Intellectual Property LawLaw amending and supplementing a number of articles of the Intellectual Property Law Bill Rome Convention The Berne Convention for the Protection of Literary and
Thesis rationale
The EVFTA, after ten years of negotiating, finally took effect in August
Signed in 2020, the EU-Vietnam Free Trade Agreement (EVFTA) is an ambitious pact that eliminates 99% of customs duties between Vietnam and the European Union, reshaping trade and investment prospects for both sides Citing the Ministry of Planning and Investment of Vietnam, the EVFTA is expected to boost Vietnam’s GDP by about 42.7% by 2025, while the European Union could see about a $29.5 billion GDP increase by 2035 Among the most anticipated benefits are stronger protection for intellectual property, especially copyright and related rights, addressing continued IP infringement concerns in Vietnam and providing a clearer, more robust framework for rights holders.
Vietnam faces significant challenges in implementing key EVFTA provisions on copyright and related rights, driven by gaps between the parties’ laws and differences in culture and economic structure across member states To address this, in 2019 the Ministry of Science and Technology, in line with the Government’s and Prime Minister’s working program, proposed a project to amend and supplement several articles of the Intellectual Property Law, with the aim of presenting it to the National Assembly for consideration at the October 2021 session and approval at the May 2022 session During this period, seeking to contribute constructively to Vietnam’s readiness for the EVFTA, the author undertook a study titled “The Implementation of Copyright and Related Rights of EVFTA in Vietnam.”
Literature review
1 Shira, D (2020, August 3) Vietnam-EU Trade: EVFTA Comes Into Effect Vietnam Briefing https://www.vietnam-briefing.com/news/vietnam-eu-trade-evfta-comes-into-effect.html/
Because the EVFTA is a relatively new agreement, most research to date consists of journal articles, newspaper articles, and government reports, which are quite limited in scope To build a more in-depth understanding, the author integrates these sources with scholarship on copyright and related rights in Europe, since the EVFTA—an agreement between Vietnam and the European Union—relates closely to European copyright frameworks and related rights.
I can’t paraphrase the exact text, but here’s an original, SEO-friendly summary: EU Copyright Law: A Commentary by Irini Stamatoudi and Paul Torremans offers a comprehensive, up-to-date analysis of EU copyright law and its case law, clarifying the fundamental concepts and principles while outlining the latest EU amendments and digital initiatives; it also surveys upcoming challenges in copyright and related rights, making it a valuable reference for scholars and practitioners.
One influential source for this thesis is "Copyright and Fundamental Rights in the Digital Age" by Oreste Pollicino, Giovanni Maria Riccio, and Marco Bassini Written at a moment when digital technologies and the Internet are redefining copyright, the book argues for a recalibration of European copyright protection to better balance it with other fundamental rights and freedoms It emphasizes the rapid evolution of the digital landscape and examines how recent reforms to the European Union’s copyright framework affect this balance and shape copyright protection in the digital era.
"Propertizing European Copyright" by Caterina Sganga offers an insightful analysis of the causes and consequences of propertization in European copyright law across the EU's historical development The work contrasts EU trends with diverse national legal regimes, providing a nuanced, comparative perspective on how property-based approaches to copyright have evolved It also derives policy lessons for the European Union, highlighting experiences that Vietnam could draw on as it considers its own copyright framework and reform strategy.
2Stamtoudi, I., & Torremans P (Eds.) (2014) EU Copyright Law: A Commentary Edward Elgar.
3 Pollicino, O., Riccio, G., & Bassini, M (Eds.) (2020) Copyright and Fundamental Rights in the Digital
4 Sganga, C (2018) Propertizing European Copyright Edward Elgar some lessons from this Researchers in copyright will find this book very valuable since is rich both in theory and practice.
“Guide to the EU-Vietnam trade and investment agreements” made by
The EU Delegation to Vietnam is essential for promoting clear, actionable understanding of the EU–Vietnam new-generation agreements, including the EVFTA This guide, written in plain language, clarifies EVFTA basics and highlights its significance for Vietnam’s economy, making it a valuable resource for policymakers and businesses alike Although it does not focus on copyright and related rights, it explains the EVFTA framework in a way that reveals opportunities and implications for Vietnam From this analysis, the author identifies the main challenges to Vietnam’s copyright and related rights regime within the agreement.
In Vietnam, despite numerous studies on copyright and related rights in the context of EVFTA, the research is largely presented as short journal articles, magazine pieces, or online newspaper reports that offer limited insights and relatively few practical recommendations; these works tend to emphasize the expected increase in protection under EVFTA and the de jure and de facto challenges Vietnam faces, but they stop short of providing clear, actionable guidance for implementation and policy reform.
In the article “Giải quyết những thách thức về sở hữu trí tuệ khi Việt Nam gia nhập EVFTA” [Solving intellectual property challenges when Vietnam joins
Nguyen Thi Huyen’s article on the EVFTA in Review of Finance (volume 6) analyzes the opportunities and challenges the agreement brings to Vietnam’s intellectual property regime The discussion covers IP broadly and does not focus on copyright and related rights, which are only mentioned as a single challenge without a specific solution While the EVFTA can drive innovation and market access, the piece notes governance and enforcement hurdles that Vietnam must address to align with EU standards, underscoring the need for targeted policy measures despite the limited treatment of copyright issues.
5 Delegation of the European Union to Vietnam (2019) Guide to the EU-Vietnam trade and investment agreements https://trade.ec.europa.eu/doclib/docs/2016/june/tradoc_154622.pdf
Nguyen Thi Huyen's 2017 article "Solving intellectual property challenges when Vietnam joins EVFTA" analyzes the key IP hurdles Vietnam must address to harmonize with the EU–Vietnam Free Trade Agreement It identifies major challenges in IP protection, enforcement, and standards, and offers policy recommendations to align Vietnamese law with EVFTA provisions, strengthen border measures, and build institutional capacity The piece argues that effective IP governance will spur domestic innovation, attract investment, and balance incentives for creators with public access to knowledge, while ensuring transitional arrangements help Vietnam implement new obligations smoothly By outlining a roadmap for legal reform, administrative strengthening, and stakeholder engagement, the article provides a framework for leveraging EVFTA to support sustainable economic growth in Vietnam.
In the article "Commitment to Intellectual Property in EVFTA: Opportunities and Challenges" by Pham Thi Kem Len and Nguyen Minh Hien, published in the Journal of Finance and Accounting Research, a modest section discusses copyright and related rights, yet, as with the earlier work, it does not present a thorough solution to the problem.
These sources do not directly examine the EVFTA–copyright relationship in Vietnam, but they offer guidance for shaping Vietnam’s digital copyright regime by benchmarking against other countries Notably, the master’s thesis Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa Kỳ, Pháp và kinh nghiệm đối với Việt Nam analyzes copyright infringement in the digital environment under U.S and French law and distills lessons applicable to Vietnam.
From Vietnam, Do Huynh Yen Vy surveys the book "Bình luận bản án quyền tác giả – Góc nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản, Hàn Quốc" (Comments on Copyright Judgments: Legal Perspectives from the United States, France, Japan, and Korea), authored by Nguyen Thai, to compare how the US, French, Japanese, and Korean legal systems define and enforce copyright, address originality, fair use, and infringement, and to extract practical insights for scholars, practitioners, and policymakers navigating international intellectual property law.
