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DECREE No. 76-CP OF
NOVEMBER 29, 1996 OF THE GOVERNMENT
GUIDING THE IMPLEMETATION OF A NUMBER OF PROVISIONS
ON COPYRIGHT IN THE CIVIL CODE
THE
GOVERNMENT
Pursuant to the Law
on Organization of the Government of September 30, 1992;
Pursuant to the Civil
Code of the Socialist Republic of Vietnam of October 28, 1995;
Pursuant to the
Resolution of the National Assembly on the implementation of
the Civil Code of October 28, 1995;
At the proposal of
the Minister of Culture and Information.
DECREES
Chapter I
GENERAL
PROVISIONS
Article 1. This Decree provides guidance for the implementation of a
number of provisions on copyright in Chapter I, Part VI of the
Civil Code, or the Code for short.
Article 2. Author:
1.
An author is person who personally
creates the whole or part of a literary, artistic or
scientific work.
2.
A person who collects already published works of
another or other person(s) to make a selection or anthological
work, arranged under a certain topic and bearing a creative
character, shall be acknowledged as the author of such
selection or anthological work. These authors’ rights shall
not affect the rights of the author of the original work(s).
3.
To be acknowledged as author(s), the person(s) defined
in Clause 1 and 2 of this Article shall have to put their real
names or pen names on their works when they are published or
publicized.
4.
A person who translates, re-creates, compiles, adapts
or transforms a work shall have to write down clearly the name
of the author of the original work and must not put his/her
name on the same line as the name of the author of the
original work.
5.
An organization or individual that supports,
contributes opinions or spplies materials for another person
to create a work shall not be acknowledged as a author of the
work.
Articles 3. Owner of a work:
1.
The owner of a work shall have the right to transfer
part or the whole of his/her ownership right over the work to
another individual or legal person, but such a transfer must
be done through a written contract. The transfer of part of
the ownership right over the work shall not affect the
ownership right over the remaining parts of that work.
2.
An individual or organization that is responsible for
providing funds or creating decisive conditions for the
development of a computer software, except otherwise agreed
upon by the parties.
Article 4. The genres of protected works stipulated in Article 747
of the Code shall be construed as follows:
1.
Works written in characters or signs such as novels,
stories, short stories, notes, travelogues, essays, memoirs,
poems, epics, dramas, pieces of music, cultural, literary and
artistic studies and other writings.
2.
Lectures, speeches which are prepared in writing or
orally presented but recorded and circulated as written
documents.
3.
Theatrical works and the other forms of artistic
performances which are presented on stage, such as: plays,
songs, dances, circus, puppetry and others.
4.
Cinematographic and video works with or without sounds
recordings.
5.
Radio and Television works created for transmission by
radio waves to the public.
6.
Press works, including printed, spoken and visual press
in Vietnamese, languages of ethnic minorities in Vietnam or in
foreign languages.
7.
Musical works, including vocal and instrumental music
expressed through singing or musical instruments.
8.
Architectural works, including designs with creative
ideas on houses, constructions or space planning already or
not yet materialized.
9.
Plastic art works and applied fine art works including
painting, graphics, sculptures, applied fine art works and
others.
10.
Photographic
works which record images of objects on photosensitive
materials.
11.
Scientific
works, text books, teaching materials in the fields of
research, teaching and training.
12.
Graphics,
drawings, diagrams and maps related to topography,
architecture or scientific projects.
13.
Translated,
re-created, adapted, transformed, compiled, annotated,
selected and anthological works:
a.
Work translated form one language into another, from
“Nom” (Chinese transliteration of the Vietnamese language)
into “Quoc ngu” (romanized Vietnamese).
b.
Work re-created on the basis of the contents of an
existing work.
c.
Transformed work created on the basis of an original
work by changing the form of expression.
d.
Work transformed from one artistic genre into another.
e.
Compiled work selected according to a certain topic,
which may contain comments and appreciations.
f.
Annotated work clarifying the meanings of a number of
works, sentences or place names of places in an existing work.
g.
Selection gathering works or writings by one or many
authors.
h.
Anthological work compiles from many works of many
authors according to a certain intention.
14.
Computer software, including computer programs,
documents describing programs, supportive documents,
databases.
Article 5. Publishing and Publicizing:
The publication and dissemination of a work is the
presentation of that work before the public in the forms of
lecture, exhibition, publication, performance, radio or
television broadcasting and other forms.
