Thesis rationale
The EU-Vietnam Free Trade Agreement (EVFTA), which took effect in August 2020 after a decade of negotiations, is poised to significantly impact Vietnam's economy by eliminating 99% of customs duties between Vietnam and the EU The Ministry of Planning and Investment of Vietnam projects that this agreement could boost the country's GDP by 42.7% by 2025, while Europe is expected to see a GDP increase of $29.5 billion by 2035 Among the key benefits of the EVFTA is the enhanced protection of intellectual property rights, particularly in copyright, addressing the persistent issue of intellectual property infringement in Vietnam.
Vietnam faces significant challenges in implementing the EVFTA's provisions on copyright and related rights due to disparities in legislation and cultural and economic differences among member states In response, the Ministry of Science and Technology proposed a project to amend the Intellectual Property Law, aiming for submission to the National Assembly in October 2021 and approval in May 2022 This initiative seeks to enhance Vietnam's legal framework in alignment with the EVFTA, prompting the author to research the implementation of copyright and related rights under this agreement in Vietnam.
Literature review
1 Shira, D (2020, August 3) Vietnam-EU Trade: EVFTA Comes Into Effect Vietnam Briefing https://www.vietnam-briefing.com/news/vietnam-eu-trade-evfta-comes-into-effect.html/
The EVFTA is a recent agreement, leading to a scarcity of research primarily found in journal articles, newspaper pieces, and government reports To gain a deeper understanding, the author integrated these limited resources with studies on copyright and related rights in Europe, recognizing the relevance of European copyright laws to the EVFTA between Vietnam and the EU.
"EU Copyright Law: A Commentary" by Irini Stamatoudi and Paul Torremans offers a thorough analysis of EU copyright law and case law, highlighting essential concepts and principles The book also addresses recent EU amendments and initiatives in the digital realm, making it a timely resource Additionally, it explores upcoming challenges in copyright and related rights, featuring insights from leading experts, which enhances its value for readers seeking to understand the evolving landscape of copyright law in the EU.
A significant influence on this thesis is the book “Copyright and Fundamental Rights in the Digital Age” by Oreste Pollicino, Giovanni Maria Riccio, and Marco Bassini This timely publication examines the necessary changes in copyright protection in Europe to align with fundamental human rights in the digital era By acknowledging advancements in digital technologies and the internet, it highlights the impact of recent reforms to the EU's copyright legal framework.
Caterina Sganga's book, "Propertizing European Copyright," offers a comprehensive analysis of the historical evolution of copyright propertization in the EU, drawing comparisons with national laws and highlighting key lessons that Vietnam could learn from these experiences.
2 Stamtoudi, I., & Torremans P (Eds.) (2014) EU Copyright Law: A Commentary Edward Elgar
3 Pollicino, O., Riccio, G., & Bassini, M (Eds.) (2020) Copyright and Fundamental Rights in the Digital Age Edward Elgar
4 Sganga, C (2018) Propertizing European Copyright Edward Elgar some lessons from this Researchers in copyright will find this book very valuable since is rich both in theory and practice
The "Guide to the EU-Vietnam Trade and Investment Agreements," created by the Delegation of the European Union to Vietnam, is essential for understanding the new generation agreements between the EU and Vietnam While it does not specifically address copyright and related rights, the guide's clear and straightforward language aids in grasping the fundamentals of the EVFTA and its significance for Vietnam's economy This understanding enables a clearer assessment of the challenges facing Vietnam's current copyright and related rights landscape.
Despite numerous research papers on copyright and related rights following Vietnam's accession to the EVFTA, most are limited to brief journal, magazine, or online articles that lack in-depth recommendations While these studies highlight the potential for enhanced protection of copyright and related rights in Vietnam and acknowledge existing legal and practical challenges, they fall short in providing practical and clear solutions.
In the article "Solving Intellectual Property Challenges When Vietnam Joins EVFTA" by Nguyen Thi Huyen, published in the Review of Finance, the author explores the opportunities and challenges presented by the EVFTA for Vietnam's intellectual property landscape While the discussion encompasses various aspects of intellectual property, it notably lacks a detailed focus on copyright and related rights, which are only briefly mentioned as a challenge without offering specific solutions.
5 Delegation of the European Union to Vietnam (2019) Guide to the EU-Vietnam trade and investment agreements https://trade.ec.europa.eu/doclib/docs/2016/june/tradoc_154622.pdf
In her 2017 article, Nguyen Thi Huyen addresses the intellectual property challenges that arise as Vietnam becomes a member of the European Union-Vietnam Free Trade Agreement (EVFTA) The article highlights the importance of strengthening intellectual property rights to ensure compliance with international standards and to foster economic growth Huyen emphasizes the need for legal reforms and enhanced enforcement mechanisms to effectively navigate the complexities of intellectual property in the context of global trade.
The article "Commitment to Intellectual Property in EVFTA: Opportunities and Challenges" by Pham Thi Kem Len and Nguyen Minh Hien, published in the Journal of Finance and Accounting Research, briefly addresses copyright and related rights However, it falls short of providing a comprehensive solution to the issues presented.
Although there is limited direct research on the relationship between the EVFTA and copyright in Vietnam, various materials suggest directions for Vietnamese law in the digital realm by comparing it to other countries Notable works include Do Huynh Yen Vy's master's thesis on copyright infringement in the digital environment according to U.S and French laws, Nguyen Thai Cuong's book discussing copyright judgments from a legal perspective in multiple countries, and Vu Thi Hong Yen's article addressing copyright issues in the context of Industry 4.0 at higher education institutions.
Objectives of the study
This thesis aims to offer a comprehensive overview of copyright and related rights as established in the EVFTA, while also addressing the challenges associated with their implementation.
The article by Pham Thi Kem Len and Nguyen Minh Hien (2020) discusses the commitments to intellectual property rights within the framework of the EU-Vietnam Free Trade Agreement (EVFTA) It highlights both the opportunities and challenges that arise from these commitments, emphasizing their significance in enhancing trade relations and protecting intellectual property The analysis provides insights into how the EVFTA can impact Vietnam's economic landscape while addressing potential obstacles that may hinder the effective implementation of intellectual property protections.
