1. Understanding Non-Infringement

The world of copyright can feel like a labyrinth of restrictions. You create a piece of art, write a song, or craft a compelling article, and rightfully desire protection for your intellectual property. However, copyright isn't absolute. Vietnam's 2023 Intellectual Property Law (IP Law) acknowledges this by introducing "non-infringement provisions." These provisions allow for the use of copyrighted material in specific scenarios without infringing on the rights holder's ownership. Understanding non-infringement is crucial for both creators and users of copyrighted works.

What is Copyright Infringement?

Before delving into non-infringement, let's establish a clear understanding of copyright infringement. Copyright grants the owner exclusive rights to control the reproduction, distribution, adaptation, and public display of their work. When someone uses a copyrighted work without permission, exceeding the limitations set by fair use or non-infringement provisions, they commit copyright infringement. This can result in legal action and financial penalties.

The Need for Non-Infringement Provisions

A rigid copyright system, solely focused on protecting the rights holder, could stifle creativity and the flow of information. Non-infringement provisions carve out exceptions, allowing for the use of copyrighted material in ways that benefit society without unduly harming the copyright owner. These exceptions encourage research, education, news dissemination, and cultural exchange.

The Balancing Act: Core Principles of Non-Infringement

The IP Law doesn't grant a free pass to use copyrighted material whenever one wishes. Here are some key principles that govern non-infringement:

Purpose and Nature of Use: The purpose for which the copyrighted material is used plays a crucial role. Non-infringement provisions typically apply to non-commercial activities, such as education, research, or personal study. Using copyrighted material for commercial gain almost always requires permission from the rights holder.
The Amount and Substantiality of the Portion Used: Non-infringement provisions often allow for using excerpts or portions of a copyrighted work. However, the amount used should be reasonable and not constitute the heart of the original work. Imagine using a small snippet of a song for educational purposes versus copying the entire song and claiming it as your own.
The Effect of the Use on the Potential Market: Even if the purpose and amount used fall under non-infringement, the use shouldn't significantly impact the potential market for the original work. For example, copying an entire textbook for free distribution online would likely harm the author's potential sales, negating the non-infringement exception.

Exploring Key Non-Infringement Provisions in the Vietnamese IP Law

The Vietnamese IP Law outlines various scenarios where using copyrighted material falls under the non-infringement exceptions. Let's explore some of the most relevant provisions:

Research and Education (Personal Use): Making a copy for personal, non-commercial research or study is permitted. However, this doesn't extend to using copying equipment to create extensive copies. Reasonable copying of a portion using equipment for research or education is allowed.
Education (Public Use): Educators can use copyrighted materials for illustration in lectures, presentations, or educational recordings. Sharing these materials within a local network is allowed, provided access is restricted to the specific class or group.
Government Activities: State agencies can utilize copyrighted works for public service activities.
Fair Quotation: Citing copyrighted works for commentary, introduction, or illustration in a new work is allowed, as long as the original meaning is not misrepresented. This applies to articles, periodicals, broadcasts, and documentaries.
Library Activities: Libraries can use copyrighted works for non-commercial purposes, like reproducing materials for preservation or making reasonable copies for patrons' research. They can also share archived works within inter-library networks, with limitations to prevent widespread distribution.

Beyond the List: Important Considerations

While the IP Law provides a clear framework, non-infringement can be a nuanced area. Here are some additional points to consider:

The "Three-Step Test" in the US: Although Vietnam's IP Law doesn't explicitly mention a "three-step test," courts might consider similar factors when evaluating fair use. These factors include the purpose and character of the use, the nature of the copyrighted work, and the amount and substantiality of the portion used.
Transformative Use: Even if a substantial portion of a copyrighted work is used, it might be considered fair use if the new work is transformative, creating something new with a different purpose or meaning than the original.
Always Acknowledge the Source: Even when falling under a non-infringement provision, it's good practice to acknowledge the source and author of the copyrighted work being used

2. Key Exceptions for Non-Infringement

Vietnam's IP Law introduced a significant shift in the realm of copyright protection. While it strengthens the rights of copyright holders, it also acknowledges the importance of fair use through "non-infringement provisions."

These provisions carve out exceptions, allowing for the use of copyrighted material in specific contexts without infringing on the owner's rights. This section delves into the key exceptions for non-infringement, highlighting their importance in fostering creativity and access to information.

1. Fueling the Engines of Research and Education

The IP Law recognizes the crucial role of copyright in promoting research and education. Here are two key provisions that facilitate these endeavors:

Non-Commercial Research and Study (Personal Use): Individuals can create personal copies of copyrighted works for scientific research or individual study, provided it's done without commercial intent. This allows students and researchers to delve deeper into their fields without facing excessive restrictions. However, the exception doesn't extend to using copying equipment to create extensive copies, as this could potentially harm the copyright owner's market. Reasonable copying of a portion of a work using equipment for research or education is allowed.
Educational Use (Public Use): Educators can breathe a sigh of relief. The IP Law allows them to use copyrighted works for illustration purposes in lectures, printed materials, performances, audio/video recordings, or broadcasts used for teaching. Sharing these materials within a local network is permitted, provided access is restricted to the teacher and students of that specific session. This exception enables educators to enrich their teaching methods and cater to students' diverse learning styles by incorporating various copyrighted resources.

