Author: Editor VCD

When an act of infringement of copyright or related rights occurs, in addition to administrative and criminal measures, relevant individuals and organizations can simultaneously apply civil measures to ensure their rights and protect their rights. In principle, filing a lawsuit for copyright or related rights infringement must follow the civil proceedings prescribed by the Civil Procedure Code. Specifically, in this case, what basic conditions does the subject whose rights are violated need to meet to protect their rights through civil lawsuits? The following article will provide information about the Conditions for initiating a civil lawsuit when detecting acts of copyright infringement

1. Subjects have the right to initiate civil lawsuits

According to the spirit of Intellectual Property Law, especially specialized legal documents as in Section II (1) Joint Circular No. 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL-BKH&CN-BTP regulating the right to initiate civil lawsuits about copyright and related rights, subjects are entitled to initiate civil lawsuits when detecting acts of infringement of copyright or related rights including:

• Authors, performers, producers of audio and video recordings, broadcasting organizers;
• Copyright owners and related rights owners;
• The legal heir of the author or owner of copyright and related rights;
• Individuals and organizations have transferred the rights of the copyright and related rights owners;
• Individuals and organizations may use works according to contract;
• Organizations representing collective rights of copyright and related rights or other organizations or individuals authorized by copyright owners or related rights owners;
• State agencies and relevant organizations, within the scope of their duties and powers, have the right to initiate civil lawsuits to protect public interests and the interests of the State in the field of copyright and related rights.

In conclusion, Intellectual Property Law also has relatively detailed and complete regulations on subjects with the authority to initiate civil lawsuits when detecting acts of infringement of copyright and related rights to ensure the protection of the rights of these subjects when rights violations occur.

2. Conditions for initiating a civil lawsuit when detecting acts of infringement

Subjects who want to initiate a civil lawsuit on copyright and related rights need to meet the following two conditions specified in Section III (1) Joint Circular 02/2008/TTLT-TANDTC-VKSNDTC- BVH, Sports & Tourism-BKH&CN-BTP:

Firstly, copyright and related rights have arisen according to the provisions of Clause 1 and Clause 2, Article 6 of the Intellectual Property Law.

• Copyright arises and is automatically protected when the work is created and expressed in a certain material form (song, computer program, architectural work…), regardless of content, quality, form, medium, language, published or unpublished, registered or unregistered.

• Related rights arise and are protected automatically from the moment performances, audio recordings, video recordings, broadcasts, and encrypted program-carrying satellite signals are fixed or made available without prejudice and harm to copyright.

It should be noted that applying for a Certificate of Copyright and Related Rights Registration is not mandatory for copyright and related rights protection. When there is a dispute over copyright or related rights and the litigant initiates a lawsuit to request the Court to protect their legitimate rights and interests, the Court must consider it regardless of whether they have a registration certificate. whether they have signed a copyright or related rights registration certificate or not, whether they have applied or not yet filed an application for copyright or related rights registration. However, authors and copyright owners should register as soon as possible to best ensure their rights.

Secondly, the term of copyright and related rights protection is still following the law. Depending on the type of protected work, the protection term will have different periods, as specified in Article 27 and Article 34 of the current Intellectual Property Law. For example, when filing a lawsuit to protect a cinematographic work, the copyright owner must check whether the cinematographic work meets the condition of a protection term of 75 years from the time the work was first published. fairy or not. The Court will not accept the petition if it has been more than 75 years.

When the protection term expires as prescribed by law, the rights of the author, copyright owner, and related rights owner are no longer protected by the State and law, unless otherwise provided for by law. determine the term of protection for copyright. This is an issue that rights holders must pay close attention to when initiating lawsuits to ensure their legitimate rights and interests.

Above is the article “Conditions for initiating a civil lawsuit when detecting acts of copyright infringement“. We hope this article is useful to you.

Intellectual property is one of the important resources of a business. Therefore, when carrying out intellectual property transfer transactions, businesses must be extremely careful to limit legal risks, avoid unnecessary damages and disputes, and ensure the rights and benefits legitimate interests of the business. Copyright is one of the special intellectual assets of an enterprise, associated with the personal and financial rights of the author and owner. Therefore, when signing and transferring copyright rights, what do businesses need to pay attention to to ensure the best legal rights and interests? Please follow Copyright Vietnam to learn about the article “Notes for businesses when transferring copyright?” below.

