Ordinance No. 38-L/C dated December 10, 1994 of the Standing Committee of National Assembly on protection of copyright

ORDINANCE

ON PROTECTION OF COPYRIGHT

With a view to protecting copyright; contributing to the promotion of creation of literary, artistic, scientific and technical works; developing the national, modern and humanistic culture; extending co-operation and exchange of culture, science and technology with other nations;
Pursuant to Articles 60 and 91 of the 1992 Constitution of the Socialist Republic of Vietnam;

This Ordinance provides for the protection of copyright.

Chapter I

GENERAL PROVISIONS

Article 1.-

1. The author is a person who directly creates the whole or part of a literary, artistic, scientific and technical work.

2. Recognition of authorship is also granted to the person who:

- Translates a work from one language into another;

- Adapts a pre-existing work, or modifies or transforms a work from one form of art into another;

- Compiles, annotates and selects other's works into works with creative values.

Article 2.- Copyright comprises the moral and material rights of the author.

Article 3.- State protection of copyright is granted to:

1. Works of Vietnamese citizens, organizations, already or not yet published;

2. Works of foreigners either first published in Vietnam or published in Vietnam within 30 days, counting from their first publication in other countries, irrespective of the nationalities and residences of the authors;

Works of foreigners, published outside Vietnam and disseminated in Vietnam, which shall be copyrighted according to International Treaties to which Vietnam is a signatory or a member.

Article 4.- State protection of copyright is granted to literary, artistic, scientific and technical works, irrespective of their forms of embodiment, which include:

1. Written works;

2. Lectures, speeches and orally expressed works;

3. Theatrical works;

4. Audio-visual works;

5. Photographic works;

6. Musical works;

7. Graphic works and works of applied arts;

8. Architectural works;

9. Computer software;

10. Scientific researches, textbooks, instructional materials;

11. Graphics, drawings, plans, maps relating to terrains, architectures, scientific researches;

12. Translations, adaptations, compilations, modifications and transformations;

13. Selections and anthologies;

14. Other works to be copyrighted by law.

All the copyrighted works should be original.

Article 5.- State protection of copyright is granted to the authors who register their real names or pseudonyms together with their works at the Copyright Office. Such protection is also granted as prescribed in this Ordinance to the authors who do not register but ask for copyright protection.

Violation in any forms of copyright is strictly prohibited.

Article 6.- This Ordinance shall not apply to:

1. The official texts of State agencies, political, economic and social institutions as well as their official translations;

2. Current news.

Copyright for inventions, useful solutions and industrial designs shall be protected by the law on industrial property.

Article 7.- The author or the owner of copyright, as prescribed in Article 24 of this Ordinance, must comply to all provisions of law when he uses his copyright.

The State does not protect the copyright of the works which:

1. Go against the State of the Socialist Republic of Vietnam, damage the bloc of unity of the people;

2. Campaign for violence, aggressive wars, sow hatred among nations, diffuse reactionary ideologies and cultures, depraved and debauched life, criminal behaviors, social evils, superstitions, which sabotage the fine customs and habits;

3. Disclose secrets of the Party, State, military and security secrets related to the economy, foreign policies, private life of citizens, and other secrets which are protected by law;

4. Distort history, negate revolutionary achievements, offend great men and national heroes, slander and hurt the prestige of organizations, and the honor and dignity of citizens.

Article 8.- Protection of copyright over folklore literary and artistic works shall be prescribed by the Government.

Article 9.- In this Ordinance, the terms as hereunder stated shall be understood as follows:

1. A co-authored work means a work jointly created by more than one authors.

2. Computer software means one or more than one programs expressed in a series of commands in the form of a certain programming language and files of date concerned to direct computer or an informatic system to carry out the given tasks. Computer software can be installed either inside or stored outside the computer in such various forms as text, magnetized discs, CD-ROM.

3. A posthumous work means a work of a dead author that was not published during his/her life-time.

4. A published work means a work that is publicized in form of lecture, display, publication, performance, broadcast on radio and television.

5. An adapted work means a work based on the content of another work.

6. A modified work means a work re-written from an existing work.

7. A transformed work means a work transformed from one form of art into another.

8. A selected work means a work created from the selection of a number of separate works written by a single author.

9. An anthology means a work created from the selection of works written by several authors.

10. A compiled work means a work created from the selection of a number of different works according to a given subject, and includes comments and evaluations.

