DECREE No.: 85/2011/ND-CP PDF  | Print |  E-mail
Viet Nam copyright law
GOVERNMENT

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No.: 85/2011/ND-CP

SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom - Happiness

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Hanoi, 20 September 2011

 

DECREE

Amending Decree No.100/2006/ND-CP of 21 September 2006 on detailed regulations and guidance to the implementation of a number of provisions of the Civil Code and Intellectual Property Law on Copyright and Related Rights,

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GOVERNMEN

Pursuant to the Law on Government Organization of 25 December 2001;

 Pursuant to the Civil Code of 14 June 2005;

 Pursuant to the Intellectual Property Law of 29 October 2005;

 Pursuant to the Law on amending the Intellectual Property Law of 19 June 2009;

 At the proposal of the Minister of Culture, Sport and Tourism,

 

Hereby decree:

 

Article 1: To amend Governmental Decree No.100/2006/ND-CP of 21 September 2006 on detailed regulations and guidance to the implementation of a number of provisions of the Civil Code, the Intellectual Property (IP) Law on Copyright and Related Rights:

 

  1. 1.Para 11, 12, 13, 14 and 15 of Article 4 shall be amended as follows:

 “11. The works of foreign individuals, organizations to be published for the first time in Vietnam must not be published elsewhere before.

 12. Concurrent publication is the publication of works of foreign individuals and/or organizations in Vietnam within the first 30 days from the date such works are published for the first time in any country.

 13. Royalty is the amount of money paid by users of works to authors, copyright owners for rights to use them.

 14. Remuneration is the amount of money paid by users of a work to author and copyright owner; by users of a performance to the performers who convey copyrighted works to the audience with their creativity.

 15. Material benefits are the amounts paid by users of audio records, visual records to their producers, by users of a broadcast to its broadcasting organization.

 Other material benefits are material benefits that authors and owners of copyright and related rights are entitled to in addition to royalties, remuneration and material benefits such as awards, gift published books, guest tickets to performances, cinema presentations, displays, exhibitions and other related material forms."

    2. Article 10 is amended as follows:

 “1. Lectures, presentations and other speeches specified in point b, Para 1, Article 14 of the Intellectual Property Law are the types of works presented in spoken languages ​​and must be fixed in certain material forms.

              2.In case the authors, on their own, fix their lectures, presentations and other speeches in the forms of audio records, visual records, they shall be the holders of copyright to such lectures, presentations and other speeches, and the owners of the rights to such audio records, visual records as prescribed in Para 2 of Article 44 of the Intellectual Property Law."

            3.Article 19a is added after Article 19:

 

“Article 19a. Copyright to computer programs

            1.Authors of computer programs specified in point m, Para 1, Article 14 and Article 22 of the Intellectual Property Law shall be entitled to personal rights specified in Para 1, 2 and 4 of Article 19 of the Intellectual Property Law.

 Organizations and individuals who invest financially, technically and materially in creating computer programs and authors of computer programs may negotiate the rights to name them as specified in Para 1 of Article 19 of the Intellectual Property Law, to edit and upgrade them as provided for in Para 4 of Article 19 of the Intellectual Property Law upon signing creation contracts.

          2.Organizations and individuals who invest financially, technically and materially in creating computer programs shall be the owners of the computer program, and entitled to publication rights as specified in Para 3 of Article 19 and property rights specified in Article 20 of the Intellectual Property Law.

  The author of a computer program shall be entitled to royalties and other material benefits under agreements with its copyright owner.

          3.Organizations and individuals may legally use the copy of their computer programs, can make no more than one backup copy for the purpose of replacing the main copy when it is lost, damaged or unusable.

           4.Article 20a shall be added after Article 20:

 

“Article 20a. Folk artistic, literary work

 Folk artistic, literary works protected under Para 1, Article 23 of the Intellectual Property Law, include:

       1.Folk artistic, literary works specified in point a, Para 1, Article 23 of the Intellectual Property Law are the textual art forms such as amusing stories, fables, epics, myths, legends, anecdotes, poems, folk songs, proverbs, riddles and other similar expressions.

       2.Folk artistic, literary works specified in the point b and c, Para 1, Article 23 of the Intellectual Property Law are the types of performing arts such as tuong, cheo (two opera genres of Vietnam), reformed theater, songs, folk music; dances, plays, folk games, village festivals, forms of ritual and the like expressions.

       3.Folk artistic, literary works specified in Point d, Para 1, Article 23 of the Intellectual Property Law are the kind of fine arts such as graphics, painting, sculpture, musical instruments; architectural forms and other similar expressions."      

           5.Para 2 of Article 23 is amended as follows:

 

“2. The right to produce the works specified in Point c, Para 1, Article 20 of the Intellectual Property Law is one of the property rights under copyright, implemented by the owner or other authorized persons to reproduce their works by any means or in any form, including electronic forms."

          6.Article 26 is amended as follows:

 “1. The term of protection of property rights and personal rights specified in Para 3, Article 19 of the Intellectual Property Law for posthumous works shall be fifty years after they are published for the first time.