1. Chuyển nhượng bản quyền là gì?

Transfer of copyright of a work is the transfer of ownership by the copyright owner or related rights owner to the rights specified in Clause 3, Article 19, Article 20 of the Intellectual Property Law, specifically are the following rights: the right to publish works; the right to copy the work; the right to make derivative works; the right to perform the work in public; the right to distribute and import originals or copies of works; the right to communicate the work to the public; the right to rent originals or copies of cinematographic works and computer programs, etc.

Therefore, when a business wants to transfer the copyright of any work, the business must ensure that it is the legal copyright owner of the work.

2. Notes for businesses when transferring copyright

Firstly, in case the transferred work has co-owners, the transfer must have the agreement and consent of all co-owners, unless one or more co-owners transfer a separate part can be separated and used independently. Thus, in case the Enterprise wants to transfer the copyright to the work, it is necessary to ask for the opinions and consent of the co-owners (if any), to avoid the case of transferring it yourself, then the transfer contract will be signed. maybe invalidated, thus the purpose of the transfer will not be achieved.

Secondly, copyright transfer businesses need to carefully consider the transferee’s subject capacity. For individuals, it is necessary to test the individual’s civil legal capacity and civil act capacity. For legal entities, businesses need to check whether the legal entity’s civil law capacity fully meets the conditions for subject capacity or not. In case the individual or legal entity receiving the transfer does not meet the subject capacity and does not ensure full performance of obligations, it will affect the rights and interests of the copyright transfer business.

Thirdly, the law stipulates that the form of a copyright transfer contract must be in writing, so in case an enterprise transfers copyright rights, it needs to be in writing, this is considered one of the conditions for the transfer contract to take effect.

According to the provisions of Clause 1, Article 48 of the Intellectual Property Law in 2005, amended and supplemented in 2009 and 2019, the copyright transfer contract with the work must have the following contents:

• Full names and addresses of the transferor and transferee;
• Transfer basis;
• Price, payment method;
• Rights and obligations of the parties;
• Liability for breach of contract.

In addition to the above contents, enterprises can determine and agree on terms related to how to resolve disputes when disputes arise and solutions in case of force majeure. The more detailed the provisions in the transfer contract, the more guaranteed the Enterprise’s rights will be.

Fourthly, businesses need to distinguish between the transfer of rights and the transfer of rights to use copyright. Transfer of copyright will completely terminate the ownership rights (including the right to possess, use, and dispose) of the author’s copyright and then the copyright owner will no longer have copyright rights. which was previously prescribed by law. As for the transfer of rights to use, the content is different, specifically, the transfer of rights to use copyright is considered a form of rental contract between the copyright owner and the transferee. Accordingly, the copyright owner will only allow the transferee to use the copyright for a certain period and then, if that period ends, the copyright of the transferee will transfer rights and also terminate and the copyright will automatically return to the original copyright owner.

Above is the article “Notes for businesses when transferring copyright“. We hope this article provides you and your business with useful information.

In recent years, as the entertainment economy has developed rapidly, the market for buying and selling copyright and related rights of songs has become more vibrant and has raised many controversies, especially the issue of song exclusivity. Therefore, how are “song exclusivity ” and violation of “song exclusivity ” understood? In this article “Infringement of song exclusivity and sanctions”, we will clarify the issues surrounding the exclusive exploitation and use of songs, the issue of violating the rights of the owner, and the rights of those who are transferred the right to use and exploit the copyright. products and sanctions for violations mentioned above.

1. Understand what is correct about “song monopoly” from the perspective of Intellectual Property Law

Songs are one of the subjects of copyright protection, a type of musical work (According to Article 14, Clause 1 of the Intellectual Property Law). According to Article 10 of Decree 22/2018/ND-CP, a musical work is a work expressed in the form of musical notes in sheet music or other musical characters or shaped on audio or video recordings with or without lyrics, regardless of performance or non-performance. Copyright and related rights to songs are important intellectual property of each author and copyright owner.

According to Article 20, Clause 2 of the Intellectual Property Law, authors, and copyright owners have the exclusive right to exercise or allow other organizations and individuals to exercise property rights and the right to publish works. When organizations and individuals exploit and use one or several or all of the property rights and the right to publish a work, they must obtain permission from the copyright owner and pay royalties and other rights. Other material benefits (if any) to the copyright owner, except for exceptions for non-commercial purposes prescribed by law, such as properly citing the work without misrepresenting the author’s intention. to comment, introduce or illustrate in your work, copy a copy for scientific research, personal study and not for commercial purposes, etc.

