The Difference Between the Concepts of “Rights” and “Protection of Rights”

benefit from the protection of the material and moral interests resulting from a person's scientific, literary or artistic production.

“ Any scientific, literary or artistic production ”: The Committee considers that the concept of “any scientific, literary or artistic production” referred to in Article 15(1)(c) refers to creations of the human mind, including the groups of “ scientific productions ” [6, p.176], such as scientific publications or scientific innovations, including knowledge, innovations and practices of local or indigenous communities, and “ literary and artistic productions ” [10, p.176], such as works of poetry, novels, paintings, sculptures, music, dramatic works and motion pictures, performances and oral traditions…

“ Benefit from protection ”: The recognition in Article 15(1)(c) that the author has the right to benefit from the protection of the moral or material interests resulting from his scientific, literary or artistic production without specifying the means of protection can be considered as an open provision. This will help to improve the applicability of Member States to suit their national realities in order to achieve the highest level of protection. Because, in order for this provision to be meaningful, the protection must be effective in ensuring that authors benefit materially or morally from their products. However, the protection provided for in Article 15(1)(c) need not reflect the level and means of protection under copyright, patents and other intellectual property regimes, provided that it ensures that authors benefit materially and morally from their products.

By recognizing the right of everyone to benefit from the protection of the moral and material interests resulting from his scientific, literary or artistic production, the Committee considers that Article 15(1) (c) in no way precludes States Parties from adopting higher standards of protection than those in the relevant international treaties, but that the provision

These standards should not unreasonably restrict the enjoyment by others of the rights recognized in the Covenant.

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“ Moral interests ”: The need to protect the moral interests of the author was one of the main concerns of the drafters of Article 27 (2) of the Universal Declaration of Human Rights, which states that: “The author of every scientific, literary or artistic work or invention shall enjoy, in addition to remuneration, the moral interests resulting from his work, even after such work has become the common property of mankind ” [59, Article 27 (2)]. The intention of the drafters of the Convention was to establish the essentially personal character of all human creations and to ensure a permanent link between the creative subjects and their creations.

Drawing on the documents on the drafting of Article 27(2) of the Universal Declaration of Human Rights and Article 15(1)(c) of the ICESCR, the Committee considers that the moral interests referred to in Article 15(1)(c) include the right of the author of any scientific, cultural or artistic production to prevent any distortion, mutilation, modification or other derogatory action in relation to such production which would be prejudicial to his honour or reputation.

The Committee stressed the importance of recognizing the value of scientific, literary and artistic production as “ the expression of the personality of the person who creates it, and noted that the protection of moral interests is provided in most countries, regardless of the legal system, albeit to varying degrees ” [10, p.176].

“Material interests” : The protection of the author's material interests in Article 15(1) (c), reflects the close connection of this provision with the intellectual property rights recognized in Article 17 of the Universal Declaration of Human Rights and regional human rights instruments, as well as “ the right of workers to

“The right to remuneration for the work done ” [59, Article 7(a)]. Unlike other human rights, the material interests of the author are not directly linked to the individual creator, but contribute to the enjoyment of the “ right to an adequate standard of living ” [59, Article 11, paragraph 1].

The term protection of material interests under Article 15(1)(c) should not be extended to the entire life of the author. The purpose of allowing the author to enjoy an adequate standard of living may also be “ achieved through a lump sum payment or by a limited period of time, which grants the author the exclusive right to exploit his scientific, cultural or artistic production ” [10, p.177]. Such an interpretation of the Committee may be very close to the views on the protection of copyright and related rights under specialized intellectual property law. This further demonstrates that any human right is not isolated, not completely independent, but always in a complex block with other rights and may be in different areas of law, not limited to human rights law in particular.

“As a result of…”: Here, the meaning of the direct connection between the actual product and the author’s creation is emphasized. It means that the author “is only entitled to protection for the material or spiritual benefits directly generated from his scientific, literary or artistic products ” [10, p.180].

1.2.3 The difference between the concepts of “rights” and “rights protection”

First, it is necessary to clearly distinguish the difference between the two concepts of “rights” and “rights protection”.

From a natural legal perspective, the concept of “right” is understood as “ the ability of a person to have or do something ” [49]. That means the “right” of an individual or a certain subject is formed naturally with the appearance of that subject without any intervention.

any bestowal. For example, every human being born has the right to life. Even in many countries today there is a struggle to demand social recognition for people who will certainly exist in the near future, such as fetuses.

The concept of “rights protection” is often understood as the obligation of a certain subject to take all possible measures to ensure that “rights” are recognized, respected, protected and fully implemented. According to international law on human rights, this obligation belongs to the states, which are the primary obligors. Accordingly, states must, based on the current conditions of their country, ensure human rights at the highest possible level. Not only that, states must also continuously improve infrastructure, facilities, economic, social and cultural conditions to gradually enhance the ability to implement rights.

Basically, the “rights” of each individual are divided into two basic groups: “personal rights” – attached to each individual and cannot be transferred to others under any circumstances. For example, the right to name, the right to personal image, the right to health, honor, dignity, etc. The second, narrower group is property rights, the most typical of which is the right to own property. Protection regulations for private property have been proposed and are increasingly perfected along with the development of mankind, creating a solid foundation for the growth of property through the exploitation of individual property.