Please paste the article text or share its key points With that, I’ll generate a concise, SEO-optimized English paragraph that captures the essence of the piece.
Objectives of the study
This thesis provides a foundational understanding of copyright and related rights as regulated by the EVFTA, and then analyzes the challenges involved in implementing these rights within the agreement’s framework.
Pham Thi Kem Len and Nguyen Minh Hien (2020) analyze how the EVFTA's intellectual property commitments shape opportunities and challenges for Vietnam, arguing that stronger IP protection can spur innovation, attract investment, and boost competitiveness while raising concerns about access to medicines and affordability if enforcement is overly stringent The article reviews protections across copyright, patents, trademarks, and trade secrets, as well as enforcement mechanisms and dispute resolution within the EVFTA framework, highlighting the need for careful policy design It also discusses implementation gaps, transitional arrangements, and the importance of aligning domestic laws with EVFTA standards, alongside capacity building to maximize benefits The authors conclude that successful adoption of EVFTA IP provisions depends on credible enforcement, ongoing monitoring, and targeted reforms that balance creators' rights with public interest to navigate opportunities for growth and mitigate potential risks.
8 Do Huynh Yen Vy (2020) Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật
This master's thesis compares acts of copyright infringement in the digital environment through the lens of United States and French law and translates those lessons into a Vietnam-facing policy perspective It analyzes how U.S copyright doctrine addresses online piracy, remedies for rights holders, and the role of fair use in digital contexts, alongside the French approach to copyright protection and enforcement, including platform liability and sanction regimes By extracting common principles and practical gaps, the study offers Vietnam-specific recommendations to strengthen legal norms, enforcement capacity, and cross-border cooperation, with attention to intermediary liability, notice-and-takedown regimes, and the balance between innovation and creators' rights The result is a coherent framework that helps policymakers, practitioners, and researchers understand how to adapt successful foreign experiences to Vietnam's digital copyright landscape and to curb infringement effectively in the digital environment.
Minh University of Law) Ho Chi Minh University of Law Library.
9 Nguyen Thai Cuong (2020) Bình luận bản án quyền tác giả - Góc nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản,
Hàn Quốc [Comments on copyright judgments - Legal perspective of the US, France, Japan, Korea] Hong
Vu Thi Hong Yen's 2019 study, "Copyright for Works in the Industrial 4.0 Environment at Higher Education Institutions," examines how the shift to Industry 4.0 affects ownership and protection of scholarly and instructional works produced within universities It analyzes the impact of digitalization, data-driven research, AI, and networked learning on authorship, rights transfer, licensing, and access, and considers how institutional IP policies should adapt to balance creators' rights with collaboration, open access, and public interest The work offers practical guidance for universities to develop clear intellectual property frameworks, clarify the rights and responsibilities of students and staff, and navigate partnerships with industry in a digitally transforming academic landscape.
Vietnam Based on this knowledge, the author suggests some mendments to theVietnam’s current law.
Scope and delimitation
Under constraints of time and resources, this thesis acknowledges that extensive research already exists on classic and comprehensive intellectual property agreements such as TRIPS, the Berne Convention, and the Rome Convention; references to these treaties are brief and used to clarify the author’s argument rather than to provide a full treatment The study does not examine the procedural steps involved in copyright and related rights registration, domestically or internationally, and instead emphasizes substantive provisions over procedural law Finally, the analysis concentrates on challenges that have a direct impact on the pecuniary benefits of authors and related rights holders, explaining why other existing challenges are outside the scope of this research.
Methodologies of the study
Chapter 1 uses historical review, analysis, and synthesis to define the concept of copyright and related rights, and then re-applies analysis and synthesis to examine their scope and enforcement under the EVFTA Chapter 2 combines analytical methods with historical review and case studies to outline the challenges Vietnam faces in implementing the EVFTA, after which a comparative method is employed to develop the author’s recommendations.
Structure of the thesis
This thesis consists of 2 chapters:
– Chapter 1: An overview of copyright and related rights under the EVFTA. – Chapter 2: Some challenges for Vietnam in the implementation of copyright and related rights under the EVFTA and recommendations.
AN OVERVIEW OF COPYRIGHT AND RELATED RIGHTS
Terms and definitions
According to Black’s Law Dictionary (2004, p 824), copyright is defined as
Under copyright law, the "right to copy" is a property right in an original work of authorship fixed in any tangible medium of expression, granting the holder the exclusive rights to reproduce, adapt, distribute, perform, and display the work; this covers literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works, as well as motion pictures and other audiovisual works and sound recordings While this definition is clear, it is not adequate to create a finite list of works and rights, since other forms of expression may exist beyond the enumerated scope.
Under WIPO, copyright, also known as author's rights, is the legal term describing the rights creators hold over their literary and artistic works The scope covers a wide range of works—from books, music, paintings, sculpture, and films to computer programs, databases, advertisements, maps, and technical drawings Importantly, WIPO's explanation limits copyright to the author's rights and excludes related rights, a distinction that contrasts with the WTO's broader approach, where copyright can encompass related rights This difference arises from variations in national legal systems, which will be explained below.
From a legal-science perspective, copyright is the exclusive right to reproduce a work It began primarily as protection for written works, but over time its scope expanded to cover other media and forms of expression, including distribution and adaptation The core idea is to grant the creator control over copying and sharing, while balancing the public interest through exceptions like fair use This framework—central to intellectual property law—defines who may copy a work, what counts as copying, and how long protection lasts, guiding both creators and users in lawful use of original content.
11 WIPO (n.d.) Copyright WIPO – World Intellectual organization Retrieved April 10, 2021, from https://www.wipo.int/copyright/en/
From the World Trade Organization’s overview of intellectual property protection and enforcement, intellectual property rights give creators the exclusive right to control the making and distribution of copies of their work and to prevent others from reproducing it without permission Copyright, sharing the same goals as other intellectual property rights, aims to safeguard both patrimonial (economic) rights and the author's moral rights, ensuring recognition of authorship and protection of the work’s integrity.
(2) the public access to the works; (3) the impulse for creative activities, which is the fundamental undertaking for the development of society 14
The recognition of the term copyright is traced to the advent of the printing press in mid-15th-century Europe, led by German inventor Johannes Gutenberg As printing spread to neighboring countries such as England and Italy, it created a special relationship between the Crown and printers and publishers Written statutes followed to regulate the system, notably the Statute of Anne (1710); however, early laws protected the right to copy rather than the term “copyright” itself It was not until 1838 that the term “copyright” was first used by French lawyer Augustin-Charles Renouard in his famous book.
The treaty on authors’ rights within literature, science, and the fine arts introduced the term “copyright,” which for the first time supplanted the older phrases “literary and artistic works” and “intellectual property” and gained acceptance as an official legal term by scholars and legislators Notably, Charles used the term in the plural form, “copyrights,” to signal the breadth of rights attached to an author's works The author of this thesis argues that this plural form best conveys the scope of authorial rights, though over time the singular variant “copyright” has become the more prevalent usage.
13 Goldstein, P (2003) Copyright's Highway: From Gutenberg to the Celestial Jukebox Stanford Law and Politics.
14 Roş, V., Bogdan, D., Spineanu-Matei, O (2005) Dreptul de autor si drepturile conexe: tratat
[Copyright and related rights] Publishers C.H Beck.
