Joint Circular No. 01/2001/TANDTC-VKSNDTC-BVHTT guiding the application of the Civil Code in resolving disputes related to copyright before the People's Court

JOINT CIRCULAR

Guidelines for the Application of the Civil Code in Resolving Disputes Related to Copyright at People's Courts

______________________________

To correctly and uniformly apply the provisions of the Civil Code in resolving disputes related to copyright at People's Courts; the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Culture and Information have jointly issued guidelines on certain points as follows:

I. JURISDICTION OF PEOPLE'S COURTS IN RESOLVING DISPUTES RELATED TO COPYRIGHT

1. Disputes related to copyright fall within the jurisdiction of people's courts.

Pursuant to Article 759 of the Civil Code (hereinafter referred to as the CC), Article 33 of Decree No. 76/CP dated November 29, 1996 of the Government "guiding the implementation of certain provisions on copyright in the Civil Code" (hereinafter referred to as ND 76/CP) and Article 10 of the Ordinance on Procedures for Handling Civil Cases (hereinafter referred to as PLTTGQCVADS), people's courts have jurisdiction over the following disputes related to copyright:

1.1. Disputes regarding copyright over works (disputes about who is the direct creator of the whole or part of literary, artistic, scientific works...) between:

a) Individuals with individuals; individuals with organizations; organizations with organizations;

b) Co-authors among themselves; one or more co-authors with other individuals or organizations;

1.2. Disputes regarding copyright over computer software between the person providing financial resources or decisive material conditions for the development of computer software and the designer or developer of the software.

1.3. Disputes regarding personal rights or property rights related to copyright between:

a) The author (co-author) who is not simultaneously the owner of the work with the owner of the work who is not simultaneously the author (under the relationship of assigning tasks or under a contract to create the work);

b) The author (co-author) or the owner of the work with the translator, adapter, compiler, reviser, or transformer or with the person using the translated, adapted, compiled, revised, or transformed work to create a new work;

c) The author (co-author) or the owner of the published work with the person collecting that work to make anthologies or compilations;

d) The author (co-author) or the owner of the work with film, radio, television, stage organizations or other performance organizations;

đ) The author (co-author) or the owner of the work with the person performing the work;

e) The author (co-author) or the owner of the work with organizations or individuals producing sound tapes, sound discs, video tapes, video discs;

f) The author who is also the owner of the work, the owner of the work who is not simultaneously the author with organizations or individuals using their works for business purposes;

g) Organizations producing sound tapes, sound discs, video tapes, video discs (with programs) with other organizations or individuals regarding reproduction and distribution of products;

h) Radio and television organizations with other organizations or individuals regarding broadcasting programs or making copies of programs;

i) Performers with individuals or organizations;

1.4. Disputes regarding contracts for the use of works or disputes regarding service contracts for copyright.

1.5. Disputes regarding the inheritance of copyright.

1.6. Other disputes related to copyright.

2. Regarding the jurisdiction of people's courts in resolving disputes related to copyright according to the first instance procedure.

The Copyright Protection Ordinance has ceased to be effective from July 1, 1996 (the date the Civil Code became effective). The Civil Code does not provide for the jurisdiction of people's courts at all levels in resolving disputes related to copyright; therefore, determining the jurisdiction of people's courts in resolving disputes related to copyright according to the first instance procedure must be based on the PLTTGQCVADS. However, disputes related to copyright are very complex types of cases. Therefore, apart from cases involving disputes related to copyright as stipulated in point a, Clause 2, Article 11 of the PLTTGQCVADS, for other cases involving disputes related to copyright, the provincial or municipal people's courts shall take up such cases for resolution according to the first instance procedure based on point c, Clause 2, Article 11 of the PLTTGQCVADS.

II. RIGHT TO BRING SUIT AND PROSECUTE CASES ON DISPUTES RELATED TO COPYRIGHT

1. Right to bring suit in cases involving disputes related to copyright.

According to the provisions of the Civil Code, the following individuals and organizations have the right to bring suit before the competent people's court to protect their legitimate rights and interests related to copyright:

a. Authors;

b. Owners of works;

c. Legal heirs of authors or owners of works;

d. Individuals or organizations that have been assigned the rights of the owner of the work;

e. Individuals or organizations using the work under a contract;

f. Performers;

g. Publishers, organizations producing sound tapes, sound discs, video tapes, video discs;

h. Radio and television organizations;

i. Other individuals and organizations as prescribed by law.

2. Right to prosecute cases on disputes related to copyright.

For violations of copyright that belong to the State, the provincial or municipal people's procuratorates (hereinafter referred to as the provincial people's procuratorate) have the right to initiate prosecution.