Article 6. The moment at which the copyright arises:
The copyright over a work shall arise at the moment when
the created work is expressed in a certain material form,
whether the work has been published or not, registered for
copyright protection or not.
Article 7. The right to request copyright protection:
The
author or owner of a work described in Article 747, the
performers, organizations producing audio tapes and disks,
video tapes and disks, radio and television broadcasting
organizations specified in Article 775, 777 and 779 of the
Code shall have the right to request the competent State
agency to protect their copyrights if they are infringed upon.
Chapter
II
AUTHOR’S
RIGHTS AND RIGHTS OF THE OWNER OF A WORK
Article 8. Rights of the author who is also owner of a work:
1.
The personal rights of an author stipulated in Points
c, d, Clause 1 of Article 751 of the Code may be transferred
to another person. Such a transfer must be carried out through
a written contract.
2.
The author’s rights to publicize, disseminate or
allow others to publicize or disseminate his/her work as
prescribed in Point c, Clause 1, Article 751 of the Code,
shall be exercised in the following forms:
a.
Publishing, editing or copying the work.
b.
Performing or displaying the work before the public.
c.
Disseminating the work to the public by any means or in
any form.
d.
Distributing the works or its copies by selling,
leasing or in other ways.
e.
Importing copies of his/her work from overseas into
Vietnam.
3.
The author’s rights to permit or not to permit
another person to use his/her work, as stipulated in Point d,
Clause 1, Article 751 of the Code, shall be exercised in the
following forms:
a.
Copying the work in any form.
b.
Translating, re-creating, compiling, adapting or
transforming the work.
4.
The payment of the author’s royalties or remuneration
or other material benefits which he/she is entitled to in
under Clause 2, Article 751 of the Code shall be determined
based on the basis of the contract between the author and the
individual or organization using his/her work.
Article 9. Rights of the owner who is not author of the work:
1.
The provisions in Clauses 1, 2, 3 Article 8 of this
Decree shall also apply to the personal rights of the owner
who is not author of the work as provided for in Clause 1,
Article 753 of the Code.
2.
The provisions in Clause 4, Article 8 of this Decree
shall also apply to the property rights of the owner who is
not author of the work as provided for in Clause 2, Article
753 of the Code.
Article 10. Rights of co-authors:
With regard to co-authored works stipulated in Clause 1,
Article 755 of the Code, the use and disposal of the works
must be agreed upon by all the co-authors; if one of the
co-authors dies, there must be the consent of the heir of that
co-author.
Article 11. Rights of an author who translates, re-creates, compiles,
adapts or transforms a work.
Individuals or organizations that base themselves on the
translated, re-created, compiled, transformed or adapted works
of other persons to create new works, must obtain permission
from the authors or owners of the work.
The request for permission and payment of remuneration to
the author or owner of the translated, re-created, compiled,
transformed or adapted work must be made into a contract.
Article 12. Forms of using a works without having to obtain
permission and paying remuneration:
1.
The copying of a work for personal use as stipulated in
Point a, Clause 1, Article 761 of the Code shall not exceed
one copy.
2.
The quoted part(s) of an already publicized work of
other person(s) as stipulated in Points b, c, d, Clause 1,
Article 761 of the Code shall not become the main part(s) of
the new work; the quoted part(s) shall be used only as an
introduction, comment or illustration in the new work and the
name of the author as well as the origin of the quoted work
must be clearly recorded.
3.
The translation of a work from Vietnamese into
languages of ethnic minorities in Vietnam and vice versa as
stipulated in Point e, Clause 1, Article 761 of the Code shall
apply only to the original works in Vietnamese or in languages
of ethnic minorities in Vietnam.
4.
Public performances stipulated in Point g, Clause 1,
Article 761 of the Code shall apply only to performances
without admission money in any form.
Article 13. Inheritance of copyright:
1.
In case the copyright can be inherited
by law, the heirs of the same rank shall have equal
rights in the use and disposal of the work. The use and
disposal of the work must be agreed upon by all the heirs; if
they fail to reach an agreement, they may request the Court to
settle the case.
In
case the copyright can be inherited by a lawful testaments, if
there are many testamentary heirs, they shall be entitled to
the use and disposal of the work according to the scope
specified in the testament. Where the testament fails to state
clearly the scope of use and disposal of the work for each of
the heirs, the use and disposal of the work must be agreed
upon by all the testamentary heirs; if they fail to reach an
agreement, they may request the Court to settle the case.
