Vietnam released a draft of the IP Law for public comments

A draft of the amended IP Law of Vietnam has been released recently by the Ministry of Science and Technology of Vietnam and published in its website in November 2020 for public comments. The recent signing of big trade pacts, such as the European Vietnam Free Trade Agreement (“EVFTA”), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), the Regional Comprehensive Economic Partnership (“RCEP”), the world’s largest trading bloc have triggered the comprehensive amendment of Vietnam’s IP Law that enacted in 2005. While a lot of progressive provisions have been introduced to this third amendment of Vietnam IP Law, some still seem ambiguous, inadequate or difficult for implementation.

What will be revised? What will be supplemented? How will such revision/supplement affect the public and the IPR holders? Hereunder are our views and comments.

PART I – Copyright, related rights

1. Supplement Article 4.6(a):

[Author means a person who personally creates literary, artistic or scientific works.

In case two or more persons jointly create works, those persons are joint authors.

Any person who renders supports, give comments or supply documents to others to create works shall not be recognized as author or joint author]

Comments: Albeit unavailable in Vietnam’s current IP Law, a definition of “author” has actually provided under Circular No. 22/2018/ND-CP. An inclusion of a definition of “author” under the draft amended IP Law of Vietnam will help determine who is statutorily recognized as an author of works, based on which clearly determine rights conferred to an author.

However, it is necessary to specify the concept of “joint author”. In case a work has different parts in which various authors participates  in creation of such work, the concept of “joint author” should only be reasonable when (i) a work is simultaneously by those authors and (ii) a consensus in creating one or more part of such a work. Conversely, if each author independently creates a part of a work, does not know each other’s work (which may be separately hired by an owner), or disagrees with the co-existence of the work as a whole, then these authors should not be deemed “joint author” of the work as a whole, but only serve as an author for each part of the work created by them.

Recommendation: For the foregoing, the definition of “joint authors” should be revised as follows: [In case two or more persons jointly create works and those persons have reached an agreement on joint authorship, they are joint authors]

2. Our suggested revision to Article 4.8 (not included in Draft Law on Intellectual Property):

Comments: Currently, “Derivative work” is defined as [a work which is translated from one language into another adapted, modified, transformed, compiled, annotated or selected]. The concept of “derivative work” seems to be a closed definition which is too narrow as compared to that defined under Article 2.3, Berne Convention which provides that [Derivative work: Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work].

Recommendation: For the foregoing, the definition of “Derivative work” should be widened to be compatible with that provided under Article 2.3, Berne Convention as follows: [“Derivative work” means a work which is created based on one or more than one earlier works, particularly by such means as translation, adaptation, modification, transformation, compilation, annotation.]

3. Revise Article 4.10:

Currently, “reproduction” is defined as [the making of one or many copies of a work or a phonogram or video recording by whatever mode or in whatever form, including the backup of the work in electronic form].

A proposal for revision of the aforesaid definition as follows: [Reproduction means the making reproduced versions of the entire or part of works or a phonogram or video recording by whatever mode or in whatever form, including the backup of the work in electronic form].

Comments: This revision of definition of act of reproduction in the draft Law is adequate as it covers not only an act of reproducing the entire work, but an act of reproducing a part of a work will also fall within the scope of “reproduction”. The concept of copying/reproduction should also not be confined to making a part or the whole of a work. In fact, in Vietnam, the act of copying/reproduction can be taken in a sophisticated way, e.g. copying only some elements of the work, then incorporating them into other elements, thereby creating a new work that is not completely identical to an original work. Whether such act of copying/reproduction may constitute a partial reproduction remains questionable. It is believed that based on the scope of “reproduction” as defined in the draft Law, there will be ample ground for Vietnamese enforcement authority to effectively enforce against work reproduction regardless it is an entire or partial reproduction.

Recommendation: N/A

4. Supplement Article 4.11(a): Propose a definition of “royalties” (“Tiền bản quyền” in Vietnamese) in replacement of the inconsistent use of the terms “remuneration” (“Thù lao” or “Nhuận bút”)

[Royalty means a sum of money paid by a party that uses a  work, performance, phonogram, video recording, broadcast to an author, copyright owner, related right holders for hiring for creation or purchasing ownership or rights to use of one, some or the whole copyright and related rights over work, performance, phonogram, video recording, broadcast].

Comments: This is the first time the concept “royalty” has been used in Vietnam’s IP Law. The concept of “royalty” supersedes the terms “remunerations” and “material benefits”. This single terms is helpful in avoiding inconsistent use of such terms in a complicated IP field.

Recommendation: N/A

<to be continued>