In other words, for the author, copyright is considered as the most personalized and intimate form of property as it represents the author himself and his internal thoughts, while origin
Thesis rationale
After ten years of negotiation, the EU–Vietnam Free Trade Agreement (EVFTA) finally took effect in August 2020, setting the stage for a tariff-free future with 99% of customs duties eliminated between Vietnam and the EU This ambitious deal is expected to reshape both economies: Vietnam could see its GDP grow by 42.7% by 2025, while EU GDP is projected to gain about $29.5 billion by 2035 Among the promised benefits, the EVFTA strengthens protection for intellectual property, especially copyright and related rights, addressing Vietnam’s ongoing IP infringement challenges and supporting innovation, creative industries, and fair competition across the Vietnam–EU market.
Vietnam stands to gain from the EVFTA, but implementing its copyright and related rights provisions will be challenging due to gaps between the parties' legislations and differences in culture and economy among member states To address this, the Ministry of Science and Technology proposed in 2019 a project to amend several articles of the Intellectual Property Law as part of the Government's and Prime Minister's working program The draft was slated for submission to the National Assembly for consideration at the October 2021 session and for approval at the May 2022 session With the aim of providing a meaningful, potentially fruitful contribution to Vietnam's current situation by closely studying the EVFTA, the author carried out research 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, scholarly output is still limited and largely consists of journal articles, newspaper pieces, and government reports; to gain a more in-depth understanding, the author combines these sources with literature on copyright and related rights in Europe, since the EVFTA—an agreement between Vietnam and the European Union—has implications for European copyright law and related rights.
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, along with the fundamental concepts and principles that underlie the field The work also surveys the latest EU amendments and digital-era initiatives, keeping readers abreast of evolving policy and practice With contributions from leading experts, it explores the upcoming challenges facing copyright and related rights, making this a highly valuable resource for scholars, practitioners, and policymakers alike.
Another influential source for this thesis is the book "Copyright and Fundamental Rights in the Digital Age" by Oreste Pollicino, Giovanni Maria Riccio, and Marco Bassini Published at a pivotal moment, it contends that copyright protection in Europe must adapt to the digital age in order to balance it with other fundamental rights and human freedoms By acknowledging the rapid growth of digital technologies and the internet, the authors scrutinize the effects of recent EU copyright reforms on this delicate balance and outline implications for policy and practice.
Another notable work is Caterina Sganga's Propertizing European Copyright, which provides an insightful analysis of the causes and consequences of copyright propertization across EU history, contrasts EU developments with national legal frameworks, and draws lessons for EU policy that could inform Vietnam's approach to copyright reform.
2 Stamtoudi, 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 Age Edward Elgar
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
The “Guide to the EU-Vietnam trade and investment agreements” by the Delegation of the European Union to Vietnam is an essential resource for understanding the new generation of EU–Vietnam agreements Although it does not focus on copyright and related rights, the guide is written in simple, clear language that helps readers grasp the EVFTA basics and appreciate its significance for Vietnam’s economy This clarity enabled the author to identify the major challenges facing Vietnam’s current copyright and related rights within the EVFTA framework.
Vietnam’s research on copyright and related rights in the EVFTA era is largely confined to short journal articles, magazines, or online news pieces that provide limited actionable guidance These studies generally outline the potential for stronger protection in Vietnam and acknowledge both de jure and de facto challenges, yet they fall short of practical recommendations for policymakers, rights holders, and practitioners What’s needed are in-depth analyses that translate high-level EVFTA commitments into concrete, implementable steps—such as specific legal reforms, enforcement improvements, capacity building, and clear implementation roadmaps—so Vietnam can fully realize the agreement’s benefits.
Nguyen Thi Huyen's article “Solving intellectual property challenges when Vietnam joins EVFTA” in Review of Finance analyzes the opportunities and challenges that the EU-Vietnam Free Trade Agreement (EVFTA) presents for Vietnam's intellectual property regime The discussion covers broad implications for IP protection, enforcement, and policy alignment, outlining potential gains from greater harmonization alongside new compliance burdens for Vietnamese institutions and innovators Notably, the author does not focus on copyright and related rights; these issues are mentioned only as a single challenge, with no specific solution proposed in the piece.
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," published in Review of Finance (pp 27–28), analyzes the main IP hurdles Vietnam must address to align with EVFTA requirements It outlines how enforcement gaps, judicial capacity, and the harmonization of patents, trademarks, and copyright regimes with EU standards could shape Vietnam's regulatory reform and investment climate The piece emphasizes that robust yet balanced IP protection is essential for encouraging innovation, attracting foreign investment, and enabling effective technology transfer within EVFTA supply chains It also provides policy recommendations for strengthening IP enforcement, streamlining administrative procedures, and coordinating cross-ministerial efforts to ensure a smooth transition as Vietnam integrates into the EVFTA framework.
The article 'Commitment to Intellectual Property in EVFTA: Opportunities and Challenges' by Pham Thi Kem Len and Nguyen Minh Hien, published in Journal of Finance and Accounting Research, issue 7, includes a concise discussion of copyright and related rights Yet, as with the earlier study, it does not present a thorough, actionable solution to the problem.
Although these sources do not directly analyze the relationship between the EVFTA and copyright in Vietnam, they point to directions for Vietnam’s digital-era copyright regime by drawing comparisons with other jurisdictions Notable works include Do Huynh Yen Vy’s master’s thesis “Acts of Copyright Infringement in the Digital Environment under the Laws of the United States, France and Experience for Vietnam,” Nguyen Thai Cuong’s book “Comments on Copyright Judgments — Legal Perspectives from the United States, France, Japan and Korea,” and Vu Thi Hong Yen’s article “Copyright for Works in the Industrial 4.0 Environment at Higher Education Institutions.” Together, these studies illuminate international approaches to digital copyright enforcement, infringement scenarios, and the specific needs of education and research settings as Vietnam evolves its copyright framework in the digital economy.
Objectives of the study
This thesis provides a foundational understanding of copyright and related rights as regulated by the EVFTA and then examines the challenges involved in implementing these rights under the agreement.
