Decree No. 85/2011/ND-CP dated September 20, 2011 of the Government amending and supplementing a number of articles of the Government’s Decree No. 100/ 2006/ND-CP of September 21, 2006, detailing and guiding a number of articles of the Civil Code and the Intellectual Property Law regarding copyright and related rights

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 14, 2005 Civil Code;

Pursuant to the November 29, 2005 Law on Intellectual Property; Pursuant to the June 19, 2009 Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property;

At the proposal of the Minister of Culture, Sports and Tourism,

DECREES:

Article 1. To amend and supplement a number of articles of the Government’s Decree No. 100/2006/ND-CP of September 21, 2006, detailing and guiding a number of articles of the Civil Code and the Intellectual Property Law regarding copyright and related rights: 1. To add the following Clauses 11, 12, 13, 14 and 15 to Article 4: “11. Work of a foreign organization or individual first published in Vietnam means a work which is not yet published elsewhere prior to its publication in Vietnam.

12. Simultaneous publication means the publication of a foreign organization’s or individual’s work in Vietnam within 30 days after it is first published elsewhere.

13. Royalty means a sum of money paid by a party that uses a work to its author or copyright holder in order to acquire the authority to use such work.

14. Remuneration means a sum of money paid by a party that uses a work to its author or copyright holder; or by a party that uses a performance to performers who carry out creative activities to convey a copyrighted work to the public.

15. Material benefits means a sum of money paid by a party that uses a phonogram or video recording to its producer or by a party that uses a broadcast to the broadcasting organization.

Other material benefits mean economic advantages which authors, copyright holders and related right holders are entitled to, in addition to royalty, remuneration, and material benefits, such as prizes, gift books, invitation tickets to performances, public presentation of cinematographic works, work displays or exhibitions and interests in other related material forms.”

2. To amend Article 10 as follows:

“1. Lectures, addresses and other sermons specified at Point b, Clause 1, Article 14 of the Intellectual Property Law constitute a genre of work presented in spoken languages and must be fixed in a certain material form.

2. In case authors fix their lectures, addresses and other sermons in the form of phonogram or video recording, they are entitled to copyright to such lectures, addresses and sermons and, at the same time, hold rights to such phonograms or video recordings according to Clause 2, Article 44 of the Intellectual Property Law.”

3. To add the following Article 19a below Article 19: “Article 19a. Copyright to computer programs

1. Authors of computer programs defined at Point m, Clause 1, Article 14, and Article 22 of the Intellectual Property Law are entitled to moral rights specified in Clauses 1, 2 and 4, Article 19 of the Intellectual Property Law. When signing contracts on creation of computer programs, organizations or persons that provide funds and physical and technical foundations for creation of computer programs, and authors of such programs may reach agreement on the right to title such programs specified in Clause 1, Article 19 of the Intellectual Property Law and the modification and upgrading of such programs specified in Clause 4, Article 19 of the Intellectual Property Law.

2. Organizations or persons that provide funds and physical and technical foundations for creation of computer programs are copyright holders and entitled to the publication right and exclusive economic rights specified respectively in Article 19 and Article 20 of the Intellectual Property Law. Authors of computer programs are entitled to royalty and other material benefits as agreed with copyright holders.

3. Organizations or persons that have the lawful use right to a copy of a computer program may make at most one back-up copy for replacement in case the copy currently in use is lost, damaged or unusable.”

4. To add the following Article 20a below Article 20: “Article 20a. Folk literary and artistic works

To-be-protected folk literary and artistic works defined in Clause 1, Article 23 of the Intellectual Property Law include:

1. Folk literary and artistic works defined at Point a, Clause 1, Article 23 of the Intellectual Property Law, which are works in different genres of the art of words such as humorous story, fable, epic, mythology, legend, anecdote, poem, folk song, proverb, riddle and other similar forms of expression.

2. Folk literary and artistic works defined at Points b and c, Clause 1, Article 23 of the Intellectual Property Law, which are works in different genres of the art of performance such as classical drama (tuong), traditional operetta (cheo), reformed opera (cai luong), theme song, music melody; dance, performance, folk game, village festival, folk ritual and other similar forms of expression.

3. Folk literary and artistic works defined at Point d, Clause 1, Article 23 of the Intellectual Property Law, which are works in different genres of plastic arts such as graphics, paintings, sculpture, musical instrument; architectural models and other similar forms of expression.”

5. To amend Clause 2, Article 23 as follows:

“2. The right to reproduce works provided at Point c, Clause 1, Article 20 of the Intellectual Property Law means one of exclusive economic rights under copyright which are performed by copyright holders or their authorized persons to make copies of works by any means or in any form, including electronic ones.”

6. To amend Article 26 as follows:

“1. The term of protection of economic rights and moral rights specified in Clause 3, Article 19 of the Intellectual Property Law for a posthumous work is fifty years as from the date of first publication. The term of protection of economic rights and moral rights specified in Clause 3, Article 19 of the Intellectual Property Law for a photographic work or a work of applied arts specified at Point a, Clause 2, Article 27 of the Intellectual Property Law is fifty years as from the date of first publication. For a work which remains unpublished within fifty years after fixation, the term of protection is fifty years from the date of fixation. 2. The term of protection of a cinematographic or photographic work, a work of applied art or an anonymous work specified at Point a, Clause 2, Article 27 of the amended Intellectual Property Law is as follows: As from the effective date of the Law Amending and Supplementing a Number of Articles of the Intellectual Property Law, the term of protection for cinematographic or photographic works, works of applied art and anonymous works for which the term of protection under Intellectual Property Law has not yet expired complies with Point a, Clause 2, Article 27 of the amended Intellectual Property Law; for a dramatic work for which the term of protection under the Intellectual Property Law has not yet expired, the term of protection complies with Point b, Clause 2, Article 27 of the amended Intellectual Property Law, which is the lifetime of its authors plus fifty years after his/her death.”....

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