8 Do Huynh Yen Vy (2020) Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa
The master's thesis titled "Acts of Copyright Infringement in the Digital Environment According to the Laws of the United States, France, and Experience for Vietnam" is housed in the Ho Chi Minh University of Law Library This work explores the legal frameworks surrounding copyright infringement in the digital realm, comparing the approaches of the United States and France while providing insights and recommendations for Vietnam's legal context.
9 Nguyen Thai Cuong (2020) Bình luận bản án quyền tác giả - Góc nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản,
Hàn Quốc [Comments on copyright judgments - Legal perspective of the US, France, Japan, Korea] Hong
In the context of Industry 4.0, the article by Vu Thi Hong Yen (2019) explores the implications of copyright for creative works within higher education institutions It emphasizes the need for updated copyright regulations to protect intellectual property in an increasingly digital and interconnected educational landscape The study highlights the challenges faced by educators and students in navigating copyright issues while fostering innovation and collaboration in academic settings.
Vietnam Based on this knowledge, the author suggests some mendments to the Vietnam’s current law.
Scope and delimitation
This thesis acknowledges certain limitations due to time and resource constraints Firstly, while it references established intellectual property agreements such as TRIPS, Berne, and the Rome Convention, these treaties will not be extensively analyzed but rather mentioned to support the author's arguments Secondly, the study will not delve into the copyright and related rights registration processes, either in Vietnam or internationally, as it primarily concentrates on substantive provisions rather than procedural law Lastly, the focus will be on challenges that directly impact the financial benefits of authors and related parties, which explains the exclusion of other existing challenges from this research.
Methodologies of the study
In Chapter 1, the author utilizes historical review, analysis, and synthesis to define copyright and related rights, followed by an examination of their enforcement within the EVFTA using the same analytical methods Chapter 2 applies analytical techniques, historical review, and case studies to identify the challenges Vietnam faces in implementing the EVFTA Additionally, a comparative method is employed to develop the author's recommendations.
Structure of the thesis
This thesis consists of 2 chapters:
– Chapter 1: An overview of copyright and related rights under the EVFTA – Chapter 2: Some challenges for Vietnam in the implementation of copyright and related rights under the EVFTA and recommendations.
AN OVERVIEW OF COPYRIGHT AND RELATED RIGHTS
Terms and definitions
According to Black’s Law Dictionary (2004, p 824), copyright is defined as
The term "the right to copy" refers to a property right in original works of authorship, which encompasses a variety of forms including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, architectural, audiovisual works, and sound recordings This right grants the holder exclusive authority to reproduce, adapt, distribute, perform, and display their work However, this definition is limited, as it does not account for other potential forms of expression that may fall outside the specified categories.
According to the World Intellectual Property Organization (WIPO), copyright, also known as author’s rights, refers to the legal rights that creators hold over their literary and artistic works, which encompass a wide range of materials including books, music, paintings, films, and computer programs It is important to note that WIPO's definition focuses solely on the rights of the author, excluding related rights In contrast, the World Trade Organization (WTO) interprets copyright more broadly, incorporating related rights as well This distinction arises from differences in legal systems, which will be further elaborated upon.
In legal terms, copyright refers to the exclusive right to reproduce a specific work, originally pertaining to written materials.
11 WIPO (n.d.) Copyright WIPO – World Intellectual organization Retrieved April 10, 2021, from https://www.wipo.int/copyright/en/
12 WTO (n.d.) Intellectual property: protection and enforcement World Trade Organization Retrieved April
Copyright serves to protect the rights of authors by ensuring their patrimonial and moral rights, promoting public access to their works, and fostering creative activities essential for societal development.
The term "copyright" emerged with the invention of the printing press in 15th century Europe, pioneered by German inventor Johannes Gutenberg This innovation led to a unique relationship between monarchs and printers, prompting the creation of legal frameworks such as the Act of Anne in 1710, which recognized the right to copy but did not officially use the term "copyright." It was not until 1838 that French lawyer Augustin-Charles Renouard introduced the term in his book "Traitt des droits d'auteur dans la littérature, les sciences et les beaux arts," replacing phrases like "literary and artistic works" and "intellectual property." Renouard's use of the plural "copyrights" emphasized the multiple rights an author holds over their works, a form that the author of this thesis supports, although the singular variant has become more commonly accepted over time.
13 Goldstein, P (2003) Copyright's Highway: From Gutenberg to the Celestial Jukebox Stanford Law and
14 Roş, V., Bogdan, D., Spineanu-Matei, O (2005) Dreptul de autor si drepturile conexe: tratat [Copyright and related rights] Publishers C.H Beck
15 Erer, N (2014) A Short History of Copyright in the West, in the Ottoman Empire and in Turkey Turkish
16 Dumitru, C (2011) Comparison between copyright and ownership in common law Romanian Journal of
17 Renouard, C (2018) Traitt des droits d’auteur, dans la literature, les sciences et les beaux-arts [Treatise on copyright, in literature, science and the fine arts] Forgotten Books
The understanding of copyright differs significantly between civil law and common law systems In civil law jurisdictions, copyright is known as "droit d’auteur," encompassing both the economic and moral rights of the author European scholars view copyright as a deeply personal property right, originating not from codification but from the unique creative efforts of the author, a concept rooted in historical decrees from the French Revolution Otto van Gierke, a key figure in copyright theory, argued that copyright extends from an author's personality, linking it inseparably to their creative process French poet Alphonse de Lamartine described literary property as the "most sacred of property," emphasizing its intimate connection to the author's identity This perspective underlies the distinction between authors' rights and related rights in civil law countries, where producers and performers are granted narrower rights Overall, the civil law approach to copyright is characterized by its emotional, revolutionary nature and strong ties to idealism.
In common law countries, "copyright" encompasses both authors' rights and related rights, reflecting the significant roles of authors, producers, broadcasters, and performers However, the notion of "related rights" is often underdeveloped, highlighting the need for a clearer distinction between these roles in copyright law.