Pham Thi Kem Len and Nguyen Minh Hien's 2020 study examines the commitments to intellectual property within the EVFTA, showing how stronger IP protections can spur innovation and technology transfer while introducing enforcement and policy challenges It highlights opportunities such as clearer rights regimes, improved cross-border collaboration, and greater market access for creators and investors, contrasted with concerns over access to medicines, digital IP issues, and the administrative capacity to implement new rules The analysis underscores the need for balanced enforcement, transparent dispute resolution, and sector-specific implementation strategies to maximize EVFTA benefits while mitigating risks Together, these findings help policymakers, industry players, and legal practitioners understand the evolving IP landscape in the EVFTA framework.
8 Do Huynh Yen Vy (2020) Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa
This master’s thesis, "Acts of copyright infringement in the digital environment according to the laws of the United States, France and experience for Vietnam," from Ho Chi Minh University of Law, analyzes how digital copyright violations are addressed under U.S and French law and draws lessons for Vietnam, with the work available at the 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
10 Vu Thi Hong Yen (2019) Quyền tác giả đối với tác phẩm trong môi trường công nghiệp 4.0 tại các cơ sở giáo dục đại học [Copyright for works in the industrial 4.0 environment at higher education institutions]
Vietnam Based on this knowledge, the author suggests some mendments to the Vietnam’s current law.
Scope and delimitation
Under restrictions of time and resources, this thesis will exhibit the following limitations: First, since there already has been numerous research on classic and comprehensive intellectual property agreements, namely TRIPS, Berne and Rome Convention, any reference to these treaties may not be thoroughly explained but only mentioned with a view to clarify author’s ideas Second, this paper will not study the steps involved in the procedure of copyright and related rights registration, both in Vietnam and internationally In other words, the thesis focuses on substantive provisions and barely studies the procedural law Finally, the author will focus only on the challenges that have direct effect on pecuniary benefits of authors and related subjects This will explain for why other existing challenges will not be tackled in this research.
Methodologies of the study
Chapter 1 uses historical review, analysis, and synthesis to define copyright and related rights, and then applies the same analytical framework to examine these rights and their enforcement under the EVFTA Chapter 2 employs analytical methods in combination with historical review and case studies to outline the challenges Vietnam faces in implementing the EVFTA, followed by a comparative method to formulate 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
Copyright, the property right in an original work of authorship fixed in a tangible medium of expression, gives the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work This protection covers a wide range of creations—literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings—yet a fixed list of categories cannot capture every form of expression, and there can be other expressions outside the enumerated scope that still fall within the realm of copyright.
According to WIPO, copyright (or author’s right) is the legal term describing the rights creators have over their literary and artistic works, with protection extending to books, music, paintings, sculpture, films, computer programs, databases, advertisements, maps, and technical drawings; notably, WIPO’s definition limits copyright to the author’s rights and excludes related rights, which contrasts with the WTO’s broader approach that can encompass related rights This divergence arises from differences in national legal systems.
From a legal science perspective, copyright is the term that already speaks for itself: the exclusive right to reproduce a work Originally it referred primarily to written works, but its scope has broadened to cover a wide range of literary and artistic creations At its core, copyright gives creators control over copying, distribution, adaptation, and public display, enabling them to decide how their work is used and shared This legal protection underpins the incentive to create by balancing creators' rights with public access and forms the backbone of modern copyright regimes in the digital age.
11 WIPO (n.d.) Copyright WIPO – World Intellectual organization Retrieved April 10, 2021, from https://www.wipo.int/copyright/en/
12 WTO (n.d.) Intellectual property: protection and enforcement World Trade Organization Retrieved April
Copyright is a core component of intellectual property that protects the author’s patrimonial and moral rights, ensures public access to creative works, and fuels creativity—the essential driver of societal development It also secures authors’ exclusive control by allowing them to prohibit others from copying their works without permission.
Scholars trace the emergence of the term copyright to the rise of the printing press in mid-15th-century Europe, with Johannes Gutenberg often credited as a pioneering figure As printing spread to neighboring countries such as England and Italy, a special relationship developed between the crown, printers, and publishers, shaping early legal frameworks The Statute of Anne (1710) marked a milestone by recognizing the right to copy, even though the term “copyright” itself was not yet in common use The word “copyright” first appeared in 1838 in Augustin-Charles Renouard’s Traité des droits d’auteur dans la littérature, les sciences et les beaux-arts, replacing older phrases like “literary and artistic works” and “intellectual property,” and gaining broad acceptance among scholars and lawmakers Renouard’s use of the plural “copyrights” implied the plurality of rights authors possess; while some argue for preserving the plural, the singular form has become the more prevalent usage over time.
13 Goldstein, P (2003) Copyright's Highway: From Gutenberg to the Celestial Jukebox Stanford Law and
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 Turkish
16 Dumitru, C (2011) Comparison between copyright and ownership in common law Romanian Journal of
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
Historically, civil law and common law differ in their understanding of copyright In civil law systems, copyright is known as droit d’auteur (the author’s right) and encompasses both economic and moral rights, while European scholars regard copyright as the most personal form of property, arising from the author’s unique creative activity rather than mere codification The idea traces back to the 1791 and 1793 decrees (the Law of Suspects) that restricted privileges of those favored by the Crown after the French Revolution Otto van Gierke, hailed as the father of the social bounds of copyright theory, argued that copyright extends one’s personality and cannot be separated from the author’s creative process through to publication Alphonse de Lamartine called literary property the “most sacred of property,” viewing copyright as the most personalized and intimate form of property that expresses the author’s inner thoughts, unlike external forms of property This also explains the civil-law distinction between the author’s right and related rights, since producers, broadcasters, and performers are not considered authors and receive narrower rights under different titles Overall, the civil-law approach to copyright tends to be emotional, revolutionary, and deeply idealistic.
Under common law, copyright covers both the author’s rights and related rights; however, the concept of "related rights" is not as clearly defined in practice, since the roles of authors, producers, broadcasters, and performers are intertwined within a single protection framework.