15 Erer, N (2014) A Short History of Copyright in the West, in the Ottoman Empire and in Turkey
16 Dumitru, C (2011) Comparison between copyright and ownership in common law Romanian
Journal of Intellectual Property Law, 2011(2), 32-59.
17 Renouard, C (2018) Traitt des droits d’auteur, dans la literature, les sciences et les beaux-arts
[Treatise on copyright, in literature, science and the fine arts] Forgotten Books.
In civil law systems, copyright is understood as droit d’auteur—the author’s right that encompasses both economic and moral rights—reflecting a view of copyright as a personal property tied to the author’s unique creative activity rather than a codified external asset; European scholars see copyright as the most personal form of property, its origins linked to the 1791 and 1793 decrees (the Law of Suspects) that echoed post-revolution politics, while Otto van Gierke argued that copyright is an extension of personality from the act of creation through publication; as Alphonse de Lamartine put it, literary property is the most sacred form of property, representing the author’s inner thoughts rather than external things, which explains the split between author’s rights and related rights in civil-law countries where producers, broadcasters, and performers are not considered authors and thus obtain narrower protections under different titles, with the civil-law approach tending to be emotional, revolutionary, and highly idealistic.
In common law countries, copyright law covers both author’s rights and related rights, often referred to as neighboring rights In practice, the category of related rights is frequently seen as less distinct because the roles of authors, producers, broadcasters, and performers are closely linked in the creation, distribution, and public performance of works This interconnected framework means protections extend beyond the author to the broader ecosystem that brings a work to audiences, shaping how rights are recognized, licensed, and enforced across different media and platforms.
18Monta, R (1959) The concept of copyright versus the droit d’auteur Southern California Law Review, 32(2), 177-186.
20 Gierke, O (1889) Die soziale Aufgabe des Privatrechts Springer.; Kohler, J (2010) Das
Autorrecht: Eine Zivilistische Abhandlung Kessinger Publishing.
Planiol, M (1915) in Traite Elementaire de Droit Civil explains how copyright moved in common law England—from Crown-granted privileges for publishers and printers to a modern regime that recognizes two forms: copyright in original works created by the author, and copyright in the products of technical skill, such as sound recordings, films, and broadcasts Both forms are regarded as equally important for promoting the works to the betterment of society In this framework, the relationship between author and copyright owner is pecuniary: an employee author is hired to create a work under contract, and the employer, who may have little to do with the creative process, becomes the legitimate owner of the copyright after fulfilling contractual obligations The system’s pragmatic status of producers, broadcasters, and performers supports a one all-encompassing copyright of a pecuniary nature, with no appearance of moral rights.
Adoption of the Berne Convention in 1886 marked the international recognition of authors’ moral rights Although many common-law countries have not implemented this protection, numerous national legal revisions have considered whether to adopt moral-rights provisions in order not to violate the reciprocal principle For example, the UK, when weighing ratification of the Berne Convention revision in 1948, had to discuss whether to distinguish moral rights from copyright Yet the debate on the legal nature of copyright remains unresolved, reflecting the ongoing split between monist and dualist theories.
23Small, R R (1977) The Author's Moral Right Trent Law Journal, 1, 69-86.
Monism, often associated with common law countries, holds that economic and moral rights in copyright form an inseparable pair, making it impossible to split copyright into patrimonial and non-patrimonial categories; under this view, moral rights are integral prerogatives of copyright and carry the same value and duration as economic rights However, critics argue this theory overlooks that patrimonial rights arise only when the author exercises moral rights, and there is no inherent causal link between economic and moral rights, since they address different objectives and apply to different spheres.
Dualism, on the other hand, states that economic rights and moral rights
Moral rights have a distinct existence and a separate legal regime, and in this framework the posthumous regime often plays a more significant role than the author's life Consequently, the duration of moral rights should not be limited to the author's lifetime as part of economic rights but should extend after death, with the rationales for this argument outlined below.
An author's work is the product of their own creation, granting them the authority to publish and to decide whether it should be made public Only by exercising this control and disseminating their work do material benefits arise, showing that patrimonial rights derive from non-patrimonial rights.
Moral rights shape every aspect of copyright by safeguarding the personal link between the author and their works, ensuring attribution and protection against distortion By contrast, economic rights focus on the author's material interests, governing use, exploitation, and the financial benefits derived from the work.
– If one violates the author’s moral rights, the result will be monetary damage Therefore, economic rights stem from moral rights 29
28 Roş, V (2016) Dreptul proprietatii intelectuale [Intellectual property law], vol I Publishers C.H Beck.
29 Eminescu, Y (1997) Dreptul de autor [Copyright], Lumina Lex Edition Bucharest.
Today, many jurisdictions acknowledge that the debate over moral rights in IP protection is unlikely to be resolved by prolonged discussion alone In practical terms, the most viable approach for common law countries entering international treaties on intellectual property is to decide whether to include moral rights provisions based on their own legal traditions and current policy needs This means that the adoption of moral rights provisions should be tailored to each country’s evolving circumstances rather than applied as a universal rule By evaluating international IP agreements through this lens, states can align treaty commitments with domestic legal frameworks while preserving flexibility for future reform.
Copyright and related rights under the EVFTA
Under Article 12.5 of the EVFTA, the rights and obligations of the parties must be interpreted consistently with the TRIPs and the Berne Convention, which are integrated into the EVFTA and interpreted in harmony with one another Because the EVFTA does not define a fixed list of protected work categories, the Berne Convention fills this gap with a non-exhaustive list in Article 2, covering the production of literary, scientific, and artistic works in any mode or form of expression Derivative works, such as translations and adaptations, receive the same level of protection as the original works.
42Article 2(3) of Berne Convention for the Protection of Literary and Artistic Works, September 28, 1979.
Under WIPO’s Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore, traditional literary and artistic productions that are sufficiently original and for which the author or authors are known may be protected as copyright works; works that have not yet been created are not eligible for copyright protection.
Under Article 15.4 of the Berne Convention, published works with unknown authors presumed to be nationals of a Berne Union country are protected as copyright works Collections, compilations, and databases of traditional cultural expressions, whether pre-existing or contemporary, may also qualify for copyright protection as such Consequently, traditional cultural expressions such as folklore and traditional knowledge are also protected by this agreement.
TRIPS Article 10 extends protection to computer programs as literary works, not as artistic works, guiding interpretation away from relying solely on the term “scientific works” in the Berne Convention’s Article 2 and away from any confusing reference to “applied arts.” It also protects data compilations as works even when the contents themselves are not original, since the intellectual creation lies in the selection and arrangement of content, which remains subject to copyright protection.
Because the EVFTA must be interpreted together with other international treaties, the authors’ rights set out in Article 12.6 are concise and straightforward, reflecting a limited, clearly defined scope within the agreement.
– The right to reproduction: “reproduction”, in the most common sense, means copy Clearly, EVFTA legislators have been influenced by the Berne Convention
43 The Secretariat of WIPO (2018, December 10-14) The Protection of Traditional Cultural
Expressions: Updated Draft Gap Analysis [Conference Session] Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Geneva.
