Exploring copyright law in Vietnam leads us through local regulations and international agreements designed to safeguard creators’ rights both within Vietnam and globally.
1. Legal Framework
1.1 Which legislative and regulatory provisions govern copyright law in Vietnam?
1.1.1 Domestic Copyright Provisions
- Law on Intellectual Property 50/2005/QH11 of November 2005 (Law 50).
This law was amended by Law 36 [1], Law 42 [2], and Law 07 [3], which revised several articles of the main Law on Intellectual Property (2005); - Civil Code of Vietnam (No. 91/2015/QH13);
- Criminal Code (No. 100/2015/QH13) and its amendments.
Currently, the Vietnamese government has issued Decree 17/2023/ND-CP detailing a number of articles and measures to implement the Intellectual Property Law 2005 (amended by the Intellectual Property Law 2022) on copyright and related rights.
1.1.2 Cross-border Copyright law provisions
As of October 2023, Vietnam is a party of the following copyright protection agreements:
- Berne Convention for the Protection of Literary and Artistic Works;
- Brussels Convention relating to the Distribution of Program-Carrying Signals Transmitted by Satellite;
- Geneva Convention for the Protection of Performers, Producer of Phonograms and Broadcasting Organizations;
- Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
- World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS);
- Vietnam – United States Copyright Agreement;
- Vietnam – Switzerland Bilateral Agreement;
- Vietnam – United States Trade Agreement;
- The European Union-Vietnam Free Trade Agreement (EVFTA) in 2020.
The Berne Convention is the main international treaty regarding copyright protection and is signed and ratified by almost all of the countries. In addition to at least harmonizing the conditions under which a copyright is protected, this provision has settled a global system of reciprocity, thus enabling a work eligible for copyright in one signatory country to benefit from copyright protection in all states party to the convention.
Regarding EVFTA, this agreement aims to strengthen Vietnam’s legal arsenal in order to raise the level of protection afforded to certain business assets (including copyrights) with a purpose to boost its trade with the rest of the world. In fact, this convention partly led to the adoption of the 2022 Law on IP which aims to raise standards of IPRs protection.
1.2 Does any special regime concern particular types of work?
Copyright law in Vietnam has a broad regime and is protected when the work is created and expressed in a certain material form, regardless of content, quality, form, medium, language, published or unpublished, or registered or not registered.
In conclusion, copyright law in Vietnam protect a wide range of works, which are categorized as ‘literary, artistic, and scientific works.’
These categories primarily encompass:
- Literary works, scientific works, textbooks, teaching courses;
- Lectures, speeches, and press works Musical, stage, photographic and cinematographic works;
- Art works and applied art works;
- Sketches, plans, maps and architectural works;
- Computer programs and data collections.
However, to legally facilitate the apprehension of these works, they can be distinguished into specific categories.
- Firstly, the appreciation of originality and novelty varies depending on the work’s form.
For instance, computer programs are considered works due to the creativity expressed in the source or machine code.
Similarly, creativity in the arrangement and organization of data compilations warrants protection. - Secondly, given the nature of the work, Law may confer special rights on all those who contributed to its creation.
This is the case, for example, with cinematographic and dramatic works, the production of which (often involving a group of technicians) generates rights for all persons engaged in creative tasks, such as: screenwriters; cameramen; montage makers; music composers; art designers; studio sound, lighting and art designers, and also playwrights, choreographers, music composers, art designers, stage sound, and others. - Finally, one should note that local sources of authority offer special protection to folklore work and art.
1.3 Which bodies are responsible for implementing and enforcing the copyright law regime in Vietnam?
The recent decree lists all possible remedies and the courts with jurisdiction over copyright infringement in Vietnam’s IP Law, which it brings together in a single provision.
More specifically, the Law on IP specifies the cases of infringement that fall within the jurisdiction of the various jurisdictions concerned and lays down a set of rules for dealing with infringements of intellectual property rights.
1.3.1 In front of the Courts
The District People’s Courts of Vietnam have jurisdiction to determine first-instance civil and criminal intellectual property disputes.