18 Monta, R (1959) The concept of copyright versus the droit d’auteur Southern California Law Review,
20 Gierke, O (1889) Die soziale Aufgabe des Privatrechts Springer.; Kohler, J (2010) Das Autorrecht: Eine
The historical development of copyright in common law countries, particularly in England, reveals that rights were initially granted to publishers and printers by the Crown, rather than to authors themselves Today, creators hold copyright over their original works, while separate rights exist for products of technical skill, such as sound recordings and films Additionally, a financial relationship exists between authors and copyright owners, where employees (authors) create works under contract, granting ownership to employers who may not be involved in the creative process This arrangement, along with the elevated status of producers and broadcasters in the common law system, results in copyright being viewed primarily as a financial right, often overshadowing moral rights.
The adoption of the Berne Convention in 1886 marked a significant advancement in the international recognition of authors' moral rights While many common law countries have yet to implement these protections, there have been numerous national law revisions aimed at potentially adopting moral rights provisions to adhere to the principle of reciprocity For instance, the UK faced challenges in 1948 when considering the ratification of the Berne Convention revision, particularly regarding the separation of moral rights from copyright The ongoing debate surrounding the legal nature of copyright continues, characterized by the opposing views of monist and dualist theories.
23 Small, R R (1977) The Author's Moral Right Trent Law Journal, 1, 69-86
Monism, prevalent in common law countries, posits that the economic and moral rights of authors are inseparably linked, making it impossible to categorize copyright into patrimonial and non-patrimonial rights This perspective asserts that moral rights hold equal value and duration as economic rights However, this theory faces criticism for overlooking that patrimonial rights arise only when authors exercise their moral rights, and it fails to establish a causal relationship between economic and moral rights, which pertain to distinct objectives and applications.
Dualism posits that economic rights and moral rights exist separately and are governed by different legal frameworks, with moral rights often holding greater significance Consequently, the duration of moral rights should extend beyond the author's lifetime, unlike economic rights This perspective is supported by several key arguments.
An author's work is a product of their creativity, granting them the authority to share it with the public and determine its value By taking this initiative, the author can unlock the material benefits associated with their creations, leading to the conclusion that patrimonial rights are derived from non-patrimonial rights.
Moral rights play a crucial role in copyright by preserving the intrinsic connection between authors and their works, whereas economic rights primarily focus on the author's financial interests.
– If one violates the author’s moral rights, the result will be monetary damage Therefore, economic rights stem from moral rights 29
28 Roş, V (2016) Dreptul proprietatii intelectuale [Intellectual property law], vol I Publishers C.H Beck
29 Eminescu, Y (1997) Dreptul de autor [Copyright], Lumina Lex Edition Bucharest
Countries are increasingly recognizing that prolonged debates on intellectual property protection yield no solutions A practical approach for common law nations is to evaluate the adoption of moral rights provisions when entering international treaties, tailoring their decisions to their specific circumstances.
In conclusion, the author of this thesis argues that a comprehensive interpretation of copyright in an international context should recognize copyright as the rights of authors over their original works, which encompass both moral and economic rights This includes, but is not limited to, the literary and artistic works outlined in Article 2 of the Berne Convention, as well as potential new forms of work that may emerge in the future Ultimately, it is up to each country to determine whether to include moral rights in their copyright interpretation.
Copyright and related rights under the EVFTA
According to Article 12.5 of the EVFTA, the rights and obligations of the parties must align with the TRIPs Agreement and the Berne Convention, making these conventions integral to the EVFTA and necessitating a consistent interpretation While the EVFTA does not specify which works are protected, the Berne Convention addresses this by providing a non-exhaustive list of protected works in Article 2, encompassing all forms of literary, scientific, and artistic creations Additionally, derivative works such as translations and adaptations are afforded the same level of protection as the original creations.
42 Article 2(3) of Berne Convention for the Protection of Literary and Artistic Works, September 28, 1979
The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore of WIPO recognizes that traditional literary and artistic productions can be protected under copyright if they are sufficiently original and the authors are identifiable This framework aims to safeguard cultural expressions that have not yet received formal protection.
Under Article 15.4 of the Berne Convention, works that are "published" and have "unknown authors," presumed to be nationals of a Berne Union country, receive copyright protection Additionally, collections, compilations, and databases of traditional cultural expressions, whether they are historical or modern, can also be protected as copyright works This means that traditional cultural expressions, including folklore and traditional knowledge, are covered by the protections outlined in this agreement.
The TRIPs Agreement has expanded the scope of protected literary and artistic works to include computer programs and compilations of data, in addition to traditional forms of literary and artistic works Under Article 10, computer programs are protected as literary works, but not as artistic works, to avoid confusion with the term "scientific works" in Article 2 of the Berne Convention and "applied arts" regulated in the Convention Compilations of data are also protected as works, even if the contents are not original, as the intellectual creations resulting from the selection and arrangement of the contents are eligible for intellectual property protection.
The interpretation of the EVFTA should be considered alongside other international treaties, leading to a concise and straightforward articulation of authors' rights in Article 12.6 of the agreement.
– The right to reproduction: “reproduction”, in the most common sense, means copy Clearly, EVFTA legislators have been influenced by the Berne Convention
43 The Secretariat of WIPO (2018, December 10-14) The Protection of Traditional Cultural Expressions: Updated Draft Gap Analysis [Conference Session] Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore, Geneva
The TRIPS Agreement, as discussed in WIPO's 1996 report, emphasizes that while the term "exclusive right" is not explicitly defined in treaties, it is understood to encompass all forms of reproduction and copying of works Delegates from the Stockholm Conference believed that the term's self-explanatory nature precludes the need for further clarification, which could lead to complications Consequently, authors retain the exclusive authority to authorize or prohibit reproductions of their works through various methods, including design, engraving, printing, photocopying, and mechanical or magnetic recordings, among others This comprehensive definition ensures that all current and future reproduction techniques are covered under the author's rights.
Copyright law includes exceptions, notably outlined in Article 12.14, which states that reproduction is not protected if it is an integral part of a technological process aimed solely at transmission between parties or enabling lawful use, and if it lacks independent economic significance Additionally, Article 9(2) of the Berne Convention specifies that exceptions apply only if the reproduction does not interfere with the normal exploitation of the work, such as the unauthorized photocopying of textbooks for sale, which is prohibited among member countries Furthermore, the reproduction must not unreasonably harm the legitimate interests of the author, a determination that can vary based on context While domestic laws typically permit reproduction for private and scientific use, the rise of the Internet and modern technology poses challenges, as a single copy can be replicated thousands of times, potentially harming authors' rights.