2.
In case where the author or co-author has no heir or
the heir refuses to receive the legacy or is not entitled to
enjoy the legacy, the property rights of that author or
co-author shall belong to the State.
The
Ministry of Culture and Information shall be responsible for
providing guidance on the use of the above-mentioned work as
well as the mode of remuneration payment.
Article 14. Time limit for copyright protection:
1.
The date on which the 50-year period for copyright
protection as prescribed in Clauses 2 and 3, Article 766 of
the Code terminates is December 31 of the 50th
year.
2.
The date on which the 50-year period for the copyright
protection of a cinematographic work, a radio or television
broadcasting work, a video work or a work published
posthumously; and for the protection of the rights of the
organization producing audio tapes and disks, video tapes and
disks, radio and television broadcasting organizations
stipulated in Clause 4, Article 766, Articles 777 and 779 of
the Code is December 31 of the 50th year, counting
from the day the work is publicized for the first time.
3.
For any transfer of personal rights stipulated in
Points c and d, Clause 2, Article 751 of the Code, the time
limit for copyright protection must not exceed the time limit
provided for by law.
Chapter
III
CONTRACT
FOR THE USE OF A WORK
Article 15. Contract for the use of a work:
1.
A contract for the use of a work must be made in
accordance with the provisions of Article 767 and 768 of the
Code and must conform to the form of contract for the use of
works issued by the Ministry of Culture and Information.
2.
The signing of a contract for the use of a work of
co-author must be agreed upon between the co-authors or the
persons entitled to transfer the co-author’s rights and the
work user on the contents stipulated in Article 768 of the
Code. The co-authors or persons entitled to transfer the
co-author’s rights and the work user shall have to sign to
the contract.
Article 16. Obligations of the author and/or owner of a work:
1.
To transfer the work to the work user for publication
and dissemination of the work within the time limit agreed
upon in the contract.
2.
When the contract remains valid, the author and/or
owner of a work shall not be allowed to transfer the whole or
part of the work to another individual or organization for the
publication and dissemination of such work without a written
consent of the work user, except otherwise agreed upon by the
two parties.
Article 17. Obligations of the work user:
1.
Within 30 days after the author and/or owner of the
work transfers it to the work user, the work user shall have
to notify in writing the author and/or owner of whether the
work is accepted or not, except otherwise agreed upon by the
two parties.
In
cases where the work needs to be amended and perfected at the
author’s and/or owner’s request, the time for the transfer
of the final copy of the work shall be agreed upon by the two
parties.
2.
Unless there is a written consent of the author, the
work user shall not be allowed to change the author’s name,
the work’s contents as well as the preamble, epilogue, notes
or illustrations in the work.
3.
The work user shall have to strictly abide by the
agreements in the contract concerning the time for the
publication and dissemination of the work, the forms and scope
of its use, the amount of royalties and remuneration and the
time and mode of payment of royalties or remuneration.
Article 18. Cancellation of the contract:
1.
The author and/or owner of a work shall have the right
to cancel the contract and request the work user to compensate
for damage in the event that the latter fails to comply with
provisions of Clauses 1, 2, 3, Article 771 of the Code and
provisions of Clauses 2 and 3 of Article 17 of this Decree.
2.
The work user shall have the right to cancel the
contract and request the author and/or owner of the work to
compensate for damage in the following cases:
a.
The work is not protected by the State as stipulated in
Article 749 of the Code.
b.
The author or owner of the work does not transfer it
within the time limit already provided for in the contract.
c.
The author or owner of the work refuses to fulfill the
agreements of the two parties in the contract.
Chapter
IV
RIGHTS
AND OBLIGATIONS OF PERFORMERS, ORGANIZATIONS PRODUCING AUDIO
TAPES AND DISKS, VIDEO TAPES AND DISKS, RADIO AND TELEVISION
BROADCASTING ORGANIZATIONS
Article 19. The obligations of performers stipulated in Article 774
of the Code are further clarified with respect to the
following cases:
In
cases where an unpublicized work of another person is used for
performance, there must be a written consent from the author
or owner of the work. The payment of remuneration must be made
in accordance with the contract agreed upon by the performer
and the author or owner of the work.
Article 20. The rights of performers stipulated in Article 775
of the Code are further clarified with respect to the
following cases:
1.
