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Fri, 12/03/2010 - 11:52 — Dinh My Loan

Legal background

Copyright legislation	Intellectual Property Law ("IPL") From http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=5005
Other relevant laws
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention?	YES
Must a work be fixed in some material form before copyright attaches?	YES Oral works that are not fixed in a physical form are not protected.
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	YES
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	YES
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	LIMITED

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	NO However it is allowed to exploit work without permission from, and without payment to, the copyright owner in specified cases, which is consistent with the three-step test of Berne Convention.	IPL Articles 15, 25, 32
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	NO
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	NO
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	NO
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	NO However there are collecting societies for collective licensing. Airlines or Karaoke operators, for example, shall pay copyright licensing fees for music works or music videos used in their operation.
For Education	Is reproduction permitted for the purposes of research or study?	LIMITED Translation and reproduction in limited quantity of copies is allowed for use for class room teaching or research, provided that the translation or reproduction shall not be published or distributed.	IPL Articles 25, 32
	Does any such research and study provision cover distance and online education?	YES
	May translations of works be made for educational purposes?	LIMITED Translation and reproduction in limited quantity of copies is allowed for class room teaching provided that the translation or reproduction shall not be published or distributed.	IPL Articles 25, 32
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	LIMITED Reproduction in limited quantity of copies is allowed for use for class room teaching or research, provided that the translation or reproduction shall not be published or distributed.	IPL Articles 25, 32
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES It is allowed provided that no reproduction of the contents is involved.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	YES The law does not contain specific stipulation on this.
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	YES
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	NO ISPs are obliged to filter or monitor their system to prevent copyright infringement.
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	NO
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO
	May computer software be reverse engineered for the purpose of creating interoperable software?	NO
	Is the incidental inclusion of a work in other material permitted?	LIMITED Only permitted to reuse for citation.
	Is there are copyright exception for parody or satire?	LIMITED The law does not contain specific stipulation on this.
	Do creators who license their work retain the moral right of attribution?	YES An author has the right of authorship, that is, the right to claim authorship and to have the author's name mentioned in connection with the work. Moral rights, inclusive of authorship right, are not transferable.	IPL Article 19
By the press	Is there a copyright exception for the news of the day?	YES Reuse or citation of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events is allowed.	IPL Article 25
	May copyright material be reproduced for the purposes of review and criticism?	YES Appropriate quotation from a published work in one's own work for the purposes of introduction to, or comments on, a work, or demonstration of a point is allowed.
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	YES Publication in newspapers or periodicals, or broadcasting by radio stations, television stations or any other media, of a speech delivered at a public gathering is allowed, except where the author made the declaration otherwise. Speeches in judicial proceeding is arguable speeches at public gathering, although some lawyers may claim copyright for their oral works delivered at the court.
	May quotations be used for any purpose?	LIMITED Appropriate quotation from a published work in one's own work for the purposes of introduction or comments or demonstration of a point is allowed.
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	LIMITED Libraries can only copy works, including digital copy for back-up or preserving purpose.	IPL Article 25
	May libraries copy works for users for the purpose of research or study?	LIMITED
	Are libraries allowed to make preservation or archive copies of materials in their collections?	LIMITED
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	NO	IPL Article 28
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	LIMITED It is permitted to transliterate a published work into Braille and publish the work so transliterated, or provide the published written work via information network to the blind in a non commercial manner.	IPL Article 25
In public affairs	Are laws excluded from copyright?	YES Laws are not copyrightable.
	Are other governmental works excluded from copyright?	YES Regulations, resolutions, decisions and orders of State organs,or other documents of a legislative or administrative nature and their official translations are not copyrightable.
	Is there a copyright exception for use of material in judicial proceedings?	YES Documents of judicial nature are not copyrightable.
	Are the results of publicly funded research required to be published under an open access license?	LIMITED Intellectual property rights, inclusive of computer software copyright or IC layout designs, derived from the governmental fiscal funded research projects belong to the researchers. In the case where the researchers fail to implement the relevant intellectual property in reasonable period or for the purpose of protection of national security,national interests or important public interests, the State may implement it for free or grant licenses to others for free or for charge.

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	500.000.000 VNd (US$ 25.000)	IPL Article 205
What is the maximum penalty for copyright infringement for a corporation?	500.000.000 VNd (US$ 25.000)	IPL Article 205
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	YES
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright?	YES The law does not contain specific stipulation on this
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	NO Although the provision is unclear, it seems to cover circumvention even for non-infringing purposes.	IPL Article 28
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	NO
Are the operations of copyright collectives subject to public oversight?	NO
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	NO
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	NO
Is there provision to penalise the wrongful allegation of copyright infringement?	YES

Conclusions

Vietnam's Intellectual Property Law is a unique piece of legislation that combines copyrightⁱ, patents, trade marks and plant varieties in a single Act. Amongst the countries analysed in this Watchlist, it is the last to adopt legislation covering these fields, in 2005.

One might expect, then, that the law would be modern, and adapted for the digital age. Unfortunately this is only so in the rights-holder's favour; thus, circumvention of technological protection mechanisms is outlawed, but digital rights for the consumer, such as format shifting or backup, are not.

Equally, the limitations and exceptions contained in the legislation are scanty. There is no private use exception, and minimal provision for libraries and education. This legislation bears all the hallmarks of not having been presented for consultation by consumers, and is already sorely due for reform.

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