18 Monta, R (1959) The concept of copyright versus the droit d’auteur Southern California Law Review,
20 Gierke, O (1889) Die soziale Aufgabe des Privatrechts Springer.; Kohler, J (2010) Das Autorrecht: Eine
Planiol, M (1915) in Traité Élémentaire de Droit Civil treats copyright as a pecuniary, all-encompassing right rooted in the English common law tradition, where the Crown originally granted privileges to publishers and printers rather than to authors It was legislation, not the author, that brought these rights to life Today, copyright covers both the author's original works and the products of technical skill, such as sound recordings, films, and broadcasts There is a pecuniary relationship between the author and the copyright owner: an employee hired to create a work under a contract often leaves ownership with the employer after fulfilling contractual obligations, even if the employer does not participate in the creative process The tolerance for contractual liberty and the high status of producers, broadcasters, and performers in the common law system reinforce a one‑and‑all‑inclusive copyright of a pecuniary nature, with no appearance of moral rights.
Since the Berne Convention's adoption in 1886, authors' moral rights have been internationally recognized, though many common-law countries have not fully implemented this protection As nations revise their laws to address moral rights while preserving the reciprocal principle, debates continue about how to integrate these rights into existing copyright frameworks For example, the United Kingdom faced questions during the 1948 Berne Convention revision about whether moral rights should be distinct from copyright To this day, the legal nature of copyright remains a contested issue, with enduring arguments from the monist and dualist schools on how best to align national laws with international standards.
23 Small, R R (1977) The Author's Moral Right Trent Law Journal, 1, 69-86
Monism in common-law countries posits an inseparable link between the author's economic and moral rights, making it impossible to divide copyright into patrimonial and non-patrimonial categories Under this approach, the copyright prerogatives are composed of moral rights, which are said to have the same value and duration as economic rights This theory invites criticism because it overlooks that patrimonial rights only arise when the author exercises or performs his moral rights In addition, there appears to be no causal connection between economic rights and moral rights, as they reflect different objectives and areas of application.
Dualism posits that economic rights and moral rights have distinct existence and operate under different legal regimes, with moral rights often playing a more significant role than economic rights Therefore, the duration of moral rights should not be limited to the author's lifetime but extended after death The rationales behind this argument include recognizing the enduring personal connection between creators and their works, protecting the integrity and attribution of the work, and preserving public trust in the author’s legacy beyond life.
The work of an author is the product of creative effort, and it gives the author the authority to publish and publicize the work and to decide whether it should be known Only by exercising this authority do the material benefits for the author arise, which in turn shows that patrimonial rights originate from non-patrimonial rights.
Moral rights profoundly shape copyright by protecting the personal connection between the author and their works, while economic rights address only the author’s material interests This dual framework preserves the creator’s identity, attribution, and integrity, while also governing monetization and exploitation of 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, nations largely agree that the debate over moral rights in international IP agreements is unresolved, and prolonging it will not produce practical solutions A pragmatic path for common-law countries is to assess, at negotiations of an international treaty on intellectual property protection, whether to incorporate moral rights provisions—taking into account their existing laws, policy priorities, and national circumstances.
From the author’s perspective, to be thorough and aligned with the international context, copyright should be interpreted as the author’s rights over their original works, which include both moral rights and economic rights and cover works listed in Article 2 of the Berne Convention as well as potential new forms of creative expression in the future This interpretation recognizes that “works” extend beyond the current catalog of literary and artistic creations Nevertheless, each country retains the prerogative to decide whether its copyright interpretation should include moral rights or treat them differently.
Copyright and related rights under the EVFTA
Under Article 12.5 of the EVFTA, the rights and obligations of each party must comply with the TRIPs and the Berne Convention, and these conventions are integrated into the EVFTA and interpreted consistently with one another Since the EVFTA does not specify which categories of works are protected, the Berne Convention fills this gap with Article 2, providing a non-exhaustive list of protected works that includes literary, scientific, and artistic creations in any mode or form of expression Moreover, translations, adaptations, and other derivative works receive the same level of protection as the original works.
42 Article 2(3) of Berne Convention for the Protection of Literary and Artistic Works, September 28, 1979
Under the WIPO framework, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore holds that traditional literary and artistic productions that are sufficiently original and have identifiable authors may be protected as copyright works; by contrast, works that have not yet been fixed in a tangible form are not eligible for copyright protection.
Under the Berne Convention, published works and works by unknown authors who are nationals of a Berne Union member state are protected as copyright under Article 15.4 Collections, compilations, and databases of traditional cultural expressions, whether pre-existing or contemporary, may also be protected as copyright works in themselves As a result, traditional cultural expressions such as folklore and traditional knowledge fall within the protections of this agreement.
Under the TRIPS Agreement, computer programs are protected as literary works rather than as artistic works under Article 10, clarifying that protected works should not be interpreted by relying solely on the term “scientific works” in the Berne Convention’s Article 2 and discarding any reference to “applied arts” in the Convention At the same time, compilations of data are protected as works even when the contents themselves are not original works of authorship, because the intellectual creation lies in the selection and/or arrangement of the contents, which falls within intellectual property protection.
Because the EVFTA must be interpreted in conjunction with other international treaties, the authors’ rights outlined in Article 12.6 of the agreement are intentionally concise and straightforward, presenting a clear and simple scope of protection.
– 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
Under the WIPO view of the TRIPS Agreement, the term is treated as self-explanatory and is not defined in either treaty, with Stockholm Conference delegates agreeing that further explanation would be dangerous and unnecessary; consequently, the author holds the exclusive right to authorize and prohibit the reproduction of their works by any means and in any form The phrase “by any means and in any form” encompasses all methods of copying, including design, engraving, lithography, offset and other printing processes, typewriting, photocopying, xerography, and all mechanical or magnetic recording media such as discs, cassettes, magnetic tape, films, microfilms, and any other processes now known or later developed.
Copyright law includes exceptions to the right of reproduction, notably under Article 12.14 when the act is an inseparable part of a technological process whose sole purpose is to transmit between third parties by an intermediary or to enable lawful use, and when it yields no independent economic significance The Berne Convention, Article 9(2), 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 author’s legitimate interests Determining what constitutes an unreasonable prejudice is relative; domestic law often permits 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 harm to the author’s interests.
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 Symposium 2001,
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
The author holds the exclusive right to authorize or prohibit the distribution of the original works and their copies to the public in any form, a right that typically terminates once the works are sold or ownership is transferred in the first transaction The right to distribution is distinct from the right to making available; although some 2000s RIAA lawsuits treated making a copyrighted work available on a peer-to-peer network as distribution, the Thomas Court clarified that distribution must involve transfer of ownership or possession Therefore, actions that do not involve the passing of ownership or possession are not categorized as the right to distribution.