A performer is entitled to remuneration by allowing
another person to use his/her performance program to produce
an audio or video product for commercial purposes or to
produce radio or television programs in accordance with the
provisions of Clauses 3 and 4, Articles 775 of the Code.
2.
In cases where the performer’s rights stipulated in
Article 775 of the Code are infringed upon by an organization
or individual, he/she shall have the right to send a request
to the competent State agency for consideration and
settlement.
Article 21. Obligations of the organizations producing audio tapes
and disks, video tapes and disks, and radio and television
broadcasting organizations:
1.
The provisions of Articles 776 and 778 of the Code
shall also apply to organizations producing recorded audio and
visual products in the form of tapes and disks or other
technologies which are in existence or shall be developed in
the future.
2.
An individual or organization that use an unpublished
work of another person for the production of recorded audio or
visual products shall have to obtain a written consent of the
author or owner of the work. The payment of royalties or
remuneration to the author or owner of the work must be made
in accordance with the contract already signed with such
author or owner of the work.
3.
Radio or television broadcasting organizations that use
performance programs or recorded audio and visual products to
make their own radio or television programs, shall have to pay
remuneration to the performer or the organization that has
produced the products.
Articles 22. Rights of organizations producing audio tapes and disks,
video tapes and disks and of radio and television broadcasting
organizations:
1.
The rights of organizations producing audio tapes and
disks, video tapes and disks stipulated in Point a, Clause 1,
Article 777 and Article 779 of the Code shall include the
right to permit or not to permit or not to permit the copying
and distribution of their products by other persons.
2.
If their rights stipulated in Articles 777 and 779 of
the Code are infringed upon by an individual or organization,
the organizations producing audio tapes and disks, video tapes
and disks shall be entitled to send a request to the competent
State agency for consideration and settlement.
Chapter
V
REGISTERING
COPYRIGHT AND OWNERSHIP RIGHT OVER A WORK
Article 23. An individual or organization that is the author,
co-author or owner of a work shall have the right to apply for
registration and protection of their copyright and ownership
right over the work.
Article 24. Registration procedures:
1.
The author, co-author or owner of a work who wishes to
register his/her copyright and ownership right over the works
shall have to file application for registration and production
according to the form issued by the Ministry of Culture and
Information.
2.
The applicant shall have to produce necessary materials
and papers to prove that he/she is the author, co-author or
owner of the work and shall have to pay the prescribed
registration fee. The author, co-author or owner of the work
may mandate another individual or legal person to fill the
registration procedures; the mandating paper must be notarized
by the State Notary Office or certified by the People’s
Committee of the commune, ward or township where the author,
co-author or owner of the work resides.
3.
In case a heir comes to register, he/she shall have to
produce papers evidencing that he/she is the legal heir.
Article 25. Granting the copyright certificate:
1.
The Copyright Department shall consider and examine the
contents of each application for protection registration.
2.
After considering and being satisfied that there are
all necessary conditions and valid papers as required by the
provisions of Article 24 of this Decree, the Copyright
Department shall grant the copyright certificate to the
author, co-author or owner of the work.
3.
The registration of copyright and ownership right over
a work and the granting of the copyright certificate must be
recorded in the Copyright Registration Book and kept at the
Copyright Department.
Article 26. Time limit for the granting of copyright certificates:
1.
Within 10 days after the author or owner of the work
files a registration application, the Copyright Department
shall have to consider and grant the copyright certificate to
that author or owner.
2.
If the Copyright Department finds that the application
for protection registration lacks the necessary conditions and
valid papers as stipulated in Article 25 of this Decree, it
shall have the right to refuse to grant the copyright
certificate but shall have to inform in writing the applicant
thereof.
3.
If the applicant disagrees with the refusal to grant
the copyright certificate by the Copyright Department, he/she
shall be entitled to protest to the Minister of Culture and
Information.
4.
If a person with related rights and interests discovers
that the copyright certificate was granted by the Copyright
Department to a wrong person. He/she shall have the right to
file a protest and request the Copyright Department to revoke
the certificate.
Article 27. The copyright service organization is an enterprise which
registers its operation in accordance with law and is allowed
by the Copyright Department to provide services regarding the
registration and application for the protection of the
copyright and ownership rights over a work on the basis of the
mandate of the author, co-author or owner of the work.
The regulations on the granting and revocation of operation
licenses for a copyright service shall be set by the Ministry
of Culture and Information.
Article 28. The copyright of foreign individuals and legal persons
shall be provided for by the Government in another legal
document.
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