
Legislation of Vietnam on copyright protection for derivative works
Copyright refers to the right to creations such as poetry, music, painting, film, and sculpture, as well as technology-based works such as computer programs and electronic data. In other words, copyright objects include literary, artistic and scientific works (also known as works). Other forms are based on existing works to form such as translation, adaptation from literature to drama, compilation, compilation, etc. are also considered works, called derivative works. So how is the term derivative work understood and protected? Within the scope of this article, the author presents some legal contents about derivative works and copyright protection for derivative works.
- Derivative works
Before learning about derivative works, we need to clarify the terminology of works.
The term “literary and artistic works“, under the Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the Berne Convention), includes all products in the field of literature, science and art, whatever is expressed in any form or form; then the Berne Convention lists and is not limited to a range of works such as books, booklets and other writings, lectures, speeches, sermons and works of the like; theatrical works, or musicals, tableaux and pantomime works, lyrical or non-lyrical musicals, cinematographic works including similar works expressed by a process similar to the cinematographic process, graphic works, paintings, etc architecture, sculpture, engraving, lithography; photographic works including similar works represented by a process similar to the photographic process; works of applied art, illustrations, maps, projects, sketches and works expressing three-dimensional space related to geography, topography, architecture or science. At the time of the birth of the Berne Convention, legal concepts related to technology-based works did not appear. In the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the TRIPs Agreement), works based on technology such as computer programs are recognized and protected.
The term “work“, according to the 2005 Law on Intellectual Property, amended and supplemented in 2009, 2019 and 2022 (hereinafter referred to as the Intellectual Property Law), is understood as a creative product in the field of literature, art and science expressed by any means or form.[1] Types of works protected by copyright include: Literary, scientific works, textbooks, textbooks and other works expressed in the form of writing or other characters; Lectures, speeches and other speeches; Journalistic works; Musical works; Theatrical works; Cinematic works; Fine arts works, applied fine arts; Photographic works; Architectural works; Drawings, diagrams, maps and drawings related to topography, architecture and scientific works; Literature and folk art works; Computer programs, data collection.[2] The term of works and the classification of types of works in the Intellectual Property Law have included literary and artistic creativity as well as creativity in science and technology.
The term “derivative work” is understood as a work created on the basis of one or more existing works through translation from one language to another, improvisation, compilation, annotation, selection, modification, musical adaptation and other adaptations.[3] Thus, a derivative work is a work and belongs to one of the types of works protected by copyright under the provisions of Clause 1, Article 14 of the Intellectual Property Law.
A derivative work is a work created on the basis of one or more existing works. Forms of derivative works such as: Translated works are works that are expressed in a language different from the language of the translated work. An improvisation work is a work that simulates the content of the improvised work, which can be transferred from one genre to another or modified in the same genre, including modifying the composition of the work to make the work suitable for different conditions of exploitation and usage. A compilation work is a work composed from part or all of the existing works according to a certain theme and may have comments and reviews. An annotated work is a work created from clarifying the meaning and content of some words, sentences or events, examples and places mentioned in the annotated work. Selected works are works selected from existing works of one or more authors according to a certain time or theme, including anthologies and anthologies. A modified work is a work that is recomposed, rewritten, rearranged or changed in a form of expression different from the work used for modification according to certain purposes and requirements in specific cases. An adapted work is a work that is transferred from one type to another or a work that is expressed by artistic techniques different from the work adapted in the same type.[4]
The Berne Convention uses the term “derivative works” [5] when referring to works that are “ shall be protected as original works without prejudice to the copyright in the original work” including “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work.” and the use of the term “anthologies” [6] when referring to anthologies collections of literary and artistic works such as encyclopedias and anthologies, in which the selection and arrangement of creative and protected contents as works, without affecting the copyright of each work constituting a part of the collection. The Convention has mentioned two forms: there is a change in the work itself to be used as a derivative work and there is no change in the work used to make a derivative work.
Thus, the concept of derivative works under the Intellectual Property Law includes two forms: forms of translation, adaptation, adaptation, adaptation of an existing work to form a new work, and forms of selection, collection, and selection in which the selection and arrangement of creative content belong to derivative works.