The Copyright Administration (Ministry of Culture and Information), the provincial or municipal cultural departments when discovering violations of copyright belonging to the State must request the provincial people's procuratorate to consider initiating prosecution to protect the interests of the State.

3. Conditions for bringing suit and prosecuting cases on disputes related to copyright.

3.1. Pursuant to Article 754 of the Civil Code, copyright arises from the moment a work is created in a definite form (regardless of whether the work has been published or not, registered or not, regardless of the language used, the quality of the work...); therefore, when there is a dispute related to copyright and the parties initiate litigation requesting the court to protect their legitimate rights and interests, the court does not differentiate whether they have a certificate of copyright ownership or not, whether they have submitted an application for registration of copyright protection or not, or ownership of the work.

3.2. The rights of the author, the rights of the owner of the work who is not also the author, the rights of organizations producing sound recordings, video recordings, films, and the rights of broadcasting and television organizations are protected for the duration specified in Article 766 of the Civil Code. Beyond this period, the aforementioned subjects are no longer protected by the State and the law, except for the personal rights of the author as stipulated in points a, b, and d of Clause 2 of Article 751 and Clause 1 of Article 752 of the Civil Code; thus, the court will only accept and process the lawsuit if those rights are still within the protection period.

3.3. According to the Copyright Law, when initiating a lawsuit to the court, the plaintiff has the obligation to provide evidence to protect their legitimate rights and interests. Evidence may include: a copyright certificate issued by the Copyright Office (under the Ministry of Culture and Information); a confirmation letter from the Copyright Office or the Department of Culture and Information regarding the plaintiff's submission of an application for copyright protection or ownership of unpublished works; or confirmation letters from social-professional organizations (operating in literary, artistic, and scientific fields) concerning unpublished works, serving as proof that they are the authors, co-authors, or owners of the works and that their works fall under the category of works protected by the State.

In cases where necessary, the court may collect additional evidence, decide on expert appraisal requests from specialized agencies at the request of the parties to ensure accurate case resolution. The party requesting the court to decide on expert appraisal must submit a written application detailing the reasons and pay the provisional cost of the appraisal.

3.4. The author has the right to receive royalties, remuneration, and other material benefits (if any) when the work is used, and the right to receive awards for works they authored (except in cases where the work is not protected by the State); therefore, only the author (co-authors), the lawful heirs of the author, or the person legally authorized can request the court to protect these rights when they are infringed upon. In cases where the author (co-author) dies and these rights belong to the State according to Clause 1 of Article 764 and Article 765 of the Civil Code, then the State is the owner of these rights. If the State issues a delegation to a specific agency or organization to act on its behalf to protect its interests when these rights are infringed upon, the delegated agency or organization has the right to initiate a lawsuit requesting the court to protect the State's interests. If the State does not issue any such document, the Provincial People's Procuracy has the right to initiate prosecution on its own or at the request of the Copyright Office (under the Ministry of Culture and Information), the Department of Culture and Information, or social-professional organizations (operating in cultural, artistic, and scientific fields) to request the court to protect the State's interests.

III. APPLICATION OF THE LAW TO RESOLVE CERTAIN SPECIFIC CASES

When resolving disputes related to copyright, attention should be paid to the following points:

1. For claims to protect personal rights, apply the provisions of the corresponding articles in Chapter 1, Part 6 and Article 27 of the Civil Code to resolve them. Depending on the specific circumstances, order the infringer to cease the infringement, apologize, and make public corrections (including corrections through mass media); compensate for material and non-material damages. Material and non-material damages caused by the infringement of personal rights are determined according to Articles 609, 610, 611, and 615 of the Civil Code on compensation for tortious acts outside of contracts.

2. For disputes arising between individuals regarding copyright or co-authorship, it is necessary to determine who is the true author (or co-author) of the work. According to the spirit of Clause 2 of Decree No. 76/CP, the person requesting recognition as the author (or the heir left behind by the author) of the work must present the necessary documents and papers to prove (or the heir left behind by the author) as the author (or co-author). Necessary documents and papers to prove copyright may be the original of the work or documents related to the original of the work and the published work. If there is sufficient evidence to determine who created the work (partially or entirely), recognize the copyright (co-authorship), and ownership of the work (or the heir left behind by the author) for the work or part of the work.

3. An author who is simultaneously the owner of the work has all rights over the work as stipulated in Article 751 of the Civil Code, whereas an author who is not simultaneously the owner of the work does not have all these rights, because some personal rights and some property rights such as: publishing, disseminating, or allowing others to publish and disseminate the work; the right to receive material benefits from the use of the work in various forms such as: publication, reprinting, exhibition, display, performance, broadcasting, recording, filming, photography, translation, adaptation, modification, transformation, or rental... belong to the owner of the work as stipulated in Article 753 of the Civil Code.