45 Smith, E (2001, November 20-21) The Reproduction Right and Temporary Copies: The International Framework, the U.S Approach and Practical Implications [Conference Session] Softic Symposium 2001,
46 Masouyé, C (1978) Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris
Act, 1971) WIPO author’s profit Therefore, the Convention leaves it for national jurisdiction to make appropriate measures to deal with this matter
The right to distribution grants authors exclusive control over the authorization or prohibition of their original works and copies being distributed to the public This right typically ends when the work is sold or ownership is transferred in the first transaction It is important to distinguish between the right to distribution and the right to make works available; notable copyright lawsuits, such as those by the RIAA in the 2000s, incorrectly conflated making a copyrighted work available over peer-to-peer networks with distribution rights According to Thomas Court, true distribution involves the transfer of ownership or possession, meaning actions that do not involve such transfers do not fall under the author's distribution rights.
The author holds the exclusive right to authorize or prohibit the public communication of their works, as defined by the European Parliament This "communication" encompasses any transmission or retransmission of a work to the public, including cable transmission, broadcasting, and live streaming In the landmark case Reha Training v GEMA, the European Court of Justice (ECJ) clarified that "public" refers to a group that is sufficiently large to be significant and must consist of individuals not previously considered by the author when sharing the work Additionally, the Court emphasized the economic intent behind this right, highlighting its importance in protecting the author's interests.
47 Capitol Records Inc v Thomas (2008) 579 F Supp 2d 1217 (D Minn.)
According to Paragraph 23 of Directive 2001/29/EC, which addresses the harmonization of copyright and related rights in the information society, the communication of content must be evaluated when determining acts of communication to the public.
The right of making available to the public closely resembles the communication to the public right, with the key distinction being that while the former allows individuals to experience a work at a specific time, the latter enables them to save and enjoy the work anytime and anywhere A notable example is the case RIAA v The People, where uploading songs to a platform for public access and download was deemed an infringement of the making available right rather than the communication right.
The right of resale in works of art, known as "droite de suite" under the Berne Convention, allows authors to benefit financially from subsequent sales of their creations This provision aims to support artists who may be compelled to sell their artwork at lower prices to meet their financial needs.
The "droite de suite" right in the EVFTA is unassignable, ensuring that artists cannot be compelled to transfer it to others In contrast to the Berne Convention, which extends this right to the author's successors, Article 12.15 of the EVFTA specifies that this right is exclusively personal to the author.
It is important to note that exceptions exist regarding resale rights If a work is transferred to the seller within three years of the transaction and the resale price does not exceed a specified amount, the right may not apply Additionally, if domestic law does not recognize the right to resale, authors in that member country will not receive this protection.
49 Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Auffỹhrungs- und mechanische Vervielfọltigungsrechte eV (GEMA) (2016) Case no C-117/15 Digital reports (Court Reports - general)
In addition to the rights outlined in this agreement, authors from member countries possess other legitimate rights that are governed by related agreements In accordance with the Berne Convention, these additional author rights will also be safeguarded.
The enforcement of copyright and related rights in the EVFTA
The EVFTA establishes a comprehensive framework for the enforcement of copyright and related rights, enabling member countries to effectively protect the rights of authors and related subjects According to the agreement's sub-sections 2 and 4, enforcement measures encompass civil, administrative (border), and criminal remedies, which must be implemented in accordance with national laws Notably, the enforcement provisions under the EVFTA are significantly influenced by TRIPs, as they incorporate many of its key substantive elements This section will analyze these enforcement measures and the corresponding procedures.
67 Id enforcement of copyright and related rights in the EVFTA, as well as explain some possibly unclear points in these provisions
Civil measures serve as the primary means for enforcing copyright and related rights When an infringement is suspected, the affected parties have the right to approach the appropriate judicial authorities for assistance.
– The legitimate holders of copyright and related rights
Authorized individuals and recognized collective management organizations are the legitimate entities allowed to utilize copyright and related rights These bodies are officially acknowledged for their role in representing the interests of copyright holders and managing related rights effectively.
– The legitimate defence bodies which are regularly recognized as having a right to represent holders of copyright and related rights 68
Competent judicial authorities can implement provisional civil remedies upon receiving sufficient evidence from the requesting party, prior to making a final decision These remedies are categorized into preventive measures, aimed at stopping infringing acts or mitigating their consequences, which include interlocutory injunctions and precautionary seizures of the infringer's movable and immovable property, particularly in cases of commercial-scale infringement The second category, preservative measures, focuses on safeguarding materials and tools used in the production and distribution of infringing goods to prevent their destruction In urgent situations where delays may lead to irreparable harm to rights holders or the loss of evidence, judicial authorities are empowered to enact these measures without prior notification to the opposing party.
Upon finding there is in fact an intellectual property infringement, the competent judicial authorities may apply the following remedies:
The recall of infringing goods from the marketplace involves the removal of these products from customers, distributors, and retailers associated with the infringer.
– The disposal outside the channels of commerce To put it another way, infringing goods will be removed from the market, with or without the destruction of them
– The destruction of goods that infringe copyright and related rights 69
The disposal and destruction of infringing goods may involve not only the goods themselves but also the materials and tools predominantly used in their production, depending on the risk of further infringement It is crucial that these actions are carried out without negatively impacting third parties Consequently, the social and environmental implications of processing these goods are significant concerns among member countries Current disposal methods include recycling, open-air burning, shredding, crushing, landfill burial, and charitable donations However, the effectiveness of these measures largely depends on the capabilities of disposal facilities and the policies of individual countries.
One effective legal remedy is obtaining an injunction from appropriate judicial authorities, which can include orders to cease infringing activities or to issue public apologies In specific situations, this remedy may also be applicable to third parties whose services are exploited by the infringer, provided they fall under the jurisdiction of the relevant court.
The most important remedy for the applicant when searching justice from civil proceedings, however, is damages This measure is applied in the case that the
Counterfeit goods pose significant challenges in their disposal, particularly when it comes to liability for infringers An infringer is deemed to have acted intentionally if they knowingly engaged in an infringing act, fully aware of the potential consequences In such cases, they are liable to compensate the right holder for actual damages The determination of this compensation involves various factors, including economic losses such as the injured party's lost profits and any unfair gains made by the infringer, as well as non-economic elements like the moral prejudice inflicted by the infringement of moral rights.