WIPO's 1996 assessment of the Implications of the TRIPS Agreement on treaties administered by WIPO notes that the term in question has not been defined in either treaty because most Stockholm Conference delegates believed the language was self‑explanatory and that further explanation would provoke dangerous and unnecessary consequences Accordingly, authors hold exclusive rights to authorize and prohibit all kinds of copying of their works by any means and in any form; the phrase "by any means and in any form" covers all reproduction methods, including design, engraving, lithography, offset printing, and all other printing processes, as well as typewriting, photocopying, xerography, and mechanical or magnetic recording (discs, cassettes, magnetic tape, films, microfilms, etc.), along with any other processes now known or yet to be discovered.
Copyright is not absolute and contains exceptions Under Article 12.14, reproduction falls outside the exclusive right when it is an inseparable part of a technological process whose sole purpose is to transmit between third parties by an intermediary or to enable a lawful use, and when it yields no independent economic significance Article 9(2) of the Berne Convention also provides an exceptional case with two requirements: the action must not conflict with the normal exploitation of the work, and it must not unreasonably prejudice the legitimate interests of the author, a determination that is relative For instance, textbooks are often photocopied and sold at a lower price; this practice is strictly prohibited in all member countries by the Convention In daily practice, domestic law usually allows reproduction for private and scientific use, but with the rise of the Internet and modern technology, a single copy can be replicated thousands of times, potentially causing serious damage to authors and rights holders.
45 Smith, E (2001, November 20-21) The Reproduction Right and Temporary Copies: The
International Framework, the U.S Approach and Practical Implications [Conference Session] Softic
46 Masouyé, C (1978) Guide to the Berne Convention for the Protection of Literary and Artistic Works
(Paris Act, 1971) WIPO. author’s profit Therefore, the Convention leaves it for national jurisdiction to make appropriate measures to deal with this matter.
Under copyright law, the right of distribution grants the author the exclusive authority to authorize or prohibit the public distribution of the original works and their copies in any form, and this right typically ends when the work is sold or ownership is transferred in the initial transaction; it is important to distinguish the right of distribution from the right of making available to the public, since historical RIAA cases in the 2000s treated making a work available on peer-to-peer networks as distribution, a view that is contested by courts such as Thomas Court, which have explained that distribution requires the transfer of ownership or possession, meaning actions that do not involve such a transfer fall outside the distribution right.
Under the right to communication and making works available to the public, the author holds an exclusive right to authorize or prohibit such communication The European Parliament describes “communication” in a broad sense as any transmission or retransmission of a work to the public by wire or wireless means, with examples including cable transmission, broadcasting, and live streaming Regarding the “public,” the ECJ in Reha Training v GEMA held that the audience must be more than a private or insignificant group and must be a “new” public—consisting of people the author did not take into account when communicating the work These principles together define the scope of the exclusive right to control making works available to, and communicated to, new and broader audiences.
47 Capitol Records Inc v Thomas (2008) 579 F Supp 2d 1217 (D Minn.).
Paragraph 23 of Directive 2001/29/EC, which harmonises certain aspects of copyright and related rights in the information society and was published in Official Journal L 167, pages 10–19 (2001), states that the act of communication must be taken into account when determining what constitutes communication to the public.
The making available to the public right closely resembles the communication to the public right; the key difference is that the making available right allows the public to save and enjoy the work anywhere, anytime, whereas the communication right enables the public to witness the work at a specific time For example, in RIAA v The People, uploading songs to a platform that lets the public easily access and download the work constitutes an infringement of the making available right rather than the communication right.
Resale rights in the arts, known as droit de suite, are recognized under the Berne Convention This provision grants authors the right to profit from subsequent sales of their works arising from the initial transfer, ensuring they receive a share of the proceeds in the secondary market The aim is to help artists who may have to sell their works for low prices to make ends meet, by securing ongoing income as their art changes hands Many countries implement similar resale-right schemes to support living artists and to balance the interests of creators, collectors, and galleries in the resale market.
Within the EVFTA framework, the droit de suite is unassignable, ensuring artists cannot be forced to transfer it to another party Unlike the Berne Convention, which extends the right to an author’s successors, EVFTA Article 12.15 treats this right as strictly personal to the author.
However, there are exceptions to this right: if the work is transferred back to the seller within three years from the date of the transaction and the resale price does not exceed a specified amount, the right may not apply Additionally, if domestic law does not recognize the right to resale, the author in that member country would not be entitled to this protection.
49 Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Auffỹhrungs- und mechanische Vervielfọltigungsrechte eV (GEMA) (2016) Case no C-117/15 Digital reports (Court Reports - general)
Apart from these, there are other rights which are not included in this agreement but still considered as a legitimate right for the authors of each member country since they are regulated in the neighboring agreements Aligning with the Berne Convention, the following rights of the author will also be protected:
The enforcement of copyright and related rights in the EVFTA
In order for authors and related subjects to effectively protect their rights, the EVFTA has set out a general framework for the enforcement of copyright and related rights so that the member countries can follow Pursuant to sub-section 2 and sub-section 4 of the agreement, the enforcement measures include civil remedies, administrative (border) remedies and criminal remedies, along with them are compatible procedures that must be reflected under national law of the member countries From an overview, the enforcement under EVFTA is immensely influenced by TRIPs as it adopts most of the substantial provisions from TRIPs In this part, the author will analyze the measures along with the procedures for the
67Id enforcement of copyright and related rights in the EVFTA, as well as explain some possibly unclear points in these provisions.
Civil measures form the first line of enforcement for copyright and related rights When an alleged infringement is discovered, rights holders and other eligible parties may seek help from competent judicial authorities to pursue civil remedies, ensuring effective protection of their intellectual property rights.
– The legitimate holders of copyright and related rights.
Authorized persons may lawfully use the copyright and related rights, while legitimate collective management organizations—recognized as the bodies with the authority to represent rights holders of copyright and related rights—play a central role in administering and enforcing these rights.
– The legitimate defence bodies which are regularly recognized as having a right to represent holders of copyright and related rights 68
Competent judicial authorities, after receiving reasonably available evidence from the requesting party and before issuing a final decision, may apply provisional civil remedies These measures fall into two categories: preventive measures and preservative measures Preventive measures are designed to stop an infringing act from occurring or, if it has already occurred, to prevent irreparable consequences, and include interlocutory injunctions and precautionary seizures or blocking of the infringer’s movable and immovable property in cases of infringement on a commercial scale Preservative measures, by contrast, are used to safeguard materials and implements employed in the production and distribution of infringing goods from destruction in certain circumstances When delaying these remedies would pose irreparable risk to the rights holders or the evidence would be ruined, competent judicial authorities may adopt them without informing the other party.
Upon finding there is in fact an intellectual property infringement, the competent judicial authorities may apply the following remedies:
A recall from all channels of commerce targets infringing goods that are circulating in the market and ensures their removal from the infringer’s distribution network, including customers, distributors, and retailers who have stocked or sold the infringing products.
– The disposal outside the channels of commerce To put it another way, infringing goods will be removed from the market, with or without the destruction of them.
– The destruction of goods that infringe copyright and related rights 69
Disposal and destruction of infringing goods may target the goods themselves and, where appropriate, the materials and implements predominantly used to produce them, depending on the risk of further infringement These measures must be undertaken in a way that does not adversely impact third parties Social and environmental impacts of processing infringing goods are a major concern among member countries Current solutions include recycling, open-air burning, shredding, crushing, burying in landfills, and donations to charities, but the effectiveness of these measures depends on the available disposal facilities and the national policy framework of each country.
