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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
85/2011/ND-CP
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Hanoi,
September 20, 2011
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DECREE
AMENDING
AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE GOVERNMENT'S DECREE NO. 100/ 2006/ND-CP
OF SEPTEMBER 21, 2006, DETAILING AND GUIDING A NUMBER OF ARTICLES OF THE CIVIL
CODE AND THE INTELLECTUAL PROPERTY LAW REGARDING COPYRIGHT AND RELATED RIGHTS
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the June 14, 2005
Civil Code;
Pursuant to the November 29,
2005 Law on Intellectual Property;
Pursuant to the June 19, 2009
Law Amending and Supplementing a Number of Articles of the Law on Intellectual
Property;
At the proposal of the
Minister of Culture, Sports and Tourism,
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Article 1. To amend and
supplement a number of articles of the Government's Decree No. 100/2006/ND-CP
of September 21, 2006, detailing and guiding a number of articles of the Civil
Code and the Intellectual Property Law regarding copyright and related rights:
1. To add the following
Clauses 11, 12, 13, 14 and 15 to Article 4:
"11. Work of a foreign
organization or individual first published in Vietnam means a work which is not
yet published elsewhere prior to its publication in Vietnam.
12. Simultaneous publication
means the publication of a foreign organization's or individual's work in
Vietnam within 30 days after it is first published elsewhere.
13. Royalty means a sum of money
paid by a party that uses a work to its author or copyright holder in order to
acquire the authority to use such work.
14. Remuneration means a sum of
money paid by a party that uses a work to its author or copyright holder; or by
a party that uses a performance to performers who carry out creative activities
to convey a copyrighted work to the public.
15. Material benefits means a
sum of money paid by a party that uses a phonogram or video recording to its
producer or by a party that uses a broadcast to the broadcasting organization.
Other material benefits mean
economic advantages which authors, copyright holders and related right holders
are entitled to, in addition to royalty, remuneration, and material benefits,
such as prizes, gift books, invitation tickets to performances, public presentation
of cinematographic works, work displays or exhibitions and interests in other
related material forms."
2. To amend Article 10 as
follows:
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2. In case authors fix their
lectures, addresses and other sermons in the form of phonogram or video
recording, they are entitled to copyright to such lectures, addresses and
sermons and, at the same time, hold rights to such phonograms or video
recordings according to Clause 2, Article 44 of the Intellectual Property
Law."
3. To add the following
Article 19a below Article 19:
"Article 19a. Copyright to
computer programs
1. Authors of computer programs
defined at Point m, Clause 1, Article 14, and Article 22 of the Intellectual
Property Law are entitled to moral rights specified in Clauses 1, 2 and 4,
Article 19 of the Intellectual Property Law.
When signing contracts on
creation of computer programs, organizations or persons that provide funds and
physical and technical foundations for creation of computer programs, and
authors of such programs may reach agreement on the right to title such programs
specified in Clause 1, Article 19 of the Intellectual Property Law and the
modification and upgrading of such programs specified in Clause 4, Article 19
of the Intellectual Property Law.
2. Organizations or persons that
provide funds and physical and technical foundations for creation of computer
programs are copyright holders and entitled to the publication right and
exclusive economic rights specified respectively in Article 19 and Article 20
of the Intellectual Property Law.
Authors of computer programs are
entitled to royalty and other material benefits as agreed with copyright
holders.
3. Organizations or persons that
have the lawful use right to a copy of a computer program may make at most one
back-up copy for replacement in case the copy currently in use is lost, damaged
or unusable."
4. To add the following
Article 20a below Article 20:
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To-be-protected folk literary
and artistic works defined in Clause 1, Article 23 of the Intellectual Property
Law include:
1. Folk literary and artistic
works defined at Point a, Clause 1, Article 23 of the Intellectual Property
Law, which are works in different genres of the art of words such as humorous story,
fable, epic, mythology, legend, anecdote, poem, folk song, proverb, riddle and
other similar forms of expression.
2. Folk literary and artistic
works defined at Points b and c, Clause 1, Article 23 of the Intellectual
Property Law, which are works in different genres of the art of performance
such as classical drama (tuong), traditional operetta (cheo), reformed opera
(cai luong), theme song, music melody; dance, performance, folk game, village
festival, folk ritual and other similar forms of expression.
3. Folk literary and artistic
works defined at Point d, Clause 1, Article 23 of the Intellectual Property
Law, which are works in different genres of plastic arts such as graphics,
paintings, sculpture, musical instrument; architectural models and other
similar forms of expression."
