Grounds for determining acts of infringing upon intellectual property rights in Vietnam

1. Regulations on copyright in Vietnam

According to the provisions of Clause 2, Article 4 of the Law on Intellectual Property 2005 (amended in 2009, 2019), copyright means rights of an organization or individual to works which such organization or individual created or owns. Therefore, individuals and organizations exploiting copyrights without permission, without paying remuneration, affecting the subject matter of copyright are acts of violating the law on intellectual property.

According to Clause 1, Article 3 of the Law on Intellectual Property 2005 (amended in 2009, 2019), subject matters of copyright include:

- Literary,

- Artistic works;

- Scientific works;

- Subject matters of copyright-related rights include:

+ Performances,

+ Phonograms,

+ Video recordings,

+ Broadcasts;

+ Encrypted program-carrying satellite signals.

Regarding the basis for determining the element of copyright infringement, the scope of copyright protection, which is determined according to the form of expression of the original work, shall be determined according to the characters, images, ways of expressing a character's personality, images, and details of the original work in the case of determining infringing elements for derivative works.

According to Clause 1, Article 7 of Decree 105/2006/ND-CP, an infringing element of copyright may take one of the following forms:

- Illegally made copy of a work;

- Illegally made derivative work;

- Work with the forged name and signature of the author, impersonation of the author or appropriation of copyright;

- Illegally recited, duplicated or incorporated part of a work;

- Product with an illegally deactivated technical device used for copyright protection.

2. What are the grounds for the generation of copyright in Vietnam?

According to Clause 1, Article 6 of the Law on Intellectual Property 2005 (amended in 2009, 2019), the regulations on the time of arising copyright are as follows:

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.

Thus, copyright shall arise at the moment a work is created, irrespective of whether or not such work has been published or registered.

Thereby, it can be seen that copyright is still protected without having to register the work with the Copyright Office. However, in the case of non-registration of copyright, when there is a dispute, the author or the copyright owner must prove that his work was created first.

Specifically, in the Civil Judgment 213/2014/DS-ST dated August 14, 2014 on intellectual property rights disputes adjudicated by the People's Court of Tan Binh District, with the following contents:

"Mr. L is the author of the work "Forms of expressing folk paintings in Tet". Type: Applied art, the work has been granted a copyright registration certificate by the Copyright Office No. 169/2013/QTG dated January 7, 2013; accompanied by copyrighted images, the content of the work is a collection of images of characters originating from folklore (images of a teacher, lion dance, local man...) to express the atmosphere of Tet holiday in Vietnam…. On the occasion of New Year's Eve (2013), Mr. L discovered at the location "Honda Honda Automobile Showroom" under the branch of Sunrise Automobile Import-Export & Service Joint Stock Company that he used images in his work to decorate Tet and without his consent. On April 3, 2013, Mr. L sent a document to the Board of Directors of Sunrise Automobile Company stating the company's violations; asked the company to reply in writing and contact him to solve the problem, but the company did not do so. Now he asks the Court to force the Rising Sun Automobile Import-Export & Service Joint Stock Company to: Publicly posting an apology on 03 newspapers (Tuoi Tre News, Thanh Nien News, and Phap Luat News) and compensating the amount of 20,000,000 VND because the use of images in his work affects the value of his work and his work."

The court's decision: Not accepting the petition of Mr. Nguyen V. Mr. Nguyen V L's work and decorative images at the showroom of the Rising Sun Company have different layouts and forms. The pictures he took with his phone are not proof that the paintings decorated at a showroom located at 18 Cong Hoa, ward 4, Tan Binh, are true to his original paintings. In addition, Mr. L's work is a collection of 05 clusters of images named "Form of expressing folk Tet paintings."; These clusters of images are derived from folklore, which he expresses in his own style to form his work.

According to Mr. Dang Vinh L, the legal representative of Dang Vien Company, this presentation is also acknowledged by Mr. Nguyen V L as being inspired by folklore. Folklore paintings have been presented by many authors, each with their own composition and form of expression.

On the other hand, at today's trial, the defendant submitted the Minutes of Acceptance and Liquidation dated December 5, 2012, and submitted them to the People's Court of Tan Binh District on July 17, 2013 to prove that Contract No. 241212/DV-MTM dated December 24, 2012 hires Dang Vien Advertising Service Co., Ltd. to construct, install, and decorate at showroom 18 Cong Hoa, Ward 4, Tan Binh ; Dang Vien Advertising Service Co., Ltd. has completed, and the two parties have taken over and liquidated on December 5, 2012; before the date Mr. Loc was granted the Copyright Registration Certificate No. 169/2013/QTG dated January 7, 2013, accompanied by an image of copyright registration. Therefore, it cannot be said that Dang Vien Advertising Service Co., Ltd. or Sunrise Automobile Import-Export & Service Joint Stock Company violates the copyright of Mr. Nguyen Van L, so he is not responsible at the request of Mr. Loc. Therefore, Mr. Nguyen V L's request that the Rising Sun Automobile Import-Export & Service Joint Stock Company publicly post an apology in 03 newspapers (Tuoi Tre News, Thanh Nien News, and Phap Luat News) for 3 editions and the compensation amount of VND 20,000,000 is not accepted as reasonable.

It can be seen that copyright in particular and intellectual property rights in general are objects that are easily infringed. However, determining whether or not an act is an infringing act in some cases is very difficult, specifically, the subject of copyright protection in the above judgment relates to literary and folk art works. Therefore, to consider whether there is an infringement, it is necessary to compare the distinct characteristics of this object.

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