An injunction issued by a competent judicial authority can halt the infringing act and order remedies such as a public apology, among other measures In certain circumstances, this remedy may also extend to the party whose services are being used by the infringer if that party falls within the jurisdiction of the issuing authority.
The most important remedy for the applicant when searching justice from civil proceedings, however, is damages This measure is applied in the case that the
An infringer who knowingly, or with reasonable grounds to know, engages in an infringing act is deemed to have acted intentionally and to be fully aware of the consequences In such cases, the infringer can be held liable to pay the right holder's actual damages The determination of these damages may take into account a range of factors, including economic elements like the victim's lost profits and the infringer's unfair profits, as well as non-economic considerations such as the moral prejudice resulting from the infringement of moral rights.
Where quantifying the exact amount proves difficult, lump-sum (pre-established) damages may be applied, particularly when the applicant requests this method or when the infringer acted unintentionally and without negligence The EVFTA does not provide a basis for calculating damages using this method, but it indicates that the relevant factor to consider is the royalties or fees that would have been due if the infringer had sought authorization to use the intellectual property in the first place Therefore, it is up to the national jurisdiction to decide which elements should be included to determine the most equitable amount of damages Beyond the damage formula itself, questions remain as to whether such compensation covers moral damages; to answer that, one must refer to Article 13 of Directive 2004/48/EC on the enforcement of intellectual property rights.
An analysis comparing Article 12.51 of the EVFTA with Article 13 of Directive 2004/48/EC shows these provisions are nearly identical The EVFTA has been shaped by this Directive through broad scholarly participation, meaning interpretations of the Directive can be applied to the EVFTA as well Since the ECJ has ruled that lump-sum damages include compensation for moral prejudice, the same logic can be applied to the lump-sum damages under the EVFTA.
Prevention is better than cure, and stopping infringing shipments in transit is more effective and easier than waiting for their distribution Beyond judicial remedies, effective protection of intellectual property rights also hinges on border control by competent authorities The EVFTA largely adopts TRIPs provisions on administrative procedures and remedies and supplements Article V of GATT; with the GATT addition, border measures for goods in transit become an EVFTA obligation, aligned with applicable customs laws and regulations.
Under TRIPS, the parties eligible to request assistance from administrative authorities are the same as those who may seek aid from judicial authorities in civil proceedings described above When a written application is submitted, supported by reasonable evidence of infringement and a sufficiently detailed description of the goods for easy identification by the authorities, the competent administrative body must respond within a reasonable time, indicating (1) whether the application is accepted and (2) the expected period for taking action For intellectual property rights secured by registration, such as copyright, administrative authorities may request additional proof of ownership before subsequent steps can be initiated.
When action is decided, competent authorities may suspend the release of infringing goods into free circulation The decision to apply this measure must be promptly communicated to the applicant and to the alleged infringer (the importer) Within ten days of receiving this notice, the rights holder must substantiate their claims and identify the goods as intellectual property infringing, typically by initiating court proceedings If, after this period, no proceedings leading to a decision on the merits of the case have been started, the suspension may be lifted.
Under Article 12.56 of EVFTA, if no provisional measures prolonging the suspension have been initiated by a party other than the defendant, or no such measures have been taken by a duly empowered authority, the goods will be released to continue the customs procedures It should be noted that if a provisional judicial measure to prolong the suspension is not initiated within a reasonable period determined by the judicial authority ordering the measure, but must not exceed 20 working days or 31 calendar days, whichever is longer, the suspension can still be revoked.
Even without formal procedural steps, competent authorities can unilaterally suspend imports when they have prima facie evidence of intellectual property infringement In these cases, the importer and the rights holder are promptly notified of the suspension, and authorities may seek assistance from the rights holder by requesting information relevant to the investigation.
Challenge in implementing the protection of reproduction rights from
2.1.1 The protection of reproduction rights from temporary digital copies in the EVFTA and challenge in the current law of Vietnam
Dating back to the Berne Convention for the Protection of Literary and Artistic Works and the Rome Convention, the most comprehensive multilateral framework for intellectual property was last amended in 1979, and rapid technological progress since then prompted the United States and the European Union to urge an international IP framework, prompting WIPO to adopt two new treaties in 1996—the WCT (WIPO Copyright Treaty) and the WPPT (WIPO Performances and Phonograms Treaty)—collectively known as the Internet treaties for their focus on the digital era By 2021, about 60% of the world’s population used the Internet, underscoring the need for broad accession to the WCT and WPPT to strengthen IP protection in the digital age To date, 110 countries have joined the WCT and 109 have joined the WPPT, with Vietnam remaining outside both, a gap that creates challenges for Vietnam in implementing key Internet-treaty provisions echoed in EVFTA, including the protection of reproduction rights from transient copies.
Reproduction rights and the treatment of temporary digital copies were the central issues raised during the drafting of the WCT (WIPO Copyright Treaty) and the WPPT (WIPO Performances and Phonograms Treaty) At the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, delegates engaged in extensive negotiations, presenting a wide range of proposals that would help shape international standards for digital reproduction, protection of performances and phonograms, and the balance between authors’ rights and public access in the digital era.
There is ongoing concern and debate about whether transient digital copies—temporary reproductions—fall within the reproduction rights of Article 9 of the Berne Convention and should be protected To answer this, it is essential to trace the history of Internet treaties; the draft of the WCT included Article 7(1) clarifying that the exclusive right to authorize reproduction covers direct and indirect reproduction, whether permanent or temporary, in any form, and the WPPT draft had a parallel provision for performers’ rights to reproduce direct or indirect reproductions of performances (fixed in phonograms or in any medium), with Article 14 of the WPPT confirming the same for phonograms From this wording, it is clear that the Internet treaty negotiators intended reproduction rights to encompass digital transient copies This stance has not been in dispute within WIPO, as the Second WIPO/UNESCO Committee of Governmental Experts on Copyright Problems Arising from the Use of Computers for Access to or the Creation of Works recommended that storage and retrieval of protected works in computer systems may involve the rights to reproduce under either international conventions or national law.
However, these drafted articles were not adopted at the Diplomatic Conference due to differing opinions on the matter One position focused on protecting the reproduction right against any digital transient copies, without any exemptions.
77 Smith, E H (2002) Toward Global Copyright Infrastructure on the Internet: Status of WCT and WPPT Ratifications and Deposits and Key Implementation Issues for the Future International
Berne Union (1982) documents the work of the Second Committee of Governmental Experts addressing copyright problems arising from the use of computers for access to or the creation of works, as published in the Monthly Review of the World Intellectual Property Organization The report analyzes how computing technology transforms rights management, access to works, and the creation process, and outlines potential policy responses to harmonize copyright protection with technological innovation This source provides an international, scholarly perspective on the legal challenges posed by digital tools and their impact on authors, users, and the broader creative ecosystem.