The author holds the exclusive right to authorize or prohibit the communication of their works to the public, including making them available to the public According to the European Parliament, “communication” should be understood broadly as any transmission or retransmission of a work to the public by wire or wireless means, with cable transmission, broadcasting, and live streaming as examples In Reha Training v GEMA, the ECJ held that the “public” must be more than an insignificant private group and consist of people the author did not take into account when communicating the work, and the public must be “new” to the author The Court also addressed considerations related to the economic aim.
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 is published in Official Journal L 167 (pages 10–19), clarifies that the act of communication must be considered when determining what constitutes communication to the public.
The making available to the public right closely resembles the communication to the public right, but the key difference, as the author argues, is that the former allows the public to save and access the work anywhere, anytime, while the latter enables direct witnessing only at a specific time For example, in RIAA v The People, uploading songs to a platform that anyone can access and download so that the public can enjoy the work amounted to an infringement of the making available right, not the communication right.
Under the Berne Convention, the right of resale, known as droit de suite, grants authors the right to profit from subsequent sales of their works after the first transfer This provision helps artists who may have to sell their art at low prices to make ends meet by ensuring they receive a share of later sales By securing ongoing compensation from resales, the droit de suite supports artists’ financial stability and recognizes their enduring contribution to the market value of their works.
Under the EVFTA, the resale right (droit de suite) is non-assignable, preventing artists from being compelled to transfer it to others By contrast, the Berne Convention would extend the right to the author’s successors, while EVFTA Article 12.15 treats the droit de suite as a personal right of the author.
Nevertheless, there are exceptions to the resale right If the work is transferred to the seller within three years from the date of the transaction and the resale price does not exceed a specified amount, this right may not apply Furthermore, if domestic law does not permit the resale right, the author in that member country would not be entitled to 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 the rights covered by this agreement, there are additional author rights that are still recognized as legitimate for authors in member countries because they are regulated by related agreements In alignment with the Berne Convention, these extra author rights will also be protected.
The enforcement of copyright and related rights in the EVFTA
To effectively protect authors and related subjects, the EVFTA establishes a general framework for enforcing copyright and related rights that member countries can implement, making EVFTA copyright enforcement a cornerstone for harmonized protection Pursuant to sub-sections 2 and 4 of the agreement, enforcement measures include civil remedies, administrative (border) remedies, and criminal remedies, all supported by procedures that align with national law Overall, EVFTA enforcement is heavily influenced by TRIPS, adopting most of TRIPS’ substantive provisions to shape the enforcement landscape This analysis reviews the specific measures and the procedures for enforcing copyright and related rights under the EVFTA.
67 Id enforcement of copyright and related rights in the EVFTA, as well as explain some possibly unclear points in these provisions
Civil measures constitute the initial step in enforcing copyright and related rights Upon identifying an alleged infringement, those entitled to seek relief may obtain assistance from competent judicial authorities to pursue enforcement.
– The legitimate holders of copyright and related rights
Only legitimate, authorized individuals may exercise copyright and related rights Legitimate collective management organizations—bodies regularly recognized as having the right to represent holders of copyright and related rights—are entrusted with representing those holders in the management and enforcement of 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 prevent an infringing act from occurring or, if it has already occurred, to prevent irreparable consequences, and they include interlocutory injunctions and precautionary seizures or the blocking of the infringer’s movable and immovable property in cases of commercial-scale infringement The preservative measures are remedies used to preserve materials and implements used in the production and distribution of infringing goods from destruction in certain circumstances When there is a reason that a delay in applying these remedies will cause irreparable risks to the rights holders or the evidence will be ruined, competent judicial authorities shall have the right to adopt these measures 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 the channels of commerce removes infringing goods from the market by taking them out of the hands of customers, distributors, and retailers connected to the infringer This action cuts off the flow of counterfeit or unauthorized products across the distribution chain, ensuring they are no longer exchanged and protecting consumers and legitimate brands.
– 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 in their manufacture, depending on the risk of further infringement These actions must be carried out in a way that does not adversely affect third parties Social and environmental impacts of processing infringing goods are a key concern among member countries Current options include recycling, open-air burning, shredding, crushing, burial in landfill sites, and donation to charities, though the effectiveness of these measures depends on the available disposal facilities and each country's policies.
Another remedy that can be applied is injunction from competent judicial authorities For example, the order to stop the infringing act, the order to publicly apologize and so forth In certain cases, this remedy can also be extended to the party whose services are being used by the infringer and that is under the jurisdiction of that judicial 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 engages in the sale or distribution of counterfeit goods—or who has reasonable grounds to know that their act is infringing—acts intentionally and can be held liable for the rights holder’s actual damages In calculating these damages, a range of factors may be considered, spanning economic metrics such as the injured party’s lost profits and the infringer’s unfair profits, to non-economic elements like the moral prejudice caused by the infringement of moral rights.
In cases where quantifying the exact amount is difficult, or when the applicant requests the use of a lump-sum (pre-established) damages remedy, or when the infringer acted unintentionally and without negligence, lump-sum damages may be applied The EVFTA does not provide a specific formula for calculating damages under this method, but it indicates that the amount of royalties or fees that would have been due if the infringer had sought authorization should be considered Therefore, the determination of which elements to include to achieve the most equitable damages lies with the national jurisdiction Beyond the damages formula, questions may arise about whether such compensation covers moral damages; answering this requires looking at Article 13 of Directive 2004/48/EC of the European Parliament and of the Council.
2004 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, indicating strong alignment between the EU trade agreement and the enforcement directive The EVFTA has been shaped by input from numerous European scholars, meaning interpretations developed for Directive 2004/48/EC are readily applicable to the EVFTA Moreover, the ECJ’s ruling that lump-sum damages include compensation for moral prejudice supports applying the same lump-sum approach to the EVFTA's damages provision.
Prevention holds more weight than cure: stopping an infringing shipment in transit is far more effective and easier than waiting for products to reach the market Beyond judicial action, strengthening border control administered by competent authorities is a crucial defense against IP infringement The EVFTA largely adopts the TRIPs framework for administrative procedures and remedies, complemented by Article V of the GATT By incorporating GATT, border measures applied to goods in transit become an obligation under the EVFTA, aligned with applicable customs laws and regulations.