In specific situations, such as when accurately quantifying damages is challenging, when requested by the applicant, or when the infringer acted unintentionally, lump sum damages may be imposed Although the EVFTA does not outline a calculation method for these damages, it indicates that the amount of royalties or fees that would have been owed if the infringer had sought authorization should be considered Ultimately, national jurisdictions are tasked with determining the appropriate elements for calculating fair damages Additionally, there is a question of whether this compensation includes moral damages, which can be addressed by referring to Article 13 of Directive 2004/48/EC of the European Parliament and Council.
2004 on the enforcement of intellectual property rights
A key observation from comparing Article 12.51 of the EVFTA with Article 13 of Directive 2004/48/EC is their striking similarity, indicating that the EVFTA has likely been shaped by this Directive, with significant input from European scholars Consequently, interpretations relevant to the Directive can also be applied to the EVFTA's provisions Notably, the European Court of Justice (ECJ) has determined that lump sum damages encompass compensation for moral prejudice, suggesting that a similar approach could be adopted for lump sums under the EVFTA.
"Prevention is better than cure," highlighting the importance of stopping infringing products before they reach the market Effective intellectual property rights protection relies not only on judicial measures but also on robust border control by competent authorities The EVFTA aligns with TRIPs provisions for administrative procedures and remedies, enhancing the enforcement of intellectual property rights By incorporating Article V of GATT, the EVFTA mandates the application of border measures to goods in transit, ensuring compliance with relevant customs laws and regulations.
Under the TRIPs agreement, individuals entitled to seek assistance from administrative authorities mirror those who can approach judicial authorities in civil proceedings Upon receiving a written application accompanied by reasonable evidence of infringement and a detailed description of the goods in question, competent authorities are required to respond within a reasonable timeframe, informing the applicant whether their application has been accepted and the timeline for action For registered intellectual property rights, such as copyrights, administrative authorities may request further documentation to verify ownership before proceeding with subsequent actions.
Competent authorities have the right to suspend the release of goods that infringe on intellectual property rights This decision must be promptly communicated to both the applicant and the alleged infringer, typically the importer The right holder is required to take necessary legal action within 10 days of receiving the notice to substantiate their claims and identify the goods as infringing If no legal proceedings are initiated within this timeframe, the suspension may be lifted.
According to Article 12.56 of the EVFTA, if a party other than the defendant initiates a case or if no provisional measures extending the suspension are enacted by an authorized body, the goods will be released to proceed with customs procedures It's important to highlight that if a provisional judicial measure to extend the suspension is not initiated within a reasonable timeframe set by the judicial authority—limited to a maximum of 20 working days or 31 calendar days, whichever is longer—the suspension may still be lifted.
Competent authorities can independently impose a suspension if they obtain prima facie evidence of intellectual property infringement, even without legitimate subjects In such instances, both the importer and the rights holder will be swiftly informed of the suspension, and authorities may request assistance from the rights holder for relevant information pertaining to the investigation.
Challenge in implementing the protection of reproduction rights from
2.1.1 The protection of reproduction rights from temporary digital copies in the EVFTA and challenge in the current law of Vietnam
The Berne Convention for the Protection of Literary and Artistic Works and the Rome Convention, the most comprehensive multilateral agreements on intellectual property, were last amended in 1979 In response to significant technological advancements, the US and EU urged WIPO to establish an international framework to address these changes Consequently, WIPO, with the consensus of its members, adopted two new treaties in 1996: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
The rise of the internet has led to the emergence of "internet treaties" aimed at updating intellectual property laws for the digital age As of 2021, approximately 60% of the global population uses the internet, prompting many countries to prioritize their accession to the World Copyright Treaty (WCT) and the World Performers and Phonograms Treaty (WPPT) to enhance intellectual property protection Currently, 110 countries have joined the WCT and 109 have signed the WPPT, with Vietnam being a notable exception This lack of participation poses challenges for Vietnam in implementing key provisions of the internet treaties, particularly those related to the protection of reproduction rights concerning transient copies, as stipulated in the EU-Vietnam Free Trade Agreement (EVFTA).
The initial discussions on reproduction rights and temporary digital copies emerged during the drafting of the WCT and WPPT These topics were significant at the Diplomatic Conference addressing various copyright and neighboring rights issues.
The ongoing debate regarding whether digital temporary copies qualify as reproductions under Article 9 of the Berne Convention necessitates a review of Internet treaty history Draft provisions from the World Copyright Treaty (WCT) and the World Phonogram Treaty (WPPT) clarify that authors and performers possess exclusive rights to authorize both permanent and temporary reproductions of their works Specifically, Article 7(1) of the WCT and the WPPT affirm that reproduction rights encompass digital transient copies This interpretation has been supported by the World Intellectual Property Organization (WIPO), which acknowledged that the storage and retrieval of protected works from computer systems involve the authors' right to reproduce.
The drafted articles were ultimately not adopted during the Diplomatic Conference due to differing opinions, particularly regarding the need to protect reproduction rights against unauthorized digital transient copies.
77 Smith, E H (2002) Toward Global Copyright Infrastructure on the Internet: Status of WCT and WPPT Ratifications and Deposits and Key Implementation Issues for the Future International
In 1982, the Second Committee of Governmental Experts convened to address copyright issues related to computer use in accessing or creating works, as documented in the Monthly Review of the World Intellectual Property Organization.
The Berne Convention's three-step test in Article 9(2) provides a framework for determining limitations and exceptions regarding reproduction rights, particularly concerning transient digital copies While some opinions argue against protecting excessive temporary copies to avoid monopolies, the prevailing consensus is that reproduction rights should encompass digital transient copies, with specific limitations established by national jurisdictions This approach is reflected in the WCT and WPPT, which affirm that reproduction rights apply in the digital realm without explicitly addressing temporary copies Consequently, the storage of protected works in digital formats is considered a reproduction under the Berne Convention and WPPT By omitting certain drafted provisions, legislators have allowed domestic jurisdictions the discretion to define limitations and exceptions, ensuring that member countries still uphold protections for original works against transient copies.
