The 2022 Amendment to the Intellectual Property Law has updated regulations regarding related rights in Vietnam. The provisions concerning related rights in the amended 2022 Intellectual Property Law include:
Definition of related rights
Related rights regarding author rights (hereinafter referred to as related rights) are the rights of organizations and individuals concerning performances, sound recordings, audiovisual recordings, broadcasts, and encrypted satellite signals carrying programs.
Related rights arise from the moment a performance, sound recording, audiovisual recording, broadcast, or encrypted satellite signal carrying a program is shaped or executed without causing harm to the author’s rights.
Protected subjects of related rights
Performances are protected if they fall into one of the following cases:
a) Performances carried out by Vietnamese citizens in Vietnam or abroad;
b) Performances carried out by foreigners in Vietnam;
c) Performances shaped in sound recordings, audiovisual recordings protected under Article 30 of the Intellectual Property Law;
d) Performances not yet shaped in sound recordings, audiovisual recordings but have been broadcasted and protected under Article 31 of the Intellectual Property Law;
e) Performances protected under international agreements of which the Socialist Republic of Vietnam is a member.
Sound recordings, audiovisual recordings are protected if they fall into one of the following cases:
a) Sound recordings, audiovisual recordings by producers with Vietnamese nationality;
b) Sound recordings, audiovisual recordings protected under international agreements of which the Socialist Republic of Vietnam is a member.
Broadcast programs, encrypted satellite signals carrying programs are protected if they fall into one of the following cases:
a) Broadcast programs, encrypted satellite signals carrying programs by broadcasting organizations with Vietnamese nationality;
b) Broadcast programs, encrypted satellite signals carrying programs protected under international agreements of which the Socialist Republic of Vietnam is a member.
Performances, sound recordings, audiovisual recordings, broadcast programs, encrypted satellite signals carrying programs are only protected according to the provisions of Clauses 1, 2, and 3 of Article 17, provided that they do not harm the author’s rights.
Content, scope of rights, duration of protection of related rights
Rights of performers
Performers have personal rights and property rights concerning performances as stipulated by the Intellectual Property Law. In cases where performers are not simultaneous owners of rights to the performance, the performer enjoys personal rights as stipulated in Clause 2 of Article 29; the owner of rights to the performance enjoys property rights as stipulated in Clause 3 of Article 29.
Moral rights include:
a) Being credited when performing, when releasing sound recordings, audiovisual recordings, broadcasting performances;
b) Protecting the integrity of the performer’s image from distortion or modification by others in any form that harms the performer’s honor and reputation.
Property rights include the exclusive right to exercise or permit other organizations and individuals to exercise the following rights:
a) Shaping their performance directly on sound recordings, audiovisual recordings;
b) Directly or indirectly copying all or part of their performance that has been shaped on sound recordings, audiovisual recordings, using any means or forms, except as provided in point a of Clause 5 of Article 29;
c) Broadcasting, communicating their unshaped performance to the public in a way that the public can access, except when the purpose is broadcasting;
d) Distributing, importing for distribution to the public through sale or other forms of transfer of ownership other than the original, a copy of their shaped performance in tangible form, except as provided in point b of Clause 5 of Article 29;
e) Commercially renting their original, copies of their shaped performance to the public, even after being distributed by the performer or with the performer’s permission;
f) Broadcasting, communicating their shaped performance to the public, including providing the public with access to their shaped performance in a way that the public can access at the location and time of their choosing.
Organizations, individuals exploiting, using one, some, or all of the rights stipulated in Clause 3 of Article 29 must obtain the permission of the owner of the rights to the performance and pay copyright and other material benefits (if any) to the owner of the rights to the performance as stipulated by law or by agreement in cases where the law does not regulate, except as provided in Clause 5 of Article 29, Articles 25, 25a, 26, 32, and 33 of the Intellectual Property Law.
The owner of rights to the performance does not have the right to prohibit other organizations and individuals from performing the following acts:
a) Copying the performance only to perform other rights as stipulated by the Intellectual Property Law; temporary copying through a technological process during the operation of devices for transmission in a network between third parties via intermediaries or using their legally performed shaped performance in sound recordings, audiovisual recordings, without independent economic purpose and the copy is automatically deleted and cannot be recovered;
b) Distributing subsequently, importing for distribution with respect to the original, a copy of the shaped performance that the owner of rights to the performance has carried out or allowed to be carried out.