The Provincial People’s Courts have jurisdiction to determine first-instance civil intellectual property disputes that involve litigants or assets outside of Vietnam or require international judicial cooperation.
1.3.2 In front of administrative bodies
In addition to Civil and Criminal proceedings, intellectual property infringement disputes in Vietnam are often resolved through administrative remedies.
Administrative bodies have the power to impose sanctions for copyright infringements in Vietnam law include warnings, fines, seizure and destruction of counterfeit goods, suspension of business licenses, re-exportation of imported infringing goods or transit of goods out of the country.
These infringements are governed by a body of rules that first arose from the law on handling administrative infringements, a text of general application, which was subsequently clarified by two decrees that set out the infringements specifically committed against intellectual property rights, and consequently copyright.
Different administrative bodies impose administrative penalties, including:
- Chairpersons of the People’s Committee;
- People’s Public Security;
- Border Guards;
- Coast Guards;
- Customs Officers;
- Rangers;
- Maritime Port Authorities, the Airport Authorities, the Inland River Port Authorities;
- Market control agencies, and others.
2.1 What types of works qualify for copyright protection in Vietnam?
The Law establishes a simple legal regime, defining all works that can be protected by copyright, and expressly excluding all works that cannot be protected by copyright.
As for the minor exclusions, they generally relate to elements that come under the right of information or official documents (which must be able to circulate without barriers), as well as anything that does not result from a real creation, i.e., cannot be expressed in a tangible form (processes, concepts, operation methods, and others).
2. Copyrightability
2.2 What are the conditions for copyrightability?
The only real condition for copyright protection seems to be the act of creation: the work must be expressed in such a way that it can be seen or experienced by third parties.
In any case, this is what emerges from the Law on IP, which states:
“Grounds for the emergence and establishment of intellectual property rights
1. Copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether such work has been published or registered.”.
However, apart from this single condition, copyright will obviously not be recognized or enforced in a dispute if it clearly reproduces an earlier copyright. This is why a copyright can only be protected if it is relatively new compared to previous creations, which means that the work reveals creative efforts.
2.3 What types of works are ineligible for copyright protection by law in Vietnam?
As seen previously, Vietnamese laws on IP follow the logic of the Berne Convention, which is to exclude from copyright protection all objects that cannot be expressed in a certain form (within the meaning of the protection criteria), but also certain texts and speeches, news items or facts from the press that cannot be associated with a system of exclusive rights.
The recent decree of 2023 has deepened the contribution of article 15 of the Law on IP by specifying the works that are per se excluded from copyright protection in Vietnam law, such as:
- Short daily press information, small news, factual data, only for reporting purposes, without any creativity;
- Administrative documents;
- Processes, systems, operating methods, concepts, principles and data.
3. Registration
3.1 Is there a copyright registration system in Vietnam? If so, is registration mandatory?
There is a copyright registration system in Vietnam, but registration is not in itself a condition for protection.
As seen previously, under the Copyright Law of Vietnam, copyright protection arises automatically from the moment a work is created and fixed in a tangible form.
Registration is more of a tool for strengthening the proof of copyright: ergo, a mere creation, the sole formal condition for protection, is sometimes insufficient to situate the birth of copyright in time.
Therefore, when a need for proof arises, that registration becomes truly effective.
3.2 If registration is not mandatory, what are the advantages of registering a copyrightable work?
Registration can be voluntarily done to serve as evidence of ownership and to facilitate the enforcement of copyright rights.
The Law on IP provides:
“Organizations and individuals who are granted copyright registration certificates or related rights registration certificates shall not bear the burden of proving such copyright or related rights in a dispute, unless there is contradicting proof.”
In practice, registration therefore makes it possible to presume the validity of copyrights when they are the subject of a dispute. This means that it is up to the person contesting the existence of copyright to prove its invalidity.
3.3 What legal rights are conferred by copyright registration in Vietnam law?
As mentioned above, registration therefore confers no additional legal rights, but merely facilitates proof of the existence of acquired rights.