The EVFTA does not explicitly address the digital or temporary nature of reproduction rights; however, member countries are still bound by existing agreements like the WCT and WPPT Article 12.14(2) of the EVFTA specifies that only certain transient digital reproductions are exempt from the author's reproduction rights under specific conditions Consequently, it can be concluded that standard transient digital copies remain protected under reproduction rights within the framework of the EVFTA.
79 Ficsor, M (2005, February 28-March 2) Copyright in the Digital Environment: The WIPO Copyright Treaty
(WCT) and the WIPO Performances and Phonograms Treaty (WPPT) [Conference session] WIPO National
Seminar on Protection of Copyright, Related Rights and Collective Management, Khartoum
Vietnam's current legislation does not effectively protect works from temporary copies, as outlined in Article 4(10) of the Intellectual Property Law, which defines reproduction as the creation of one or multiple copies of a work, phonogram, or video recording by any means, including electronic forms This definition is proposed to be amended in the second Intellectual Property Law Amendment Bill to encompass copies made in whole or in part, aiming to enhance protection for intellectual property rights.
The inclusion of the phrase "in whole or in part" in the law, influenced by the EVFTA, facilitates partial reproduction and enhances authors' rights protection However, the removal of "one or more" serves only to shorten the clause without adding any meaningful change Additionally, the phrase "including the making copies of the work in electronic form" appears redundant, as it is already encompassed by "in any means and in any form." While one might speculate that this addition aims to address transient copies, the lack of clear guidance from official authorities renders such interpretations subjective Greater clarity is needed regarding this definition.
The term "reproduction" lacks clarity regarding transient copies, leading to ambiguities in the relevant legal provisions Articles 20(1)(c), 29(3)(b), 30(1)(a), and 31(1)(d) of the current Intellectual Property Law grant authors and related subjects "reproduction rights" without detailed explanations While this may suffice if "reproduction" were clearly defined to include temporary copies, the legislators' interpretation suggests it may not adequately protect authors from digital temporary copies in today's landscape.
The second Intellectual Property Law Amendment Bill proposes changes that grant authors and related subjects the right to reproduce their works in various forms However, the introduction of an exception for transient reproductions—defined as integral parts of technological processes that are automatically deleted—raises concerns about potential negative consequences The existing definition of reproduction in Article 4 makes further clarification unnecessary, as additional wording could lead to contradictions Moreover, the exemption risks leaving many works unprotected against temporary electronic copying, as modern technology frequently relies on transient reproductions A prime example is random-access memory (RAM), which is essential for the performance of devices like smartphones and laptops When a user edits a document, the data is temporarily stored in RAM for quick access, but this information is lost upon shutdown, highlighting the importance of protecting works from unauthorized transient copying.
80 Article 1(3), 1(9), 1(10), 1(11) of Vietnam Intellectual Property Law Amendment Bill 2020
In the digital landscape, the ability to manage temporary digital copies can greatly impact the significance of reproduction rights Understanding this concept is essential for grasping the nuances of computer memory and storage, particularly in relation to RAM For more insights, check out the video "What is RAM?" on YouTube, published on May 16, 2013.
Vietnam aims to align its current laws with the EVFTA, but missteps in this process could hinder the successful implementation of the agreement Such errors may lead to unfavorable court rulings, jeopardizing compliance with the EVFTA and undermining its intended benefits.
The first recommendation to consider is about the the definition of
The concept of "reproduction" of literary and artistic works needs clarification in international treaties to provide guidance for member countries, including Vietnam Unfortunately, neither the EVFTA nor the Berne Convention offers a clear interpretation of this term However, records from WIPO diplomatic conferences indicate that "fixation" is a fundamental component of the concept of reproduction Understanding "fixation" is crucial for clarifying "reproduction," and fortunately, this concept has been well-defined at the international level by the WIPO/UNESCO Committee of Governmental Experts According to these experts, fixation refers to the "sufficient stability of a form in which a work is fixed," allowing it to be perceived, reproduced, or communicated to the public through a computer system Addressing related subjects is comparatively simpler, facilitating a clearer understanding of these concepts.
“reproduction” has already been clarified in the Rome Convention and “fixation” is also defined in the WPPT According to which, “fixation” for related subjects follows
Challenge in implementing rental rights in Vietnam
2.2.1 The protection of rental right in the EVFTA and the current challenge in Vietnamese law and Vietnamese companies’ management
Although rental rights are not explicitly included in the EVFTA, they are acknowledged as fundamental rights for authors, performers, and phonogram producers through references to the WCT and WPPT This article will not delve into the rights outlined in international treaties, as they have been adequately addressed in Chapter 1 of the thesis Instead, it will explore the historical development of rental rights, their significance, and the challenges posed by current Vietnamese law, as well as the potential consequences for Vietnam due to the lack of implementation of these rights.
89 Infopaq International A/S v Danske Dagblades Forening (2009) Case C‑302/10 European Court Reports
The rental right, outlined in Article 7 of the WCT and Articles 9 and 13 of the WPPT, stems from the 1992 Rental and Lending Rights Directive by the European Parliament and Council This directive highlights the European Community's commitment to enhancing copyright and related rights protection while harmonizing aspects of copyright law in the late 20th century Notable cases, such as Warner v Christiansen, exemplify the demand for rental rights in Europe during this period.
* Warner Bros., Inc & Metronome Video ApS v Christiansen case
In this case, the plaintiff, Warner Brothers Incorporation, owned the copyright to a movie called “Never Say Never Again” in both Denmark and the UK In July
In 1984, the case of Christiansen, a video shop owner in Denmark, raised significant legal questions regarding copyright law when he purchased a videocassette of a film in London and rented it out in Copenhagen Danish copyright law protects the rental rights of copyright owners, meaning that if a copyright owner permits the sale of their work but not its rental, renting it out constitutes an infringement Conversely, British law allows for the rental of works that have been legally copied with the author's permission, embodying the first sale doctrine This case highlighted the contrasting approaches to copyright between Denmark and the UK, particularly regarding the rental rights of copyrighted materials.