Thus, “song monopoly” can be understood as the fact that only a single individual, group of individuals, or organization holds one, some, or all of the property rights, and the right to publish the song. sing for a certain period, regardless of non-commercial exceptions specified in the law. The holder of the “exclusive rights to a song” can be the author, the copyright owner of the song, the copyright or related rights to the song, or individuals and organizations that are authorized to do so. Transfer of rights with an agreement that only that individual or organization has the right to use one or more copyrights and related rights for a certain period.

2. Common acts considered copyright infringement of songs

The nature of the act of “infringing the exclusive rights of a song” is an infringement of the copyright of individuals and organizations that hold the exclusive right to exploit and use that song, that is, the individual or organization is not the author or copyright owner, do not have the right to exploit or use or are not allowed to arbitrarily exploit and use copyright rights during the protected period, affecting to the legitimate rights and interests of the author and owner. Some common acts of infringement of “song monopoly” rights today are mentioned as follows:

• Using the work without the copyright owner’s permission, not paying royalties, remunerations, and other material benefits as prescribed by law: The singer does not use the song for the right performance purpose. Initial performance with permission from the author and copyright owner and without payment of royalties to the author and copyright owner; Individuals and organizations record and video their songs and post them on video and broadcast platforms such as Youtube (often called “cover” songs), and self-broadcast live (“Livestream”) as well as like singing songs on social networking sites and making profits without the permission of the musicians.

• Production of copies, distribution, or communication of songs to the public: Many websites have posted copies of audio and video recordings of songs and allowed others to download those copies for income while not asking for permission to post the work, without paying the author and owner of copyright and related rights of those audio and video recordings.

• The act of arbitrarily mutilating or modifying works is also a common violation. If individuals or organizations modify or change the lyrics of a song without the permission of the song’s composer, that action is also considered an infringement of the right to protect the integrity of the work.

• In addition, it should be noted that the author, the copyright owner of the song has transferred the exclusive right to use the song to artist A for a while and has terminated the contract; then the author, the copyright owner, transfers the copyright or the exclusive right to use the song to singer B, then if artist A continues to use and perform that song in other songs, performance for commercial purposes, artist A will be considered to have committed an act of infringement of copyright and related rights of the author, copyright owner and singer B.

3. Sanctions for violations of “song monopoly”

According to the provisions of the Intellectual Property Law, any individual or organization that violates intellectual property rights, including infringing on the exclusive rights to exploit and use songs, may be prosecuted and be handled by civil, administrative, or criminal sanctions based on the nature and severity of the infringement.

• Civil sanctions

When there is an act of infringement of the exclusive right to exploit and use a song, the author or copyright owner can use the case in Court and request the competent Court to apply civil measures such as : (i) forcing the violator to stop the infringement behavior; (ii) forced public apology and correction; (iii) forced to perform civil obligations; (iv) forcing compensation for damages; (v) forced destruction; (vi) forced distribution or use for non-commercial purposes, without affecting the ability of intellectual property rights holders to exploit their rights.

• Administrative sanctions

When there is a request from the rights holder, or from other organizations or individuals that have discovered or suffered damage due to an infringement of the exclusive right to exploit and use the song, or when the infringement is detected by competent authorities, such violations will be subject to administrative sanctions according to regulations. Individuals and organizations that commit administrative acts of “violating song monopoly” may be punished according to the provisions of Article 12, Article 17, Article 24, Article 25 to Article 31, Article 33 and Article 34 of Decree No. 131/2013/ND-CP and being forced to take remedial measures such as being forced to correct the author’s full name, name of the work and name of the performer; removal of copies of infringing works in electronic form, on the network and technical environment (“removal of copies of work”); Force to return to the copyright owner the royalties, remunerations, and other material benefits obtained from the performance of such infringing acts.

• Criminal sanctions

When a violation has elements that constitute a crime, the individual or legal entity that commits the violation will be prosecuted for criminal liability. Specifically, according to the provisions of Article 225 of the Criminal Code 2015, amended and supplemented in 2017, if an individual does not have the permission of the copyright holder but intentionally copies a work or distributes copies to the public. of works that infringe on copyrights protected in Vietnam on a commercial scale or gain illegal profits of 50,000,000 VND or more or cause damage to the copyright holder of 100,000,000 VND or more or Violated goods worth 100,000,000 VND or more shall be subject to fine, non-custodial reform or imprisonment. Commercial legal entities that violate will be fined or have their operations suspended for a certain period, or be banned from doing business, operating in certain fields, or raising capital for a certain period of time.