 The term of protection of property rights and personal rights specified in Para 3, Article 19 of the Intellectual Property Law for photographic works and applied art works specified in Para 2, Article 27 of the Intellectual Property Law shall be fifty years after they are published for the first time. Any work not yet published shall be protected for fifty years after it is fixed.

 2. The term of protection of cinematographic works, photographic works, applied fine arts, anonymous works specified in Point a, Para 2, Article 27 of the Intellectual Property Law is amended and supplemented as follows:

 From the effective date of the Law on amending the Intellectual Property Law, cinematographic, photographic, applied art, and anonymous works still protected under the Intellectual Property Law shall enjoy the term of protection under the provisions of Point a, Para 2, Article 27 of the amended Intellectual Property Law; for dramatic works still protected under the provisions of the Intellectual Property Law, the term of protection shall follow with the provisions of Para 2, Article 27 of the amended Intellectual Property Law, which is the entire lifetime of the authors and fifty years after their death."

           

           7.Article 28 is amended as follows:

 "Article 28. Transfer of rights in case of anonymous works

 The enjoyment of rights of owners of anonymous works specified in Para 2, Article 41 and Para 1, Article 42 of the amended Intellectual Property Law shall be as follows:

         1.Organizations and individuals that are managing anonymous works may transfer their rights to the anonymous works to other organizations and individuals, and are entitled to remuneration from the transfer of such rights.

          2.Organizations and individuals that are transferred the rights specified in Para 1 of this Article shall enjoy the right of ownership until the author's identities are determined."

         

            8.Article 36 is amended as follows:

 "Article 36. Use of broadcast programs

         1.Owners of broadcast programs specified in Para 3, Article 44 of the Intellectual Property Law are the broadcasting organizations who make financial, material and technical investments for the broadcast programs.

        2.When using the works, audio records, visual records to produce the broadcast programs, the broadcasting organizations shall have obligations to the owners of copyright and related rights in accordance with the laws.

       3.Organizations and individuals using broadcast programs of other broadcasting organizations as stipulated in Points a and b, Para 1, Article 31 of the Intellectual Property Law to relay or re-broadcast or communicate on telecommunication networks, electronic information network or any technical means shall comply with the agreements and relevant legal provisions. The amendments to the broadcast programs of other broadcasting organizations to re-broadcast or communicate on telecommunication networks, electronic information network or any other technical means must strike agreements with the owners of such broadcast programs. "


          9.Para 1 of Article 37 is amended as follows:

 “1. Authors, copyright owners and owners of related rights as stipulated in Article 50 of the Intellectual Property Law may submit in person or authorize other organizations and individuals to submit 01 dossier for registration of copyright and related rights to the Copyright Office or Representative Office of the Copyright Office in Ho Chi Minh City, Representative Office of the Copyright Office in Da Nang or the Department of Culture, Sport and Tourism, where the authors, owners of copyright and related rights reside or their offices are located. The dossier may be submitted by post”

        

            10.Point a, Para 1, Article 39 is amended as follows:

 “1. The Copyright Office is competent to grant, renew and invalidate registration certificates of copyright, registration certificates of related rights as specified in Para 1 and 2 of Article 51 of the Intellectual Property Law.

        a)Authors, owners of copyright and related rights that wish to apply for or renew registration certificates of copyright and registration certificates of related rights shall submit applications stating the reasons and submit 01 dossier as prescribed in Article 50 of the Intellectual Property Law to the head office of the Copyright Office or Representative Office of the Copyright Office in Ho Chi Minh City, Representative Office of the Copyright Office in Da Nang or Departments of Culture, Sport and Tourism of the localities where the authors, copyright owners and owners of related rights reside or their offices are located. The applications and dossiers may be submitted by post”


            11.Article 41 is amended as follows:

 “1. Collective management organizations of copyright and related rights as stipulated in Para 1, Article 56 of the Intellectual Property Law shall comply with the following conditions when operating:

           a)It must be authorized by authors, copyright owners and owners of related rights.

     b)It must sign written authorization agreements with the rights holders/owners on management of one or a group of specific rights.

        c)The collection and distribution of royalties, remuneration and material benefits that are derived from the exploitation of rights or group of rights as stipulated in its Charter of operation and authorization agreements.

 2. In case any work, audio record, visual record, broadcast program is related to the rights and interests of many collective management organizations authorized to represent different rights and group of rights, the parties may agree to appoint one organization on their behalf to negotiate granting of use licenses, collect and distribute proceeds, and report to the Ministry of Culture, Sports and Tourism before implementation.

       3.The management, collection and distribution of royalties, remuneration and material benefits prescribed in Para 2, Article 56 of the Intellectual Property Law shall comply with the following provisions:

        a)The collection and distribution of royalties, remuneration and material benefits by collective management organizations of copyright and related rights shall follow the principle of openness and transparency.

             b)Collective management organizations may keep a suitable amount of the total royalties, remuneration and material benefits obtained to finance their operation on the basis of agreements with the authorizers. The retained amount shall be adjusted in accordance with the effectiveness of collective management activities on the basis of agreement with the authorizers and may be determined by the percentage of total proceeds.

            c)The collection and distribution of royalties, remuneration and material benefits from the respective institutions of foreign countries or international organizations shall comply with regulations on foreign exchange management.

