With the purpose of international integration, during the past two decades, the Law on Intellectual Property of Vietnam is one of the bills that has been revised many times to be able to comply with international regulations and harmonize with national interests. After a series of new free trade agreements were signed and took effect in 2020, the Intellectual Property Law has been constantly reviewed and revised to meet the international standards of those agreements. One of the most important changes is about copyright. Specifically, reader’s access to literary and artistic works, etc. as well as copyright holders’ means to edit and improve their cinematographic, theatrical works, etc. will become much easier. However, although it seems great for both sides, one big question that has been proposed by many experts is that will this part of the amendment conflict with the goal of protecting the rights of the author or copyright holder?
The conflict between protecting the moral rights of authors and the right to make derivative works is a difficult puzzle to solve.
According to section 8 article 4 of Vietnam Intellectual Property Law, a derivative work means a work that is translated from one language into another, adapted, modified, transformed, compiled, annotated, or selected.
According to article 19 of Vietnam Intellectual Property Law, the moral rights of authors include the following rights:
- To title their works;
- To attach their real names or pseudonyms to their works; to have their real names or pseudonyms acknowledged when their works are published or used;
- To publish their works or authorize other persons to publish their works;
- To protect the integrity of their works, and to prevent other persons from modifying, mutilating, or distorting their works in whatever form prejudicial to their honor and reputation.
Moral rights are rights that belong only to the author and cannot be transferred to anyone in any way. However, that has created some difficulties for the implementation of economic rights. To clarify, there have been many cases where the author of a protected work died. Normally, the author will remain the owner of the moral rights for a very long time after their death (in case the heir is not taken into account) but they are not the owner of the economic rights of that work. Consequently, the owner of the economic rights of that work can’t change, improve the work or create derivative work of that work, etc. because the owner of the moral rights is dead and therefore, can not be negotiated.
Although the Intellectual property Law of Vietnam is intended to protect the rights of authors, it also makes the improvement, modification, or creation of derivative works from the original work difficult, especially in the case that the authors and owners of said work are dead or unable to contact with.
Balance the interests between the owner of moral rights and the owner of economic rights
Realizing the limitations in practice, the draft amendments to the current Intellectual Property Law (expected to be submitted to the National Assembly for consideration and comments in October 2021 and submitted to the National Assembly for approval at May 2022) proposed the regulation that “Authors and organizations and individuals investing financially and in material and technical facilities to create cinematographic works and theatrical works may agree on the naming and modification of the work.”
Ms. Pham Thi Kim Oanh, Deputy Director of the Copyright Department (Ministry of Culture, Sports and Tourism) commented during a workshop on amending the Intellectual Property Law in January 2021: “This is a step forward in copyright protection for cinematographic and theatrical works in Vietnam. We have legislated these regulations to satisfy practical conditions, avoiding the current situation where moral rights are non-transferable rights, making it difficult for stakeholders in the development of works, such as as an adaptation or film adaptation.”
Similar changes are also proposed to be applied to the computer program.
According to section 1 article 22 of the Intellectual Property Law of Vietnam, a computer program means “a set of instructions that is expressed in form of commands, codes, diagrams, or any other form and, when incorporated in a device-readable to computers, capable of enabling such computers to perform a job or achieve a designated result.”
Furthermore, computer programs shall be protected like literary works, irrespective of whether they are expressed in form of source codes or machine codes.
According to the current regulation, software companies will find it extremely difficult to protect computer programs in Vietnam. This is because software companies often hire engineers to write software. If there is no prior agreement on moral rights, although the company owns the economic rights of the software, it will still be extremely difficult for them to upgrade or modify the software without the consent of the author (software engineers) who may not work for that company anymore, or the engineers found out they can use this loophole to blackmail the company, or basically and commonly in most circumstance, the company can’t contact that engineers, etc.
The change towards a more open direction not only solves the problems in practice but also shows the trend of balancing in copyright protection systems around the world. Regulations on copyright protection in Vietnam are heavily influenced by the continental European legal system, which considers the author to be the center and protects both the moral rights and economic rights of the author, unlike the legal system. However, over strict protection of moral rights that do not allow transfer may affect the work overall, which is not economically beneficial.
Not only that, but many experts in the field of intellectual property also believe that this provision should be expanded.
According to lawyer Le Quang Vinh, founding member and senior partner of Bross & Partners: “I think this point of view is very reasonable, but why not expand it to other subjects that are also very controversial. The provision that authors and copyright owners can agree on their own is a bit too general. Should we approach this matter in the direction of being able to agree to exempt the exercise of moral rights? In many cases, the author has run out of property rights but can still use his moral rights to prevent the copyright owner from doing so.”
Resolving copyright conflicts in the 3rd amendment of the IP law in Vietnam
In addition to the trend to amend the IP Law towards the development and improvement of works and accordingly, the growth of a nation’s economy, this draft amendment also extends the exception to the cases where the published work can be used without the permission of the copyright owner and without the need to pay royalties.
Consequently, supplementing regulations related to copying, archiving, and transmitting works in library activities, including both traditional and digital forms to serve learning and research purposes.
Ms. Pham Thi Kim Oanh commented on the trend of gradually transferring from paper book to e-book and other similar properties: “This is to ensure access to the work as well as to encourage research and study. This is a humanitarian provision so that individuals can access cultural products, improve their spiritual life, and even receive these works to continue creating. This content also complies with the Marrakesh Treaty that Vietnam has joined on creating conditions for the blind, visually impaired and other disabled people who cannot read access to published works.”
The exception is also extended to the transfer of works to a more accessible format for people with disabilities, not just limited to the visually impaired as before.
Although not many, these proposals are very meaningful in the context of digital transformation and the current trend of open educational resources.
Mr. Nguyen Huu Gioi, President of the Vietnam Library Association, stated: “For nearly 20 years, many libraries across the country have spent a lot of money on digital conversion, but some have been sued by the author because they said ‘who gave you permission to put my work online’. I’m glad that this time around, the law has been amended more and has touched our industry. Now the library is mainly served on computers, so we are very interested in this regulation. Please do not let the tens of millions of pages of our industry’s documents not reach the people in the online form, but they have to go to the library in person to read. That is a waste of resources.”
These changes are also in line with the open access trend suggested in the Bethesda declaration and the Berlin Declaration on open access, which facilitates free access to works (for non-commercial purposes) in the context that the cost of publications is increasing day by day in the current pandemic.
On the other hand, there are also many concerns about whether or not this amendment will help the industry, but instead could be a downfall.
Mr. Hoang Trong Quang, Chairman of the Vietnam Copying Rights Association has stated: “That is the perspective of the library, from the perspective of our publishing it is different. For example, we spent about 1 billion VND to buy the copyright and print 300 books, if according to the provisions of the Intellectual Property Law like this, we cannot sell books to anyone because each library has the right to photocopy 1 copy.”
Mr. Quang also added: “I think that a solution must be found to limit the changes to meet the requirements of society. Another thing is that countries have their own regulations on open access, shouldn’t we also have regulations on this issue?”
How to balance society’s need to access works and ensure the rights of authors is a problem that is not easy to find a solution to. Accordingly, the Vietnam Government needs to revise the amendment constantly, taking opinions from experts in the IP fields and other related fields to finalize the revision of the amendment of the IP Law.
You can see a list of Vietnam IP firms here.