Table Of Contents

1. Key Changes and Their Implications:

 

1.1. Detailed Definitions:

One of the key advancements introduced by Decree 17 in Vietnam's 2024 Intellectual Property Law lies in the provision of detailed definitions for copyrightable subject matter. This seemingly simple step holds significant implications for both creators and users of copyrighted works:

Before Decree 17:

  • The lack of precise definitions in previous regulations created ambiguity and uncertainty regarding what constituted copyrightable subject matter. This ambiguity often led to disputes and hindered effective enforcement of copyright protection.

With Decree 17:

  • The decree offers clear and comprehensive definitions for various categories of copyrightable works, including:
    • Literary and scientific works: This encompasses textbooks, curricula, written works, and similar expressions.
    • Lectures, speeches, and other talks: Public presentations and spoken word creations are explicitly recognized as copyrightable.
    • Journalistic works: News articles, reports, and other journalistic endeavors are protected under copyright.
    • Musical works: Compositions, lyrics, and musical arrangements fall within the scope of copyright protection.
    • Cinematographic works: Films, movies, and other audiovisual productions are recognized as copyrightable subject matter.

Implications of Detailed Definitions:

  • Enhanced Clarity: Precise definitions provide a clear understanding of what is protected by copyright, reducing ambiguity and potential disputes. This clarity benefits both creators, who can confidently claim protection for their works, and users, who can avoid unintentional infringement.
  • Streamlined Copyright Identification: With clear definitions in place, identifying copyrightable works becomes easier. This facilitates effective registration and enforcement processes, ensuring creators receive proper recognition and protection for their creations.
  • Improved Enforcement: Clear definitions strengthen the legal basis for copyright enforcement actions. By establishing the specific types of works protected, authorities can more effectively address infringement claims and deter unauthorized use of copyrighted material.

Overall, the inclusion of detailed definitions in Decree 17 marks a significant step forward in promoting clarity, predictability, and effective enforcement within Vietnam's copyright framework. This not only benefits creators by safeguarding their intellectual property but also fosters a more robust and transparent creative environment for all stakeholders.

 

1.2. Exceptions to Infringement

While copyright law grants creators exclusive rights to their works, there are certain situations where using copyrighted material without permission doesn't constitute infringement. Decree 17, accompanying Vietnam's 2024 Intellectual Property Law, outlines these exceptions, offering valuable insights for individuals and organizations navigating the legal landscape.

Key Exceptions to Infringement:

  • Reasonable Reproduction for Specific Purposes: This exception allows for limited copying of copyrighted works for purposes such as:
    • Personal study or non-commercial research: Individuals can create copies for their learning and exploration without infringing the copyright.
    • Scientific research: Researchers can reproduce portions of copyrighted works for legitimate research purposes, provided it's done "reasonably" and doesn't harm the rights holder's interests.
  • Use in Official Activities of State Agencies: Government agencies can utilize copyrighted materials for official purposes, such as creating educational materials or disseminating information.
  • Fair Use of Extracts/Excerpts: Limited use of excerpts from copyrighted works for purposes like commentary, criticism, or news reporting is generally permitted, as long as it's done fairly and doesn't unreasonably prejudice the rights holder.
  • Activities in Libraries: Libraries can reproduce parts of copyrighted works for non-commercial archival or research purposes, ensuring wider access to information while respecting copyright protections.
  • Reasonable Reproduction of Performances, Recordings, or Broadcasts: Limited copying of these materials for personal use or non-commercial purposes may be permissible, depending on the specific circumstances and the extent of the reproduction.

Important Considerations:

  • Reasonableness is Key: The concept of "reasonable" use is central to these exceptions. Courts will consider factors like the nature and purpose of the use, the amount and substantiality of the portion used, and the effect on the potential market or value of the copyrighted work.
  • Non-Commercial Focus: Most exceptions are primarily intended for non-commercial purposes. Using copyrighted material for commercial gain, even in seemingly "fair" ways, would likely constitute infringement.
  • No Substitute for Permission: While these exceptions offer flexibility, obtaining permission from the copyright holder is always the safest and most respectful course of action, especially for extensive use or commercial purposes.

 

1.3. Enhanced Enforcement Measures

The 2024 Vietnamese Intellectual Property Law, alongside Decree 17, introduces significant advancements in copyright enforcement measures. These enhancements aim to provide creators with more robust legal tools to combat infringement and safeguard their intellectual property rights. Let's delve deeper into the key aspects of these strengthened enforcement mechanisms:

1. Streamlined Infringement Determination:

  • Clearer Grounds: Decree 17 establishes clear and comprehensive criteria for determining copyright infringement. This clarity facilitates efficient identification of infringing activities and expedites the enforcement process.
  • Evidence Gathering: The decree outlines procedures for gathering evidence to support infringement claims, making it easier for rights holders to build strong cases against infringers.