          4.The collective management organizations of copyright and related rights shall perform the regime of bi-annual, annual and extraordinary reporting as specified at Point c, Para 3 of Article 56 of the Intellectual Property Law as follows:

        a)The reports to the Ministry of Culture, Sports and Tourism, Ministry of Interior and Ministry of Finance shall include the following contents: amending and supplementing the Charter and regulation of operation, change of leadership; participation in international organizations; other external activities; tariff and payment methods of royalties, remuneration and material benefits; long-term and annual operational plans and programs; the operational status, signing of authorizations and licenses for use; collection, rates, distribution methods, distribution ways of royalties, remuneration and material benefits; other related activities.

          b)Where the Charter is to be amended, relevant reports must be submitted to competent authorities for approval before implementation.


          12.Article 45a is added after Article 45.

 “Article 45a. Principles and methods of payment of royalties, remuneration and material benefits.

         1.Royalties, remuneration specified in Para 3 of Article 20, Para 4 of Article 29 and the material benefits specified in Para 2 of Article 30, Para 2 of Article 31 of the Intellectual Property Law shall be determined by the following principles:

 The payment of royalties, remuneration and material benefits must ensure the interests of the creators, the users and benefited public, and be consistent with national reality.

 The levels of royalties, remuneration and material benefits shall be based on the type, form, quality, quantity or frequency of use of the works.

 Co-authors, author collective shall agree on the rate of distribution of royalties, remuneration according to their shares of creativity in the works, in accordance with the use form.

 The authors of the works, organizations and individuals that carry out performances, audio records, visual records, and broadcast programs for children and ethnic minority people; Vietnamese people who create works directly in foreign languages, Kinh people who carry out works in languages of ethnic minority people; ethnic minority people who carry out works directly in other languages of ethnic minority people; when creating and carrying out their works in difficult and dangerous conditions or in other special cases will be paid additional royalties, remuneration, material benefits and incentives.

        dd)The use of copyright and related rights and payment of royalties, remuneration and material benefits must be expressed in written contracts in accordance with the laws.

 Agencies and organizations using State budget, State-owned enterprises shall estimate expenditure for royalties, remuneration and material benefits within the budget and other sources in accordance with laws.

         2.Ministry of Culture, Sports and Tourism in coordination with Ministry of Finance, Ministry of Information and Communications shall issue tariff, payment method of royalties, remuneration and material benefits as stipulated in Para 1, Article 26 and Paras 1 and 2 of Article 33 of the amended Intellectual Property Law. "


          13.Para 4 of Article 46 is amended as follows:

 “4. The copyright and related rights that are still protected under the provisions of the documents effective before the effective date of the amended Intellectual Property Law shall continue to be protected under the amended Intellectual Property Law.

 Application for registration of copyright and related rights submitted to competent authority before the effective date of the amended Intellectual Property Law will be handled in accordance with the current law at the time of submission.

 Any violation of copyright and related rights or violation of contract before the effective date of the amended Intellectual Property Law will be handled in accordance with the current law at the time of violation."

 

         14.The phrase "the Ministry of Culture - Information" shall be replaced with the phrase "the Ministry of Culture, Sports and Tourism"

 The phrase "Department of Culture - Information" shall be replaced with the phrase "Department of Culture, Sport and Tourism"

 The phrase "Literary and Art Copyright Office" shall be replaced with the phrase "Copyright Office."

 Article 2. Effect

 

This Decree is effective from 10 November 2011.

 Article 3. Implementation

         1.Ministers, heads of ministerial-level agencies, heads of Governmental agencies, Chairmen of People's Committees of provinces and cities directly under the Central Government, agencies, organizations and individuals with related rights and obligations shall implement this Decree.    

      2.Minister of Culture, Sports and Tourism shall guide and organize the implementation hereof.

 Recipients:

-   Central Party Secretariat;

-   Prime Minister and Deputy Prime Ministers;

-  The ministries, ministerial-level agencies, Government agencies;

- Office of the Central Steering Committee for Corruption prevention and Fighting;

-    People's Committees, People's Councils of provinces and cities under central authority;

-    Central Office and Divisions of the Party;

-    Presidential office;

-    National Council and Committees of the National Assembly;

-    National Assembly Office;

-    People's Supreme Court;

-    People's Supreme Procuracy;

-    State Auditor;

-    National Financial Supervisory Committee;

-    Social Policy Bank;

-     Bank for Development of Vietnam;

-    Central Committee of Vietnam Fatherland Front;

-    Central bodies of mass organizations;

-    Governmental Office: Chairman-minister, E-portal, departments, units, their subordinate units and the Official Gazette;

Filed: Administrative files, KGVX (5C), N.290

FOR GOVERNMENT

PRIME MINISTER

(Signed and sealed)

NGUYEN TAN DUNG

 

 

 

 
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