author.
In more serious cases, a rights holder could hire a lawyer or a private investigator to investigate to confirm the offense, assess the scope of the offense, and identify the infringers.
Companies can send a formal letter to the suspected infringer, as a first step in enforcing a copyright in both serious cases and minor cases. This letter should identify the work protected by copyright, copyright ownership, and the allegedly infringing activity. The letter will demand that the recipient immediately end the infringement, under penalty of legal actions.
Often, private mediation through legal professionals is more effective.
✦ Criminal prosecutions for copyright infringement are rare in Vietnam, but they exact the most severe punishment.
Sanctions for copyright infringements may include a fine of up to VND 1 billion (approximately USD 42,600) and a penalty up to three years' imprisonment. In the case of a legal entity, the sanctions may reach up to VND 3 billion (approximately USD 128,000) or may consist of a suspension of its operation from six months to 24 months.
✦ The civil action relates to a claim for damages based on the amount of lost sales or the amount of the infringer's profits. Actual damages must be proven for the amount of damages to be determined. However, the law sets the maximum amount that the court can award in damages, which is VND 500 million (USD 21,300).
In addition to these civil actions, requests for interim measures, as for example, an injunction to cease performance of a song or sale of a product, can be made. The request for the opening of the trial, accompanied by the provision of the necessary documents, must be made within two years from the date the victim discovers that his rights have been infringed upon.
Despite all of the above, civil actions are rare because it takes an extremely long time for a case to be processed. Moreover, judges who act in intellectual property cases often do not have adequate training in matters involving IP law.
✦ Conversely, administrative actions have increased. Indeed, it is the most common recourse by companies when an offense is discovered. These actions are both cost-effective and carried out in a shorter amount of time and are the best option for immediately putting an end to the ongoing copyright infringement.
Various government agencies may be involved in the action depending on the nature of the case. It can be, for instance, the Vietnam Competition Authority, Vietnamese Customs or the Science and Technology Inspectorate. These organizations can issue sanctions, such as fines, formal notice orders, revocation of business licenses, or confiscation and destruction of counterfeit goods. While such sanctions are generally not as harsh as the sanctions that could theoretically be awarded in civil or criminal proceedings, administrative actions may offer a more realistic chance to stop offenders and, in some cases, to obtain damages.
✦ Finally, customs are also used to enforce copyrights in Vietnam.
It is prohibited to export or import goods which infringe copyrights. Customs are empowered to fine infringers and confiscate counterfeit goods. They can also initiate criminal measures in certain cases.
Companies are therefore advised to add themselves to the customs database, as this will help authorities recognize counterfeit goods from companies and increase the likelihood of blocking suspicious goods at the border. In addition, if companies are aware of an alleged illegal shipment of products, they can also work with the Vietnamese customs offices to detain such shipments. However, it can be difficult to work with customs as they have very particular rules relating to counterfeit goods.
Government agencies overseeing IP protection enforcement
Government agencies overseeing IP protection enforcement include:
✦ Ministry of Science and Technology’s Inspectorate
The National Office of Intellectual Property of Vietnam is located at the center of this Ministry, which handles general questions related to IP.
The Vietnam Intellectual Property Research Institute oversees industrial property assessment in order to facilitate IP activities.
✦ Ministry of Culture, Sports and Tourism’s Inspectorate
For copyright matters, the Copyright Office of Vietnam, which is part of this Ministry, is responsible for the management of copyright and the protection of related rights.
✦ Ministry of Industry and Trade's Vietnam Directorate of Market Surveillance
The market surveillance force under this Ministry had inspected and dealt with around 22,500 cases involving counterfeit goods and IP rights-infringing goods, collecting nearly USD 2.3 million in fines to add to the state coffers.
✦ Ministry of Public Security's Economic Police Department,
✦ Ministry of Finance’s General Department of Customs,
✦ People's Courts (Civil Courts).
✦ It is these government agencies responsible for monitoring infringements and IP infringements that foreign companies operating in Vietnam must closely work with.
✦ At the local level, People's Committees ensure IP management by the State through Departments of Science and Technology; Departments of Culture, Sports, and Tourism; and Departments of Agriculture and Rural Development.