In order to solve the case, the most important issue that the Danish Court raised before the ECJ must be tackled, which was:
Under Articles 30 and 36 of the EEC Treaty, the owner of exclusive rights for a video cassette, which has been lawfully circulated with their consent in a Member State, is subject to the regulations of that Member State's laws regarding the transfer of rights.
In the case of Warner Bros., Inc & Metronome Video ApS v Erik Viuff Christiansen (1988), the European Court ruled that if a copyright holder prohibits the resale or rental of a recording, they lose the right to prevent the rental of that recording in another Member State where it has been legally imported This ruling applies even if the copyright laws of the second State permit such a prohibition, as they do not differentiate between domestic and imported video cassettes and do not hinder the actual importation of these cassettes.
During the deliberation on the issue, Advocate General Mancini expressed a straightforward view, suggesting that the exhaustion rule should apply since the plaintiff consented to the video being sold in the UK market, where rental rights were unprotected This meant that Warner Brothers could not restrict the defendant's use or sale of the video, despite Denmark's protection of rental rights However, the European Court of Justice (ECJ) rejected this perspective, arguing that it would lead to forced harmonization and ultimately lower the standards of intellectual property protection across European member states Thus, the ECJ's decision aligned more closely with the realities of intellectual property law.
The right to prohibit the rental of video cassettes is closely linked to the fundamental rights of authors, specifically their exclusive rights to performance and reproduction This right is crucial for ensuring that filmmakers receive fair compensation in the rental market, which operates separately from the sales market and is influenced by technological advancements.
The distribution of video cassettes presents significant revenue opportunities for authors Even if these cassettes are circulated in a Member State lacking specific rental protection, this does not affect the author's rights as established by their own country's legislation.
91 Id another Member State to restrain, in that State, the hiring-out of those video- cassettes 92
The case highlights the limitations of traditional exhaustion and rental rights for copyright owners in Europe, prompting the Commission to advocate for harmonization of copyright law in its 1988 Green Paper on Copyright and the Challenge of Technology This document addresses critical issues such as piracy, audiovisual home copying, and rental rights, with a particular emphasis on the latter due to its significant impact on major intellectual property markets like Europe, the US, Canada, and Japan The Commission notes that piracy in video and audio rental undermines the revenue of legitimate copyright owners, leading to an imbalance between copyright protection and the rights of creators To address this challenge, the establishment of rental rights is proposed as a necessary solution.
Current trends in the distribution and marketing of sound and video recordings indicate that commercial rental will play an increasingly vital role in making these recordings accessible to the public This shift is closely tied to issues of piracy and private copying, leading to significant economic implications for creators of recorded works Without a solid legal framework allowing rights holders to authorize the commercial rental of their creations, those who produce recorded content are likely to see a diminished financial return on their investment and efforts.
92 Id otherwise be the case, while middlemen could profit disproportionately from the efforts of others 93
The rental right mechanism effectively addresses two key issues: it ensures copyright owners receive fair compensation for their work, thereby deterring piracy, and it stimulates the economy by enhancing the intellectual property market through increased consumer access to affordable products In response to these benefits, the Community adopted Council Directive 92/100 in November 1992, which established rental and lending rights as exclusive rights for authors and related parties in European nations This directive significantly influenced the World Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), prompting member countries to incorporate rental rights into their national laws.
Vietnam's recognition of rental rights under the Berne Convention and TRIPs agreement has been pivotal since the adoption of its Intellectual Property Law However, the new Intellectual Property Law Amendment Bill lacks provisions for rental rights for performers and phonogram producers, complicating the implementation of the EVFTA in the country In today's digital age, where music rentals are prevalent through platforms like Spotify, Apple Music, and Pandora, consumers pay a monthly subscription fee, typically around $10, to access and curate their playlists It's crucial to understand that this subscription does not grant ownership rights to the music.
93 Commission of the European Communities (1988) Green Paper on Copyright and the Challenge of
Technology - Copyright Issues Requiring Immediate Action http://aei.pitt.edu/1209/1/COM_(88)_172_final.pdf
Spotify Premium and Amazon Music Unlimited offer ad-free music experiences, allowing users to enjoy songs without interruptions Once a subscription is canceled, access to the music is revoked, highlighting the rental nature of these services This model has successfully protected the rights of artists and producers while providing affordable access to music in developed countries Recently, as international companies enter the Vietnamese market, local performers are starting to charge for individual listens on platforms like Zing MP3 and NCT However, they face challenges from copyright infringements, as many users can easily upload music for free on domestic sites, unlike international services that require verified artists to upload content for a fee, typically starting at $9.99 per single.
The lenient stance towards copyright infringement by major Vietnamese entertainment companies is likely to foster a culture of free access to local music, complicating the enforcement of related rights Without rental rights protection in Vietnam, international artists and producers may be compelled to factor rental fees into album prices, potentially raising costs and limiting public access to music For instance, while a digital album might cost $10, the shift towards streaming could render physical albums, priced at $20, less accessible This pricing structure reflects the broader market dynamics, where streaming profits range from $0.006 to $0.0084 per play, significantly lower than the $1 to $2 earned from each sale, yet the volume of streams far exceeds that of sales in today's music landscape.
In 2020, Taylor Swift's album "Folklore" emerged as the highest-selling album of the year, achieving over 1.2 million sales and more than 1.1 billion streams This impressive performance translates to an estimated profit of $24 million from album sales, while the streaming revenue could range between $105.6 million and $147.84 million, indicating that streaming profits were three times greater than sales Given these figures, it may be necessary for Swift to consider raising the price of her album to maximize revenue.
Challenge to the cooperation between Vietnamese and European
2.3.1 Collective management organizations in Vietnam and challenge to the international cooperation
Article 12.16 of the EVFTA encourages member countries to enhance cooperation among their national collective management organizations to facilitate the circulation of creative works and the transfer of remuneration for their use across member territories Collective management of copyright allows right holders to delegate their rights to professional organizations, which then oversee usage, collect fees, and distribute payments to the rightful owners This contrasts with individual management, where authors directly authorize the use of their works and set their own remuneration conditions.
The classification of collective management as obligatory, voluntary, or extended varies by national law, but it is universally acknowledged that authors and recognized related subjects hold exclusive rights to their intellectual creations This exclusivity is fundamental, as it empowers the owner to authorize or prohibit any actions regarding their work Authors can choose to exercise their rights personally or delegate this responsibility to collective management organizations Any restrictions on this autonomy contradict the essence of authorship and are only permissible if aligned with international standards.
