HANOI NATIONAL UNIVERSITY
FACULTY OF LAW
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NGUYEN THI TRIEN
COPYRIGHT PROTECTION
FOR FOLKLITERARY WORKS UNDER VIETNAMESE LAW
Major : Civil Law
Code : 60 38 30
MASTER'S THESIS IN LAW
Scientific advisor : Dr. Nguyen Thi Que Anh
HANOI - 2013
COMMITMENT
I hereby declare that this Thesis is my own research work. The results stated in this Thesis have not been published in any other work. The figures, examples and quotations in this Thesis ensure accuracy, reliability and honesty. I have completed all subjects and paid all financial obligations as prescribed by the Faculty of Law, Vietnam National University, Hanoi.
So I write this Declaration to request the Faculty of Law to consider so that I can defend my Thesis.
Thank you very much!
GUARANTEE
Nguyen Thi Trien
INDEX
Cover Page Pledge Table of Contents
List of abbreviations
INTRODUCTION 1
1. Urgency of the topic 1
2. Research objective 2
3. Novelty and contributions of the topic 3
4. Research object and scope 4
5. Content, situation and research methods 4
Chapter 1: SOME THEORETICAL ISSUES ON RIGHTS PROTECTION
AUTHORS TO FOLKLITERATURE WORKS 7
1.1 . GENERAL OVERVIEW OF COPYRIGHT PROTECTION 7
1.1.1. Concept of copyright 7
1.1.2. Conditions for copyright protection 9
1.1.3. Copyright content 11
1.2 . GENERAL OVERVIEW OF COPYRIGHT PROTECTION FOR WORKS
WITH FOLKLITERATURE WORKS 14
1.2.1. Development history of folk literature works 14
1.2.2. Concept of folk literature 16
1.2.3. Basic characteristics of copyright for literary works
folklore 19
1.2.4. Purpose of copyright protection for folk literature works
world 22
1.3 . DEVELOPMENT OF VIETNAMESE LAW ON RIGHTS
AUTHORS TO FOLKLITERATURE WORKS 26
1.3.1. Before the promulgation of the 2005 Civil Code 26
1.3.2. After the Civil Code 2005 was promulgated 29
1.4 . INTERNATIONAL LAW ON COPYRIGHT
FOLKLITERATURE WORKS 33
Chapter 2 : PROVISIONS OF VIETNAMESE LAW ON COPYRIGHT PROTECTION OF WORKS
FOLKLITERATURE AND APPLIED PRACTICE 47
2.1 . PURPOSE OF COPYRIGHT PROTECTION FOR VIETNAMESE FOLKLITERATURE WORKS ACCORDING TO
CURRENT VIETNAMESE LAW 48
2.2. CONDITIONS FOR COPYRIGHT PROTECTION OF WORKS
FOLKLITERATURE 49
2.3 . FOLKLITERARY WORKS - OBJECTS OF PROTECTION 51
2.4 . ESTABLISHING COPYRIGHT FOR LITERARY WORKS
FOLKLORE 52
2.5 . CONTENT OF COPYRIGHT PROTECTION FOR VIETNAMESE FOLKLITERATURE WORKS UNDER CURRENT VIETNAMESE LAW 53
2.6 . DETERMINING INFRINGEMENT 55
2.7 . MEASURES TO PROTECT COPYRIGHTS FOR
FOLKLITERATURE WORKS 56
2.7.1. Administrative measures 56
2.7.2. Civil remedies 57
2.7.3. Criminal measures 59
2.7.4. Border control measures 59
2.8 . PRACTICAL APPLICATION OF THE LAW ON COPYRIGHT PROTECTION FOR FOLKLITERARY WORKS
VIETNAM 60
Chapter 3 : SOME RECOMMENDATIONS TO IMPROVE THE LAW ON PROTECTION OF FOLKLITERARY WORKS AND IMPROVE THE EFFECTIVENESS OF IMPLEMENTATION OF MEASURES
PROTECTION LAW 67
3.1 . RECOMMENDATIONS FOR IMPROVING THE LAW ON COPYRIGHT PROTECTION FOR LITERARY WORKS
FOLKLORE 67
3.1.1. Some issues to keep in mind when considering the protection of literary works
folklore 67
3.1.2. Solutions to improve legal regulations on copyright
for folk literature 69
3.2 . MAIN RECOMMENDATIONS FOR THE IMPLEMENTATION OF COPYRIGHT PROTECTION MEASURES FOR
FOLKLITERATURE WORKS 73
3.2.1. Improve the capacity to inspect and handle violations of human rights
Author of folk literature 73
3.2.2. Raising awareness of agencies, organizations, businesses and users 73
3.2.3. Improving the Court's adjudication capacity in resolving disputes and trying criminal cases of copyright infringement
for folk literature 74
3.2.4. Strengthening international cooperation in copyright protection and preservation
for folk literature works 76
3.2.5. Tightening border and Internet control mechanisms in the field
Copyright of folk literature works 76
CONCLUSION 79
LIST OF REFERENCES 81
LIST OF ABBREVIATIONS
BLDS : Civil Code SHTT : Intellectual Property VHDG : Folklore QTG : Copyright
INTRODUCTION
1. Urgency of the topic
Through thousands of years of history, through the process of working, fighting, building and defending the country, our people have created great and proud material and spiritual values. Vietnamese literature is one of the typical evidences of that spiritual creativity. Vietnamese literature includes linguistic creations with two large parts that are closely related to each other, which are folk literature and written literature. Folk literature works (VHDG) are the foundation of written literature, the first stage of national literature. The values that folk literature works bring to humanity are enormous and comprehensive (Living, entertainment, production, business and study, scientific research, state management, etc.)
The spiritual values as well as the economic benefits that protection brings to authors and copyright owners of folk literature works are extremely necessary and important. If the copyright protection mechanism is well implemented, it will encourage the creativity and development of authors and owners of literary works in general, while preserving and promoting the values and cultural quintessence of folk literature works, contributing to making literary works richer and more diverse. On the contrary, if not properly recognized, it will be a barrier that limits the motivation to research, create and apply folk literature works in the processes of daily life, entertainment, production, business, study and scientific research.
In Vietnam, copyright was first recognized in Decree 142/HDBT dated November 14, 1986 of the Council of Ministers on copyright protection and to date a series of documents have been issued including Laws,
Although the documents guiding the implementation and the international agreements and conventions signed by the parties ensure the enforcement of copyright, there are still shortcomings that need to be further improved for folklore works. Although in the meetings discussing the draft law, the National Assembly deputies have raised and discussed many issues, the Law amending and supplementing a number of articles of the Intellectual Property Law 2009 does not mention the current and inadequate issue of copyright for folklore works.
Besides, people's awareness of copyright in general and copyright for folk literature works in particular is still low. Compliance and enforcement of the law on copyright for folk literature works has not really entered the social life of all people. In addition, we are not yet familiar with paying a fee to those who collect, research, and preserve folk literature works other than the sellers of these products.
But above all, the problem here is not the inadequacy of the legal system nor the people's awareness, but in my personal opinion, the unreasonableness between people's income and the fee paid for copyright of folk literature works is a difficult problem.
Based on the above reasons, the author chose: "Copyright protection for folk literature works under Vietnamese law " as the topic of his master's thesis.
2. Research objectives
2.1. General objectives
The topic focuses on clarifying scientific arguments on copyright for folk literature works. Thereby, studying theoretical and practical issues of copyright for folk literature works according to the provisions of current Vietnamese law. On that basis, building and recommending a