Protection of related rights under Vietnamese Intellectual Property Law

Rome Treaty.

The addition of the subject entitled to perform the production of audio and video recordings as a specific individual should be implemented in Clause 1, Article 4 of the Regulations on production, export, import, circulation, and trading of audio tapes, audio discs, video tapes, and music and theater discs (Issued with Decision No. 55/1999/QD-BVHTT dated August 5, 1999 of the Minister of Culture - Information, now the Ministry of Culture, Sports and Tourism ): " State agencies, economic organizations, political organizations, socio-political organizations, social organizations, and armed forces units (hereinafter referred to as organizations) that want to produce tapes and discs for business purposes must have sufficient conditions and follow the following procedures..." should be amended to " State agencies, economic organizations, political organizations, and political organizations

- Societies, social organizations, armed forces units (hereinafter referred to as organizations), and individuals who want to produce tapes and discs for business purposes must meet the following conditions and complete the following procedures..." .

3.2.2 Recommendations on the regulation that the subject of related rights is a video recording

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Regulations on protection of video recordings are absent in international treaties of which Vietnam is a member. However, our Intellectual Property Law is protecting video recordings as one of the subjects of related rights. The current protection regulations for video recordings are not only in Vietnamese law, but also in the law of the Swiss Confederation as mentioned above. However, the fact that international treaties do not have regulations on protection for video recordings while Vietnam has regulations will be a difficulty in protecting this subject internationally. Therefore, to ensure the rights of the subject who is the producer of video recordings on a global scale when video recordings are exploited and used, the Law on Intellectual Property of Vietnam has issued a document on the protection of this subject.

Should we include the recording of the producer of the protected recording according to the regulations on the protection of cinematographic works? In essence, cinematographic works and recordings are quite similar, they are both works formed by a series of consecutive images creating a moving effect with or without sound, expressed on a certain material and can be distributed, communicated to the public by equipment, technology... and other similar types [2, Article 14]. The additional recognition of " other similar types" is an open direction for works that have not been classified as cinematographic works or appeared after the law was promulgated when scientific and technical advances were developed by humans. The protection of recordings according to cinematographic works is completely consistent with the regulations of cinematographic works, consistent with the regulations of international treaties on the protection of related rights. At that time, the legitimate rights and interests of the producers of video recordings will be ensured not only within the national territory but also internationally, while also ensuring the rights of foreign producers of video recordings when making video recordings in Vietnam. Not having regulations on video recordings in the Law on Intellectual Property, but instead video recordings being protected under the provisions of cinematographic works, will reduce the provisions in the law and guiding documents for implementation. Therefore, the amendment will not include video recordings in the provisions of the Law on Intellectual Property, and at the same time add the protected object under cinematographic works, which is video recordings. Specifically, the amendment and supplement to perfect the law on video recordings should be amended in the direction of being a " different similar type" . At that time, we will not have to change the concepts of cinematographic works, regulations on the generation of rights, rights subjects, rights limitations, content of rights... related to cinematographic works. Therefore, this amendment needs to be specifically amended in the documents guiding the implementation of the Law on Intellectual Property as in Article 4 of the Decree.

100/2006/ND-CP includes video recordings in the regulation “...other similar forms including video recordings ”.

3.3 Recommendations for improving regulations on protection of broadcasting organizations' rights

3.3.1 Recommendations for regulations on protection of objects of related rights which are satellite signals carrying encrypted programs

Satellite signals carrying encrypted programs according to the provisions of the Law on Intellectual Property are one of the objects of intellectual property rights (Article 3, Clause 1 of the Law on Intellectual Property: " Objects of copyright include literary, artistic, and scientific works; objects of rights related to copyright include performances, sound recordings, video recordings, broadcast programs, and satellite signals carrying encrypted programs" ). And the satellite signal carrying the encrypted program is considered to be the subject of broadcasting activities (Article 4, Clause 11 of the Law on Intellectual Property “ Broadcasting is the transmission of sound or image or both sound and image of a work, performance, phonogram, video recording, broadcast program to the public by wireless or wire means, including transmission via satellite so that the public can receive it at a location and time of their own choosing ”. The satellite signal carrying the encrypted program is the subject of protection according to the provisions of related rights (Article 17, Clause 3 of the Law on Intellectual Property “ Broadcasting programs, satellite signals carrying the encrypted program are protected if they fall into one of the following cases.... ”). As we know, the Law on Intellectual Property is a specialized law regulating specifically the field of Intellectual Property, while the Civil Code is a law regulating in general civil relations in society, including Intellectual Property relations. Therefore, the The provisions of the Intellectual Property Law must be based on the provisions of the Civil Code and must not be contrary to the provisions of the Civil Code. However, the provisions on credit protection

