KENFOX IP & Law Office > IP Practice  > Copyright  > Difference between Copyright and Industrial Design Right

Difference between Copyright and Industrial Design Right

Under the Law on Intellectual Property of Vietnam (the IP Law), intellectual property rights mean the rights of organizations and individuals to intellectual assets, including copyright and copyright-related the rights, industrial properly rights and rights to plant varieties. Meanwhile, industrial property rights mean the rights of organizations and individuals to inventions, industrial designs, layout-designs of semiconductor integrated circuits, trade secrets, trade marks, trade names, geographical indications and trade secrets they have created or own, and the right to repression of unfair competition.

Therefore, copyright and industrial design right are both the objects to be protected under the IP Law. In light of the prevailing regulations of the IP Law, there are the following differences between these two objects:

Criteria

Copyright

Industrial Design Right

Definition

opyright means the rights of organizations and individuals to works they have created or own.

Industrial design right means any rights of an organization or individual to the outward appearance of a product embodied in three dimensional configuration, lines, colours or a combination of such elements.
Protectable objects

Literary, artistic and scientific works are protected by copyright. Work means a creation of the mind in the literary, artistic or scientific sector, expressed in any mode or form.

The following items shall be  the objects outside the category of copyright protection:

1. News of the day as mere items of information;

2. Legal instruments, administrative and other documents in the judicial domain, and official translations of such documents;

3. Processes, systems, operational methods, concepts, principles and data.              

Outward appearance of a product is protected as an industrial design. However,  the following items shall be ineligible for protection as industrial designs:

1. Outward appearance of a product which is necessarily due to the technical features of the product.

2. Outward appearance of civil or industrial construction works.

3. Shape of a product which is invisible during the use of the product.

The design as the subject of protection of a design right is the “design of an article,” and a design right is granted to a design that can be used for industrial purposes. Consequently, the subject protection of a design right is not a work of art, such as a painting or sculpture, which is the subject of protection of a copyright. Also, when a pattern in a painting is used as a pattern on industrially manufactured trays, or when a sculpture is produced industrially as a decoration, both the copyright and design exist in the same article. If the pattern in a painting or a sculpture is the work of another and you use it without permission to produce trays or decorations and sell them, it is in violation of the person’s copyright (in such a case, a license from the copyright holder is necessary).

 

Grounds for the generation and establishment of rights    

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 or not such work has been published or registered.    

Industrial design rights shall be established on the basis of a decision of the Intellectual Property Office of Vietnam (IP Vietnam) to grant a design patent in accordance with the registration procedures stipulated in the IP Law.

Method of protection          Registration of copyright is not required, but optional.

In the same way as the invention or utility solution right, the industrial design right accrues through application  and  registration with the Intellectual Propert Office.

Term for protection

Copyright in works shall comprise moral rights and economic rights:

The moral rights (except the right  to publish their works or to authorize other persons to publish their works) shall be protected for an indefinite term).

The right  to publish their works or to authorize other persons to publish their works and the economic rights enjoy the following term of protection:

(a) Cinematographic works, photographic works, works of applied art and anonymous works have a term of protection of seventy five years from the date of first publication. For cinematographic works, photographic works and works of applied art which remain unpublished within twenty five years from the date of fixation, the term of protection is one hundred years from the date of fixation. For anonymous works, when information on their authors is published, the term of protection will be calculated under Point (b) below.

(b) A work not specified at Point (a) above is protected for the whole life of the author and for fifty years after his/her death. For a work under joint authorship, the term of protection expires in the fiftieth year after the death of the last surviving co-author;

(c) The term of protection specified at Points a and b of this Clause expires at 24:00 hours of 31 December of the year of expiration of the copyright protection term.

The term for protection of the industrial design right is shorter than copyright: An industrial design patent shall be valid from the granting date until the end of five (5) years after the filing date and may be renewed for two consecutive terms, each of five (5) years.

Therefore, the duration of a design right expires fifteen (15) years from the filing date of the relevant application.

Criteria for protection

Protection as copyright shall be granted to  literary, artistic and scientific works which must be created personally by authors through their intellectual labour and without copying the works of others.

Organizations and individuals with works which are protected by copyright comprise persons who directly create such works and the copyright holders stipulated in the IP Law (namely, copyright holders being authors, Copyright holders being co-authors, Copyright holders being organizations and individuals who assign tasks to authors or who enter into contracts with authors, Copyright holders being heirs, Copyright holders being assignees of rights and Copyright holders being the State).

An industrial design shall be eligible for protection when it satisfies the following conditions:

 (a) It is novel;

 (b) It involves an inventive step;

 (c) It is industrially applicable.

Anyhow, registration of copyright and industrial designs are necessary for the holders of such rights to have these types of intangible assets protected in Vietnam. The registration, once successful, shall give them exclusive rights to use their industrial designs, literary, artistic and scientific works.

Though not required by law, the registration of copyright is necessary and important in that authors and copyright holders who have been granted copyright registration certificates are not obliged to prove that copyright belongs to them when there is any dispute (under Clause 2, Article 49 of the IP Law). A copyright registration certificate is the evidence which automatically confirms the status and rights of an authors and a copyright owner of a registered work. If the author or copyright owner does not register the copyright, in the event of a dispute, he/she must be obliged to prove his/her copyright in that work. In many cases, it is very difficult for the copyright owner to prove his rights, even unable to prove that he/she is the author or the copyright owner of the disputed work.