Such registration can be crucial defensively if an intellectual property dispute arises, as a copyright certificate will be a proof of ownership, which marks the time of an invention. This can also be used offensively to enforce intellectual rights should someone plagiarize such work.
3.4 What are the formal, procedural, and substantive requirements for registration?
According to the decree, the copyright registration system in Vietnam law looks in the following way:
- Initial determination of the type of work to be registered;
- Preparation of documents to be submitted in a dossier, including:
- Declaration of copyright registration and related rights registration (according to form) signed or fingerprinted by the author, copyright owner, related rights owner, unless unable to do so physically to sign or fingerprint;
- Two copies of the work (including electronic copies) or 2 copies of fixations of performances, audio recordings, video recordings, broadcast programs (if any);
- Authorization document if the applicant is a person authorized by the author, copyright owner, or related rights owner as prescribed by the law;
- Documents proving rights owner;
- Written consent of the co-authors, if the work has co-authors;
- Written consent of the co-owners, if copyright and related rights are jointly owned.
If the work uses another person’s personal image, that person’s written consent is required. This consent must be obtained according to legal provisions.
- Submission to a Copyright office of Vietnam or Copyright representative office (in person/by post/online) to request the competent state agency (the Ministry of Culture, Sports and Tourism), that can decide:
- To review, classify and consider the validity of the dossier within 1 month from the date of receipt of the dossier;
- Or in case the dossier is not valid, to notify and request the organization or individual to amend and supplement the dossier. In this case, the file must be regularised and re-sent within 1 month of the authorities’ reply.
- Payment of copyright registration fee.
Certificate Issuance:
If the dossier is valid according to regulations, within 15 working days, the competent state agency is responsible for issuing the Copyright Registration Certificate and Related Rights Registration Certificate.
Documents in the copyright registration dossier and related rights registration must be made in Vietnamese; if made in another language, it must be translated into Vietnamese (notarized or consular legalized)
3.5 What fees does the governing body charge for registration? Do these vary depending on the type of work?
State fees are regulated in Circular 211/2016/TT-BTC, depending on the type of copyrighted work.
Fees range from 100,000 VND to 600,000 VND depending on the type of work you want to register for copyright. Specifically, the state fees collected for each type of work are as follows:
- For written works: literary works, scientific works, textbooks, lecture syllabuses, speeches and other speeches, journalistic works, musical works, photographic works, the fee rate is 100,000 VND/registration;
- For architectural works, maps, diagrams, drawings related to topography and scientific works, the fee is 300,000 VND/application;
- For works of visual art, works of applied art, the fee is 400,000 VND/application;
- For works of cinematographic works, theatrical works fixed on tapes and discs, the fee is 500,000 VND/application;
- For computer programs, data collection or programs running on computers, the fee is 600,000 VND /registration.
3.6 Can copyright registration be refused? If so, on what grounds?
The previous decree supplementing the 2022 IP law provides a stricter framework for the conditions and procedures for registering copyright. In particular, the conditions under which registration may be refused.
Registration will be refused, and the person notified in the following cases:
- The application file does not meet the above requirements;
- The registered work violates the Vietnamese Constitution and laws, the Party and State of the Socialist Republic of Vietnam, morality, or any other social value;
- The registered work is subject to disputes, complaints, and denunciations and have not yet had a legally effective decision from a competent authority, court, or arbitrator;
- If the competent authority receives no reply within one month for a file that it has notified to the applicant as being invalid or incomplete,.
4. Scope of Protection
4.1 What legal rights are conferred by copyright in Vietnam?
As set in the law, work capable of being protected by copyright confers on the copyright holder prerogatives of an economic nature (4.1.1), as well as prerogatives of a moral nature (4.1.2). To enforce these rights, the holder also has legal prerogatives (4.1.3)
4.1.1. Property Rights
a. Content
Property rights correspond to all the means at the disposal of the author, the copyright holder, or any person authorized to commercialize the work in order to make a profit from it.