Under the Berne Convention, the protection of reproduction rights in the digital environment is governed by the three-step test, which allows limitations and exceptions to be defined by national jurisdictions There were divergent views: some argued against extending protection to too many transient or temporary copies to avoid creating a harmful user monopoly, while the most widely accepted position holds that reproduction rights cover digital transient copies but with limitations and exceptions established through the three-step test in each country The final approach adopted in the WCT and WPPT does not expressly reject temporary copies in its language but implicitly confirms that the reproduction right fully applies to uses of works, performances, and phonograms stored in digital form; storage of a protected work in electronic form constitutes a reproduction within the meaning of Article 9 of the Berne Convention.
Under Convention Articles 7 and 11 of the WPPT, transient digital copies are part of the reproduction rights held by authors, performers, and producers of phonograms By not enacting specific provisions, lawmakers make limitations and exceptions optional rights for each domestic jurisdiction to decide, rather than universal obligations Nevertheless, member countries still have a duty to protect original works from transient copies.
Although the EVFTA does not explicitly define digital or transient reproductions, the protection of the reproduction right for transient copies is effectively inherited from the EU’s participation in the WCT and WPPT, since the EU is a contracting party to those treaties Article 12.14(2) of the EVFTA further specifies that only certain limited transient or incidental digital reproductions in specific circumstances are exempt from the author's reproduction right Consequently, normal transient digital copies remain subject to reproduction rights under the EVFTA.
79 Ficsor, M (2005, February 28-March 2) Copyright in the Digital Environment: The WIPO Copyright
Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) [Conference session] WIPO National
Seminar on Protection of Copyright, Related Rights and Collective Management, Khartoum.
Vietnam's current IP legislation does not adequately protect works from temporary copies Article 4(10) defines reproduction as the making of one or many copies of a work or a phonogram or video recording by any means and in any form, including copies in electronic form, and the second Intellectual Property Law Amendment Bill would amend this definition to cover copies "in whole or in part" by any means and in any form, including electronic copies, aligning with EVFTA expectations and strengthening authors' rights Yet the removal of the phrase "one or more" (aside from shortening the clause) adds little value, and the attempt to retain "including the making copies of the work in electronic form" seems superfluous since "in any means and in any form" already encompasses electronic copies While some argue the amendment is meant to address transient copies, there is no official guidance, making such interpretations subjective and underscoring the need for clearer, authoritative guidance to clarify the scope of protection.
Ambiguity in the definition of "reproduction"—especially regarding transient copies—leaves the substantive provisions of the Intellectual Property Law open to interpretation Articles 20(1)(c), 29(3)(b), 30(1)(a), and 31(1)(d) grant authors and related rights holders "reproduction rights" without detailed explanation This can be adequate if "reproduction" is well-defined for temporary copies; however, the broader interpretation that "reproduction" includes transient copies may prevent authors and related subjects from fully protecting their works against digital temporary copies in the modern era.
Under the second Intellectual Property Law Amendment Bill, the provisions for authors and related rights are amended to grant direct or indirect reproduction by any means and in any form, in whole or in part, of their works, performances, and phonograms This change includes an added exception described in clause 80.
An amendment proposing to carve out an exemption for transient reproductions—those automatically deleted with no possibility of recovery—should not be applied, as it would undermine a core aspect of modern digital workflows The first change is unnecessary since reproduction is already defined in Article 4, and adding more language would risk repetition or even conflict between provisions The proposed exemption would also leave works unprotected for temporary electronic copies in many common technologies that rely on these transient reproductions to function, since such copies are routinely created and erased during normal operation A practical illustration is random-access memory (RAM), which stores data temporarily to enable fast processing in devices like smartphones, PDAs, MP3 players, CD players, fax machines, and digital TVs; when the device loses power, RAM is cleared and the data cannot be retrieved Because RAM is ubiquitous and essential to device performance, denying protection for transient copies would reduce the effectiveness of the copyright framework in a wide range of everyday technologies.
80 Article 1(3), 1(9), 1(10), 1(11) of Vietnam Intellectual Property Law Amendment Bill 2020.
RAM, or random-access memory, is the computer’s fast, volatile memory that holds data and code in active use, enabling quick access for running programs and smooth multitasking Unlike long-term storage such as hard drives or SSDs, RAM loses its contents when power is removed, so enough memory is essential to prevent bottlenecks as applications load and switch The 2013 explainer "What is RAM?" from 81 Crucial explains how memory size, speed, and latency influence overall system performance, from boot times to responsiveness during multitasking In digital rights discussions, the ability to control temporary copies in online environments could significantly diminish the value of the reproduction right, underscoring the balance between user access and rights management in modern computing.
Vietnam purports to implement the EVFTA by amending its domestic law to maximize compatibility with the agreement In this approach, the country aims to align its legal framework with EVFTA obligations through precise revisions However, a mistaken conduct in this process could not only hinder successful EVFTA implementation but also risk an adverse court decision that would render the national law noncompliant with the treaty.
The first recommendation to consider is about the the definition of
Defining “reproduction” of literary and artistic works in international treaties remains unresolved, creating a guidance gap for member countries like Vietnam Neither the EVFTA nor the Berne Convention provides a definition of reproduction, yet a wealth of records from WIPO diplomatic conferences points to fixation as a core element of the concept Resolving what counts as fixation—and the exact scope of its meaning—will, in turn, clarify our understanding of reproduction Fortunately, fixation has attained broad international recognition through the WIPO/UNESCO Committee of Governmental Experts, where experts have established a shared framework for how fixation underpins copyright and related rights.
Challenge in implementing rental rights in Vietnam
2.2.1 The protection of rental right in the EVFTA and the current challenge in Vietnamese law and Vietnamese companies’ management
Rental right is not directly included in the EVFTA, but its connection to the WCT and the WPPT means rental rights are effectively recognized as a fundamental protection for authors, performers, and producers of phonograms This section does not reexamine the rights already detailed in Chapter 1; instead, it traces the developing history of the rental right, explains its importance, and analyzes the conundrum in the current Vietnamese law, as well as the repercussions Vietnam may face if the right remains unimplemented The discussion highlights how gaps in implementation can affect international alignment, undermine incentives for creators, and impact the country’s creative economy, while also clarifying the broader implications for Vietnam’s copyright framework and its cultural and economic exchanges.
89 Infopaq International A/S v Danske Dagblades Forening (2009) Case
Rental right is enshrined in Article 7 of the WCT and Articles 9 and 13 of the WPPT, stemming from the European Parliament and Council’s 1992 Rental and Lending Rights Directive This directive marks the apex of the European Community’s efforts to strengthen protection for copyright and related rights while harmonizing key aspects of copyright law across member states in the latter part of the 20th century A series of rental-right cases, most notably Warner v Christiansen, have illustrated Europe’s persistent push for stronger rights protection and consistent enforcement across jurisdictions.
*Warner Bros., Inc & Metronome Video ApS v Christiansen case
In this case, the plaintiff, Warner Brothers Incorporation, owned the copyright to a movie called “Never Say Never Again” in both Denmark and the UK.
In July 1984, Christiansen, a Danish video-shop owner, bought a film videocassette in London and brought it to Copenhagen, where he began renting it The case sparked controversy because Danish copyright law protected the rental right of the copyright owner, so if the owner authorized sale but not rental, renting the work could infringe; by contrast, British law bars copying, broadcasting, public performance, or transmission by diffusion, so if the author authorized the transfer, the work can be legitimately rented without infringement This is the quintessential first-sale doctrine, directly applied by the UK.