11. The original means the first complete work created by an author.

Chapter II

COPYRIGHT

Section I. AUTHOR'S RIGHT

Article 10.- The author has the right to:

1. Claim authorship of the work he has created;

2. Have his name or pseudonym inscribed on his work; have his name mentioned in connection with any public use of his work;

3. Claim for protection of the integrity of his work and from any modifications made thereto by others;

4. Publicize and disseminate, or authorize the publication or dissemination of his work;

5. Receive royalties or remuneration from any following uses of his work;

6. Have his work used or not used by others and receive material interests from the use of his work.

Article 11.- For co-authored work, the co-authors shall be entitled to copyright protection.

In the case of a work comprising independent parts, each of the co-authors shall be entitled to use the part he has created and to own the copyright over such an independent part as the case may be, unless otherwise agreed by the co-authors.

Article 12.- In the case of a collective work, created under the chief editorship and responsibility of one person or entity,

1. This editor shall be entitled to the rights provided for in Article 10 and Article 11 of this Ordinance.

2. Other authors shall be entitled to the rights as provided for in Items 1, 2, 5 of Article 10 and Article 11 of this Ordinance and to other rights resulting from the use of the work.

Article 13.-

1. In the case of a cinematographic, radio, television, video or theatrical work, such persons as the director, scrip-writer, cameraman, music composer and painter shall be entitled to the rights as prescribed in Items 2, 3 and 5 of Article 10 and Article 11 of this Ordinance.

2. An individual or organization, that makes a cinematographic, radio, television, video or theatrical work, shall be entitled to the rights as prescribed in Items 1, 2, 3, 4 and 6 of Article 10 of this Ordinance.

Article 14.- In the case of a work created by a person in the purview of his responsibility in the performance of a job either assigned to him by or as per contract with an institution, the author shall be entitled to the rights as prescribed in Items 2, 3 and 5 of Article 10 of this Ordinance, unless otherwise agreed upon between him and the institution; the institution shall be entitled to the rights as prescribed in Items 1, 4 and 6 of Article 10 of this Ordinance.

Article 15.- The author of a translation, adaptation, compilation, modification or transformation shall be entitled to the rights as prescribed in Articles 10, 11, 12, 13 and 14 of this Ordinance, provided that he:

1. Is permitted by the author or the owner of the copyright of the original work;

2. Does not change the subject of the original work, unless agreed by the author;

3. Has the name of the author and the title of the original work indicated in his work;

4. Pays remuneration to the author or the owner of the copyright of the original work.

Article 16.- An individual or organization may use a work of another person which has been published or disseminated without having to ask the permission of the author or the owner of the copyright or to pay remuneration to them, if such use is not for commercial purposes, does not affect the normal use of the work nor affect the other interests of the author but he has to inscribe or mention the name of the author and the origin of the work, in the following cases:

1. Reproduction of a work for private use;

2. Use of quotations from a work for comments and illustrations for his own work;

3. Use of extracts from a work for press articles, periodicals, audio-visual programs or documentaries;

4. Use of extracts from a work for teaching and examination purposes in educational institutions;

5. Reproduction of a work for archival purposes or for use in libraries;

6. Translation and dissemination of a work from Vietnamese into languages of ethnic minorities;

7. Performance of theatrical works, songs, musical compositions during cultural activities organized in public places for motivation purposes;

8. Use of live recordings or television broadcasts of performances for current news reporting or as teaching work;

9. Taking photographs or video recordings of graphic, architectural and photographic works and works of applied arts displayed in public places;

10. Transformation of a work into Braille letters for the blind.

The above provisions shall not apply to the reproduction of architectural works in the form of architectural constructions, of graphic works and of computer software.

Section II. TERM OF PROTECTION OF COPYRIGHT

Article 17.-

1. Copyright arises from the moment the work is created in a certain form of embodiment.

2. Copyright as stipulated in Items 2 and 3 of Article 10 of this Ordinance shall be protected indefinitively.

3. Copyrights as stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance shall be protected during the life time of the author and for fifty years after his death.

4. Copyright as stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance shall belong to the State when their term expires.

Article 18.- In the case of a co-authored work, the term as stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance shall be the life time of the authors and fifty years after the death of the last surviving author.

Article 19.- The year following the death of the author as prescribed in Article 17 and Article 18 of this Ordinance shall be calculated from the 1st of January.

