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What is a derivative work under Vietnam law

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The work fades away is a concept that sounds like a strange thing, but it is extremely common in everyday life. In the past, we often heard rhymes and songs on familiar music that only changed the lyrics of the song, or we could see movies adapted from stories and literary works. These are derivative works. So about the matter “What is a derivative work under Vietnam law?” Let’s find with LSX in the article below.

  • Intellectual Property Law 2005, amendments and supplements 2009, 2019

What is a derivative work under Vietnam law?

According to Point a, Clause 1, Article 1 of the Intellectual Property Law, amended and supplemented in 2022, the concept of derivative works is as follows:

1. To amend and supplement a number of clauses of Article 4 as follows:

a) Amending and supplementing Clauses 8, 9 and 10; clauses 10a, 10b, 10c and 10d are added after clause 10; to amend and supplement Clause 11 and add Clause 11a after Clause 11 as follows:

“8. Derivative work means a work created on the basis of one or more existing works through translation from one language into another, adaptation, compilation, annotation, selection, adaptation, adaptation. music and other adaptations.

Accordingly, it can be understood that a derivative work is a work created based on the original work by one of the ways such as translation, adaptation, compilation, annotation, selection, arrangement, music adaptation and other translations. other body. The term original work mentioned above is a work on which the creator of a derivative work relies on it to create his (derivative) work. However, despite being developed from the original, the derivative work still has its own features and signs that the original work does not have. Therefore, it is also protected by law like the original but must meet certain conditions as prescribed by the Intellectual Property Law.

What are the characteristics of derivative works?

Firstly, it must be based on one or more existing original works and must still have the imprint of the original work.

The right to make derivative works belongs to the group of property rights

Derivative works are formed on the basis of changes to the original work, bearing the imprint of the original work. When interacting with derivative works, the public must associate with the original work, this association is expressed through the content of the original work.

Creators of derivative works must respect the inalienable moral rights of the original author. The term original work mentioned above is a work on which the creator of a derivative work relies on it to create his (derivative) work.

Secondly, the derivative work must bear the personal imprint of the author of the derivative work

Personal imprint can be understood as creativity in content and form of work expression

Thirdly, the form of expression of the derivative work is partially or completely different from the original work

Copyright does not protect content, ideas, but only the expression of ideas. Therefore, a derivative work is not a copy of the original work. The form of expression of a derivative work must be completely or partially different from that of the original work.

Grounds for arising, establishing rights

Copyright arises from the time the derivative work is created. Like the original work, the copyright of a derivative work is an automatic right, arising at the time of creation of the work, protected by law without the need for registration.

A derivative work is protected only if it does not prejudice the copyright in the work used to make the derivative work.

Note, Making a derivative work without the permission of the author, the copyright owner to the work used to make the derivative work is an infringement of copyright, except in the case of transferring the work. Braille or another language for the visually impaired.

Classification of derivative works

  • Translated works

As a derivative work expressed in a language different from the language in which the original work is expressed, the creation of a derivative work is achieved through the use of the author’s language. However, the translation must be close to the meaning, not misrepresent the author’s intention.

  • Adaptation works

A work that adapts the content of the original work but has a clear creativity in terms of content and ideas to make it a completely new work, different from the original work. Such as rewriting into another work according to a certain requirement.

  • Adapted work

A work formed from a literary work into another form. For example, an adaptation of a literary work into a stage or film script. Original works can be novels, epics, long stories, etc. or they can be dramatic (theatrical) works converted into movie scripts, musicals…

Amending or re-editing part of the content, changing the genre, changing the form of expression based on part or all of the Original Work to create a new work. When adapting a work, the adaptor must obtain permission from the owner of the original work and must pay remuneration to the author or owner of the original work.

  • Compilation works

Is the synthesis of information, collection and selection of references to rewrite into a new work with the citation of the sources of information referenced. For example: compiling dictionaries, textbooks, lectures, books

  • Annotated works

A work expressing opinions, commenting, explaining the meaning to better clarify the content in the original work.

  • Selected works

A work that synthesizes, selects and arranges original works (keeping the original content intact) according to the criteria into a more complete work. Be it a collection of poems, short stories, songs, etc.

Author’s rights to derivative works

Similar to the original work, the author of a derivative work also has rights to his or her own work. According to the provisions of Articles 19 and 20 of the Intellectual Property Law 2005, as amended in 2009, 2019 and 2022, derivative copyrights include:

  • Moral rights

– Moral rights include:

1. Name the work.

The author has the right to transfer the right to use the right to name the work to the organization or individual receiving the property right

2. Put your real name or pseudonym on the work; be given a real name or a pseudonym when the work is published or used;

3. Publish the work or allow others to publish the work;

4. Protect the integrity of the work from being misrepresented by others; not allow others to modify or mutilate the work in any way that is prejudicial to the honor and reputation of the author.

Property rights

  • Property rights include:

1. Making derivative works;

2. Performance of the work to the public directly or indirectly through phonograms, video recordings or any other technical means at a place accessible to the public but not freely chosen by the public. choose the time and each part of the work;

3. Direct or indirect reproduction of a work in whole or in part by any means or form, except in the case of copying a work solely to exercise other rights

4. Distributing, importing for distribution to the public through sale or other form of transfer of ownership rights to originals or copies of works in tangible form, except for subsequent distribution or import. to distribute;

5. Broadcasting or communicating to the public the work by wire, radio, electronic information networks or any other technical means, including making the work available to the public in such a manner that accessible to the public at a place and time of their choosing;

6. Renting out originals or copies of cinematographic works and computer programs, unless such computer program is not the main object of the rental.

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Frequently asked questions

How long are naming rights to derivative works protected?

According to Clause 1, Article 27 of the Law on Intellectual Property:
Article 27. Term of copyright protection
“The moral rights specified in Clauses 1, 2 and 4, Article 19 of this Law are protected indefinitely.”
The right to name a work is provided for in Clause 1, Article 19 of this Law. Therefore, the right to name derivative works will be protected indefinitely.

What is the case when making a derivative work without asking the permission of the original work’s author?

According to Clause 7, Article 28 of the Law on Intellectual Property, it is stipulated as follows:
“Article 28. Acts of copyright infringement
7. Making a derivative work without the permission of the author or the copyright owner to the work used to make the derivative work, except for the case specified at Point i, Clause 1, Article 25 of this Law. “
At Point i, Clause 1, Article 25 of the Law on Intellectual Property provides:
“i) Translate the work into Braille or another language for the visually impaired;”
Accordingly, in the case of making a derivative work in the form of translating the work into Braille or another language for the visually impaired, the author’s permission will not be required.

Are derivative authors required to register for copyright protection?

According to Clauses 1 and 2, Article 49 of the Intellectual Property Law, which regulates the registration of copyright and related rights:
1. Registration of copyright and related rights means that an author, copyright holder or related right holder submits a dossier to a competent state agency to record information about an author’s work. author, work, copyright holders, related rights holders.
2. The submission of documents for grant of a Copyright Registration Certificate or a Related Rights Registration Certificate is not a mandatory procedure for enjoyment of copyright and related rights in accordance with this Law.
Accordingly, the rights to the derivative work will automatically be protected from the time the work is created without the need for registration of protection

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