When handling disputes concerning copyright (or co-authorship rights), the Court must clearly determine the disputed relationship; if the dispute involves the rights of the work owner, the Court must include the work owner as a party with a direct interest to protect their legitimate rights and interests.

The relationship between the author (co-author) who is not simultaneously the work owner and the work owner who is not simultaneously the author (co-author) creating the work based on assigned tasks or contracts is defined. The rights of the author (co-author) as well as the rights of the work owner are delineated according to Article 756 of the Civil Code. However, the author (co-author) and the work owner may agree on certain rights as stipulated in points a and b of Clause 1, Article 753 of the Civil Code; therefore, when such disputes arise, the Court must base its decision not only on the provisions of the Civil Code and Decree 76/CP but also on the tasks assigned to the author (co-author) or agreements made in the contract signed between the author (co-author) and the work owner.

4. The rights of co-authors are specified in Article 755 of the Civil Code. In disputes among co-authors regarding copyright rights and if mediation fails, the Court will resolve the matter based on the provisions of Clause 1, Article 755 of the Civil Code. For works created by co-authors as specified in Clause 1, Article 755 of the Civil Code, the use and disposition of the work must be agreed upon by all co-authors; if any co-author has passed away, agreement must be obtained from the heirs of that co-author. If the work consists of separate parts that can be used independently, the Court will determine the copyright rights of each co-author based on the provisions of Clause 2, Article 755 of the Civil Code, if requested.

5. The copyright rights of translators, adapters, compilers, revisers, and transcribers are protected according to Article 751 or Article 752 of the Civil Code, but it should be noted that when authors in these categories perform translations, adaptations, compilations, revisions, or transcriptions of original works..., they must obtain permission from the author or the owner of the original work (if the copyright rights are still within the protection period), especially in cases where they alter the content of the original work. Permission requests and compensation for the author or the owner of the original work must be carried out through a contract. Therefore, when disputes arise between the author or the owner of the original work and the author of the translated, adapted, compiled, revised, or transcribed work, the Court will resolve the matter based on the provisions of Article 757 of the Civil Code as well as the agreements of the parties in the contract.

6. For film, video, radio, television, stage, and other artistic performance works, directors, screenwriters, cinematographers, film editors, musicians, and artists enjoy the rights specified in Article 758 of the Civil Code. However, they only enjoy copyright rights for works they create independently without relying on the content of others' works, or in cases where they rely on the content of others' works, but have obtained the consent of the author (co-author) or the owner of the original work (or the author of the translated, adapted, compiled, revised, or transcribed work if they use this author's work) and have fulfilled their obligations as prescribed in Article 778 of the Civil Code. When disputes arise between one party being the author (co-author), the owner of the original work (or the author of the translated, adapted, compiled, revised, or transcribed work...) and the other party being the author (co-author) of film, video, radio, television, stage, and other artistic performance works, and if mediation fails, the Court will resolve the matter based on the provisions of Articles 758, 760, and 778 of the Civil Code. Similarly, the Court may handle and resolve disputes between authors, owners of works, and those who compile published works into collections or anthologies.

7. According to Clause 2, Article 758 of the Civil Code, individuals or organizations producing film, video, radio, television, stage, and other artistic performance works enjoy the rights specified in Clause 1 and point c of Clause 2, Article 751 of the Civil Code. However, to enjoy these rights, individuals or organizations in this category must fully fulfill their obligations towards the author (including both the author of the original work and the author of the translated, adapted, compiled, revised, or transcribed work... or the director, screenwriter, cinematographer, film editor, musician, artist...) and the owner of the work as prescribed by law, except in cases where they are simultaneously the author and the owner of the work. Therefore, if individuals or organizations producing film, video, radio, television, stage, and other artistic performance works use another person's work without fully fulfilling their obligations towards the author and the owner of the work, the author has the right to request these individuals or organizations to fulfill their obligations. If there is a lawsuit, the Court will resolve the matter based on the provisions of the Civil Code and the guidance provided in this Circular. Similarly, the Court may handle and resolve disputes between authors, owners of works, and performers.

8. Disputes concerning the use of works may arise between the author (co-author) or the lawful heir of the author, the owner of the work, and the user of the work, if they have entered into a contract for the use of the work as stipulated in Article 767 of the Civil Code. The content of the contract, the rights and obligations of the parties in the use contract are specified in Articles 768 to 722 of the Civil Code and in Articles 15 to 18 of Decree 76/CP; therefore, when such disputes arise, the Court will resolve them based on these provisions and the agreements made in the contract.