1.3 Content of copyright protection and related rights against infringements on the internet

The protection of copyright for literary and artistic works and related rights on the internet has been provided for in two conventions of the World Intellectual Property Organization (WIPO) on copyright (WCT) and on phonograms and performances (WPPT) in 1996. These two conventions were drafted with the participation of

agreed by more than 100 countries that are members of WIPO and updated practically based on existing international copyright conventions such as the Berne Convention and the Rome Convention. Although these two conventions were born to meet the need to protect the above rights in the context of the strong development of the internet, not all rights recorded in these two conventions can be violated on the internet, for example, the right to commercial rental of fixed performances or phonograms. Therefore, this thesis will only consider the rights that can be violated on the internet.

1.3.1 Content of copyright protection for literary and artistic works on the internet

The protection of copyright for literary and artistic works and related rights on the Internet has been mentioned in two Internet Conventions of the World Intellectual Property Organization WIPO, WCT and WPPT in 1996. Accordingly, authors are protected with the following rights:

- The right to distribute the work to the public through sale or transfer of ownership [61, Article 6 (1)]. This is the author's absolute right but is easily violated if the author or the law does not take action to protect the rights, especially in the modern internet environment.

- The right to communicate to the public through wire or wireless means [61, Article 8]. This is a form that helps the work to be known to the public quickly and ensures the quality of the copies compared to the original, but it is very easy to be violated on the internet environment through illegal copying or cutting and pasting that distorts the content of the work.

1.3.2 Content of protection of related rights on the internet

Performers are protected by the following rights:

- Recognized as a performer [62, Article 5 (1)];

- Economic rights in unfixed performances [62, Article 6]. Accordingly, they have the right to broadcast or communicate to the public unfixed performances unless the performance itself is a broadcast program and have the right to fix the unfixed performance. It can be seen that the WPPT provides more clearly and applies specifically in the digital environment to the right to perform a work in public;

- The right to reproduce a work is stated in Article 7 of the WPPT as follows: “ The performer shall have the exclusive right to authorize the direct or indirect reproduction of his performance fixed in a phonogram in any form or manner ” [62, Article 7].

The right to copy is more fully expressed in terms of form including direct or indirect copying and in any form or manner. WPPT 1996 has provided more clearly and specifically for the right to copy;

- The right to distribute and import the original or copies of the work is stated in Article 8 (1), WPPT on the right to distribute the work:

(1) Performers shall enjoy the exclusive right of authorizing the making available to the public of the original or copies of their performances fixed in a phonogram through sale or other transfer of ownership [62, Article 8(1)].

In addition, the WPPT also regulates the form of distribution of works through sale or other forms of transfer. This is not stated in the 2005 Law on Intellectual Property of Vietnam;

- The right to communicate to the public a performance fixed in the form of a sound recording by wire or wireless means [62, Article 10].

Performers shall enjoy the exclusive right to make available to the public their performances fixed in a phonogram.

“ by wire or wireless means, in such a way that the Contracting Parties in society can access them from a place and at a time of their own choosing ” [62, Article 10].

In addition to the rights of performers, phonogram producers are also protected by copyright-related rights including: the right to reproduce [62, Article 11], the right to distribute [62, Article 12] and the right to communicate to the public through wire or wireless means [62, Article 14].

The 2005 Law on Intellectual Property of Vietnam also stipulates this right quite clearly and fully, including communicating works to the public through wire and wireless means. In addition, communicating through electronic information networks or any other technical means.

From the perspective of international human rights law, property rights are a protected object. Just as the spirit of intellectual property law is aimed at limiting copyright in balance with the rights of other rights holders, the general perception is that there must be a certain time frame for the protection of property rights, beyond which the property rights of the author, copyright owner or related rights are no longer protected. At that time, scientific, literary or artistic works will become the common property of humanity, and anyone has the right to exploit its value and utility to serve the needs of social development rights. Only then can we ensure the continuous inheritance of the achievements that human society has created and maintained for future generations.

The most prominent difference between the two approaches from international human rights law and intellectual property law is that, from the perspective of international human rights law, rights, including property rights, cannot be transferred. Meanwhile, according to the provisions of civil law specializing in intellectual property, the author's ownership of property rights can be transferred through contracts or inheritance. This is explained by the fact that when

When approaching rights from the perspective of human rights law, it is necessary to pay special attention to the specific nature of rights that are attached to specific individuals and cannot be transferred to any other entity other than the creator. This leads to a difference in the scope of legal regulation, which according to international human rights law is only between two entities: the subject of rights and the subject of obligations. Meanwhile, the scope of intellectual property law includes third parties receiving rights transfers from the author. From this, it can be seen that, for copyright infringements on the internet, it is necessary to clearly define that the subject is the owner of the rights, which must be an individual to be protected under international human rights law.

1.4 Limiting copyright for the benefit of community development

As stated above, copyright protection is a natural and undeniable need. However, copyright protection cannot be absolute without ignoring the balance factor in social development. Because if copyright and related rights are absolute, it will lead to monopoly.

– is a serious threat to the general development of human society.

1.4.1 Limitations of copyright and related rights from the perspective of international human rights law

Right in the Universal Declaration of Human Rights 1948, Article 27

(1) affirmed: “ Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits ”. [59, Article 27 (1)]

Realizing that, human rights law in the world in general recognizes that " the right to protection of material and spiritual interests resulting from a person's scientific, literary or artistic products is limited and must be balanced with other rights recognized in the law".

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