Vietnam's 1994 Ordinance on Copyright Protection: A Survey and Preliminary Analysis

Journal of Intellectual Property Law Volume 3 | Issue 1 Article 2 October 1995 Vietnam's 1994 Ordinance on Copyright Protection: A Survey and Preliminary Analysis David Lange Duke University School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation David Lange, Vietnam's 1994 Ordinance on Copyright Protection: A Survey and Preliminary Analysis, 3 J. Intell. Prop. L. 1 (1995). Available at: https://digitalcommons.law.uga.edu/jipl/vol3/iss1/2 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Lange: Vietnam's 1994 Ordinance on Copyright Protection: A Survey and Pr JOURNAL OF INTELLECTUAL PROPERTY LAW VOLUME 3 FALL 1995 NUMBER 1 ARTICLES VIETNAM'S 1994 ORDINANCE ON COPYRIGHT PROTECTION: A SURVEY AND PRELIMINARY ANALYSIS David Lange* In December, 1994, the Standing Committee of the Vietnamese National Assembly promulgated a long-awaited new Ordinance1 on * Professor of Law, Duke University. In 1994 1 was asked by the Vietnamese National Office of Industrial Property (NOIP) to offer comprehensive courses in intellectual property in Hanoi and Ho Chi Minh City. The purpose of the courses was to provide training in U.S. and world intellectual property systems to Vietnamese judges, lawyers, government officials and other interested persons. In preparing this article I have drawn on my work with many of these individuals, and I am grateful for all of their contributions. Particular thanks, however, are due to Nguyen Quoc Hai, of the Chamber of Commerce and Industry of Vietnam, who provided a very valuable early translation of the Ordinance upon which I have relied principally in preparing this article. Mr. Hai also furnished a translation of a proposed Ministerial Decree which affords additional insight into the meaning of the provisions of the Ordinance. These translations are published, respectively, as Appendices A and C to this article. Special thanks also are due to Do Khac Chien, Director of International Relations of the NOIP, who has offered both assistance and advice in understanding the new Copyright Ordinance, as well as a second translation of the Ordinance, and who very kindly read and offered comments upon a draft of this article. Mr. Chien's translation is published as Appendix B. 1 Ordinances issued by the Standing Committee occupy a unique intermediate position in the hierarchy of Vietnamese law-making. The highest form of legislation under the Constitution of the Socialist Republic of Vietnam is the "Law," the issuance of which is Published by Digital Commons @ Georgia Law, 1995 1 Journal of Intellectual Property Law, Vol. 3, Iss. 1 [1995], Art. 2 2 J. INTELL. PROP.L. [Vol. 3:1 Copyright Protection. The Ordinance comprises forty-seven Articles (or sections), organized into six Chapters, which are intended to deal comprehensively with copyright and allied rights. In this article I summarize the Ordinance and analyze each chapter briefly in its own terms. In my analysis I rely chiefly on the text of the Ordinance as well as conversations and correspondence with Vietnamese officials involved in the process of drafting and administering it. I also draw upon a Decree which has been proposed by the Ministry of Culture for the purpose of providing guidance in interpreting and implementing the Ordinance. If adopted, as now appears likely, the Decree eventually will be signed and promulgated by the Prime Minister. CHAPTER I: GENERAL PROVISIONS 2 A. NATURE OF COPYRIGHT The provisions of the Ordinance reflect both natural and positive law influences. On the one hand, copyright protection is articulated in terms of the "moral and economic rights of the author,"3 and reserved to the National Assembly. The Assembly's Standing Committee has the authority to issue Ordinances, however, when legislation appears desirable or necessary and the full National Assembly is not yet prepared to act. Ministerial Decrees sometimes issue to provide interpretive guidance in understanding Laws or Ordinances. Meanwhile, as in the United States, Vietnamese government agencies (or ministries)-acting pursuant to Laws, Ordinances or Decrees-may promulgate Administrative Regulations which are binding on those who are subject to the agency's jurisdiction. 2 Except when otherwise specifically noted, all citations herein are to the Hai translations of the Ordinance and the Decree. Understandably, translations from Vietnamese to English are problematic. Having access to two translations of the Ordinance has made it possible to decide upon meaning more exactly than a single translation could have done. Thus I am greatly indebted to both Mr. Ha and Mr. Chien. Minor spelling errors in the original translations have been corrected without being noted when there was no risk of altering the meaning of the language. In addition, brackets indicate language in the original translations which was clarified by the author. The original translations are on file both with the author and the Journalof IntellectualProperty Law. The version of the Decree relied on in preparing this article was current, circa March, 1995. As of mid-August, 1995, the Decree reportedly had been revised in certain minor details, and was soon to be formalized. At the time the article went to press in late October, however, no translation of the final version of the Decree was available. 3 Art. 2; Decree, Art. 6. https://digitalcommons.law.uga.edu/jipl/vol3/iss1/2 2 Lange: Vietnam's 1994 Ordinance on Copyright Protection: A Survey and Pr 1995] VIETNAM'S COPYRIGHT PROTECTION thus is recognized as an end in and of itself. At the same time, however, protection for copyright is expected to promote the creation of new works, to contribute to the development of the Vietnamese culture, and to lead to a cooperative international exchange of "culture, science and technology."4 B. SUBJECT MATTER Copyright is recognized in "literary, artistic, scientific [and technical] works" irrespective of their forms of expression.5 These fundamental categories of subject matter are further divided into enumerated subcategories which generally echo the format of both the 1909 and 1976 United States Copyright Acts as well as those of other countries.6 Works must be original to be eligible for protection.7 The Ordinance also reflects the fundamental distinction observed elsewhere in the world between expression and invention. Thus, presumably, the recognition of copyright in "scientific works" is limited to the expression in those works and does not extend to the invention. Such a distinction would correspond to international practice and is confirmed by my own conversatio (...truncated)