Under TRIPs, the entities eligible to request assistance from administrative authorities are the same as those who may seek relief from judicial authorities in civil proceedings When a written application is filed with reasonable evidence of infringement and a sufficiently detailed description of the goods to enable recognition, the competent administrative authorities are obligated to respond within a reasonable time by (1) confirming whether the application is accepted, and (2) stating the period within which they will act For IP rights registered, such as copyright, the administrative authorities may request additional proof of ownership to support subsequent steps.
Upon deciding to act, competent authorities have the right to suspend the release of infringing goods into free circulation The decision to apply this measure must be promptly communicated to the applicant and the alleged infringer (the importer) Within ten days after the applicant receives this notice, the rights holder must substantiate their claims and identify the goods as intellectual property infringing, typically by taking legal action in court After this time, if no proceedings leading to a decision on the merits of the case have been initiated, the measure will remain in effect pending further action.
Under Article 12.56 of the EVFTA (June 30, 2019), if no provisional measures extending the suspension are initiated by a party other than the defendant, or if such measures are not issued by a duly empowered authority, the goods must be released to continue the customs procedures Note that if a provisional judicial measure to prolong the suspension is not initiated within a reasonable period—determined by the ordering judicial authority but not to exceed 20 working days or 31 calendar days, whichever is longer—the suspension may be revoked.
Competent authorities may unilaterally suspend goods or activities if they have prima facie evidence of intellectual property infringement, even without the usual formal application process The importer and the rights holder will be promptly notified of the suspension, and the authorities may request information from the rights holder that is relevant to the investigation to support enforcement.
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
The Berne Convention for the Protection of Literary and Artistic Works, together with the Rome Convention, forms the most comprehensive multilateral framework for intellectual property Last amended in 1979, the regime had fallen behind rapid technological advances, prompting the United States and the European Union to seek an international framework from WIPO In response, WIPO, with the agreement of its member states, adopted two new treaties in 1996—the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)—collectively known as the WIPO Internet Treaties, designed to modernize protections for creators in the digital era.
Internet treaties, as the international press describes the modern approach to intellectual property in the digital era, reflect a global push to strengthen online IP protection By 2021, about 60% of the world’s population was online, making accession to the WCT (WIPO Copyright Treaty) and the WPPT (WIPO Performances and Phonograms Treaty) a strategic priority for countries seeking stronger safeguards in the digital age To date, 110 nations have joined the WCT and 109 have joined the WPPT, with Vietnam not a member of either treaty That absence creates practical challenges for Vietnam in implementing several core features of these internet-era agreements, including the protection of reproduction rights from transient copies—a principle reflected in the EVFTA commitments Aligning with these provisions would bolster Vietnam’s IP regime for the digital economy and support its participation in EVFTA-driven digital trade.
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, negotiators faced a wide range of viewpoints and engaged in extensive debates over how these rights should be defined and applied in the digital environment The discussions highlighted the challenge of reconciling traditional copyright concepts with the realities of online reproduction and ephemeral copies, shaping the negotiating agenda for both treaties The resulting framework reflects an effort to balance creators' rights with user access, establishing foundational provisions that continue to influence international copyright law.
Debates over whether digital transient copies are reproductions under Article 9 of the Berne Convention hinge on tracing the evolution of internet-era rights; to answer this, one must look back at the history of the treaties The drafts of the WCT and WPPT explicitly specified that the exclusive right to authorize reproduction includes direct and indirect copies, whether permanent or temporary, in any form, and the WPPT’s provisions for performers and the analogous language for phonograms reinforce this interpretation From the wording of these draft articles, it is clear that the negotiators intended reproduction rights to cover digital transient copies, a view that has never been questioned by WIPO In fact, 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 in and retrieval from computer systems may involve the right to reproduce the protected work under international conventions or national legislation.
These drafted articles were not adopted at the Diplomatic Conference due to divergent opinions on the issue One position prioritized the protection of the reproduction right from any digital transient copies, while other perspectives raised alternative concerns that prevented a consensus.
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 on copyright problems arising from the use of computers for access to or the creation of works, as reported in the Monthly Review of World Intellectual Property.
Interpretations on digital copies diverged, with one view opposing broad protection for transient or temporary copies for fear of creating a harmful monopoly for users; another view, and the one most agreed on, holds that reproduction rights extend to digital transient copies but include limitations and exceptions determined by each jurisdiction via the Berne three-step test The final approach in the WCT and WPPT does not explicitly ban temporary copies as in earlier drafts, but effectively confirms that the reproduction right fully applies in the digital environment to the use of works, performances, and phonograms in digital form, and that storing a protected work or phonogram in digital form on an electronic medium constitutes reproduction under Article 9 of the Berne Convention and Articles 7 and 11 of the WPPT In short, transient digital copies fall within the scope of reproduction rights for authors, performers, and producers of phonograms By not enacting the drafted provisions, legislators left limitations and exceptions as a matter of rights for domestic jurisdictions to decide, while member countries still bear the obligation to protect original works from transient copies.
Although the EVFTA does not explicitly define the digital or temporary nature of the reproduction right, protection of transient copies is effectively anchored through the EU’s status as a contracting party to the WCT and WPPT Article 12.14(2) of the EVFTA further clarifies that only certain transient or incidental digital reproductions in specific circumstances are exempted 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 intellectual property regime appears to fall short in protecting works from temporary copies Under Article 4(10) of the existing Intellectual Property Law, reproduction is defined as the making of one or more copies of a work or a phonogram or video recording by any means and in any form, including the making of copies of the work in electronic form This definition is being considered for amendment in the second Intellectual Property Law Amendment Bill to read: the making of copies of a work or a phonogram or video recording by any means and in any form, in whole or in part, including the making of copies of the work in electronic form.
An EVFTA–influenced addition of the phrase “in whole or in part” expands the recognition of partial reproduction and strengthens authors’ rights protection Conversely, removing “one or more”—except to shorten the clause—adds little substantive meaning The clause “including the making copies of the work in electronic form” appears superfluous, since “in any means and in any form” already covers electronic copies Although some argue the legislators intended to include transient copies, the absence of official guidance makes these interpretations subjective and highlights the need for clear definitions to improve legal certainty.
