SOME NEW CHANGES ON COPYRIGHTS AND RELATED RIGHTS REGULATIONS IN THE INTELLECTUAL PROPERTY LAW OF VIETNAM AMENDED AND SUPPLEMENTED IN 2022
By ELITE LAW FIRM
Updated: September 19, 2022
At the 3rd session of the 15th National Assembly of Vietnam (the NA), on June 16, 2022, the NA voted to pass the Law amending and supplementing a number of articles of the Intellectual Property Law and the Law on Intellectual Property Law (hereinafter referred to as “IP Law 2022”). The law will officially take effect from January 01, 2023, the provisions on protection of audio trademarks take effect from January 14, 2022, the regulations on the protection of test data using for agrochemicals shall take effect from January 14, 2024. The IP Law 2022 The IP Law 2022 has 67 articles to be amended, supplemented and 13 new articles to be added. After amending and supplementing, the IP Law 2022 has 18 chapters and 235 articles. Accordingly, ELITE Law Firm would like to introduce to you some important and outstanding new changes of the IP Law 2022 relating to copyright regulations for your information and reference.
1. The definition of the act of “reproduction” is wider than before (clause 10, Article 4)
According to the Clause 10, Article 4 of the IP Law 2022, the act of reproduction means the making of a copy of the whole or a part of a work or phonogram or video recording by whatever means or in whatever form. Accordingly, the making of a part (less than 100%) of a work shall be clearly defined as the act of reproduction, besides the making of a copy of the whole (100%) of a work as before. With the expansion of this concept of “reproduction”, acts that are considered as copyright or related rights infringement under Articles 28 and 35 of the IP Law 2022 will also be expanded accordingly. For example, according to the provisions of the current IP Law, the making of a part or a half a book or half a song or half a movie shall be a disputed matter and not a clear copyright infringement act. However, under this new definition of the IP Law 2022, the making of a part or a half a book or half a song or half a movie shall be clearly considered as a copyright or related rights infringement act and will be strictly handled.
We believe that this revision of the concept of “reproduction” that provides protection for copyright and related rights in Vietnam has been expanded and stronger than the previous regulations, meeting the commitments in the EVFTA Agreement that Vietnam has signed.
2. The IP Law 2022 details and recognizes the use of technological measures as a right of self-defense for right holders to actively protect their copyright and related rights (clause 10b, 10c, 10d Article 4)
In Clause 10b, Clause 10c, Clause 10d, Article 4 of the IP Law 2022, 03 more detailed definitions of technological measures such as the right to self-protection to protect copyright and related rights of rights holder are added in an active manner, including: Technological Measures (use of any technique, technology, equipment or components to prevent unauthorized use), Effective Technological Measures (Measures) technological means to control the use of works, performances, phonograms, video recordings, broadcasts, encrypted program-carrying satellite signals) and Rights Management Information (information identifying copyright work and related rights associated with a copy or co-occurrence with a copyright work and related rights for rights management) to protect against infringements of copyright and related rights.
The purpose of these measures is to easily collect evidence of copyright and related rights infringement in order to strictly and thoroughly handle acts of copyright and related rights infringement that are taking place quite commonly.
Previously, at point a, clause 1, Article 198 of the 2019 IP Law on self-defense, it was stipulated that copyright holders have the right to apply “technological measures” to prevent acts of infringing upon intellectual property rights. However, it does not define how a measure will be considered a “technological measure”. The addition of definitions of technological measures has clarified the understanding of technological measures to protect copyright and related rights.
Some examples of technological measures to control the use of works to protect copyright and related rights include:
– Works that are only allowed to be read (e-books, articles on website platforms);
– Block downloads (for streaming content),
– Block copying, printing, labeling, and image blurring (for digital music and movies)…
3. The IP Law 2022 has more clearly defined the identification of authors and co-authors (Article 12a)
The author is a (natural) person who directly created the work. Where two or more people directly co-create the work with the intention that their contributions are combined into a complete whole, those persons are co-authors. Persons who support, give comments or provide materials for other people to create works are not recognized as authors or co-authors. Furthermore, the exercise of moral rights and economic rights for works with co-authors must be agreed upon by the co-authors, except the work contains separate parts that can be used separately and independently without prejudice to the other part of other co-authors or as otherwise provided by law.
This additional provision helps to clearly identify the author and co-author to resolve disputes as well as limit disputes arising in the process of exploitation, use, copyright and copyright works. relate to.
At the same time, according to this provision of the IP Law 2022, in our opinion, it can be understood that the IP Law has limited the protection of copyright for a work that is directly created by a natural person only. Therefore, an artificial intelligence (AI) system or an enterprise that owns an AI (artificial intelligence) system that creates a work will not be recognized as an author of a work and shall not be protected under this regulation.
In addition, in the current practice of copyright protection registration in Vietnam, we find that the Vietnam copyright protection office only accepts and recognizes natural human individuals who directly create part or the whole of a literary, artistic or scientific work named as the author or co-author of the work in the certificate registered copyright registration in Vietnam. In other words, in our opinion, an author who is a business or individual who owns an artificial intelligence (AI) system will not be considered a natural person and will not be recognized as the author of the work under the current Vietnamese IP Law.
4. The IP Law 2022 allows the transfer of the right to use of naming rights in moral rights to other organizations similar to economic rights (Article. 19)
The moral rights of authors under IP Law 2022 include:
1) Name their work;
The author has the right to transfer the right to use of naming rights to other organizations, persons that/who (licensee) accepted economic rights.