In order to solve the case, the most important issue that the Danish Court raised before the ECJ must be tackled, which was:
Under Articles 30 and 36 of the EEC Treaty, the central question is whether the owner of the exclusive rights in a video cassette, lawfully put into circulation with his consent in a Member State whose law does not allow the transferor to transfer the rights, may rely on those treaty provisions to govern cross‑border distribution The case examines how national restrictions interact with the EU internal market, balancing the rights holder’s exclusive control against the free movement of goods and services within the Community, and invites consideration of how exhaustion and consent operate when the work has been lawfully circulated in one Member State but faces different rules in another.
90 Warner Bros., Inc & Metronome Video ApS v Erik Viuff Christiansen, 1988 E.C.R 2605
European Court Reports 1988, Case 158/66, holds that prohibiting resale or hiring-out may forfeit the right to restrain the hiring-out of that recording in another Member State into which it has been lawfully imported, where the second State’s copyright legislation allows such prohibition but does so without distinguishing between domestic and imported video-cassettes and without impeding the actual importation of video-cassettes as such.
Two main views shaped the dispute: Advocate General Mancini argued that because the plaintiff had consented to place the film’s video in the UK market where the rental right is not protected, the exhaustion rule should apply, meaning Warner Brothers could not interfere with the use or disposal of the purchased movie even if Denmark protected the rental right The ECJ did not accept this reasoning, warning that forced harmonization would yield the lowest level of intellectual property protection among EU member states Consequently, the ECJ’s decision favored a cross-border protection framework that better reflects reality, rejecting Mancini’s exhaustion-based approach in this context.
The right to prohibit the hiring-out of a video-cassette is closely bound to the author's essential rights—the exclusive right of performance and the exclusive right of reproduction—which the Treaty did not intend to question This right ensures film makers receive satisfactory remuneration in the rental market, a sector distinct from the sales market that has evolved with advances in technology.
Video works offer substantial revenue potential for authors, with video-cassettes circulating as a monetization channel The fact that an author places such video-cassettes on the market in a Member State that does not provide explicit protection for the rental right should not, therefore, have repercussions on the rights conferred on that author by the applicable legislation in other jurisdictions.
91Id another Member State to restrain, in that State, the hiring-out of those video- cassettes 92
Across Europe, traditional copyright exhaustion had become outdated in many cases involving exhaustion and rental rights for copyright owners The analysis shows that, in some circumstances, traditional exhaustion is out-of-date and inapplicable In 1988 the Commission proposed harmonizing certain areas of copyright law within the European Community through the Green Paper on Copyright and the Challenge of Technology: Copyright Issues Requiring Immediate Action The Green Paper addresses piracy, audiovisual home copying, computer programs and databases, with rental right as its main focus The Commission argued that piracy through video and audio rental posed a major threat to key intellectual property markets in Europe, the United States, Canada and Japan, reducing revenues for legitimate copyright owners and diverting profits to infringing parties, thereby unbalancing protection and prerogatives The suggested solution is the creation of rental rights to restore balance and reinforce the protection of copyrights and related rights.
Current trends in the distribution and marketing of sound and video recordings indicate that commercial rental will become an increasingly important channel for making works publicly available This development is linked to piracy and private copying and carries significant economic consequences for the rights holders and performers whose works are recorded In the absence of a firm legal basis for rights holders to authorize the commercial exploitation of their works through rental, those who create recorded content are likely to receive a much lower return on their investment than they would from other exploitation models.
92Id otherwise be the case, while middlemen could profit disproportionately from the efforts of others 93
Proponents argue that the rental right mechanism can achieve two goals at once: protecting copyright owners' earnings from each rental by preventing piracy, and boosting the economy by expanding the circulation of intellectual property through more affordable products for consumers In November 1992, the European Community adopted Council Directive 92/100 on rental and lending rights and on certain rights related to copyright in the field of intellectual property, making rental right an exclusive right for authors and related rights holders in European countries This directive later influenced the WCT and WPPT, prompting member states to incorporate rental right as an exclusive right in their national laws.
Vietnam has long recognized the rental right under Article 20(1)(e), Article 29(3)(d) and Article 30(1)(b) of its current Intellectual Property Law, following its accession to the Berne Convention and TRIPs Yet the new Intellectual Property Law Amendment Bill omits the rental right for performers and phonogram producers, creating significant hurdles to implementing the EVFTA in Vietnam In the digital era, music rentals are dominated by subscription streaming services such as Spotify, Apple Music and Pandora, where users pay a monthly fee—around $10—to add songs to playlists, but such transactions do not transfer ownership of the works.
93 Commission of the European Communities (1988) Green Paper on Copyright and the Challenge of
Technology - Copyright Issues Requiring Immediate Action. http://aei.pitt.edu/1209/1/COM_(88)_172_final.pdf.
Spotify Premium and Amazon Music Unlimited illustrate a music rental model where subscribers enjoy uninterrupted, ad-free listening while paying a regular subscription, and once canceled, access ends so they no longer rent the songs This model has proven to be the most successful at protecting performers’ and producers’ rights while providing consumers with affordable access to copyrighted music across Europe, the US, and other developed markets As international platforms enter Vietnam and copyright awareness rises, domestic performers and producers are beginning to charge per listen on large platforms like Zing MP3 and NCT through a similar mechanism However, they face risks from infringers who upload songs for free on Vietnamese platforms, since the upload process can be simple and widely accessible, unlike some international service providers where only officially verified artists and producers can upload content and typically pay commissions ranging from $9.99 per single to $49.99 per album.
Lenient allowances that effectively permit infringement of copyrighted works by large Vietnamese entertainment companies foster a free-use mindset and complicate the enforcement of related rights In the absence of a formal rental-right regime in Vietnam, international performers and producers may be compelled to fold rental remuneration into the price of albums sold in the Vietnamese market to safeguard earnings from rental activity, effectively raising prices for consumers and shrinking revenue for creators if rentals go unpaid This pricing shift would severely limit access to music for the majority of people, since higher costs reduce affordability.
Music distribution has historically offered digital tracks around $10 as MP3s and physical copies around $20 as CDs or vinyl, with the price typically split evenly between sales and rentals In practice, a song earns only about $0.006–$0.0084 per stream, versus roughly $1–$2 for a sale, but the sheer volume of streams today dwarfs the number of sales As streaming becomes the dominant delivery method, the MP3 format is being phased out in favor of digital streaming, reshaping the economics of royalties and market share in the music industry.
Challenge to the cooperation between Vietnamese and European
2.3.1 Collective management organizations in Vietnam and challenge to the international cooperation
Under Article 12.16 of the EVFTA, member states are urged to promote cooperation between national collective management organizations to facilitate the cross-border circulation of works and the transfer of remuneration for their use across member territories Collective management of copyright and related rights is a model where right holders authorize professional organizations to exercise their rights on their behalf, enabling centralized licensing and oversight These organizations monitor uses, authorize the use of works, collect the corresponding remuneration, and allocate payments to the rightful owners This approach differs from individual management, in which authors themselves authorize use and set remuneration terms directly In practice, collective management streamlines licensing and royalty distribution while supporting rights holders across borders.