Because the term “reproduction” remains undefined for transient copies, the substantive provisions of the current Intellectual Property Law leave significant interpretive gaps Articles 20(1)(c), 29(3)(b), 30(1)(a), and 31(1)(d) grant reproduction rights to authors and related rights holders without explicit explanations This can be adequate only if “reproduction” is clearly defined to cover temporary copies; however, if legislators interpret reproduction as including transient digital copies, authors and related rights holders may struggle to shield their works from evolving digital temporary copies in the modern era.
Under the second Intellectual Property Law Amendment Bill, author and related rights would cover direct or indirect reproduction by any means, in whole or in part, of their works, performances, or phonograms, with an added exception stating that transient reproductions that are an integral and essential part of a normal technological process and are automatically deleted with no possibility of recovery do not apply the right This amendment is problematic and could yield unforeseen consequences Regarding the first change, reproductions are already defined in Article 4, making extra wording redundant and potentially creating contradictions between provisions As for the exemption, it may undermine protection for temporary copies used by electronic devices today, since many popular technologies rely on transient reproductions that are automatically deleted as part of their function A familiar example is RAM, which temporarily stores data to enable fast processing: when a user opens a Word document, the processor loads it into RAM; when the device powers down, that data is erased Given RAM’s ubiquity, denying protection for these transient copies would leave a wide range of everyday digital activity unprotected.
80 Article 1(3), 1(9), 1(10), 1(11) of Vietnam Intellectual Property Law Amendment Bill 2020
81 Crucial: Computer Memory, Storage, and Tech Advice (May 16, 2013) includes the YouTube video What is RAM? which explains the basics of RAM as a fundamental component of computer memory and storage The material notes that the ability to control temporary digital copies in this environment could significantly diminish the value of the reproduction right.
Vietnam appears to be pursuing EVFTA implementation by amending its existing laws to maximize alignment with the agreement However, a misstep could not only hinder successful EVFTA implementation but also trigger an adverse court ruling that would leave the national law out of compliance with the EVFTA.
The first recommendation to consider is about the the definition of
Defining "reproduction" of literary and artistic works in international treaties is necessary to guide member countries, including Vietnam, but instruments like the EVFTA and the Berne Convention do not provide a clear interpretation Yet a wealth of records from WIPO diplomatic conferences indicates that fixation is a fundamental element of the concept Consequently, understanding "reproduction" hinges on resolving the definition of "fixation," a task that, thanks to the WIPO/UNESCO Committee of Governmental Experts, has achieved broad international agreement Experts define fixation as the sufficient stability of a form in which a work is fixed, such that the work can be perceived, reproduced, or otherwise communicated to the public with the aid of a computer system For related subjects, this issue is comparatively easier to settle, since the fixation criterion intersects with established principles in adjacent areas.
“reproduction” has already been clarified in the Rome Convention and “fixation” is also defined in the WPPT According to which, “fixation” for related subjects follows
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
Although rental right is not directly included in the EVFTA, its connection to the WCT and the WPPT means that rental right remains a basic protection for authors, performers, and producers of phonograms While chapter 1 already provides a concise explanation of each subject’s rights, this section moves beyond treaty-level analysis to trace the rental right’s evolving history, its significance, and the current Vietnamese legal conundrum surrounding its implementation, as well as the potential repercussions for Vietnam if this right remains inadequately implemented.
89 Infopaq International A/S v Danske Dagblades Forening (2009) Case C‑302/10 European Court Reports
Rental right is codified in Article 7 of the WCT and Articles 9 and 13 of the WPPT, derived from the 1992 Rental and Lending Rights Directive of the European Parliament and of the Council This directive marks the pinnacle of the European Community’s effort to strengthen protection for copyright and related rights and to harmonize key aspects of copyright law in the latter half of the 20th century A number of cases concerning the rental right, with Warner v Christiansen as a representative example, have underscored Europe’s push for robust and harmonized protections at the time.
* 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
In 1984, Christiansen, a Danish video-store owner, bought a film videocassette in London, brought it back to Copenhagen, and began renting it out The case sparked controversy because Danish copyright law protects the rental right of the copyright owner, so if the author authorizes distribution by sale but not rental, renting the work to another party can constitute infringement By contrast, British law prohibits copying, broadcasting, public performance, or transmission by diffusion of the work, and if the work is copied onto a videotape with the author’s authorization, it can be legitimately rented to another party without infringing the author’s rights This difference 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 question is whether the owner of the exclusive rights in a video cassette, lawfully put into circulation with his consent in a Member State where the law does not permit the transfer of those rights, can rely on the Community rules on free movement to regulate subsequent transfers of that copy in other Member States The issue centers on whether the first sale exhausts the distribution rights across the Community, or whether a Member State’s restriction on transfer continues to affect later transfers outside its borders In short, the text weighs the interaction between the free movement of goods and the holder’s exclusive control over distribution when initial circulation occurred under a restrictive national rule.
In the 1988 ECJ decision 90 Warner Bros., Inc & Metronome Video ApS v Erik Viuff Christiansen (case no 158/66; European Court Reports 1988, 2605), the court held that copyright law can prohibit resale or hiring-out of a recording, but the right to restrain the hiring-out of that recording in another Member State applies only to copies lawfully imported there, and only when that State’s copyright regime allows such a prohibition and makes no distinction between domestic and imported videocassettes and does not impede the importation of videocassettes as such.
Two main views framed the issue Advocate General Mancini argued that because the plaintiff allowed the film’s video to be marketed in the UK—where rental rights are not protected—the exhaustion rule should apply, preventing Warner Brothers from interfering with the defendant’s use or disposal after a lawful purchase, even if Denmark protects rental rights The ECJ rejected this approach, warning that strict harmonization would yield the lowest level of intellectual property protection across EU member states Consequently, the ECJ’s decision aligns more closely with reality, holding that exhaustion cannot be uniformly imposed and that member states may maintain stronger rental-right protections to safeguard IP rights within the Union.
The right to prohibit the hiring-out of a video-cassette is bound up with the author's essential rights—the exclusive right of performance and the exclusive right of reproduction—which the Treaty did not intend to call into question This right is necessary to guarantee to filmmakers fair remuneration in the rental market, a market distinct from the sales market whose size has grown due to technological developments.
Video content offers great potential as a revenue stream for authors The fact that an author has circulated video cassettes in a Member State that does not provide explicit protection for the right to rent them out should not have repercussions on the rental rights conferred on that author by the legislation of other Member States.
