Information technology is changing people’s lives day to day, from hour to hour. In the development trend of the world in technology, software products, and computer programs are increasingly made to meet the needs of production and life. Computer software has the characteristics of being accessible, popular, and easy to copy, so how is the copyright protection of computer programs done? We would like to provide information on copyright protection for computer programs in Vietnam for readers through the article below.
1. What is a computer program and how is it protected?
Regarding the definition of computer programs, Clause 1, Article 22 of the Intellectual Property Law stipulates:
“A computer program is a set of instructions expressed in the form of commands, code, schemas, or other forms, which, when incorporated in an instrument or a device operated by a computer programming language, is capable of making the computer or device perform a job or achieve a particular result. Computer programs are protected as literary works, whether expressed in source code or machine code.”
The computer program is a type of work protected by copyright, recognized in Point g, Clause 1, Article 14 of the Intellectual Property Law. In Vietnam, computer programs are protected as literary works without being protected as objects of industrial property rights. Specifically, in Clause 2, Article 59 of the Intellectual Property Law, computer programs are one of the objects not protected in the name of invention.
However, computer programs may still be protected under patent protection in exceptional circumstances. In the Regulation on the appraisal of patent applications attached to Decision No. 487/QD-SHTT dated March 31, 2010, issued by the Intellectual Property Office of Vietnam in Section 5.8.2.5 guiding the identification of protected objects in the name of inventions related to computer programs, it is stated:
“Computer program-related inventions are a form of “inventions made by computers,” the term refers to objects involving computers, computer networks, or other programmable devices that at first glance have one or more signs of the object requiring protection made by the program(s). Although a computer program belongs to the category of non-protected objects in the name of the invention, if the object requesting protection has technical characteristics and is a technical solution, aimed at solving a technical problem by a technical means to create a technical effect, it can be protected as invention.”
2. Conditions for copyright protection for computer programs
Under Vietnamese law, computer programs are protected as literary works. Computer programs that want to be recognized for copyright protection need to meet the following specific criteria:
First, one of the conditions is the originality of the work. The originality of the work means the work formed by the creative labor of the author himself, not copied by others. The originality is not identical to the novelty of the work. Two computer programs of two different authors, although similar, are still protected if the authors of those two programs have created them in a completely independent way, without copying each other.
Second, computer programs must be fixed in a certain physical form. According to Clause 3, Article 3 of Decree 22/2018/NĐ – CP, fixing is the expression by writing, other characters, lines, shapes, composition, colors, sounds, images, or the reproduction of sounds and images in certain material forms so that they can be identified, copying or communicating. Besides, the form of data messages through electronic means is also considered a form of expression of the work[1]. Computer programs are written in different programming languages, composed of scripts and characters commonly used in written text, and are largely expressed as data messages. Computer programs are protected whether in the form of source code or machine code.
Third, the conditions of the subject of copyright are mentioned below. The author, the owner of the copyright of a computer program must be one of the following subjects:
- Organizations and individuals with Vietnamese nationality;
- Foreign organizations and individuals whose works are first published in Vietnam that have not been published in any country or published simultaneously in Vietnam within thirty days from the date such work is first published in another country;
- Foreign organizations and individuals whose works are protected in Vietnam under international treaties on copyright to which the Socialist Republic of Vietnam is a contracting party.
When the above three conditions are met, the computer program is protected automatically without any procedures. However, if the author and copyright owner do not actively carry out the procedure for copyright registration when a dispute arises, the author and copyright owner will face many difficulties and take a lot of time, effort, and money for proving ownership of computer programs. In addition, computer programs are subjects of high economic value to facilitate the transfer and licensing of copyright, copyright registration is the most basic condition, creating a clear legal basis for making transactions. Therefore, authors and copyright owners should carry out the copyright registration procedure as soon as possible.
Above is the content of the article “Copyright Protection for computer programs”. Copyright Vietnam hopes this article is useful to readers.
Best regards,
[1] Article 119 of the 2015 Civil Code on Forms of Civil Transactions
1. Civil transactions are expressed verbally, in writing, or by specific acts.
Civil transactions through electronic means in the form of data messages under the law on electronic transactions are considered written transactions.
2. Where the law stipulates that civil transactions must be represented in notarized, authenticated, or registered documents, such provisions must be complied with.
