In more detail
1. Updated definitions of copyrightable works
- Decree 17 defines and provides a detailed list of subject matters that can be protected under copyright regimes, such as literary and scientific works, lectures, speeches, journalistic works, musical works, cinematographic works and others.
2. Clarifications on "derivative works"
- Decree 17 introduces a new definition for derivative works, which cover works that are created based on one or more existing works. The decree also provides a detailed definition for each form of derivative work, including translation, adaptation, compilation, annotation, selection, modification and transformation.
3. Co-authorship and co-ownership
- Co-authors and co-owners of copyright can freely agree upon the exercise of their rights. Co-authors and co-owners of copyright must not oppose the permission for exploitation and use of the work in the usual ways and for common interests.
- Co-owners of copyright can waive economic rights and the moral right to publish the work. The rights waived are automatically transferred to the other co-owners.
4. Copyright infringement exceptions
- Reproduction of works is limited to the personal purpose of scientific research, is study-related or non-commercial in nature, and does not apply if a full copy of a work is created using a copying device.
- The reasonable use of works for illustration in a lecture or unfixed performance for teaching purposes must remain within the scope of the lessons, and only learners and teachers of such lessons can have access to the works. Such uses of works must not unreasonably damage the legitimate interests of the authors and copyright owners.
- Reasonable reproduction of part of a performance, audio or visual recording, or broadcast for direct teaching by individuals, not for commercial purposes, is allowed under conditions similar to those for reasonable use of works.
- Annexes I and II of Decree 17 also provide royalty rates for the use of copyrighted work in certain exceptions (using works without the copyright owner's permission)
5. Assumptions on copyright and/or related rights
- An author of a work is assumed to be the person whose name is stated as the author on a published copy of a work or on the original of an artistic work, unless there is evidence proving otherwise.
- For published works, the publisher whose name is stated on copies of the works is assumed to be the copyright holder if the name of the author(s) is not stated thereon.
- The assumed author and copyright holder have the right to self-protection, such as applying technological measures to prevent copyright infringement and taking legal actions against copyright infringers.
6. Right-protecting technological measures
- Decree 17 defines "effective technological measures" as technological measures taken by right owners via (i) access-control applications, (ii) the protection process and (iii) the reproduction control mechanism.
7. Determination of copyright and/or related rights infringements
- Decree 17 provides detailed descriptions and guidelines to determine copyright and/or related rights infringements.
- Decree 17 prescribes details on material loss (including loss of properties, revenue, profits, business opportunities and reasonable expenses to prevent and remedy the damage) and spiritual loss for the calculation of damage rendered by a copyright and/or related rights infringement.
8. Responsibilities and safe harbors for intermediary service providers (ISP)
- To provide further guidance and clarity to the safe harbor regime under Article 198b of the Amended IP Law, Decree 17 provides a broad definition of ISP as an enterprise that provides mere conduit, caching, or on-demand digital information content storage (hosting) services. Decree 17 further provides a non-exhaustive list of enterprises regarded as ISPs, which covers cloud storage service providers, social network providers and search engine providers.
- ISPs bear the following notable obligations:
- (For hosting ISPs) Developing a tool for the receipt of requests for removal or blocking of access to digital information content that infringes on copyright and/or related rights
- (For hosting ISPs) Removing or blocking access to infringing digital information content in accordance with new regulatory procedures when receiving substantiated requests from the users or requests from the competent state agency. Failure to comply with this requirement may result in joint liability for losses caused by the infringing act of the user.
- Notifying the Copyright Office of the Ministry of Culture, Sports and Tourism of the person in charge of copyright and related rights
- Warning service users of their liability if they commit copyright and/or related rights infringements
- Verifying users' information when users register for digital accounts
- Providing user information when receiving a written request from a competent state agency to conduct verification and handle violations of the law on copyright and related rights
Compared to its predecessor, the new copyright decree introduces a number of new regulations. Despite the fact that many issues, including the ones mentioned above, still require further clarification, the new decree equips creators, authors, rights owners and enterprises doing business in Vietnam with a stronger and clearer legal basis for copyright and related rights protection and enforcement.
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