91 Id another Member State to restrain, in that State, the hiring-out of those video- cassettes 92
Across Europe, the exhaustion and rental rights of copyright owners have shown that the traditional exhaustion principle can be outdated and inapplicable in some cases The 1988 Commission Green Paper on Copyright and the Challenge of Technology argued for harmonizing key areas of copyright law within the European Community, with rental rights as the main focus The Commission warned that piracy through video and audio rental threatens major markets—Europe, the United States, Canada and Japan—by eroding the revenues of legitimate copyright owners and diverting profits to infringers, thereby destabilizing the balance between copyright protection and the prerogatives of rights holders Consequently, the Green Paper pointed to rental rights as the most justified solution to restore that balance.
Recent trends in the distribution and marketing of sound and video recordings indicate that commercial rental will play an increasingly important role in making these works available to the public Moreover, the connections between rental, piracy, and private copying suggest that this development could bring significant economic consequences for the creators and performers who produce these recordings Without a firm legal framework that authorizes rights holders to exploit rental commercially, those who create recorded works are likely to receive a substantially lower return on their investments and efforts than would otherwise be the case.
92 Id otherwise be the case, while middlemen could profit disproportionately from the efforts of others 93
The rental right is seen as delivering two benefits: it ensures copyright owners earn the returns they invested in their works from each rental by curbing piracy, and it supports national economies by expanding the circulation of intellectual property and encouraging consumers to buy cheaper, legally licensed products In November 1992, the European Community adopted Council Directive 92/100 on rental and lending rights, and on related rights in the field of copyright and intellectual property, thereby recognizing rental right as an exclusive right of authors and related rights holders in European countries This directive later helped shape the WCT and WPPT, prompting member states to enshrine rental right as an exclusive right in their national laws.
Vietnam, following its ratification of the Berne Convention and TRIPS, has recognized the rental right for performers and phonogram producers under Article 20(1)(e), Article 29(3)(d), and Article 30(1)(b) of the current Intellectual Property Law However, the new Intellectual Property Law Amendment Bill omits the rental right for performers and phonogram producers, posing a challenge to the implementation of the EVFTA in Vietnam In the digital era, music rental is highly popular and mostly conducted through digital platforms such as Spotify, Apple Music, and Pandora These services offer users a monthly subscription—typically around $10—that allows them to add songs to their playlists, but does not confer ownership of the music.
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
94 Spotify AB (n.d.) Spotify Premium Retrieved March 20, 2021, from https://www.spotify.com/us/premium/; see also Amazon.com, Inc (n.d.) Amazon Music Unlimited Retrieved March 20, 2021, from https://www.amazon.com/music/unlimited the song, but it merely means that they would be able to enjoy the song without any interruption from the advertisements and obstacle from the legitimate right holder of the song Once the subscription is cancelled, they are no longer able to enjoy the songs In other words, the cancellation of the subscription indicates that they do not pay for the rent of the songs anymore and therefore, they would have to return the songs to their owner This business form has proven itself to be the most successful music rental service in European countries, the US and many developed countries when protecting the right of the performers and producers but also ensuring the access to copyrighted music of consumers with a reasonable price With the entering of these international companies into Vietnam recently and with the increasing copyright awareness, domestic performers and producers has begun to charge each individual listen on large domestic entertainment platforms such as Zing MP3 and NCT through a similar mechanism However, they are still facing risks from infringers that upload their songs for free into these websites since the procedures for performing such action on Vietnamese platforms are fairly simple and it can be done almost everyone without any charge This is different from other international service providers, where only official and verified artists/producers are able to carry out the uploading process and it usually costs them a commission charge, ranging from $9.99 per single to
With this lenient permission to infringe copyrighted works from large Vietnamese entertainment companies, the habit of listening as free-use of homeland industry will be more encouraged, making the implementation of related rights extremely difficult Furthermore, without the protection of rental right in Vietnam, there is a high chance that international performers and producers will be left with no choice other than to include the rental remuneration in the album sales price in Vietnam market to protect the work from being rented without any revenue being paid to the performers/producers However, this would seriously affect the access to music for most of the people since the price would be too high To illustrate this, an album costs $10 digitally (in the form of MP3 file However, this form is being slowly abolished to make way for digital streaming) and $20 physically (in the form of CD or vinyl) 95 This price is evenly divided between the sales and the rentals market This is true in most cases because although a profit of a song from each stream usually ranges from just about $0.006 to $0.0084 96 in comparison with $1 to $2 from each sale, the number of streams is far greater than the number of sales in today’s world 97
In 2020, Taylor Swift's Folklore was the year's top-selling album, moving more than 1.2 million copies and generating over 1.1 billion streams A quick analysis shows that sales profit stood at about $24,000,000, while streaming and rental revenue ranged from $105,600,000 to $147,840,000—roughly three times the sales profit This revenue split highlights how streaming and rentals dwarf traditional sales, prompting a reevaluation of album pricing and distribution strategies for blockbuster releases like Folklore.
Challenge to the cooperation between Vietnamese and European
2.3.1 Collective management organizations in Vietnam and challenge to the international cooperation
Under the EVFTA, Article 12.16 requires member states to promote cooperation among national collective management organizations (CMOs) to facilitate cross-border circulation of works and the transfer of remuneration for their use in other member territories Collective management of copyright and related rights is a model where rights holders empower professional organizations to exercise their rights on their behalf, with CMOs monitoring uses, authorizing those uses, collecting remuneration, and distributing royalties to the rightful owners This system contrasts with individual management, where authors themselves authorize uses and set the remuneration terms.
Whether collective management is mandatory, voluntary, or extended depends on the national law of each country Authors—and, where recognized, related rights holders—possess exclusive rights to their intellectual creations This exclusivity means that only the owner may authorize or prohibit actions covered by the rights, and if the author exercises the rights themselves, they enjoy the fullest scope allowed by law The author can therefore choose to exercise the rights personally or to delegate them to a collective management organization (CMO) to act on their behalf Any provisions that restrict this freedom run counter to the fundamental nature of these rights and should only be accepted if international norms explicitly permit them.