2) Attach their real name or pseudonym on the works; to have a real name or a pseudonym acknowledged when the work is published or used;
3) Publish the work or authorize others to publish the work;
4) Protect the integrity of their work, and to prevent other persons from modifying, mutilating or distorting their work in whatever form prejudicial to the honor and reputation of the authors.
In addition, the author is not allowed to transfer the right to use the remain moral rights (specified in clauses 2 and 4, Article 19 of the IP Law 2022). Performers may not transfer the right to use the moral rights (specified in clause 2, Article 29 of the IP Law 2022).
Therefore, similar to the right to publish works – one of the four moral rights of copyright, the IP Law of 2022 has also expanded, allowing the transfer of the right to use the naming rights. Thus, according to the IP Law 2022, two (02) out of four (04) moral rights, including the right to name and the right to publish the work are allowed to transfer the use rights to other organizations and individuals such as the property rights of copyright, according to Article 19, clause 2, Article 47 of the IP Law 2022. This change is to create more flexibility for the author, in line with the development in business and investment activities of the world in the era of the fourth technology revolution.
5. The presumption of copyright and related rights (Article 198a) is very fresh provisions in the IP Law 2022
This is a very new provision in the IP Law 2022. These are regulations that meet the requirements and urgent needs of effective enforcement of IPRs in the field of copyright and this regulation also meets Vietnam’s commitment in the EVFTA Agreement. Accordingly, Article 198a on Presumption of Copyright, Related Rights, stipulates that:
In civil, administrative and criminal proceedings on copyright and related rights, if there is no evidence to the contrary, copyright and related rights are assumed as follows:
1) Individuals and organizations named in an usual way as authors, performers, producers of phonograms and video recordings, broadcasting organizations, producers of cinematographic works, publishers are considered to be the right holder to such work, performance, phonogram, video recording or broadcast;
2) Naming in the usual manner prescribed in clause 1 of this Article is construed as being named on the original work, the first fixation of the performance, phonograms, video recordings, broadcasts and other relevant materials (if any) or on the corresponding duly published copies in the case of the original work, the first fixation of the performance, the phonogram, video recording, broadcasts and other materials whether the relevant no longer exists;
3) Individuals and organizations specified in Clause 1 of this Article are entitled to corresponding copyright or related rights.
6. Liability for copyright and related rights for an intermediary service provider (Article 198b) is also new under IP Law 2022
Article 198b of IP Law 2022 on Legal liability for copyright and related rights for intermediary service providers as a way to identify the responsibility of an intermediary service provider/company (internet/telecommunication network company) in a copyright infringement case, stipulates that:
1) An intermediary service provider means an enterprise that provides technical means for organizations and individuals to use the service to put digital information content on the telecommunications network and the Internet; providing online connectivity for the public to access and use digital information content on the telecommunications network and the Internet.
2) Enterprises providing intermediary services are responsible for implementing technical measures and coordinating with competent state agencies and rights holders to implement measures to protect copyright and related rights. in the telecommunications and Internet environment.
3) Enterprises providing intermediary services are exempt from legal liability for acts of infringing upon copyright and related rights in the telecommunications network and Internet environment related to the provision or use of services in the following cases:
- a) Only transmit digital information content or provide access to digital information content;
- b) When performing the function of buffer storage in the process of information transmission, the intermediary service provider must perform it automatically and temporarily for the purpose of transferring information and making the transmission of information more efficiently, under the following conditions: transform information only for technological reasons; comply with the conditions of access and use of digital information content; comply with specified rules for updating digital information content in a manner that is widely recognized and used by the industry; does not prevent the legal use of technology that is widely recognized in the industry to obtain data on the use of digital information content; remove digital information content or deny access to digital information content knowing that such digital information content has been removed at the origin source or the originating source has canceled access to digital information content there;
- c) Store digital information content of service users at the request of service users with the following conditions: not knowing that such digital information content infringed copyrights and related rights; taking prompt actions to remove or prevent access to such digital information content upon learning that such digital information content infringes upon copyrights or related rights;
- d) Other cases as prescribed by the Government.
4) Enterprises providing intermediary services that are exempt from legal liability under Clause 3 of this Article are not required to monitor their services themselves or actively search for evidence indicating infringements.
5) Contents of digital information specified in this Article are works and related rights subjects protected under provisions of this Law are expressed in numerical form.
6) The Government shall specify this Article.
7. Commercial legal entities (companies) that commit acts of infringing upon intellectual property rights shall be examined for penal liability (Article. 212)
Under IP Law 2022 (Art. 212), Individuals and commercial legal entities (companies) that commit acts of infringing upon intellectual property rights with sufficient elements to constitute a crime shall be examined for penal liability according to the provisions of Criminal Code. The IP Law 2022 has added the commercial legal entities (companies) which have IP infringing acts as the objects can be handled for penal liability, besides the IP infringing individuals (person) as previous IP Law. Accordingly, the acts of infringing upon intellectual property rights can be handled for penal liability are infringing acts upon protected copyright, related rights, trademarks and geographical indications under current Criminal Code of Vietnam.
The foregoing are our brief of highlight changes relating to copyrights and related rights in the IP Law 2022. We do hope that it would bring you some value and useful information. Should you have any question or requirement on the matter, please do not hesitate to contact us by:
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