Article 20.-

1. In the case of a posthumous work, the rights as stipulated in Item 1, 4, 5, and 6 of Article 10 of this Ordinance shall be protected for fifty years counting from its first publication.

2. In the case of an anonymous or pseudonymous work, copyright stipulated above shall belong to the State. If within fifty years, counting from the first publication of the work, its author's identity is disclosed, the rights shall be protected as provided in this Ordinance.

Article 21.- In the case of cinematographic, radio, television and video works, the rights as stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance shall be protected for fifty years, counting from their first publication.

Section III. TRANSFER OF COPYRIGHT

Article 22.- The author is entitled to transfer part or the entire right as stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance to an individual, an organization or the State in a written form.

Article 23.-

1. After the author is dead, the inheritor of the copyright shall be entitled to all the rights as stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance. If there is no inheritor, or the lawful inheritor refuses to inherit or is deprived of the right to inheritance, all the rights as stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance shall belong to the State.

2. If the lawful inheritor dies within 50 years, the next inheritor shall be entitled to all the rights stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance, until the expiry of the fifty-year term.

Article 24.- The individual, organization, the State to whom the right to inheritance of copyright is transferred by the author, is the owner of the copyright.

The owner of the copyright is entitled to transfer part or the entire right as stipulated in Items 1, 4, 5 and 6 of Article 10 of this Ordinance. The transfer must be done in a written form.

Chapter III

CONTRACTS ON THE USE OF THE WORK

Article 25.- Any individual, organization who seeks to use a work, must sign a written contract to that effect with the author or the owner of copyright, with the exception of the following cases:

1. Use a work that has been published on a periodical, or broadcast on a radio or television program;

2. Use a work as stipulated in Article 16 of this Ordinance.

Article 26.- A contract on the use of a work should be made in the written form with the following main contents:

1. The form (or forms) in which the work shall be used;

2. Scope and period of time of this use;

3. Level of royalties and form of payment;

4. Liabilities held by each contractual party in case of breach of the contract;

Other contents other than the aforesaid shall be mutually agreed upon if necessary.

Article 27.- When the contract is implemented, the author or the owner of the copyright shall be entitled to the following rights and obligations:

1. The author and the owner of copyright can require or accept modifications made to the contract, terminate the contract that has been signed with the individual or organization that uses the work;

2. When the term for the use of the work expires without being published or disseminated by the contracting individual or organization, the author or the owner of the copyright may annul the contract and ask for compensation;

3. In the case of publications, if individual or organization concerned refuses the re-edition of the work when required, the author or the owner of copyright may annul the contract and transfer the use of the work to another individual or organization;

4. The author or the owner of the copyright has to transfer his work to the contracting individual or organization in due time as stipulated in the contract, including the modification of the contents as mutually agreed upon;

5. During the validity of the contract, the author or the owner of the copyright cannot transfer the work to another individual or organization with the exception as prescribed in Item 3 of this Article or unless other wise mutually agreed upon;

6. The author or the owner of the copyright has to compensate for the damage resulting from any change or breach of the contract.

Article 28.- An individual or organization that uses a work has the following rights and obligations:

1. Publish and disseminate the work during the term mutually agreed upon;

2. Unilaterally annul the contract, if the author or the owner of the copyright does not transfer the work in due time as stipulated in the contract;

3. It is forbidden to transfer the work to another individual or organization without the approval of the author or the owner of the copyright;

4. Compensate for the damage resulting from any breach of the contract.

Chapter IV

THE RIGHTS OF THE PERFORMERS AND PRODUCERS OF AUDIO TAPES, COMPACT DISKS, VIDEO TAPES AND DISKS, AND RADIO AND TELEVISION PRODUCERS

Article 29.- Performers comprise performing individual or organization, producer of performing and broadcasting programs, stage actor and actress, singer, orchestra conductor and music player.

Article 30.- The performers shall be entitled to:

1. Have their names introduced when they perform;

2. Have their performing images protected from distortions;

3. Authorize or not authorize others to broadcast live or televise their performing programs, with the exception that this work is for reporting current news or for teaching purposes;

4. Authorize or not authorize others to record or televise their performances and make reproduction thereof for dissemination;

5. Receive remuneration paid for the use of their performances as stipulated in Items 3 and 4 of this Article for commercial purposes.

