The principle of fair use is a principle named after a US doctrine on the limitations and exceptions allowed to use copies of works without being considered illegal copyright infringement. International conventions and agreements have also mentioned these limited and exceptional cases, typically the Berne Convention with the “three-step test” of which Vietnam is a member. The revised Vietnam Intellectual Property Law in 2022 has absorbed and applied the provisions of international law and for the first-time stipulated exceptions and limitations of copyright.
1. Principle of fair use in international law
According to Article 9.2 of the Berne Convention for the protection of literary and artistic works, it is stipulated: “The laws of member countries of the Union shall, in certain special cases, have the right to authorize the reproduction and printing of the above-mentioned works, provided that such reproduction does not prejudice the normal exploitation of the work or unreasonably affect the author’s legitimate rights. This provision is understood that copying a work protected by copyright will not be considered an infringement of the author’s exclusive right to copy if that act:
- Subject to special exceptions provided for by national law;
- Without prejudice to the normal exploitation of the work;
- Do not unreasonably damage the author’s legitimate interests.
In addition, Article 13 of the 1994 TRIPS Agreement also stipulates: “Member countries must determine limits or exceptions to exclusive rights for several special cases that do not conflict with the normal exploitation of the work and does not cause unreasonable harm to the author’s legitimate interests. The 1996 WIPO Treaty also stipulates similar content in Article 10.
Section 107 of the United States Copyright Law is called “Limitations on Exclusive Use: Fair Use.” Accordingly, the fair use of a copyrighted work, including use by reproduction in the form of a photocopy or phonorecord or by any other means specified by that section, for purposes of Purposes such as criticism, commentary, news reporting, teaching (including multiple copies for classroom use), scholarship or research, are not copyright infringement, but must meet four conditions: Conditions: (i) The purpose and nature of the act of use, considering whether the use is commercial or for non-profit educational purposes (ii) The nature of the part of the work used; (iii) The number and nature of the works cited as a whole; (iv) The impact of using the work on the potential market and value of the work protected by copyright[2].
2. Fair use principles in Vietnamese law
Vietnam has internalized and implemented regulations on “fair use” in international commitments. Specifically, the revised Intellectual Property Law in 2022 stipulates in Article 25 and Article 32, named respectively as exceptional cases that do not infringe copyright and related rights, clearly stating the cases Using published works does not require permission or pay royalties, but must provide information about the author’s name and origin, origin of the work, information about performances, audio and video recordings, broadcast program. At the same time, the law also stipulates that such uses must not conflict with the normal exploitation of the work and must not cause unreasonable damage to the legitimate interests of the author or copyright owner. Cases considered fair use that do not infringe copyright include:
- Copy one copy for scientific research and personal study, and not for commercial purposes. This provision does not apply in the case of copying using a copying device;
- Reasonable copying of a portion of the work using a copying device for scientific research, personal study, and not for commercial purposes;
- Reasonably use the work for illustration in lectures, publications, performances, audio and video recordings, and broadcasts for teaching purposes. This use may include distribution on an internal computer network provided that technical measures are in place to ensure that only learners and instructors in that class session have access to this work;
- Using works in public service activities of state agencies;
- Reasonably cite the work without misrepresenting the author’s intention to comment, introduce, or illustrate in his work; for writing articles, for use in periodicals, broadcast programs, and documentaries;
- Using works in library activities for non-commercial purposes, including copying works stored in the library for preservation purposes, provided that this copy is marked as an archival copy and is limited to objects of access according to the provisions of the law on libraries and archives;
- Reasonably copy part of the work using copying equipment for others to serve research and study; copy or transmit works stored for inter-library use via computer networks, provided that the number of readers at the same time does not exceed the number of copies of the work issued by the said libraries hold, except as authorized by the rights owner and does not apply in cases where the work has been made available on the market in digital form;
- Performing works of theater, music, dance, and other forms of artistic performance in cultural events and propaganda activities for non-commercial purposes;
- Taking photos or broadcasting works of fine art, architecture, photography, or applied art displayed in public places to introduce the image of that work, not for commercial purposes;
- Importing copies of other people’s works for personal, non-commercial use;
- Copy by republishing in newspapers, periodicals, broadcasting, or other forms of communication to the public lectures, speeches, or other talks presented to the public within the scope consistent with the purpose news information purposes, unless the author claims copyright;
- Taking photos, recording audio, and video, and broadcasting events for news reporting, including using works heard or seen during that event;
- People with visual disabilities, people with disabilities who cannot read print, and other people with disabilities who cannot access works to read in the usual way (hereinafter referred to as people with disabilities), people who nurture and care for them. for people with disabilities and organizations that meet the conditions prescribed by the Government to use the work.
- Live recording or video recording of part of a performance for non-commercial teaching purposes or news reporting;
- Self-copy or assist people with disabilities to copy part of performances, audio recordings, video recordings, and broadcasts for scientific research and personal study purposes and not for commercial purposes;
- Reasonable copying of a portion of a performance, audio recording, video recording, or broadcast program for personal instruction and not for commercial purposes, except in the case of performances, audio recordings, or video recordings, this broadcast has been published for teaching purposes;
- Proper citation for news reporting purposes;
- Broadcasting organizations make temporary copies for broadcasting when they are entitled to broadcast rights.
Above is the article “Principle of “fair use” in Vietnamese intellectual property law“. We hope this article is useful to you.
