Continuing our series on the core IPRs relevant to SMEs in Southeast Asia, this month we’ll be looking into the legal framework and practical registration and enforcement procedures in Vietnam, tipped to be one of the world’s fastest growing economies in the coming years.
Copyright is an essential tool in any company’s IPR arsenal, covering not only literary and artistic works, but also your brochure images and text, instruction manuals, and product labels. Here we’ll lay out the Vietnamese copyright law, how to exploit it, and how best to enforce your rights in the event of an infringement.
As always, if you have any further questions, simply drop our experts a message and they’ll get back to you with free, tailored advice for your business.
Vietnam and the EU: a background for SMEs
Vietnam is the easternmost country on the Indochina Peninsula in south-east Asia. With an estimated population of 90.5 million in 2014, it is the world’s 13th most populous country. Forecasts in 2005 and 2008 predict Vietnam to be one of the world’s fastest-growing emerging economies by 2025, a position supported by 2012 figures GDP figures topping USD 138 billion, with a nominal GDP per capita of USD 1,527.
Vietnam now operates a diverse, modernised economic structure, with manufacturing, information technology, and high-tech industries forming a large, fast-growing part of national economy and is also the third-largest oil producer in south-east Asia.
Vietnam’s key exports to the EU include footwear, textiles and clothing, coffee, rice, seafood, and furniture, totalling approximately EUR 22 billion each year. EU exports to Vietnam primarily consist of high tech products such as electrical machinery and equipment, aircraft, vehicles, and pharmaceutical products, totalling approximately EUR 5.8 billion annually. Vietnam and the EU launched negotiations on a Free trade Agreement (FTA) in 2012 which are ongoing.
Vietnam has made a concerted effort to bring its national legislation into line with international IPR standards in recent years. Accession to the World Trade Organisation (WTO) in 2007, and its compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) signified a marked improvement to IP protection in the country.
Vietnam is also a member of the following international conventions regulating IP matters:
- The Paris Convention for the Protection of Industrial Property
- The Madrid Agreement concerning the international Registration of Marks
- Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks
- Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
- The Patent Cooperation Treaty
- International Convention for the Protection of New Varieties of Plants
- Agreement on Trade-Related Aspects of Intellectual Property Rights
- The Berne Convention for the Protection of Literary and Artistic Works
As a result, Vietnam’s IP legislation is now considered to be relatively comprehensive, covering most aspects of protection of IP in accordance with international standards. Enforcement mechanisms are still relatively underdeveloped however and much work remains to be done to strengthen deterrent measures and raise awareness amongst Vietnamese consumers.
What are copyrights?
Copyright is a legal term used to describe an exclusive bundle of rights granted to authors, artists and other creators for their creations. These rights include two sets of rights, ‘economic’ rights, i.e. the right to profit from your creative work through exclusive right to approve or deny permission to copy, licence, show, play or perform, broadcast, or adapt your work. Economic rights can be assigned to another person or organisation where the creator of the work wishes it, or where the creation has been produced under specific contractual conditions to this effect. ‘Moral’ rights cannot be assigned or sold, they provide that the author has the rights to be identified as creator of the work (where asserted in writing) and object to the work being used in a derogatory way or altered.
Copyright in Vietnam
Works protectable under Vietnamese copyright laws are defined as ‘literary, artistic, and scientific works’, which principally include the following:
- Literary works, scientific works, textbooks, teaching courses
- Lectures, speeches, and press works
- Musical, stage, photographic, and cinematographic works
- Plastic art works and applied art works
- Sketches, plans, maps and architectural works
- Computer programs and data collections
As per Vietnam’s obligations under the Berne Convention, copyrights are formed automatically upon creation of the work in a tangible form, whether the creation takes place in Vietnam or any other Berne Convention member state. Both moral and economic rights are recognised and protected by Vietnamese law and owners have the right to assign economic rights, but not moral rights as in most EU jurisdictions.
Despite a firm legal framework protecting copyright in Vietnam there are still widespread instances of piracy, especially for software and books. As such, it is often advisable to register copyright and remain vigilant to infringements, taking legal action where appropriate to protect your rights.