Rights of sound recording and audiovisual recording producers
Producers of sound recordings and audiovisual recordings have the exclusive right to exercise or permit other organizations and individuals to exercise the following rights:
a) Copy all or part of their sound recordings, audiovisual recordings by any means or forms, except as provided in point a of Clause 3 of Article 30;
b) Distribute, import for distribution to the public through sale or other forms of transfer of ownership other than the original, a copy of their sound recordings, audiovisual recordings in tangible form, except as provided in point b of Clause 3 of Article 30;
c) Commercially rent their original, copies of their sound recordings, audiovisual recordings to the public, even after being distributed by the producer or with the producer’s permission;
d) Broadcast, communicate their sound recordings, audiovisual recordings to the public, including providing the public with access to their sound recordings, audiovisual recordings in a way that the public can access at the location and time of their choosing.
Organizations, individuals exploiting, using one, some, or all of the rights stipulated in Clause 1 of Article 30 must obtain the permission of the owner of rights to the sound recording, audiovisual recording and pay copyright and other material benefits (if any) to the owner of rights to the sound recording, audiovisual recording as stipulated by law or by agreement in cases where the law does not regulate, except as provided in Clause 3 of Article 30, Articles 25, 25a, 26, 32, and 33 of the Intellectual Property Law.
The owner of rights to the sound recording, audiovisual recording does not have the right to prohibit other organizations and individuals from performing the following acts:
a) Copying the sound recording, audiovisual recording only to perform other rights as stipulated by the Intellectual Property Law; temporary copying through a technological process during the operation of devices for transmission in a network between third parties via intermediaries or using their legally performed sound recordings, audiovisual recordings, without independent economic purpose and the copy is automatically deleted and cannot be recovered;
b) Distributing subsequently, importing for distribution with respect to the original, a copy of the sound recording, audiovisual recording that the owner of rights has carried out or allowed to be carried out.
Rights of broadcasting organizations
Broadcasting organizations have the exclusive right to exercise or permit other organizations and individuals to exercise the following rights:
a) Broadcasting, retransmitting their own broadcast programs;
b) Directly or indirectly copying all or part of their shaped broadcast program by any means or forms, except as provided in point a of Clause 3 of Article 31;
c) Shaping their broadcast programs;
d) Distributing, importing for distribution to the public through sale or other forms of transfer of ownership other than the original, a copy of their shaped broadcast program in tangible form, except as provided in point b of Clause 3 of Article 31.
Organizations, individuals exploiting, using one, some, or all of the rights stipulated in Clause 1 of Article 31 must obtain the permission of the owner of rights to the broadcast program and pay copyright and other material benefits (if any) to the owner of rights to the broadcast program as stipulated by law or by agreement in cases where the law does not regulate, except as provided in Clause 3 of Article 31, Articles 25, 25a, 26, 32, and 33 of the Intellectual Property Law.
The owner of rights to the broadcast program does not have the right to prohibit other organizations and individuals from performing the following acts:
a) Copying the broadcast program only to perform other rights as stipulated by the Intellectual Property Law; temporary copying through a technological process during the operation of devices for transmission in a network between third parties via intermediaries or using their legally performed broadcast program, without independent economic purpose and the copy is automatically deleted and cannot be recovered;
b) Distributing subsequently, importing for distribution with respect to the shaped broadcast program that the owner of rights has carried out or allowed to be carried out.
Exceptions that do not infringe related rights
The following cases of using performances, sound recordings, video recordings, and broadcast programs that have been published do not require permission or payment of copyright fees, but information about the performances, sound recordings, video recordings, and broadcast programs must be provided, including:
a) Directly recording a part of a performance for teaching purposes without commercial intent or for news reporting;
b) Self-copying or assisting disabled persons in copying a part of a performance, sound recording, video recording, or broadcast program for scientific research, individual learning purposes, and not for commercial purposes;
c) Reasonably copying a part of a performance, sound recording, video recording, or broadcast program for direct teaching purposes by individuals and not for commercial purposes, except in cases where the performance, sound recording, video recording, or broadcast program has been published for teaching purposes;
d) Proper citation for news reporting purposes;
e) Broadcasting organizations making temporary copies for broadcasting while enjoying broadcasting rights.
The use of performances, sound recordings, video recordings, and broadcast programs specified in Clause 1 of Article 32 must not contradict the normal exploitation of performances, sound recordings, video recordings, and broadcast programs and must not unreasonably harm the legitimate interests of performers, producers of sound recordings, video recordings, and broadcasting organizations.