The law on IP sets out those economic prerogatives, in example:
- To make derivative works;
- To display their works to the public, directly or indirectly, through audio and visual fixation or any other technical means in a place accessible to the public but the public cannot freely choose time and part of the work;
- To reproduce directly or indirectly the whole or part of the work by any means or form, except for the case specified by law
- To distribute or import for distribution to the public through sale or other forms of transfer of ownership with respect to originals or copies of works in tangible form, except for the case specified by law
- To broadcast, communicate their works to the public by wireless or landline means, electronic information networks or other technical means, including making the work available to the public in such a way that the public could access it at a place and time chosen by them;
- To rent originals or copies of cinematographic works is permitted. However, renting such computer programs is only allowed if the program is not the primary purpose of the rental.
b. Duration
The duration of protection will depend on the work’s nature:
- Cinematographic works, photographic works, dramatic works, works of applied art and anonymous works shall have the term of protection of 50 years as from the date of first publication;
- All other works not subject to any specific rules shall be protected for the whole life of the author and for 50 years after his/her death.
- For a work under joint authorship, the term of protection lasts for fifty years. This period ends in the fiftieth year after the death of the last surviving co-author.
4.1.2 Moral Rights
a. Content
Unlike economic rights, moral rights are personal to the author. These rights allow the author to defend the work’s integrity and claim authorship.
As an exception, an author can transfer the right to title a work. This transfer is possible to the individual who exploits the work’s property rights.
law on IP sets out those moral prerogatives:
- To give titles to their works;
- The authors have the right to transfer the right to give titles to their invention to the organizations or individuals that receive the transfer of property rights specified in clause 1, Article 20 of this Law (i.e., economic rights);
- 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 to authorize other persons to publish their works;
- To protect the integrity of their works; and to forbid other persons to distort; to forbid other persons to modify, edit their works in whatever form, causing harm to the honour and reputation of the author.
b. Duration
Moral rights are closely linked to the author’s personal identity. These rights include the right to name the work, use their real name or a pseudonym, and protect the work’s integrity. Because of their personal nature, moral rights is under the protection indefinitely.
The author only limits the right to publish the work or allow others to publish it. This right involves the author’s decision to reveal their work to the public. The term relating to economic rights, depending on the work’s nature, determines the duration of this right.
4.1.3 Right to self-protection
The economic and moral prerogatives discussed above obviously have their judicial counterpart: the owners are therefore provided with certain prerogatives that implement the right to prohibit third parties from illegitimate use, such as:
- Applying technological measures to prevent acts of infringing upon intellectual property rights;
- Requesting organizations or individuals that commit acts of infringing upon intellectual property rights to terminate their infringing acts, make public apologies or rectifications, and pay damages;
- Requesting competent state agencies to handle acts of infringing upon intellectual property rights according to the provisions of this Law and other relevant provisions of law;
- Initiating lawsuits at courts or arbitration centers to protect their legitimate rights and interests.
4.2 Are related rights protected by copyright in Vietnam law in your jurisdiction?
According to the Vietnamese Law (influenced by the Berne Convention), related rights shall arise at the moment when a performance, phonogram, video recording, broadcast or encrypted program-carrying satellite signal is fixed or displayed without any prejudice to copyright.
Related rights generally benefit any person who, without being the author, participates in the production, distribution and/or fixation of a work, such as:
- Actors/actresses, singers, instrumentalists, dancers and other persons who perform literary and artistic works (hereinafter referred to collectively as performers);
- Organizations and individuals that own performances defined by Law;
- Organizations and individuals that first fix sounds and images of performances or other sounds and images (hereinafter referred to collectively as producers of phonograms and video recordings);
- Organizations which initiate and carry out the broadcasting (hereinafter referred to as broadcasting organizations).
These rights have been legally created to enable each participant to benefit from a fair share of the work’s exploitation.
4.3 What exceptions to copyright are available in Vietnam? Under what conditions do they apply?
In some cases, it is possible to use a copyrighted work without permission or paying royalties. These exceptions to copyright infringement typically exist due to the specific purpose of the person using the work.
