If a person has applied for copyright registration and been granted a copyright registration certificate, is it sure that the person is the author of the work?
What are the regulations on copyright according to the law of Vietnam?
According to Clause 2 Article 4 of the Law on Intellectual Property 2005 of Vietnam (amended and supplemented by Clause 2 Article 1 of the Law on amending and supplementing a number of articles of the law on intellectual property 2009 of Vietnam) providing the definition of copyright as follows:
"Article 4. Interpretation of terms
In this Law, the terms below are construed as follows:
…
2. Copyright means rights of organizations and individuals to works they have created or own.”
Therefore, copyright is attached to the work created or owned by an organization or individual.
According to Article 6 of Decree 22/2018/ND-CP of Vietnam stipulating:
“Article 6. Authors and joint authors
1. Author means a person who personally creates part of or the entire literary, artistic or scientific works.
2. Joint authors means persons who jointly create part of or the entire literary, artistic or scientific works.
3. Any person who renders supports, give comments or supply documents to others to create works shall not be recognized as author or joint author.”
According to that, an author is a person who personally creates part of or the entire works. The fact that the individual does not directly create the work is not considered the author of that work.
If a person has applied for copyright registration and been granted a copyright registration certificate, is it sure that the person is the author of the work?
When does copyright arise?
According to Article 6 of the Law on Intellectual Property 2005 of Vietnam and Clause 1 Article 2 of the Law on amendments to some articles of law on insurance business and law on intellectual property 2019 of Vietnam:
“Article 6. Grounds for the generation and establishment of intellectual property rights
1. Copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered.
2. Related rights shall arise at the moment a performance, audio and visual fixation, broadcast or satellite signal carrying coded programmes is fixed or displayed without causing loss or damage to copyright.
3. Industrial property rights shall be established as follows:
a) Industrial property rights to inventions, industrial designs, layout designs and trademarks shall be granted on the basis of decisions on granting protection issued by competent authorities in accordance with registration procedures specified in this Law or on the basis of recognized international registration granted accordance with international agreement to which the Socialist Republic of Vietnam is a signatory.
Industrial property rights to well-known trademarks shall be granted on the basis of their use instead of registration.
Industrial property rights to geographical indications shall be granted on the basis of decisions on granting protection issued by competent authorities in accordance with registration procedures specified in this Law or international agreement to which the Socialist Republic of Vietnam is a signatory.
(b) Industrial property rights to a trade name shall be established on the basis of lawful use thereof;
(c) Industrial property rights to a trade secret shall be established on the basis of lawful acquirement of the trade secret and maintaining confidentiality thereof;
(d) The right to prevent unfair competition shall be established on the basis of competitive activities in business.
4. Rights to a plant variety shall be established on the basis of a decision of the competent State body to grant a plant variety protection title in accordance with the registration procedures stipulated in this Law.”
According to the above regulations, the basis for arising copyright is the time when the work is created, regardless of the content, whether or the work has been published.
What are the regulations on registration of copyright?
According to Article 49 of the Law on Intellectual Property 2005 of Vietnam:
“Article 49. Registration of copyright and related rights
1. Registration of copyright and related rights means the filing of an application with a file enclosed (hereinafter referred to as application) by an author, copyright holder or related rights holder with the competent State body in order to record information on the author, the work, the copyright holder and the related rights holder.
2. The filing of an application for grant of a certificate of registered copyright or a certificate of registered related rights shall not be a compulsory pre-requisite for entitlement to copyright or related rights in accordance with the provisions of this Law.
3. Organizations and individuals who are granted certificates of registered copyright or certificates of registered related rights shall not bear the burden of proving such copyright or related rights in a dispute, unless contrary proof is tendered.”
According to that, the registration and application for a copyright registration certificate is not a procedure or a basis for giving rise to copyright. Organizations and individuals that have been granted a copyright registration certificate are not obliged to prove that the copyright belongs to them when there is a dispute.
However, if the disputing party has grounds to prove that the work was created by him or her before the organization or individual submits an application for a certificate of copyright registration, the determination of copyright shall be based on the time at which the disputing party created the work.
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