- Law and regulations on copyright protection for derivative works
The Law on Intellectual Property stipulates that “Derivative works are only protected if they do not prejudice the copyright of the work used to make derivative works“.[7]
Copyrights to works include moral rights and economic rights. Moral rights, with the exception of the right of publicity, are characterized by always belonging to the author, are protected indefinitely and are non-transferable. Economic rights are transferable to other organizations and individuals and are protected for a limited time. Derivative works are works of all types of works protected under the provisions of Article 14 of the Intellectual Property Law. As with other types of protected works, derivative works must be directly created by the author himself with his or her own intellectual labor without copying from the work of others. Therefore, the moral rights and property rights of the author as a derivative work are protected. Due to some specific characteristics of derivative works, copyright protection for derivative works has some distinct characteristics as follows:
Making derivative works belongs to one of the economic rights under copyright for works. This is a right exclusively exercised by authors or copyright holders or allowed by other organizations and individuals; therefore, organizations and individuals when exploiting this right to make derivative works must obtain the permission of the copyright owner and pay royalties and other material rights (if any) to the copyright owner. When the right to make derivative works still belongs to the author and has not been transferred to any individual or organization, it is completely consistent with the author’s moral rights to protect the integrity of the work from being distorted by others; not allowing others to modify or mutilate the work in any form, damaging the honor and reputation of the author as prescribed in Clause 4, Article 19 of the Intellectual Property Law. However, when the right to make derivative works is transferred to other individuals or organizations and they exercise this right, whether or not there is a risk of affecting the moral rights of authors whose works are used to make derivative works in terms of modification or mutilation, causing harm to honor, the author’s reputation and this risk occurs for derivative works such as adaptations, adaptations and other adaptations of literary and artistic works to create new works. In order to solve that problem, Clause 2, Article 20 of the Intellectual Property Law stipulates that in case of making derivative works that affect moral rights, modification or mutilation, causing harm to the honor and reputation of the author, the written consent of the author is also required. Thus, individuals and organizations other than the author of the work when making derivative works, especially adaptations, mdifications, should pay attention and ask for permission if they deem it necessary to avoid the risk of modification or mutilation causing harm to honor and the author’s prestige of the work is used for adaptation, revision and adaptation.
Regarding the real name or pseudonym on the work, the real name or pseudonym may be stated when the work is published or used for the derivative work itself and the work used as a derivative work: The right to state the real name or pseudonym on the work shall apply to the derivative work and the work used as a derivative work. When announcing or using derivative works, the real name or pseudonym of the author of the work used as a derivative work must be stated.[8] Thus, when a derivative work is published and used, it is necessary to state the name of the author of the derivative work and the name of the author of the work used as a derivative work at the same time.
Regarding naming works: Naming works belongs to the author’s personal rights and cannot be transferred. The authors of works used to make derivative works (translated works) have the right to name their works. Translation activities, in essence, are the conversion and interpretation from one language to another, helping readers and listeners understand the message that the author (of the work used to translate) wants to convey while still ensuring the accuracy of the content of the work and the author’s style. Therefore, the general requirement for translated works is to convey accurately, completely, objectively, and truthfully the content and emotions that the author of the work used to translate wishes to convey to readers and listeners. Therefore, the naming of the translated work must not be named other than the content and meaning of the work used for translation. Therefore, Clause 1, Article 14 of Decree No. 17/2023/ND-CP stipulates: The right to name a work does not apply to works translated from one language to another. In order to avoid violations of regulations on limitations of intellectual property rights when switching from one language to another in terms of the name of the work, Clause 1, Article 14 of Decree No. 17/2023/ND-CP stipulates that the naming of translated works must not violate the provisions of Clause 2, Article 7 of the Law on Intellectual Property and other laws that have relate.[9]
Derivative works are works protected by copyright under the law on intellectual property. A derivative work is characterized as a work created on the basis of one or more existing works and the protection of copyright in derivative works when the derivative work does not prejudice the copyright of the work used to make derivative works. Therefore, copyright protection for works has a number of distinct characteristics that authors, copyright owners, and operators should pay attention to comply with the provisions of the intellectual property law./.
Copyright Office of Vietnam
[1] See Clause 7, Article 4 of the Intellectual Property Law
[2] See Clause 1, Article 14 of the Intellectual Property Law
[3] See Clause 8, Article 4 of the Intellectual Property Law
[4] See Article 7 of the Government’s Decree No. 17/2023/ND-CP dated April 26, 2023 detailing a number of articles and measures to implement the Law on Intellectual Property on copyright and related rights
[5] See paragraph 3, Article 2 of the Berne Convention: “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.“
[6] See paragraph 5, article 2 of the Berne Convention: ” Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.“
[7] See Clause 2, Article 14 of the Intellectual Property Law
[8] See Clause 2, Article 14 of Decree No. 17/2023/ND-CP
[9] See Clause 1, Article 14 of Decree No. 17/2023/ND-CP