However, the Berne Convention contains such provisions, specifically Article 11bis(2) and Article 13(1), which reads as followed:
Legislation in the countries of the Union will define the conditions for exercising the rights mentioned previously, applicable solely within those specific countries Importantly, these conditions must not infringe upon the moral rights of the author or their entitlement to fair remuneration, which will be determined by a competent authority in the absence of an agreement.
Each country within the Union has the authority to impose specific reservations and conditions on the exclusive rights granted to authors of musical works and their accompanying lyrics These conditions allow authors to authorize sound recordings of their works, but they only apply within the countries that have enacted them Importantly, these reservations must not undermine the authors' rights to receive fair compensation, which, if not agreed upon, will be determined by a competent authority.
Member countries can establish conditions under which authors must participate in collective management systems, ensuring that their moral rights remain intact and they receive equitable remuneration While Articles 11 and 13 of the Berne Convention specify limited circumstances for compulsory collective management, this mechanism may also apply to non-exclusive rights, such as resale rights and remuneration rights that persist after rights transfer Despite the Berne Convention's restrictions, there is a prevailing belief that international agreements like TRIPs, WCT, and WPPT may extend collective management to these rights, provided that a majority of rights holders consent to such arrangements To prevent claims of unjust imposition, it is recommended that countries allow authors the option to opt out of these systems, safeguarding their natural rights as creators.
Effective management is essential for collective management organizations, with blanket licensing playing a crucial role in their operations Blanket licenses allow users to access any musical work within the organization's repertoire, based on specified usage and duration These licenses can be applied nationally or through agreements between organizations Collective management organizations typically categorize themselves by the subjects and rights they represent, with the most common forms focusing on mechanical rights Examples include organizations like Austro-Mechana in Austria and the Nordisk Copyright Bureau in Nordic countries The trend towards combining various organizations into a single entity is gaining popularity in developed countries, as it reduces operational costs and enhances international collaboration, ultimately streamlining the licensing process for users and rights holders.
In Europe, collective management systems are highly advanced and widely embraced, with European Directives recognizing collective management organizations as holding the same legal status as copyright owners.
Collective management organizations play a crucial role in managing the rights of copyright owners, including authors, performers, and producers The European Community’s Council Directive 93/83/EEC emphasizes the importance of these organizations, mandating that member countries ensure compliance with copyright laws during satellite broadcasting and cable retransmission Specifically, Article 8(1) requires that retransmissions are based on contracts with copyright owners, while Article 9(1) enforces an obligatory collective management system for granting retransmission rights exclusively through collecting societies The 2014 EU Directive on collective management of copyright aims to enhance the transparency and efficiency of these organizations, particularly in the context of multi-territorial licensing for online music uses This framework not only establishes legal standards for blanket licensing but also serves as a model for other regions, as noted by the President of the International Confederation of Societies of Authors and Composers (CISAC).
In Vietnam, however, the circumstance is on the contrary, the role of collective management organizations is not commonly acknowledged, both de jure and de facto
Vietnamese legislation does not implement obligatory collective management, which results in the resale right—an essential entitlement for artists—not being recognized in the country Although the European Union-Vietnam Free Trade Agreement (EVFTA) allows member states the option to adopt this right, it remains a mere choice for Vietnam, while it is a mandatory obligation for European nations.
Creators worldwide are urging the adoption of the EU Copyright Directive to ensure their rights are recognized in domestic laws Without the support of collective management organizations, access to information for right holders becomes nearly impossible For instance, individual management of artwork sales presents challenges, such as the difficulty in tracing buyers due to the large volume of transactions in galleries, which also burdens art dealers with the need for constant information retrieval Collective management organizations can effectively address these issues However, in Vietnam, the current legal framework regarding these organizations is insufficient, lacking meaningful engagement with foreign counterparts, as highlighted in Article 56 of the Intellectual Property Law.
1 Organizations acting as collective representatives of copyright and/or related rights are not-for-profit organizations established under agreements among authors, copyright holders and/or related right holders and operating according to the provisions of law for protection of copyright and related rights
2 Organizations acting as collective representatives of copyright and/or related rights shall conduct the following activities under authorization by authors, copyright holders and/or related right holders: a/ Performing the management of copyright and/or related rights; conducting negotiations for licensing, collection and division of royalties, remunerations and other material benefits from the exercise of authorized rights; b/ Protecting legitimate rights and interests of their members; organizing conciliations upon occurrence of disputes
3 Organizations acting as collective representatives of copyright and/or related rights shall have the following rights and duties: a/ To conduct creation-promoting activities and other social activities; b/ To cooperate with their counterparts in international and national organizations on the protection of copyright and related rights; c/ To make regular and irregular reports on collective representation activities to competent state agencies; d/ Other rights and duties according to the provisions of law
The article highlights the limitations of the current regulations governing collective management organizations, noting the absence of crucial aspects such as the establishment, operations, member participation, and revenue management It emphasizes the need for clear guidelines on the collection and distribution of royalties, including standards, tariffs, and timelines, which are vital for the sustainability of these institutions Additionally, it points out that Article 56 lacks a comprehensive legal framework for international cooperation, failing to address essential legal matters like contractual agreements and payment methods While the amended Intellectual Property Bill introduces adjustments under Decree 45/2010/NĐ-CP and adds Article 56a to outline principles for royalty determination and distribution, it redundantly reiterates existing Civil Code principles without providing specific guidelines for tariff and royalty agreements with foreign organizations.
Vietnam has three primary collective management organizations: the Vietnam Literary Copyright Center (VLCC), which represents authors and copyright owners in the literary field; the Recording Industry Association of Vietnam (RIAV), which represents phonogram producers; and the Vietnam Center for Protection of Music Copyright (VCPMC), which advocates for music authors and copyright owners While VCPMC is a member of CISAC, the other two organizations have limited international engagement RIAV primarily collaborates with state-owned enterprises and a few small to medium domestic private entities, but its repertoire mainly consists of outdated songs lacking commercial value In contrast, VLCC exhibits a slightly more favorable situation.