In creative activities, many people often assume that the person who directly creates a work is automatically the copyright owner of that work. However, according to Vietnamese law, this understanding is not entirely accurate. Copyright law clearly distinguishes between the author and the copyright owner, and these two entities do not always coincide. So, is the author automatically the copyright owner? This article by VCD will help you.
The author and the copyright owner are two different entities according to the law
According to intellectual property law, the concepts of author and copyright owner are defined with different legal meanings. Specifically, according to Clause 1, Article 13 of the current Intellectual Property Law, an author is a person who directly creates all or part of a work. Meanwhile, according to Article 36 of the Intellectual Property Law, the copyright owner is the organization or individual holding the property rights to the work. This shows that the creator of the work is not necessarily the one who has the right to exploit the full economic value of the work.
Distinguishing between these two entities is important in practice, because if ownership is determined solely based on the creative element, it can lead to misinterpretations of the law. In reality, when determining rights to a work, it is necessary to consider all factors such as:
- The circumstances surrounding the creation of the work
- The relationship between the creator and the related organization
- Agreements or contracts that have been signed
These factors can change the subject of ownership of property rights to the work, even though the creator is still identified as the author.
Is the author automatically the copyright owner?
When is the author also the owner?
In many cases, the author is the copyright owner, especially when the creation is independent. According to Article 39 of the Intellectual Property Law, an organization or individual who directly creates a work through their own efforts and expenses is the copyright owner of that work, unless otherwise agreed. This regulation reflects the fundamental principle of copyright law, which is that the person who invests effort and expense in creating the work is entitled to the right to exploit it.
Generally, the author is also the copyright owner in the following cases:
- The work was created independently, not as part of an assigned task.
- There is no commission or employment contract requiring the creation of the work.
- There is no agreement to transfer the property rights to another party.
In these cases, the author has full rights to the work, including the right to publish the work, allow others to use it, transfer the rights, or exploit the work for economic gain. For example, if an individual writes a book in their spare time using personal means, not at the request of any organization, then that person is both the author and the copyright owner of the book. However, this ownership is not immutable, because if the author later signs a contract transferring the property rights as stipulated in Article 45 of the Intellectual Property Law, the owner of the property rights may change.
In which cases is the author not simultaneously the copyright owner?
Besides cases of independent creation, the law also recognizes many situations where the author is not the owner of the property rights to the work. According to Articles 39 and 40 of the Intellectual Property Law, copyright ownership may belong to another organization or individual when a work is created under assignment or contract.
Specifically, the author may not be the owner in the following cases:
Works created under assignment for an agency or organization:
When an employee creates a work as part of an assigned task during their work, the organization assigning the task is usually the owner of the property rights to the work, unless otherwise agreed. In this case, the employee is still identified as the author according to Clause 1, Article 13 of the Intellectual Property Law, but the right to commercially exploit the work belongs to the organization.
Works created under a contract:
When an individual or organization undertakes a creative work under a contract, ownership of the intellectual property rights is determined according to the contract’s terms, in accordance with Article 40 of the Intellectual Property Law. If the contract stipulates that the commissioning party is the owner, then the author only retains the status of the creator.
Author transferring intellectual property rights to another party:
According to Article 45 of the Intellectual Property Law, intellectual property rights to a work can be transferred to another organization or individual. After the transfer is completed, the transferee becomes the owner of the intellectual property rights, and the author no longer has the right to commercially exploit the work.
These cases show that determining copyright ownership is not only based on the creative element but also depends on the legal relationship between the parties.
Above is the article “Is the author automatically the copyright owner?” that VCD sent to you. We hope this article is helpful to you.
Sincerely,
FAQ
No. The author is only the copyright owner when they create the work themselves using their own efforts and expenses and without any agreement to transfer the rights to another person.
The author still has moral rights such as the right to have their name recorded on the work, to name the work, and to protect the integrity of the work according to the law.