2. Effective Damage Calculation:

  • Defined Principles: The law provides defined principles for calculating damages caused by copyright infringement. This ensures consistency and fairness in awarding compensation to rights holders who have suffered financial losses due to unauthorized use of their works.
  • Broader Scope: The decree recognizes various forms of harm, including not only lost profits but also mental distress, property damage, and decline in business opportunities. This comprehensive approach ensures that rights holders are adequately compensated for the full extent of the harm they have suffered.

3. Addressing Technological Challenges:

  • Combating Circumvention: The law specifically addresses the issue of circumventing technological protection measures employed by copyright holders to safeguard their works. This helps combat sophisticated forms of infringement that exploit technological loopholes.
  • Targeting Infringing Information: The decree empowers rights holders to seek the removal of infringing content from websites and online platforms, providing a crucial tool for tackling online piracy.

4. ISP Accountability:

  • Defined Responsibilities: Decree 17 clarifies the responsibilities of internet service providers (ISPs) regarding copyright infringement. While not directly liable for infringing content hosted on their platforms, ISPs are obligated to:
    • Provide contact information to facilitate communication between rights holders and alleged infringers.
    • Cooperate with takedown requests from rights holders upon receiving proper notification and evidence of infringement.
    • Comply with court orders or decisions regarding copyright infringement.

 

1.4. Intermediary Service Provider (ISP) Responsibility

The 2024 Vietnamese Intellectual Property Law, accompanied by Decree 17, sheds light on the evolving role of Intermediary Service Providers (ISPs) in the realm of copyright protection. While not directly liable for infringing content hosted on their platforms, ISPs now hold specific responsibilities aimed at fostering a more balanced and accountable online environment.

Key Responsibilities of ISPs:

  • Providing Contact Information: ISPs are obligated to maintain and readily provide accurate contact information upon request. This facilitates communication between rights holders and individuals suspected of copyright infringement, allowing for potential out-of-court resolutions or the initiation of legal proceedings.
  • Cooperating with Takedown Requests: Upon receiving a valid takedown request from a copyright holder, accompanied by sufficient evidence of infringement, ISPs are required to take prompt action to remove the infringing content from their platforms. This cooperation helps curb the spread of unauthorized content and protects the rights of creators.
  • Complying with Court Orders: In situations where legal disputes regarding copyright infringement arise, ISPs must comply with court orders or decisions issued by competent authorities. This ensures that the legal system can effectively address infringement claims and enforce copyright protections.

Important Clarifications:

  • No Direct Liability: It's crucial to understand that Decree 17 does not impose direct liability on ISPs for copyright infringement occurring on their platforms. However, failure to comply with the outlined responsibilities could potentially lead to legal consequences.
  • Safe Harbor Provisions: The decree acknowledges the existence of safe harbor provisions under Vietnamese law, which offer ISPs certain protections from liability if they meet specific requirements, such as acting expeditiously upon receiving takedown notices and avoiding involvement in infringing activities.
  • Collaborative Approach: The emphasis lies on fostering collaboration between rights holders, ISPs, and relevant authorities. Open communication, efficient takedown procedures, and adherence to legal frameworks are crucial for creating a balanced online ecosystem that respects both creativity and user rights.

Understanding these responsibilities empowers both ISPs and rights holders to navigate the complexities of online copyright protection effectively. ISPs can implement robust procedures for handling takedown requests and ensure compliance with legal requirements. Rights holders, on the other hand, can utilize established channels to report infringing content and seek appropriate remedies through established legal mechanisms.

 

The 2024 Vietnamese Intellectual Property Law, alongside Decree 17, introduces various modifications to specific copyright provisions. These revisions aim to address contemporary challenges, enhance clarity, and ensure fair treatment for all rights holders within the creative ecosystem. Let's explore some key areas impacted by these modifications:

1. Co-authorship (Article 12A):

  • Clearer Criteria: The amended law establishes clearer criteria for determining co-authorship. It emphasizes that co-authors must directly co-create the work to combine and complete their contributions as a whole. This distinction helps address potential disputes regarding authorship rights and attribution.
  • Supporting Roles Excluded: Individuals who merely provide support or assistance during the creation process are not considered co-authors under this revised definition.

2. Moral Rights (Article 19):

  • Transfer of Name of Work: Authors now have the explicit right to transfer the right to use the name of the work to organizations or individuals acquiring the property rights specified in Article 20, Clause 1. This clarifies the transferability of this specific moral right.
  • Pseudonym Usage: Authors can continue to choose to publish their work under their real name or a pseudonym, protecting their privacy if desired.
  • Right to Integrity: The law reinforces the author's right to protect the integrity of their work from misrepresentation or unauthorized modifications.