The copyright rights to a musician’s song will be legally protected by IP law even if the musician does not apply for a Copyright Registration Certificate because copyright arises as soon as the song is written. Songs are created and expressed in a certain material form, regardless of content, quality, form, medium, language, published or unpublished, registered or unregistered sign.

However, to ensure musicians’ rights are protected according to regulations, musicians can register the copyright with the Copyright and Related Rights Registration Office, Copyright Department in Hanoi, Da Nang, and Ho Chi Minh City. Musicians being granted a Copyright Registration Certificate will help strengthen their ability to protect their interests and prove their rights when disputes arise.

Above is the article “ Infringement of Song Exclusivity and Sanctions”. We hope this article is useful to you.

Concepts related to the author, co-author, or collective authors always confuse identifying and determining related legal rights. Among those concepts, co-authorship and collective authorship are considered quite difficult to distinguish. VCD’s following article “Distinguish co-authors from collective authors” will clarify the concepts of co-authorship and collective authorship to help readers distinguish between these two concepts.

1. Co-author

According to Article 6 of Decree 22/2018/ND-CP on guidance on Intellectual Property Law, the concept of co-authorship is stipulated as follows:

“Co-authors are authors who directly create part or all of a literary, artistic and scientific work.”

“A person who supports provides comments or provides materials for others to create a work is not recognized as an author or co-author.”

So, with the above definition, a co-author must be someone who directly works creatively to create the work and contributes actual effort to shaping the work. People who only give ideas, contribute opinions, support or provide materials to the author without directly participating in the process of shaping the work are not considered co-authors.

A co-author also has the same rights as a regular author. However, it should be noted that there is a difference in the rights of co-authors in two cases where the author is also the owner of the work and the author is not the same owner of the work.

Specifically, if the co-authors use their time, finances, and physical and technical facilities to co-create the work, the co-authors are also the owners of the work and enjoy all the benefits. Personal rights and property rights are stipulated in Articles 19 and 20 of the Intellectual Property Law for works created by them together.

2. Author collective

Currently, the law does not have a specific definition of a collective of authors. However, in reality, some types of works have their characteristics, completely created from different art forms, separate but combined into a whole work. Specifically, the two most clearly visible types are theatrical works and cinematographic works.

Decree 22/2018/ND-CP also stipulates in Article 11 and Article 12 that authors who compose theatrical and cinematographic works are the authors specified in Clause 1, Article 21 of the Intellectual Property Law.

Specifically, for cinematographic works, screenwriters and directors enjoy moral rights including the right to name the work or allow the transferee of property rights to name the work; the right to put your real name or pseudonym on the work; the right to have your real name or pseudonym stated when the work is published or used; the right to protect the integrity of the work to prevent others from distorting it; Do not allow others to modify or mutilate the work in any form that harms the author’s honor and reputation. Cinematographers, film editors, music composers, art designers, sound designers, lighting designers, special effects artists, film actors, and people who perform other creative tasks for the work Cinematographers enjoy the right to put their real names or pseudonyms on their works; be given your real name or pseudonym when the work is published or used.

For theatrical works, the author of the theatrical script enjoys moral rights, which are the right to name the work or allow the transferee of property rights to name the work; the right to put your real name or pseudonym on the work; the right to have your real name or pseudonym stated when the work is published or used; the right to protect the integrity of the work to prevent others from distorting it and do not allow others to modify or mutilate the work in any form that harms the author’s honor and reputation. People who are authors of literary works, authors of musical works, stage directors, music conductors, choreographers, stage designers, customers, and people who perform other creative work for theatrical works, enjoy the right to put their real name or pseudonym on the work; be given your real name or pseudonym when the work is published or used.

We can understand the collective of authors as those who directly create the work. However, unlike co-authorship, collective authorship can only be applied to theatrical and cinematographic works. Even though it is a collective, each subject can make a separate part of the work and synthesize the parts to create a unified and complete whole. Besides, for the collective of authors, it can be seen that those who play a key, decisive role and dominate the overall work in shaping the work from content to form of expression will hold many positions and have more rights than those who play a partial role in shaping the work in a certain form of expression without dominating or deciding the content of the work.