However, the Berne Convention contains such provisions, specifically Article 11bis(2) and Article 13(1), which reads as followed:
In Union member countries, legislation determines the conditions under which the rights of authors described in the preceding paragraph may be exercised, and these conditions apply only in the jurisdictions where they are prescribed Such provisions must never prejudice the author's moral rights or the right to equitable remuneration, which, in the absence of an agreement, shall be fixed by the competent authority.
Each country of the Union may set its own reservations and conditions on the exclusive rights granted to the author of a musical work and to the author of any lyrics, with respect to authorizing the sound recording of that musical work together with those lyrics, if any But such reservations and conditions shall apply only in the countries that have imposed them and shall not, in any circumstances, prejudice the authors’ right to equitable remuneration, which, in the absence of an agreement, shall be determined by a competent authority.
These passages imply that member countries may set conditions under which authors are obliged to participate in a collective management system while guaranteeing minimum protections such as preserving authors’ moral rights and ensuring fair remuneration Although Articles 11 and 13 of the Berne Convention specify only certain circumstances in which compulsory collective management is permissible, the mechanism should be understood to extend to rights that are not exclusive to authors—such as resale rights, remuneration that survives transfers of rights, and remuneration arising from legally permitted exceptions Moreover, although the Berne Convention does not always permit collective management for some non-exclusive rights, a widely held view is that the system could be extended to such rights under other international norms like TRIPs, WCT, and WPPT, provided the majority of rights holders consent to entrust management to these organizations In this context, countries may allow authors to opt out, avoiding the perception that the system is an unlawful obligation that runs counter to the creator’s inherent rights.
Regardless of the model, the intended outcome of collective management organizations (CMOs) is systematic, efficient control of music rights Blanket licensing is a core mechanism enabling CMOs to grant users the right to use any work in their repertoire under defined purposes and timeframes, and it applies to national repertoires as well as inter-cooperative repertoires when bilateral or multilateral agreements exist among two or more CMOs CMOs are typically organized by (1) the subjects they represent, (2) the rights they administer, or (3) combinations of multiple subjects or rights; the first two forms are the most traditional, with European mechanical-rights bodies—such as Austro-Mechana (Austria), Nordisk Copyright Bureau (NCB) in Nordic countries, SDRM (France), and Stemra Foundation (Netherlands)—as examples The third form, which aggregates multiple subjects or rights, is increasingly favored by developed countries because it reduces facility and manpower costs, strengthens international cooperation and brand trust, and makes blanket licensing more convenient for both users and rights holders by avoiding the need to obtain licenses from multiple departments; as a result, many countries are moving toward merging distinct CMOs into unified, versatile licensing organizations.
Europe has a highly developed and widely used system of collective management for rights European directives often treat collective management organizations as having the same legal status as copyright owners, reflecting their essential role in administering licenses, collecting royalties, and enforcing rights on behalf of rights holders.
European collective management organizations (CMOs) operate alongside owners—authors, performers, and producers—to administer copyright and related rights, with obligatory collective management and extended licensing forming core elements of the system The EU Council Directive 93/83/EEC (27 September 1993) on coordinating rules concerning copyright and rights related to satellite broadcasting and cable retransmission contains detailed provisions on CMOs: Article 8(1) requires member states to ensure retransmission observes the applicable rights and to base retransmission on contracts—either individual or collective—between rights owners and cable operators; Article 9(1) obliges member states to implement obligatory collective management so that the right to grant or refuse authorization to a cable operator may be exercised only through a collecting society; Articles 9(2) and 9(3) regulate extended collective management In 2014, the EU adopted the 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, establishing a legal framework to improve the operation of CMOs in Europe, enhance transparency, and raise financial standards, while enabling blanket licensing for online uses The effectiveness of European CMOs is underscored by CISAC, whose president advises learning from the European directive model regarding the role of authors’ societies worldwide.
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 legislation does not implement obligatory collective management, leaving the resale right—one of the most important artist rights in Vietnam—unrecognized In the EVFTA framework, the right is presented as an option for EU member states to adopt, contrasting with Europe where the resale right has become a mandatory obligation.
CISAC’s 2019 call, endorsed by its President and Vice-Presidents, urges countries to adopt and implement the EU Copyright Directive through strong collective management organizations (CMOs) so that right holders can access essential information When the sale of artworks is left to individual owners, tracing buyers becomes impractical due to the high volume of gallery sales, and galleries and dealers face repeated information requests, effectively hindering the exercise of this right; CMOs offer a practical solution by coordinating information flow and rights management In Vietnam, however, the role of CMOs is largely perfunctory and lacks meaningful engagement with foreign CMOs, a shortfall reflected in Article 56 of the Intellectual Property Law.
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
Although the article clearly describes the rights and obligations of collective management organizations, it omits fundamental matters such as their establishment, governance, and operations—including member participation, the general assembly, and supervisory mechanisms—and it lacks regulations on revenue matters vital to the survival of these bodies, such as standards for collecting and distributing royalties, distribution timelines, tariff structures, and distribution plans In terms of international cooperation, Article 56 provides only a general duty to work with counterparts in international and national organizations to protect copyright and related rights, without setting concrete rules on contracts, payment methods, or tariffs when engaging with foreign partners The amended Intellectual Property Bill shifts the establishment of such organizations under Decree 45/2010/NĐ-CP on the organization, operation and management of associations, a change aligned with their not-for-profit, member-driven nature Article 56a adds principles for determining, collecting, and distributing royalties when exploiting copyright and related rights, but mostly reiterates that inter-party agreements and internal regulations must be observed—areas already covered by the Civil Code—while crucial specifics on tariffs and royalties in foreign cooperation remain broadly regulated and lack precise guidelines for rights holders to follow.
Vietnam's three main collective management organizations (CMOs) are the Vietnam Literary Copyright Center (VLCC), representing authors and copyright owners in literature; the Recording Industry Association of Vietnam (RIAV), representing producers of phonograms; and the Vietnam Center for Protection of Music Copyright (VCPMC), representing authors and copyright owners in music Among them, VCPMC is a CISAC member with some international activity, while RIAV and VLCC have limited international engagement RIAV's partners are mainly state-owned enterprises, with a few small and medium domestic private entities such as Saigonnights, SAI GON VAFACO, PNF, and others RIAV's repertoire is described as consisting largely of old songs with little current commercial value By contrast, VLCC's situation is described as slightly better.