Vietnam: Are anonymous works considered works with all-people ownership? What are the remarks when using anonymous works for performance?
What is the concept of anonymous work in Vietnam?
Pursuant to the provisions of Clause 2 Article 3 of Decree 17/2023/ND-CP as follows:
- An anonymous work means a work that has an unknown or undisclosed author (real name or pseudonym) when the work is published.
Which entities are holders of copyrights and related rights for anonymous works in Vietnam?
Pursuant to Articles 41 and 42 of the Law on Intellectual Property 2005 amended and supplemented in Clause 12 Article 1 of the Law on Amendments to Law on Intellectual Property 2022 as follows:
Copyright owners being assignees of rights
.......
2. Organizations and individuals that are managing anonymous works or are transferees of rights to anonymous works shall have rights of owners until their authors or co-authors are identified. When the authors or co-authors are identified, the holders of copyrights on these works, rights and obligations related to copyrights of the managing organizations and individuals or transferees of rights shall be determined in accordance with this Law and relevant laws.
Article 42. The State as holders of copyrights and related rights
.....
2. The State represents the right to management of copyrights and related rights in the following cases:
…
b) Anonymous works until identities of their authors, co-authors, owners or co-owners of copyrights are determined, except in the cases specified in Clause 2 Article 41 of this Law.
Thus, from the above provisions, the State will be a holder of copyrights and related rights for anonymous works in case there are no organizations and individuals that are managing these anonymous works. At the same time, organizations or individuals who are managing anonymous works shall be holders of copyrights and related rights.
On the other hand, organizations and individuals that are managing anonymous works or are transferees of rights to anonymous works shall have rights of owners until their authors or co-authors are identified.
The State represents the right to management of copyrights and related rights for anonymous works until the identities of their authors, co-authors, owners, or co-owners of copyrights are determined.
Are anonymous works considered works with all-people ownership in Vietnam? What are the remarks when using anonymous works for performance?
According to the provisions of Article 27 of the Law on Intellectual Property 2005, as amended in Clause 8, Article 1 of the Law on Amendments to Law on Intellectual Property 2019 as follows:
Article 27. Term of copyright protection
1. The moral rights provided for in Clauses 1, 2 and 4. Article 19 of this Law shall be protected for an indefinite term.
2. The moral rights provided for in Clause 3, Article 19 and the economic rights provided for in Article 20 of this Law enjoy the following term of protection:
a/ Cinematographic works, photographic works, works of applied art and anonymous works have a term of protection of seventy five years from the date of first publication. For cinematographic works, photographic works and works of applied art which remain unpublished within twenty five years from the date of fixation, the term of protection is one hundred years from the date of fixation. For anonymous works, when information on their authors is published, the term of protection will be calculated under Point b of this Clause.
b/ A work not specified at Point a of this Clause is protected for the whole life of the author and for fifty years after his/her death. For a work under joint authorship, the term of protection expires in the fiftieth year after the death of the last surviving co-author;
c/ The term of protection specified at Points a and b of this Clause expires at 24:00 hrs of December 31 of the year of expiration of the copyright protection term
Thus, a work with all-people ownership is a work that ends the copyright protection term as prescribed above.
To be specific:
- Organizations and individuals that are managing anonymous works or are transferees of rights to anonymous works shall have rights of owners until their authors or co-authors are identified.
- The State represents the right to management of copyrights and related rights for anonymous works until the identities of their authors, co-authors, owners or co-owners of copyrights are determined.
Therefore, anonymous works that are in the protection term and are managed by the State (representation) or by organizations or individuals that are managing or receiving transfers are not considered works with all-people ownership. At the end of the term of protection, the anonymous works will be works with all-people ownership.
According to the provisions of Clause 2, Article 23 of Decree No. 17/2023/ND-CP elaborating the Law on Intellectual Property regarding copyrights and related rights:
Use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents the right to management of copyright, related right
...
Organizations and individuals wishing to use works, performances, audio recordings, video recordings, or broadcasting programs under Clause 1 of this Article shall apply to state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism in person or via post service after failing to search for or contact the right holders.
Thus, under the above regulations, anonymous works that are managed by the State (representation) or by organizations or individuals that are managing or receiving transfers will have accompanying benefits.
Organizations and individuals using anonymous works must submit dossiers directly or via postal services to specialized state management agencies in charge of copyright and related rights of the Ministry of Culture, Sports, and Tourism.
LawNet