2. Government Activities: Serving the Public Good

The IP Law acknowledges that government agencies often require copyrighted material to fulfill their public service functions. This provision allows state agencies to use copyrighted works to perform their official duties. For instance, a government agency might utilize copyrighted medical journals to research public health initiatives or use excerpts from copyrighted legal resources when drafting legislation.

3. Fair Quotation: Fueling Commentary and Discourse

The IP Law encourages robust intellectual discourse by allowing for fair quotation of copyrighted works. This means reasonable citation of copyrighted works for commentary, introduction, or illustration in one's work is permitted, as long as the meaning of the original work is not misrepresented. This exception allows authors, journalists, and critics to engage with existing works and build upon them, fostering a dynamic intellectual environment.

4. Libraries: Treasure Troves of Knowledge, Not Fortresses of Restriction

Libraries play a vital role in preserving knowledge and ensuring access to information for all. The IP Law recognizes this by allowing libraries to utilize copyrighted materials for non-commercial purposes. Here's how:

Preservation and Access: Libraries can reproduce copyrighted works for preservation purposes, ensuring future generations have access to valuable resources. These copies must be marked as archived copies and have restricted access by regulations.
Research and Study: Libraries can also make reasonable copies of copyrighted works to serve patrons' research or study needs. They can further share archived works within inter-library networks, expanding access to resources beyond the confines of a single library. However, the number of concurrent readers must not exceed the number of copies held by the libraries involved, unless otherwise permitted by the copyright owner. This exception doesn't apply to digitally released works, highlighting the need for further regulations in the digital age.

5. Cultural Exchange: Sharing the Beauty of Artistic Expression

The IP Law fosters cultural exchange by allowing the use of copyrighted material in non-commercial cultural events. This provision permits the performance of theatrical works, musical pieces, dances, or other art forms during such events. This allows artists and performers to showcase their talents and the public to experience a broader range of artistic expressions. Additionally, photographing, filming, or recording fine art, architectural works, or applied art displayed in public places for non-commercial introduction of such works is permitted. This provision facilitates the documentation and dissemination of artistic heritage, enriching the cultural landscape.

3. Important Points to Remember

Understanding the nuances of non-infringement provisions is crucial to navigating the world of copyright in Vietnam. Here are three key takeaways to keep in mind:

1. Non-Infringement Doesn't Equal Unrestricted Use: Even when falling under a non-infringement exception, the use of a copyrighted work must not:

Contradict the normal exploitation of the work: Using a significant portion of a work or using it in a way that directly competes with the copyright owner's intended use could negate the non-infringement exception.
Unreasonably prejudice the legitimate interests of the author or copyright owner: The use shouldn't significantly harm the copyright owner's potential market or ability to benefit from their work.

2. Not All Works are Created Equal: The IP Law excludes certain categories of works from some non-infringement exceptions. These include:

Architectural works
Works of art
Computer programs
Collections of works (anthologies)

If you're unsure whether a specific exception applies to the copyrighted work you intend to use, consulting a legal professional is recommended.

3. The Law is a Living Document: The Vietnamese IP Law is relatively new, and interpretations and applications might evolve. Here are some additional points to consider:

The "Three-Step Test" in the US: Although not explicitly mentioned in the IP Law, Vietnamese courts might consider a similar approach when evaluating fair use. This includes examining the purpose and character of the use, the nature of the copyrighted work, and the amount and substantiality of the portion used.
Transformative Use: Even if a substantial portion is used, it might be considered fair use if the new work is transformative, creating something new with a different purpose or meaning than the original.
Always Acknowledge the Source: It's good practice to acknowledge the source and author of the copyrighted work being used, even when falling under a non-infringement provision. This demonstrates respect for the creator's work and fosters a culture of ethical use.

By keeping these important points in mind, you can ensure that your use of copyrighted material in Vietnam complies with the law while promoting creativity and knowledge sharing.

4. Conclusion

Vietnam's 2023 IP Law strikes a commendable balance between protecting copyright holders' rights and allowing for fair use in specific contexts. The non-infringement provisions outlined in the law empower researchers, educators, librarians, journalists, and the public to engage with copyrighted material in ways that enrich learning, cultural exchange, and public discourse. Understanding these exceptions allows individuals and organizations to navigate the legal landscape of copyright in Vietnam with confidence. However, it's essential to remember that non-infringement doesn't equate to unrestricted use. Respecting the author's intent and avoiding undue harm to their potential market remains paramount. As the law evolves and technology advances, careful consideration and potential revisions might be necessary to ensure a copyright framework that fosters both creativity and responsible access to information in Vietnam's dynamic digital age.

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.