The rights to satellite signals carrying encrypted programs in the Intellectual Property Law as mentioned above are inconsistent with the original provisions in the Civil Code, specifically in Article 744 of the Civil Code which stipulates that " The subjects of related rights are... broadcasts of broadcasting organizations and satellite signals carrying encrypted programs " and Article 748 of the Civil Code stipulates the owner and content of rights to satellite signals carrying encrypted programs: Rights to satellite signals carrying encrypted programs belong to the first person to broadcast the satellite signal carrying the encrypted program; Rights to satellite signals carrying encrypted programs include the right to perform, permit or prohibit others from performing the following acts: (a) Manufacture, assemble, transform, import, sell, lease equipment or systems for the purpose of decoding encrypted satellite signals; (b) Receiving and redistributing decoded signals without the permission of the right holder of the encrypted satellite signal. The provisions of the Civil Code stipulate that satellite signals carrying encrypted programs are independent of the broadcasts of broadcasting organizations. Furthermore, the provisions of the Intellectual Property Law on satellite signals carrying encrypted programs are not consistent with the provisions of international treaties such as the Rome Convention and the Brussels Convention. The Rome Convention does not contain any provisions relating to satellite signals. The Brussels Convention does not protect satellite signals as an object but only aims to prevent certain acts related to the distribution of satellite signals. In particular, it stipulates that member countries are obliged to take effective measures to prevent the unauthorized distribution of signals transmitted by satellite transmission organizations of another member country. The Brussels Convention does not provide for a term of protection for satellite signals, and also provides a very wide range of exceptions for users of satellite signals.

Due to the inconsistency of regulations on satellite signals carrying encrypted programs in the Intellectual Property Law, it is necessary to amend these regulations to comply with the provisions of the Civil Code and international treaties to best ensure the rights and legitimate interests of relevant rights holders. The separate regulation between broadcast programs and satellite signals carrying encrypted programs will avoid confusion that satellite signals carrying encrypted programs are part of broadcast programs. At the same time, it ensures the rights and legitimate interests of the rights holders of these two subjects. The separate regulation for satellite signals carrying encrypted programs creates conditions for separate protection for this subject with the provisions of relevant international treaties such as the Brussels Convention. Specifically, we amend Article 4, Clause 11 of the Law on Intellectual Property: “ Broadcasting is the transmission of sound or image or both sound and image of a work, performance, phonogram, video recording, or broadcast program to the public by wireless or wired means, including satellite transmission so that the public can receive it at a location and time of their own choosing ” in the direction of not including satellite signals carrying encrypted programs within the general regulations on broadcasting, separating broadcast programs from satellite signals carrying encrypted programs. Specifically, the amendment reads “ Broadcasting is the transmission of sound or image or both sound and image of a work, performance, phonogram, video recording, or broadcast program to the public by wireless or wired means so that the public can receive it at a location and time of their own choosing”. Amend Article 17, Clause 3 of the Law on Intellectual Property into two separate articles regulating broadcast programs and satellite signals carrying encrypted programs. Specifically, amend “Broadcast programs and satellite signals carrying encrypted programs are protected if they fall into one of the following cases:

“ A broadcasting program is protected if it falls under one of the following circumstances” and “ A satellite signal carrying an encrypted program is protected if it falls under one of the following circumstances ...” .