Article 31.- The performer has the following obligations:

1. When using a work not yet published to perform; approval should be obtained from the author or owner of its copyright, and remuneration should be paid to the author and the owner of the copyright.

Article 32.- The producer of audio tapes, compact disks, video tapes and disks can authorize or not authorize others to duplicate and distribute his products, and receive dividends from the use thereof.

The term of protection for the copyright stipulated in this Article is fifty years counting from its first dissemination.

Article 33.- The producer of audio tapes, compact disks, video tapes and disks using others' works for his programs, must comply to the following provisions:

1. In the case of a work not yet published, a contract should be signed with the author or the owner of the copyright, and royalties paid therefore.

2. In the case of a published work, approval is not needed from the author or the owner of the copyright, but his name should be indicated, the integrity of his work assured and remuneration paid;

3. A contract should be signed with and remuneration paid for the performer.

Article 34.- The audio tapes, compact disks, video tapes and disks as prescribed in this Ordinance comprise artistic tapes and disks, excluding computer software.

Article 35.- The radio and television broadcasting producer is entitled to the following rights to its audio-visual programs:

1. Authorize or not authorize the re-broadcast of its programs.

2. Authorize or not authorize the duplication of its programs for commercial purposes, and receive dividends when the programs are realized.

The term of protection for the rights stipulated in this Article is fifty years, counting from the first broadcasting of the program.

Article 36.- The radio and television broadcasting organization, using others' works to make its programs, should comply to the following provisions:

1. In the case of a work not yet published, approval should be obtained from the author or owner of the copyright and royalties paid therefore;

2. In the case of a published work, approval is not needed from the author or owner of the copyright, but his name should be indicated and remuneration paid therefore.

3. In the case of a modified or transformed work, royalties should be paid to the author, and also remuneration paid to the author or owner of the copyright of the original work.

Article 37.- The rights of the performer and producer of audio tapes, compact disks, video tapes and disks of foreign programs broadcast and disseminated in Vietnam, shall be protected by the State of the Socialist Republic of Vietnam according to the international treaties of which Vietnam is a signatory or a member.

Chapter V

STATE MANAGEMENT OF PROTECTION OF COPYRIGHT

Article 38.- The Government puts the protection of copyright under the unified State management throughout the country.

The State management of protection of copyright comprises the following:

1. Submit bills on law or ordinance on protection of copyright;

2. Enact legal documents, policies and regulations on copyright;

3. Inspect, control and handle violations of copyright;

4. Implement international co-operation on copyright.

Article 39.- The Ministry of Culture and Information, in coordination with other ministries and branches concerned, shall exercise the State management of protection of copyright with the following powers and tasks:

1. Draft and submit to the Government legal bills, ordinances, legal documents on copyright;

2. Enact, within its competence, other documents on protection of copyright;

3. Register copyrights and manage protection of copyright;

4. Inspect, control and handle violations of copyright;

5. Implement international co-operation on copyright.

Article 40.- The People's Committees of the provinces and cities directly under the Central Government shall have to exercise State management of protection of copyright in their localities as prescribed by the Government.

Chapter VI

SETTLEMENT OF COMPLAINTS, DISPUTES AND VIOLATIONS

Article 41.- The author, owner of copyright, have registered or applied for protection of copyright, shall be entitled to lodge an appeal to the authorized State agency about the protection of his copyright.

Article 42.- The author, owner of copyright, whose rights have been infringed upon by others, shall be entitled to:

1. Require the offender to stop his offense and publicly apologize for his action, openly correct his wrong doings and compensate for any damage that might has resulted therefrom;

2. Require the authorized State agency to solve the problem as stipulated by law;

3. Start a lawsuit at the Court.

Article 43.- The person, who has committed violations of copyright as described in this Ordinance, shall be, depending on the extent of his violation, be subjected to administrative sanctions or investigated for penal liability.

Article 44.- Disputes over copyright can be settled either at the authorized agency or the courts in the provinces and cities directly under the Central Government.

Article 45.- Disputes, involving a foreign party concerning the protection of copyright shall be settled either at the authorized State agency or at the People's Courts in Hanoi or Ho Chi Minh City according to the law of Vietnam and international treaties of which Vietnam is a signatory or a member.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 46.- This Ordinance takes effect form the date of its issue.

All earlier regulations contrary to this Ordinance are now annulled.

Article 47.- The Government shall provide details for the implementation of this Ordinance.

On behalf of the Standing Committee of the National Assembly