In the author collective, the authors will be the subjects enjoying moral rights (except the right to publish the work) and receive remuneration from the owner. Property rights and the right to publish works will belong to the organization or individual making the financial investment; material and technical facilities to produce works.

Above is the article “Distinguish co-authors from collective authors”. We hope this article is useful to you.

Photography is a popular art form today, we can see photography works every day, on social networks, at photo exhibitions, or even on the streets. These works can be created by professional photographers or passionate amateurs. Therefore, are photographic works protected by copyright or not? Please read VCD’s article below to learn more about this issue.

1. What is a photographic work?

Although since the 11th century, people discovered how to use the “dark chamber” as the first camera, it was not until the 19th century that cameras and photography techniques were fully developed. In 1839, the Academy of Sciences and the Institute of Fine Arts of the French Academy of Sciences recognized the silver plate photography method of French painter Louis-Jacques-Mandé Daguerre (1787 – 1851), as the origin of the art of modern photography. The art of photography has a 183-year history of development, and techniques and technologies are constantly being applied in photography, from the use of mechanical cameras to today’s digital cameras. grand. Photographic works in the form of film images or digital images are considered works of art and are protected by copyright.

To find out the exact definition of photographic works, Article 14 of Decree No. 22/2018/ND-CP dated February 23, 2018 specifically stipulates as follows:

“Photographic works specified in this Article are works that represent objective images of the world on light-catching materials or on media where images are created or can be created by chemical or electronic methods. or other technical methods. Photographic works may or may not have captions.

It can be understood that photographic works are understood as the result of creative activities in the field of art, works that express images of the objective world on light-catching materials or on the medium on which the images are created. created or can be created by any technical method. Photographic works are one of the objects protected by copyright according to the provisions of Article 14 of the Intellectual Property Law.

2. Are photographic works protected by copyright?

Based on Article 14 of the Intellectual Property Law, the types of works protected by copyright include:

• Literary, scientific works, textbooks, course books, and other works expressed in writing or other characters;
• Sermons, speeches and other talks;
• Journalistic works;
• Musical works;
• Theater works;
• Cinematographic works;
• Works of plastic arts and applied arts;
• Photographic works;
• Architectural works;
• Maps, diagrams, maps, and drawings related to topography, architecture, and scientific works;
• Literary and folk artworks;
• Computer programs, and data collection.

According to current provisions of Vietnamese law, the objects of copyright protection are works created or owned by organizations or individuals. Photographic works belong to one of the types listed in Article 14 of the Intellectual Property Law. It can be seen that Vietnamese law has strict regulations on subjects protected by copyright.

According to the Berne Convention, Article 2.1, works of art may be expressed in any manner or form, such as books, pamphlets, and other writings…; The same goes for photographic works and works expressed using a technique similar to photography. As analyzed, for a photographic work to be protected, it must first be shaped and exist in a certain type. The law does not protect the copyright of an artistic work when it is just a creative idea.

3. Conditions for registration of protection for photographic works

Photographic work is protected when it meets the following conditions:

• Created directly by the author using his or her intellectual labor without copying from the works of others. Clause 3, Article 14 of the Intellectual Property Law stipulates that photographic works must be directly created by the author using his or her intellectual labor and not copied from the works of others. Therefore, photographic works must be created by the author himself, not copied from another work.

• Foreign individuals and legal entities who are authors or copyright owners of photographic works may directly or authorize other organizations or individuals to submit applications for registration of copyright and related rights at the headquarters of the Copyright Office or the Representative Office of the Copyright Office or the Department of Culture, Sports and Tourism where the author or copyright owner resides or is headquartered.

After registering the copyright owner for the photographic work according to the provisions of Article 49 of the Intellectual Property Law, the author will be granted a certificate of copyright registration for the photographic work. This is not a mandatory procedure to enjoy copyright on photographic works. The owner has the right to register or not register, but the rights of the author and owner of photographic works are still protected according to the principle of copyright. automatic protection switch. However, registering a copyright for photographic works has great significance for the owner – the person with a certificate recognized by law as the owner of the photographic work. In case a dispute arises, the organization that has been granted the registration certificate is not obliged to prove that the photographic work belongs to it.

Above is the article “Copyright for photographic works”. We hope this article is useful to you.