Obtaining copyright registration in Vietnam
Whilst, as a signatory to the Berne Convention, it is not strictly necessary to register copyright in Vietnam it is far easier to prove ownership and therefore ensure a successful action should any infringement lead to proceedings before a Vietnamese court. As such, the south-east Asia Helpdesk advises that all EU SMEs register any important copyrightable material before using it in Vietnam.
Applications must be made in Vietnamese, with Vietnamese translations of any power of attorney documents or consent letters from co-authors and co-owners. Registrations are made with the National Copyright Office of Vietnam (NCO) of the local Department of Culture. Foreign copyright owners can authorise the copyright Service Consulting Organisation to file the registration on their behalf.
The typical cost of registration in Vietnam is between EUR 5 and EUR 25 per certificate plus EUR 3.50-20 in legal fees, dependent on the type of copyright applied for.
Applications must include the following:
- Declaration for registration of copyright signed by the copyright owner (including information on the applicant; summarised content of the work, performance etc; the name of the author and title of work used to make the derivative work, in case of registration of derivative works; date, place and form of publication; and undertaking accepting liability for the information set out in the application).
- Two copies of the work (for works such as paintings a photo is sufficient).
- Receipt of paid application fee.
- Power of attorney, if the application is not handled directly by the copyright owner.
- Documents proving the right to file the application, where the rights have been acquired through assignment, inheritance, or succession.
- Written consent of co-authors, in cases of joint authorship and/or ownership.
Once applications are submitted the NCO is required by law to notify applicants as to whether copyright has been granted within 15 working days from the date of receipt.
Should your copyright be infringed in Vietnam, there are three main avenues of enforcement which can be pursued; administrative actions, civil litigation, and criminal prosecution. This being said however, private mediation via legal professionals is often more effective and should be considered as a viable first action in the event of an infringement.
Administrative actions are both cost-effective and time-efficient, and this is usually the most common route for companies to take when infringement has been discovered. It is a good way to deal with small-scale infringers and to gather evidence for larger scale infringements. Due to the nature of the remedies available and speed of case handling, administrative actions are an especially effective method of putting an immediate stop to on-going IPR infringement.
Administrative actions involve different government bodies, depending on the nature of the infringement, if the correct enforcement bodies are contacted and involved, they are usually quickly able to assess the situation and issue appropriate penalties. These include cease and desist orders, revocation of business licenses, monetary fines, and/or the confiscation and destruction of infringing goods. These penalties may not be as severe as those available through civil litigation or criminal prosecution, however they do offer a practical, realistic chance of stopping infringers quickly, and in some cases obtaining damages.
Civil litigation is usually only used in the event of larger scale infringements and very few cases are brought before Vietnamese civil courts. This is partially due to the lack of proper IP training and human resources within the judicial system, resulting in somewhat unpredictable case outcomes. Vietnamese authorities are working to improve the civil system however, working in cooperation with international organisations and government agencies.
In civil actions, right holders can request provisional measures such as preliminary injunctions, as well as claim actual damages or loss of earnings. Where actual loss cannot be determined however, the maximum award is currently set at approximately EUR 18,000.
As with civil actions, criminal prosecutions are relatively rare in Vietnam, however they also provide for the harshest penalties for infringers.
For copyright infringement, criminal charges may be brought against infringers for the reproduction or distribution of work to the public which is equivalent to a ‘commercial scale’. This measure has yet to be officially defined in law however and there is not yet sufficient case law to give an accurate estimate.
Criminal cases usually take around 12 months, with a further 12 month appeal proceeding. Penalties for copyright infringement include a monetary fine of up to EUR 38,000 and imprisonment up to three years. As such, favourable rulings can provide a valuable deterrent to potential future infringers.
However, criminal proceedings for copyright infringement will only be actioned on the request of the ‘victim’ as defined by Vietnamese law. As ‘victims’ in Vietnamese law, for the purposes of legal proceedings must be individuals, company owned copyrights cannot be defended in the criminal courts. As such, it is unlikely that SMEs will be able to make use of the criminal court system unless copyrighted material is used on license or through a similar agreement with an individual.
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