9. When resolving disputes over inheritance of copyright, in addition to complying with the provisions of Article 764 and Article 765 of the Civil Code, the Court must pay attention to the fact that the heir can only inherit the author's rights within the protection period. According to the provision of Article 766 of the Civil Code, the protection period for copyright after the author's death is as follows:

a. 50 years following the year of the author's death;

b. 50 years following the year of the last co-author's death for joint works;

c. 50 years following the year of the author's death in cases where the heir inherits personal rights stipulated in points c and d of Clause 1 and property rights stipulated in Clause 2 of Article 751, Clause 2 of Article 752 of the Civil Code.

In cases where the heir of the author dies before the end of the aforementioned protection period, the heir of that person shall enjoy the author's rights stipulated in Clause 1 of Article 764 of the Civil Code until the end of the protection period; therefore, this person has the right to initiate litigation at the Court to request protection of the author's rights and their inheritance rights until the end of the protection period. The end date of the 50-year protection period for copyright is specifically provided for in Article 14 of Decree 76/CP.

The author who is simultaneously the owner of the work or the author who is not simultaneously the owner of the work has the right to receive awards for the work they authored. This right is also protected for 50 years following the author's death; therefore, if after the expiration of the 50-year protection period, from the day of the author's death or the last co-author's death, the author or co-author receives an award, they will only be entitled to personal rights, while the property rights concerning the material value accompanying the award belong to the state. If they receive an award and the 50-year protection period has not yet expired, then their heirs have the right to inherit the material value accompanying the award according to the provisions on inheritance of property in the Civil Code. The statute of limitations for inheritance claims stipulated in Article 648 of the Civil Code is 10 years counted from the day of the award.

10. The rights of organizations producing sound tapes, sound discs, video tapes, video discs are stipulated in Article 777 of the Civil Code and the rights of broadcasting and television organizations are stipulated in Article 779 of the Civil Code are only obtained when these organizations have fulfilled all their obligations as prescribed in Articles 760, 776, and 778 of the Civil Code. These rights are also the rights of these organizations over the products they produce, while the author and the owner of the work still have rights over those products according to the law or under contracts (concluded between the production organization and the author or co-author, owner of the work). When there are acts infringing upon the rights of organizations producing sound tapes, sound discs, video tapes, video discs or the rights of broadcasting and television organizations such as reproducing, distributing products, broadcasting programs, making copies of programs of these organizations for illegal commercial purposes..., not only do these organizations have the right to initiate litigation, but the author and the owner of the work also have the right to initiate litigation requesting the Court to protect their legitimate rights and interests. Similarly, performers also have the right to initiate litigation against persons who violate the rights of organizations producing sound tapes, sound discs, video tapes, video discs such as reproducing, distributing these products illegally.

11. In cases where the infringement of copyright is handled according to the provisions of the Criminal Code, when adjudicating criminal cases of this type, the Court needs to pay attention to protecting the rights of the author whose rights were violated by those criminal acts, if requested.

IV. ON COOPERATION IN RESOLVING DISPUTES RELATED TO COPYRIGHT

During the process of resolving disputes related to copyright, close cooperation between the Court, the Prosecution Office, and the Copyright Office (Ministry of Culture - Information), Department of Culture - Information is necessary to perform the following tasks:

1. When there are issues in the field of culture - information requiring opinions from the culture - information specialty that the Court has requested in writing, the Copyright Office, Department of Culture - Information shall be responsible for responding to the issues that the Court has requested or establish an appraisal board to implement the Court's requirements.

2. When conducting prosecution and trial of criminal cases and finding acts infringing copyright, the Prosecution Office, Court need to notify the Copyright Office, Department of Culture - Information so that these agencies can participate in proceedings or monitor the protection of copyright within their functions.

V. GUIDELINES ON THE EFFECTIVENESS OF THE CIRCULAR

1. This Circular takes effect from December 21, 2001.

2. This Circular also applies to resolving disputes involving the copyright of individuals, organizations from foreign countries, international organizations for literary, artistic, scientific works first published, disseminated in Vietnam or created, expressed in a definite form in Vietnam as stipulated in Article 12 of Decree No. 60/CP dated June 6, 1997 of the Government "Guidelines for Implementing Provisions of the Civil Code on Civil Relations with Foreign Elements", except for works not protected by the Vietnamese State according to Article 749 of the Civil Code.

3. The guidelines in this Circular apply to resolving disputes involving copyright arising from July 1, 1996. Previous guidelines with content contrary to this Circular are abolished.

4. For cases that the Court had previously resolved (Court judgments, decisions already having legal force), this Circular's guidelines shall not be applied to file supervisory review protests, except in cases with other grounds.

5. During implementation, if there are any difficulties or unexplained issues requiring further explanation or supplementary guidance, please report to the Supreme People's Court, Supreme People's Procuracy, Ministry of Culture - Information for timely explanation or supplementary guidance.