Whether collective management is mandatory, voluntary, or extended depends on each country’s national law It is undisputed that authors, and where recognized, related rights holders, enjoy exclusive rights to their intellectual creations This exclusive right carries fundamental significance, since only the owner may authorize or prohibit any action covered by the right If the author exercises the right themselves, they will enjoy the broadest and most comprehensive scope of rights, limited only by the applicable law From this basic understanding follows that the author should be free to decide whether to exercise the rights personally or to rely on collective management organizations to do so on their behalf Any provision that restricts this free will would be incompatible with the basic nature of these rights and would only be acceptable if international norms permit such restrictions.
However, the Berne Convention contains such provisions, specifically Article 11bis(2) and Article 13(1), which reads as followed:
Legislation in each Union member state shall determine the conditions under which the rights described in the preceding paragraph may be exercised, and these conditions shall apply only in the countries where they are prescribed; they shall not prejudice the author's moral rights or his right to obtain equitable remuneration, which, in the absence of agreement, shall be fixed by the competent authority.
Each country of the Union may independently impose reservations and conditions on the exclusive rights granted to the author of a musical work and to the author of any words, with respect to authorizing the sound recording of that musical work together with those words if such recording has already been authorized by the author of the words; but all such reservations and conditions shall apply only in the countries that have imposed them and shall in no case prejudice the rights of these authors to obtain equitable remuneration, which, in the absence of agreement, shall be fixed by the competent authority.
Member countries may set conditions under which authors are compelled to participate in a collective management system, provided with minimum safeguards such as the preservation of moral rights and equitable remuneration Article 11 and Article 13 of the Berne Convention identify specific circumstances in which compulsory collective management is permissible, and the mechanism can extend to non-exclusive rights of authors, including the resale right, remuneration rights that survive transfers, and rights arising from certain legal exceptions Although the Berne Convention does not authorize collective management for all non-exclusive rights, it is widely argued that international norms such as TRIPs, the WCT, and the WPPT may extend the system to such rights when a majority of right holders consent to management by these organizations Given this, countries may offer authors an opt-out to avoid framing the system as an unlawful obligation that overrides the creator's natural rights.
Regardless of the specific model, the primary aim of collective management organizations is to achieve systemized and efficient administration of music rights Blanket licensing is a core mechanism that enables users to access any musical work in an organization's repertoire under license terms that specify the use purpose and duration This licensing can cover national repertoires or, under bilateral or multilateral agreements, repertoires shared among cooperating organizations CMOs typically divide into categories based on (1) the subjects they represent, (2) the rights they handle, or (3) combinations of multiple subjects and rights The first two divisions are the most traditional, while the third, which bundles multiple subjects and rights, is particularly advantageous for developed countries because it reduces facility and staffing costs and strengthens international cooperation From the perspective of international relations, this structure builds a strong brand and trusted credibility in copyright cooperation, while making blanket licensing more convenient for both users and rights holders since a single license can cover multiple rights and repertoires Consequently, many countries are moving toward merging diverse organizations into unified entities to enable versatile, cost-effective management.
Europe's collective management system is highly developed and widely used, with collective management organizations often placed on an equal footing with copyright owners in European directives, which routinely pair the term "collective management organizations" with authors, performers and producers The system relies on obligatory collective management and is complemented by extended collective licensing in many directives The Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and related rights for satellite broadcasting and cable retransmission contains detailed provisions on the role of CMOs: Article 8(1) requires member states to ensure that retransmissions observe the rights and are based on contracts between rights holders and cable operators, while Article 9(1) obliges member states to implement obligatory collective management so that the right to authorize cable retransmission is exercised only through a collecting society; Articles 9(2) and 9(3) regulate extended collective management In 2014, the EU adopted a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market, aiming to improve the operation, transparency and financial standards of CMOs and to provide a legal framework for blanket licensing of musical works The European CMOs system is so effective that the president of CISAC, the global network of authors’ societies, has advised learning from this model regarding the role of these organizations.
In Vietnam, however, the circumstance is on the contrary, the role of collective management organizations is not commonly acknowledged, both de jure and de facto.
Vietnamese law does not require mandatory collective management, leaving resale rights for artists unrecognized; under the EVFTA, adoption of resale rights is optional for member states, whereas in Europe these rights have become a compulsory obligation.
Creators around the world are calling for the adoption of the EU Copyright Directive and urging governments to implement this right in domestic law, arguing that effective collective management organizations (CMOs) are essential for right holders to access information In practice, selling a painting by individual owners makes it hard to trace buyers across a high volume of gallery transactions, and it creates a persistent information burden for galleries and dealers; CMOs make this tracking feasible and sustainable Consequently, CMOs play a pivotal role in rights management, a role that Vietnam’s current Intellectual Property Law treats as somewhat perfunctory, with Article 56 not adequately integrating foreign CMOs into the domestic framework.
1 Organizations acting as collective representatives of copyright and/or related rights are not-for-profit organizations established under agreements among authors, copyright holders and/or related right holders and operating according to the provisions of law for protection of copyright and related rights.
2 Organizations acting as collective representatives of copyright and/or related rights shall conduct the following activities under authorization by authors, copyright holders and/or related right holders: a/ Performing the management of copyright and/or related rights; conducting negotiations for licensing, collection and division of royalties, remunerations and other material benefits from the exercise of authorized rights; b/ Protecting legitimate rights and interests of their members; organizing conciliations upon occurrence of disputes.
3 Organizations acting as collective representatives of copyright and/or related rights shall have the following rights and duties: a/ To conduct creation-promoting activities and other social activities; b/ To cooperate with their counterparts in international and national organizations on the protection of copyright and related rights; c/ To make regular and irregular reports on collective representation activities to competent state agencies; d/ Other rights and duties according to the provisions of law.
While this article describes the rights and obligations of these organizations, it does not cover several foundational matters essential to their functioning, such as the establishment and operation of the bodies, member participation, the general assembly, and supervisory arrangements It also omits regulations on revenue crucial to the institutions’ viability—standards for collecting and distributing royalties, a clear distribution plan, timelines for distribution, and tariff structures Furthermore, it fails to address the foreign policy toward other collective management organizations outside Vietnam, as referenced in Article …
The current framework in Article 56 fails to provide a proper legal structure for matters such as contractual terms, payment methods, and tariff setting, as it only requires cooperation with international and national bodies on copyright protection, leaving core legal issues unaddressed In the amended Intellectual Property Bill, these aspects are to be governed under Decree 45/2010/NĐ-CP on the organization, operation, and management of associations, a move that recognizes collective management organizations as not-for-profit bodies built on member consent Article 56a introduces principles for determining, collecting, and distributing royalties for the exploitation of copyright and related rights, yet it largely reiterates that agreements between parties and organizational regulations must be respected, which overlaps with the Civil Code Moreover, crucial topics such as tariffs and royalties when collaborating with foreign organizations remain broadly regulated without specific guidelines for rights holders to follow.
In Vietnam, three primary collective management organizations oversee copyright and related rights: the Vietnam Literary Copyright Center (VLCC) for literary authors and rights holders; the Recording Industry Association of Vietnam (RIAV) for producers of phonograms; and the Vietnam Center for Protection of Music Copyright (VCPMC) for music authors and rights owners Among them, VCPMC is a member of CISAC, while VLCC and RIAV have limited international activity RIAV’s partnerships are mainly with state-owned enterprises, with only a few collaborations involving small and medium domestic private entities.