Limitations on related rights
The following cases of using published sound recordings and video recordings do not require permission, but copyright fees must be paid and information about the sound recordings and video recordings must be provided, including:
a) Organizations and individuals using published sound recordings and video recordings for commercial broadcasting purposes with sponsorship, advertising, or charging in any form are not required to seek permission but must pay copyright fees to performers, producers of sound recordings, video recordings, and broadcasting organizations from the time of use. The amount of copyright fees and the method of payment shall be agreed upon by the parties; if no agreement is reached, the provisions of the Government shall apply.
Organizations and individuals using published sound recordings and video recordings for commercial broadcasting purposes without sponsorship, advertising, or charging in any form are not required to seek permission but must pay copyright fees to performers, producers of sound recordings, video recordings, and broadcasting organizations in accordance with the provisions of the Government.
b) Organizations and individuals using published sound recordings and video recordings for commercial purposes in business and trade activities are not required to seek permission but must pay copyright fees as agreed upon to performers, producers of sound recordings, video recordings, and broadcasting organizations from the time of use; if no agreement is reached, the provisions of the Government shall apply.
The use of sound recordings and video recordings specified in Clause 1 of Article 33 must not contradict the normal exploitation of performances, sound recordings, video recordings, and broadcast programs and must not unreasonably harm the legitimate interests of performers, producers of sound recordings, video recordings, and broadcasting organizations.
Organizations and individuals with a need to exploit or use published sound recordings and video recordings of Vietnamese organizations or individuals but cannot locate or identify the owner of related rights shall follow the provisions of the Government.
Term of protection for related rights
- The performer’s right shall be protected for fifty years from the year following the year of the shaped performance.
- The right of the producer of sound recordings and video recordings shall be protected for fifty years from the year following the year of publication, or fifty years from the year following the year the sound recording or video recording is shaped if it has not been published.
- The right of the broadcasting organization shall be protected for fifty years from the year following the year the broadcast program is carried out.
- The term of protection stipulated in Clauses 1, 2, and 3 of Article 34 shall expire at 24:00 on December 31 of the year the term of protection for related rights ends.
Acts of infringement of related rights
- Infringing the performer’s rights stipulated in Article 29 of the Intellectual Property Law.
- Infringing the rights of the producer of sound recordings and video recordings stipulated in Article 30 of the Intellectual Property Law.
- Infringing the rights of the broadcasting organization stipulated in Article 31 of the Intellectual Property Law.
- Failing to perform or incompletely performing the obligations stipulated in Article 32 and Article 33 of the Intellectual Property Law.
- Intentionally nullifying or disabling effective technological measures implemented by the owner of related rights to protect their rights in order to carry out the acts specified in Article 35 and Article 28 of the Intellectual Property Law.
- Producing, distributing, importing, offering for sale, selling, promoting, advertising, marketing, renting, or storing for commercial purposes devices, products, or components, introducing or providing services when knowing or having reasonable grounds to know that such devices, products, components, or services are produced or used to nullify effective technological measures protecting related rights.
- Intentionally erasing, removing, or altering management information without permission from the owner of related rights when knowing or having reasonable grounds to know that such acts will incite, facilitate, provide favorable conditions for, or conceal acts of infringement of related rights as stipulated by law.
- Intentionally distributing, importing for distribution, broadcasting, transmitting, or providing the public with performances, copies of performances that have been shaped, or sound recordings, video recordings, or broadcast programs when knowing or having reasonable grounds to know that management information rights have been erased, removed, or altered without permission from the owner of related rights; when knowing or having reasonable grounds to know that such acts will incite, facilitate, provide favorable conditions for, or conceal acts of infringement of related rights as stipulated by law.
- Producing, assembling, modifying, distributing, importing, exporting, offering for sale, selling, or renting equipment, systems when knowing or having reasonable grounds to know that such equipment, systems are intended for unauthorized decryption or primarily to assist in the unauthorized decryption of encrypted satellite signals carrying encoded programs.
- Intentionally receiving or continuing to distribute encrypted satellite signals after decryption without permission from the lawful distributor.
- Failing to perform or incompletely performing the provisions to be exempt from legal liability of intermediary service providers stipulated in Clause 3 of Article 198b of the Intellectual Property Law.
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