3. Property Rights (Article 20):

  • Explicit Enumeration: The article provides a comprehensive list of property rights associated with copyright, including:
    • Making derivative works
    • Performing the work directly or indirectly
    • Copying the work directly or indirectly
    • Distributing or importing for distribution
    • Broadcasting or communicating the work to the public
    • Renting out copies of cinematographic works or computer programs
  • Contractual Agreements: The provision acknowledges the ability of authors and copyright holders to agree in writing on the repair and upgrade of computer programs, addressing potential concerns in the software development domain.

4. Rights in Cinematographic and Theatrical Works (Article 21):

  • Granular Breakdown: The amended law offers a more granular breakdown of the rights associated with various contributors to cinematographic and theatrical works. This provides greater clarity and specificity regarding the rights held by screenwriters, directors, cinematographers, composers, designers, and other individuals involved in the creative process.

5. Computer Programs (Article 22):

  • Definition and Protection: The law provides a clear definition of a computer program as a literary work, protected under copyright regardless of whether it's expressed in source or machine code. This reinforces the legal protection afforded to software creations.
  • Repair and Upgrade Agreements: Similar to Article 20, this provision acknowledges the ability of authors and copyright holders to contractually agree on the repair and upgrade of computer programs.

These modifications represent a significant effort to modernize and refine Vietnam's copyright framework. By addressing emerging issues, offering clearer definitions, and ensuring fair treatment for various rights holders, these revisions aim to foster a more robust and equitable environment for creators and businesses operating within the Vietnamese creative landscape.

 

2. Impact and Considerations

The 2024 Vietnamese Intellectual Property Law, accompanied by Decree 17, brings about significant changes and considerations for individuals and organizations interacting with copyrighted material. Let's delve into the potential impact of these revisions and the key considerations one should navigate in this evolving legal landscape.

Positive Impacts:

  • Increased Certainty: The introduction of detailed definitions and clearer criteria for various aspects of copyright law, such as co-authorship and exceptions to infringement, reduces ambiguity and enhances predictability. This fosters a more stable and transparent environment for creators and users alike.
  • Enhanced Protection: The strengthened enforcement measures, including streamlined infringement determination, effective damage calculation, and procedures for addressing technological circumvention, empower rights holders to more effectively combat unauthorized use of their works. This bolsters copyright protection and incentivizes creative endeavors.
  • Balanced Approach: The recognition of exceptions to infringement for specific purposes, such as personal study or fair use, allows for legitimate utilization of copyrighted material without hindering creativity or access to information. This strikes a balance between protecting creators' rights and fostering broader engagement with creative works.

Important Considerations:

  • Staying Updated: The legal landscape surrounding copyright is constantly evolving. Keeping abreast of legal updates and amendments is crucial to ensure compliance and avoid inadvertent infringement. Consulting with legal professionals can provide valuable guidance in navigating these complexities.
  • Understanding Exceptions: Familiarity with the exceptions to infringement outlined in Decree 17 is essential. Individuals and organizations should carefully evaluate their intended use of copyrighted material to ensure it falls within the permissible boundaries of these exceptions.
  • Respecting Rights: Recognizing and respecting the rights of creators is fundamental to fostering a thriving creative ecosystem. Seeking permission to use copyrighted material whenever possible demonstrates ethical conduct and promotes fair treatment within the creative community.

Overall, the 2024 Vietnamese Intellectual Property Law and Decree 17 represent a positive step forward in strengthening copyright protection and fostering a more balanced legal environment. By understanding the impact of these changes and carefully considering the relevant factors, individuals and organizations can navigate this evolving landscape effectively, ensuring compliance with the law and contributing to a vibrant creative community in Vietnam.

 

3. Conclusion

The 2024 Vietnamese Intellectual Property Law, alongside Decree 17, marks a significant transformation in the realm of copyright protection. By introducing detailed definitions, robust enforcement mechanisms, and nuanced considerations for various stakeholders, this legal framework usher in an era of greater clarity, enhanced protection, and a balanced approach to safeguarding creativity and fostering innovation. For creators, these revisions offer stronger legal tools to combat infringement and ensure their works receive proper recognition and reward. Users, on the other hand, benefit from clearer guidelines regarding permissible uses of copyrighted material.

However, navigating this evolving landscape effectively requires continuous learning and informed decision-making. Staying updated on legal developments, understanding exceptions to infringement, and respecting the rights of creators are crucial aspects of operating within this dynamic legal framework. Ultimately, the 2024 Vietnamese copyright framework paves the way for a more robust, transparent, and equitable creative ecosystem in Vietnam. By embracing its provisions and navigating its nuances, all stakeholders can contribute to a flourishing environment where creativity thrives and intellectual property rights are effectively protected.

If you need further explanation on this subject, please don't hesitate to contact us through email at lienhe@luatminhkhue.vn or phone at: +84986 386 648. Lawyer To Thi Phuong Dzung