3.3.2 Recommendations for regulations on measures to protect the rights of broadcasting organizations

As with other related rights holders, to best protect the rights and legitimate interests of broadcasting organizations, it is necessary to first organize propaganda and dissemination of legal regulations on rights related to broadcasting organizations themselves and other related entities. In order to form a sense of respect, exploitation and legal use of the rights of broadcasting organizations. Only when the owner of the rights, which is a broadcasting organization, clearly understands the legal regulations and knows how to protect its own rights and legitimate interests, will the protection of the rights of broadcasting organizations be highly effective. The right to self-protection of broadcasting organizations is stipulated by law as a measure first mentioned when the rights of broadcasting organizations are violated. When the rights of an organization are violated, the first thing the infringed broadcasting organization must do is to exercise its right to self-protection against the infringing acts. Immediately stop the infringing acts and request the infringing party to immediately stop the violation and compensate for any damage caused. Only when the broadcasting organization cannot protect its rights can it request the authorities to intervene to protect its rights.

Once they have a clear understanding of the rights protected by law, broadcasting organizations also need to fully utilize those powers and at the same time use all measures to combat acts that violate the rights protected by law. That is, against acts of broadcasting, rebroadcasting their programs, against distributing their broadcasts to the public, against acts of shaping their broadcasts.

and against the copying of their broadcasts. In addition, broadcasting organizations are required to enjoy material benefits when their broadcasts are recorded, filmed, and distributed to the public.

In today's digital environment, even a small action can seriously affect the rights of broadcasting organizations. There are even cases that go beyond the control of broadcasting organizations. Therefore, in addition to raising awareness of the law on rights related to all relevant subjects, it also requires the coordination and assistance of competent authorities and the efforts of broadcasting organizations themselves.

The unfortunate incident of VTV as the example above shows that awareness of the use of intellectual property and respect for copyright in Vietnam is not high. With the specific activities of broadcasting organizations, specifically television stations serving television viewers, causing direct damage to this broadcasting organization also causes certain damage to many people. So the problem is how to best ensure the rights of broadcasting organizations to avoid unfortunate incidents like the one that happened to VTV above. The legal framework is basically complete for the protection of the rights of broadcasting organizations. Article 35 of the IP Law clearly states that "the act of infringing upon the rights of broadcasting organizations is publishing, producing, distributing, copying, extracting, broadcasting, rebroadcasting programs without the consent of the broadcasting organization". However, from the reality of the enforcement of intellectual property rights based on the current enforcement agencies have not met, to ensure the rights of broadcasting organizations to avoid risks and disputes arising, first of all, broadcasting organizations need to have strict contracts with partners providing broadcasting programs. Broadcasting or re-broadcasting contracts are the first and most important basis to help parties ensure their rights and avoid

disputes that may arise. Currently, the law has provisions on the transfer and assignment of the right to use related rights. The provisions cover the transfer and assignment of the right to use all three objects of related rights: performances, sound recordings, video recordings and broadcast programs. The disputes between the parties also partly stem from the general provisions that are not specific to each object of related rights. Therefore, the amendment and supplementation of the provisions on the transfer and assignment of the right to use need to be in a specific direction to avoid unnecessary conflicts and disputes. Specifically, the amendment should provide additional provisions on the Transfer Contract and the Contract for the Transfer of the Right to Use Broadcast Program in Section 1 and Section 2, Chapter IV, Part II of the Law on Intellectual Property.

Applying technological measures to prevent other entities from rebroadcasting without the consent of the broadcasting organization. The law has stipulated that the broadcasting organization's rights holder can use technological measures to combat acts of infringement. However, the law is not specific about what technological measures are. What if Vietnam's current technology cannot meet the protection of the broadcasting organization's rights? Or if the broadcasting organization's rights holder cannot choose and apply this measure by himself, but requires the help of competent authorities, will it be met? Therefore, it is necessary to have more detailed regulations, or have certain directions for rights holders on the application of technological measures when violations occur.

Strengthen the activities of agencies enforcing rights related to the rights of broadcasting organizations. In the event of copyright infringement by a broadcasting organization, the damage first belongs to the broadcasting organization. When a broadcasting organization cannot protect its own rights, it has the right to request the competent authority to handle the infringing party according to the provisions of law or initiate legal proceedings.

Protection of related rights under Vietnamese Intellectual Property Law - 11

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