5. To amend Clause 2, Article
23 as follows:
"2. The right to reproduce
works provided at Point c, Clause 1, Article 20 of the Intellectual Property
Law means one of exclusive economic rights under copyright which are performed
by copyright holders or their authorized persons to make copies of works by any
means or in any form, including electronic ones."
6. To amend Article 26 as
follows:
"1. The term of protection
of economic rights and moral rights specified in Clause 3, Article 19 of the
Intellectual Property Law for a posthumous work is fifty years as from the date
of first publication.
The term of protection of
economic rights and moral rights specified in Clause 3, Article 19 of the
Intellectual Property Law for a photographic work or a work of applied arts
specified at Point a, Clause 2, Article 27 of the Intellectual Property Law is
fifty years as from the date of first publication. For a work which remains
unpublished within fifty years after fixation, the term of protection is fifty
years from the date of fixation.
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As from the effective date of
the Law Amending and Supplementing a Number of Articles of the Intellectual
Property Law, the term of protection for cinematographic or photographic works,
works of applied art and anonymous works for which the term of protection under
Intellectual Property Law has not yet expired complies with Point a, Clause 2,
Article 27 of the amended Intellectual Property Law; for a dramatic work for
which the term of protection under the Intellectual Property Law has not yet
expired, the term of protection complies with Point b, Clause 2, Article 27 of
the amended Intellectual Property Law, which is the lifetime of its authors
plus fifty years after his/her death."
7. To amend Article 28 as
follows:
"Article 28. Transfer of
rights to anonymous works
The exercise of rights of owners
of anonymous works specified in Clause 2, Article 41, and Point a, Clause 1,
Article 42 of the amended Intellectual Property Law is specified as follows:
1. Organizations or persons
managing anonymous works may transfer rights to such works to others and are
entitled to remuneration from such transfer.
2. Organizations or persons that
are transferred rights under Clause 1 of this Article are entitled to rights of
owners until work authors are identified."
8. To amend Article 36 as
follows:
"Article 36. Use of
broadcasts
1. Owners of broadcasts
specified in Clause 3, Article 44 of the Intellectual Property Law are
broadcasting organizations which provide funds and physical and technical
foundations for broadcasting activities.
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3. Organizations or persons that
relay, re-broadcast or transmit via telecommunications or electronic
communication networks or in any technical media broadcasts of other
broadcasting organizations under Points a and b, Clause 1, Article 31 of the
Intellectual Property Law shall comply with relevant agreements and laws. Any
modification, mutilation or supplementation of broadcasts of other broadcasting
organizations for re-broadcasting or transmission via telecommunications or
electric communication networks or in any technical media must be agreed by
owners of such broadcasts."
9. To amend Clause 1, Article
37 as follows:
"1. Authors and holders of
copyright and related rights specified in Article 50 of the Intellectual
Property Law may directly or authorize other organizations or persons to submit
dossiers of application for registration of copyright or related rights to the
headquarters of the Copyright Office of Vietnam, representatives offices of the
Copyright Office of Vietnam in Ho Chi Minh City or Da Nang city or
provincial-level Culture, Sports and Tourism Departments of localities in which
they reside or are headquartered. Dossiers may be sent by post."
10. To amend Point a, Clause
1, Article 39 as follows:
"1. The Copyright Office of
Vietnam is competent to grant, re-grant, renew and invalidate copyright
registration certificates and related rights registration certificates
specified in Clauses 1 and 2, Article 51 of the Intellectual Property Law.
a/ Authors and holders of
copyright and related rights that wish to have their copyright registration
certificates or related rights registration certificates re-granted or renewed
shall file applications clearly stating the reason and one dossier specified in
Article 50 of the Intellectual Property Law at the headquarters of the
Copyright Office of Vietnam, representatives offices of the Copyright Office of
Vietnam in Ho Chi Minh City or Da Nang city or provincial-level Culture, Sports
and Tourism Departments of localities in which they reside or are
headquartered. Dossiers may be sent by post."
11. To amend Article 41 as
follows:
"1. Organizations acting as
collective representatives of copyright or related rights specified in Clause
1, Article 56 of the Intellectual Property Law must satisfy the following
conditions:
a/ They are authorized by
authors or holders of copyright or related rights;
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c/ The collection and division of
royalty, remuneration and material benefits generated from the utilization of
rights or groups of rights are specified in their operation charters and
authorization contracts.