Through the law on IP, exceptions to copyright will apply in few main types of case:
- when a work is used, reproduced or communicated for purely private purposes, out of any commercial purposes;
- when a work is used, reproduced or communicated for teaching or researching purposes;
- when a work is used for an official activity carried out by a Vietnamese public institution;
- and more specifically, an exception applies when a work is reasonably cited without alteration, which generally applies to press articles, periodicals, documentaries, or to allow extracts to be broadcast on radio or television.
To be legitimately exempted, a person claiming exceptional use of a work must fulfill certain conditions. The person’s use must not interfere with the rightful owner’s use of the work. Additionally, the person’s use should not cause harm to the interests of either the author or the owner. Any infringement of the right holder’s rights invalidates the exception.
5. Duration and Renewal
5.1. Can Vietnamese law renew or extend copyright protection?
Copyright registration does not impact copyright protection. Whether or not a copyright is registered does not affect the term of protection. As mentioned above, the advantages of registration are purely evidential.
The protection period is therefore subject to the strict rules of the law and cannot be extended.
In terms of space, any creation originating in a Berne Union country is subject to the principle of reciprocity, or national treatment.
From the moment the work is created, protection is extended to all Berne Union countries if the work satisfies the conditions laid down by the national laws of those countries, regardless of the work’s country of origin.
This mean an author or rightsholder can able to claim protection for their rights in Union countries. However, their work must meet the specific eligibility conditions in each country.
6. Ownership
6.1 Who can qualify as the owner of a copyrighted work in Vietnam?
An author is the individual who personally creates the literary, artistic, or scientific work.
The copyright owner is the person who can legitimately exercise the economic rights attached to their work.
In principle, the author owns the rights to the work they create. However, this ownership can transfer to another person. This transfer can occur either through legal provisions or through a contract requiring the author’s consent.
The legal copyright owner of a work may be:
- its author or coauthors;
- organizations and individuals who assign tasks to authors or who enter contracts with authors;
- the author’s or co-author’s heir;
- any assignee of rights over the works; or
- the State, in certain cases.
Finally, one considers two or more authors who jointly create a copyright work as coauthors. Coauthors jointly share moral and economic rights.
6.2 When a work is created by an employee, or by a person under contract, what are the rules regarding ownership? What measures can an employer or a hiring party take to secure its rights?
Indeed, the attribution of copyright ownership varies when the author produces a work for another party.
There is an exception to the previously mentioned rules. When an author creates a work under contract or a specific task assigned by an organization or individual who will possess the work, Article 39 stipulates that moral and property rights belong to this organization or individual.
This rule stems from an economic necessity for companies. They must be able to peacefully exploit the works in their own name. Without this automatic devolution, employers and contractors would be forced to conclude a transfer of copyrights for each work produced.
6.3 Does Vietnam recognize joint copyright ownership of copyrighted works?
Law on IP also covers the situation where several authors have jointly participated in an invention’s creation.
In this specific case, each individual owns an independent and detachable share of the work’s rights. This occurs when they collectively contribute technical, creative, and financial resources to produce the work.
This co-ownership implies that each author must not prejudice the parts of the other co-authors. This occurs if an author makes a separate use of the work.
Such as property rights, moral rights are also collectively shared and may be enforced by each author individually.
6.4 Can ownership of a copyrighted work be transferred in Vietnam? If so, how?
The author’s identity closely ties to moral rights. These rights protect the author’s connection to their work and ensure others treat it with respect. However, there is an exception, the author can decide when and if to make their work public. The creator is therefore considered the sole owner.
Ownership of copyright may be transferred so that the acquirer can exploit all the economic rights attached to the work. This transfer takes the form of a written contract.
In this contract, the copyright owner authorizes the transferee to exercise the rights attached to the work. The deed specifies which rights are transferred, whether the transfer is exclusive, or if it is shared with other owners.
In practice, the transfer of intellectual property rights can take two forms: either a license or an assignment.