2. In case a work, phonogram,
video recording or broadcast is related to the rights and interests of many
organizations which are authorized to act as collective representatives of
different rights or groups of rights, the involved parties may agree to
designate one of them to negotiate on their behalf on the grant of use licenses,
collect and divide money, and make reports to the Ministry of Culture, Sports
and Tourism before doing so.
3. The management, collection
and division of royalty, remuneration and material benefits under Point a,
Clause 2, Article 56 of the Intellectual Property Law is specified as follows:
a/ The collection and division
of royalty, remuneration and material benefits by organizations acting as
collective representatives of copyright and related rights must adhere to the
principle of publicity and transparency.
b/ Organizations acting as
collective representatives may retain an appropriate portion of collected
amounts of royalty, remuneration and material benefits to cover expenses for
the performance of their tasks as agreed with authorizers. The money amount to
be retained shall be adjusted in conformity with the effectiveness of
collective representation activities as agreed with authorizers and may be
determined as a percentage of the total collected amount.
c/ The collection and division
of royalty, remuneration and material benefits from corresponding foreign or
international organizations comply with foreign exchange management
regulations.
4. Organizations acting as
collective representatives of copyright or related rights shall make biannual,
annual or extraordinary reports under Point c, Clause 3, Article 56 of the
Intellectual Property Law as follows:
a/ Reports to be sent to the
Ministry of Culture, Sports and Tourism, the Ministry of Home Affairs and the
Ministry of Finance have the following details: amendments or supplementations
to the operation charters or regulations; changes in the leadership;
participation in international organizations; other external activities; rates
and modes of payment of royalty, remuneration and material benefits; long-term
and annual programs and plans; operations, conclusion of authorization
contracts and use licensing contracts; collection, levels, modes and methods of
dividing royalty, remuneration and material benefits; and other related
activities.
b/ Any modifications to charters
must be reported to competent authorities for approval before
realization."
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"Article 45a. Principles
and methods of payment of royalty, remuneration and material benefits
1. Royalty and remuneration
specified in Clause 3, Article 20, Clause 4, Article 29 and material benefits
specified in Clause 2, Article 30. and Clause 2. Article 31 of the Intellectual
Property Law shall be determined as follows:
a/ Payment of royalty,
remuneration and material benefits must assure the interests of authors, users
and the public and suit national realities.
b/ The level of royalty,
remuneration and material benefits depends on the category, form, quality,
quantity or use frequency of works.
c/ Co-authors or collectives of
authors shall reach agreement on specific rates for division of royalty and
remuneration based on their creative contributions to the works in conformity
with the form of use.
d/ Authors of works and
organizations or persons that carry out performances or make phonograms, video
recordings or broadcasts for children or ethnic minority people; Vietnamese
creating works in foreign languages, Kinh persons creating works in ethnic
minority their mother tongues; persons creating works under difficult or
dangerous conditions or in other special cases are entitled to additional
royalty, remuneration or material benefits as consolation.
e/ The use of copyright and
related rights and payment of royalties, remuneration and material benefits
must be carried out under written contracts according to law.
f/ Agencies and organizations
funded with the state budget and state enterprises shall estimate expenses for
payment of royally, remuneration and material benefits within state budget
allocations and other revenues according to law.
2. The Ministry of Culture,
Sports and Tourism shall assume the prime responsibility for. and coordinate
with the Ministry of Finance and the Ministry of Information and Communications
in. specifying levels and modes of payment of royalty, remuneration and
material benefits according to Clause 1, Article 26, and Clauses 1 and 2,
Article 33 of the amended Intellectual Property Law."
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"4. Copyright and related
rights protected under documents which look effect before the effective date of
the amended Intellectual Property Law shall be further protected under the
amended Intellectual Properly Law, if their term of protection has not yet
expired.
Copyright and related rights
registration applications already submitted to competent processed according to
the provisions of law applicable at the time of submission of applications.
All acts of infringing upon
copyrights and related rights or breaching contracts committed before the
effective date of the amended Intellectual Property Law shall be handled
according to the provisions of law applicable at the time of commitment."
14. To replace the phrase
"Ministry of Culture and Information" with the phrase "Ministry
of Culture, Sports and Tourism."
To replace the phrase
"provincial-level Culture and Information Department" with the phrase
"provincial-level Culture, Sports and Tourism Department."
Article 2. Effect
This Decree takes effect on
November 10, 2011.
Article 3. Implementation
responsibilities
1. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, chairpersons
of provincial-level People's Committees and organizations and persons with
related rights and obligations shall implement this Decree.
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung