Joint Circular No. 04/2003/TTLT/BVHTT-BXD guiding copyright for architectural works

CIRCULAR

JOINT CIRCULAR OF THE MINISTRY OF CULTURE AND INFORMATION, THE MINISTRY OF CONSTRUCTION
NO. 04/2003/TTLT/BVHTT-BXD DATE JANUARY 24, 2003
ON GUIDELINES REGARDING COPYRIGHT FOR ARCHITECTURAL WORKS

Pursuant to 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 Decree No. 76/CP);

Pursuant to Decree No. 60/CP dated June 6, 1997 of the Government guiding the implementation of provisions of the Civil Code on civil relations involving foreign elements (hereinafter referred to as Decree No. 60/CP);

The Ministry of Culture and Information, the Ministry of Construction provide guidelines on copyright for architectural works as follows:

I. EXPLANATION OF TERMS:

Some terms are understood as follows:

1. "Architectural work" as stipulated in Clause 8, Article 4 of Decree No. 76/CP means design drawings expressing creative ideas about houses, construction projects, spatial planning (construction planning) that have been or have not yet been constructed. Architectural works include design drawings of floor plans, elevations, sections, perspectives, expressing creative ideas about houses, construction projects, architectural complexes, space organization, landscape architecture of a region, a city, a system of cities, urban functional zones, rural residential areas.

Models, scale models, and descriptions (if any) of specific houses, construction projects, or spatial planning are considered integral parts of architectural works but do not replace design drawings to be considered independent works.

2. "Creating an architectural work" is understood as the intellectual activity of the author directly creating part or all of the work expressed in the form of design drawings.

3. "Copying an architectural work" is the act of redrawing part or all of the architectural work.

4. "Photographing an architectural work" is the act of making identical copies of the architectural work or part thereof through photography, photocopying, or similar methods.

5. "Copy of an architectural work" is a reproduction or photograph of part or all of the architectural work. tạo ra các bản sao giống hệt với tác phẩm kiến trúc hoặc một phần của tác phẩm kiến trúc thông qua việc chụp ảnh, photocopie hoặc bằng các phương pháp tương tự.

6. "Owner of an architectural work" is an individual or legal entity owning copyright as provided by law.

7. "Jointly authored architectural work" is an architectural work created by two authors or more.

8. "Anonymous architectural work" is an architectural work without the name of the author (real name or pen name) on the work when it is published or disseminated.

9. "Authorless architectural work" is an architectural work that cannot identify the author when it is published or disseminated.

10. "Posthumous architectural work" is an architectural work first published or disseminated after the death of the author.

11. "Publishing and disseminating an architectural work" is the act of making the public aware of the work through publication, presentation, exhibition, or introduction via mass media.

II. ARCHITECTURAL WORKS PROTECTED:

1. Architectural works protected in Vietnam:

1.1. Architectural works of authors who are Vietnamese citizens;

1.2. Architectural works owned by Vietnamese citizens, legal entities, organizations;

1.3. Architectural works of foreigners, foreign legal entities created and expressed as stipulated in Point 1, Section I of this Circular in Vietnam;

1.4. Architectural works of foreigners, foreign legal entities first published or disseminated in Vietnam;

1.5. Architectural works of foreigners, foreign legal entities protected in Vietnam according to international treaties to which Vietnam is a party.

2. Architectural works protected in Vietnam as stipulated in Point 1, Section I of this Circular and not subject to industrial property protection, not containing content as prescribed in Clause 1, Article 749 of the Civil Code.

III. AUTHOR OF AN ARCHITECTURAL WORK:

1. Author of an architectural work:

The author of an architectural work is the person directly creating the entire or part of the architectural work.

2. Joint authors of an architectural work:

Those who directly create a single architectural work together are joint authors of that architectural work.

3. Persons providing support, giving opinions, supplying materials, performing design tasks under instructions, managing design, advising the person directly creating the architectural work are not the author or joint author of the architectural work.

IV. OWNER OF AN ARCHITECTURAL WORK:

1. Owner of an architectural work who is also the author:

The author is simultaneously the owner of the architectural work in cases where the author uses their own time, finance, and other material conditions to carry out the creative work of producing the architectural work, including the following cases:

1.1. The author is the owner of the entire or part of the work they created, except in cases where the work was created pursuant to assigned tasks or contracts;

1.2. Joint authors are joint owners of the work they jointly created, except in cases where the work was created pursuant to assigned tasks or contracts.

2. Owner of an architectural work who is not also the author:

An individual or organization responsible for providing financial resources or decisive conditions for the creative work of producing the architectural work for the author is the owner of the architectural work, except in cases where the parties have agreed otherwise, including the following cases:

2.1. Architectural works created by the author pursuant to assigned tasks, the agency or organization assigning the task is the owner of the architectural work;

2.2. Architectural works created by the author pursuant to a contract between one party being the author or a design organization with legal personality, where the author works, and the other party being an individual or organization hiring the design and has paid the full amount to own the architectural work;

2.3. Architectural works created in competitions where the competition rules have determined that the ownership of the architectural work does not belong to the author;

2.4. Architectural works transferred by the author or owner of the work to another person pursuant to a contract or given, presented, or inherited according to the provisions of the law.

V. RIGHTS OF THE AUTHOR, RIGHTS OF THE OWNER OF THE ARCHITECTURAL WORK:

1. Time of occurrence of copyright:
TÁC PHẨM KIẾN TRÚC:

1. Thời điểm phát sinh quyền tác giả:

Copyright for architectural works arises immediately upon the manifestation of the author's creative idea in the form of design drawings, regardless of whether the work has been published or not; registered for protection or not registered for protection.

2. Rights of the author of architectural works:

In accordance with Articles 750, 751, 752, 755 of the Civil Code, Articles 8, 10 of Decree 76/CP, and Section III of Circular No. 27/2001/TT-BVHTT dated May 10, 2001 issued by the Ministry of Culture and Information to guide the implementation of Decree No. 76/CP dated November 26, 1996, and Decree No. 60/CP dated June 6, 1997 of the Government guiding the implementation of certain provisions on copyright in the Civil Code (hereinafter referred to as Circular No. 27/2001/TT-BVHTT), the rights of the author of architectural works include moral rights and economic rights.

2.1. For the author who is simultaneously the owner of the architectural work:

2.1.1. The author who is simultaneously the owner of the architectural work has non-transferable moral rights, including:

a. Naming the work;

b. Stating their real name or pseudonym on the work; being named by their real name or pseudonym when the work is published, disseminated, or used;

c. Protecting the integrity of the work, allowing or not allowing others to modify the content of the work.

2.1.2. The author who is simultaneously the owner of the architectural work has transferable moral rights in whole or in part to others through a written contract or by gift, donation, inheritance as prescribed by law, including:

a. Publishing, disseminating, or allowing others to publish or disseminate the work under various forms such as: publishing, reprinting, copying the work; exhibiting the work to the public; transmitting the work to the public by any means or method; distributing the work or copies of the work by selling, renting, or otherwise; importing copies of the work from abroad into Vietnam;

b. Allowing or not allowing others to use the work under various forms such as: constructing, copying, photographing the work in any form.

2.1.3. The author who is simultaneously the owner of the architectural work has transferable economic rights in whole or in part to others through a written contract or by gift, donation, inheritance as prescribed by law, including:

a. Receiving royalties;

b. Receiving remuneration when the work is used;

c. Receiving material benefits from allowing others to use the work under various forms such as: construction, publication, reprinting, exhibition; renting;

d. Receiving awards for the work of which they are the author, except in cases where the work is not protected by the State.

2.2. For the author who is not simultaneously the owner of the architectural work:

2.2.1. The author who is not simultaneously the owner of the architectural work has non-transferable moral rights, including:

a. Naming the work;

b. Stating their real name or pseudonym on the work; being named by their real name or pseudonym when the work is published, disseminated, or used;

c. Protecting the integrity of the work, allowing or not allowing others to modify the content of the work.

2.2.2. The author who is not simultaneously the owner of the architectural work has transferable economic rights in whole or in part to others through a written contract or by gift, donation, inheritance as prescribed by law, including:

a. Receiving royalties;

b. Receiving remuneration when the work is used;

c. Receiving awards for the work of which they are the author, except in cases where the work is not protected by the State.

The exercise of economic rights by the author who is not simultaneously the owner of the architectural work as stipulated herein shall be carried out based on a contract between the author and the owner of the architectural work.

2.3. Joint authors who are joint owners of the architectural work and enjoy the rights of the author as stipulated in Point 2 of Section V of this Circular. The use and disposition of the architectural work must be agreed upon by all joint authors, if any joint author has died, then it must be agreed upon by the lawful heir of that joint author.

In the case where the architectural work created by joint authors consists of separate parts that can be used independently, each author has the right to use their own part separately and enjoys copyright over that part as stipulated in Point 2 of Section V of this Circular, unless the joint authors have other agreements.

3. Rights of the owner of the architectural work who is not the author:

According to Articles 753, 756 of the Civil Code and Article 9 of Decree 76/CP, and Section III of Circular No. 27/2001/TT-BVHTT, the rights of the owner of the architectural work who is not the author include moral rights and economic rights as follows:

3.1. Transferable moral rights in whole or in part to others through a written contract or by gift, donation, inheritance as prescribed by law, including:

3.1.1. Publishing, disseminating, or allowing others to publish or disseminate the architectural work under their ownership in various forms such as: publishing, reprinting, copying the work; exhibiting the work to the public; transmitting the work to the public by any means or method; distributing the work or copies of the work by selling, renting, or otherwise; importing copies of the work from abroad into Vietnam, except in cases where there is a different agreement between the author and the owner;

3.1.2. Allowing or not allowing others to use the architectural work under their ownership in various forms such as: constructing, copying, photographing the work in any form, except in cases where there is a different agreement between the author and the owner.

3.2. Transferable economic rights in whole or in part to others through a written contract or by gift, donation, inheritance as prescribed by law, including:

3.2.1. Construction, publication, reprinting, exhibition, display;

3.2.2. Renting.

The exercise of economic rights by the owner of the architectural work who is not the author as stipulated herein shall be carried out based on a contract between the author and the owner of the work.

4. Right to request protection of the author's rights and the owner's rights of the architectural work:

Pursuant to Article 759 of the Civil Code and Article 7 of Decree 76/CP, when copyright or the rights of the owner of a work are infringed upon, the author or the owner of the work has the right to request the person committing the infringement or competent state agencies to compel the infringer to cease the infringing act, apologize, make public correction, and compensate for damages.

The right to request state agencies with jurisdiction to enforce protection of the author's and the owner's legitimate rights and interests shall be carried out according to the procedures and formalities stipulated under current regulations on complaints and denunciations or initiating lawsuits before administrative, civil, or criminal courts.

The authority to handle complaints and denunciations of authors and owners of works is detailed in Section VIII of this Circular.

5. Limitations on copyright:

5.1. The rights of the author and the rights of the owner of architectural works are protected based on agreements between the author, the owner of the architectural work, and the user of the architectural work pursuant to the architectural work usage contract specified in Section VI of this Circular and relevant laws on construction.

5.2. Design drawings constituting architectural works must comply with the provisions of the law on construction when put into construction.

6. Duration of copyright protection:

According to Article 766 of the Civil Code and Article 14 of Decree 76/CP, the duration of copyright protection for architectural works is throughout the lifetime of the author and fifty years after the author's death. For joint-author architectural works, the fifty-year period is counted from the death of the last surviving joint author.

7. Transfer and inheritance of copyright:

7.1. Pursuant to Article 763 of the Civil Code Clause 1 and Article 8 of Decree 76/CP, the personal and property rights of the author who is also the owner of the architectural work as specified in points 2.1.2(a) and 2.1.2(b) and point 2.1.3(a) to 2.1.3(d) of this Section; the property rights of the author who is not simultaneously the owner of the architectural work as specified in points 2.2.2(a) to 2.2.2(c) of this Section; the personal and property rights of the owner of the architectural work as specified in point 3 of this Section may be transferred wholly or partially to another person through a written contract or given, presented, donated, or inherited in accordance with the law.

7.2. Pursuant to Articles 764 and 765 of the Civil Code and Article 13 of Decree 76/CP, the heirs of the author who is also the owner of the architectural work shall enjoy the personal rights specified in points 2.1.2(a) and 2.1.2(b), and the property rights specified in points 2.1.3(a) to 2.1.3(d) of this Section; the heirs of the author who is not simultaneously the owner of the work shall enjoy the property rights specified in points 2.2.2(a) to 2.2.2(c) of this Section; the heirs of the owner of the work who is not simultaneously the author shall enjoy the personal and property rights specified in point 3 of this Section.

In cases where there are no heirs, heirs refuse to accept the inheritance, or are not entitled to inherit, such rights shall belong to the State.

In cases where the heir of the author or the owner of the work dies before the expiration of the protection period, the heir of that person shall enjoy the rights of the author or the owner of the work as specified in this point until the end of the protection period. The person inheriting the rights of the author or the owner of the work has the right to transfer part or all of those rights to another person.

For joint-author architectural works where the joint authors are the unified owners of the architectural work, if a joint author dies without heirs, heirs refusing to accept the inheritance, or not entitled to inherit, then the property rights of that joint author shall belong to the State.

VI. USE OF ARCHITECTURAL WORKS:

The use of architectural works must be carried out through an architectural work usage contract between one party being the author or the design organization with legal personality, where the author works, and the other party being an individual or organization using the architectural work.

According to the provisions from Article 767 to Article 772 of the Civil Code, from Article 15 to Article 18 of Decree 76/CP, the content of the architectural work usage contract includes main clauses on the form of use of the work; scope and term of use of the work; remuneration, fees, and other material benefits; payment methods; responsibilities of each party in case of breach of contract; other contents agreed upon by the parties in accordance with current laws on contracts.

The signing of a joint-author work usage contract must have the agreement of the joint authors or the person to whom the joint author's rights have been transferred with the user regarding the contents specified herein. Joint authors or the person to whom the joint author's rights have been transferred and the user of the work must sign on the contract.

VII. REGISTRATION OF COPYRIGHT AND OWNERSHIP RIGHTS:
TÁC PHẨM KIẾN TRÚC:

1. Registration:

Pursuant to Point a Clause 1 Article 762 of the Civil Code, the provisions in Chapter V of Decree 76/CP and Section V of Circular 27/2001/TT-BVHTT, individuals and organizations that are authors, joint authors, or owners of works have the right to directly or authorize an individual or Copyright Service Organization, Collective Management Organization of Authors' Rights to register copyright at the Copyright Agency under the Ministry of Culture, Sports and Tourism or Provincial Department of Culture, Sports and Tourism where the author or owner of the work resides.

2. Documents for copyright registration include:

2.1. Application for copyright registration, ownership registration of the work;

The application for copyright registration, ownership registration of the work must be written in Vietnamese and signed by the author, owner of the work, or the authorized representative. Legal entities' applications must be signed, stamped according to regulations;

2.2. Two copies of the architectural work for copyright registration, which should fully and clearly reflect the creative idea of the architectural work through design drawings and two sets of black-and-white photographs of the scale model and prototype (if available);

2.3. A copy of related documents and papers. If these documents and papers are in a foreign language, they must be accompanied by a certified translation into Vietnamese;

3. Responsibility for issuing copyright registration:

3.1. The Copyright Department under the Ministry of Culture and Information shall be responsible for examining applications for copyright registration and issuing results at the initial receiving office within ten working days from the date of receipt of complete and valid application files as stipulated herein. In cases where copyright registration is not granted, the Copyright Department under the Ministry of Culture and Information must provide a written response stating the reasons.

3.2. Provincial Departments of Culture and Information shall be responsible for guiding individuals to complete the procedures for applying for copyright registration, accepting and forwarding application files for copyright registration to the Copyright Department immediately upon receipt of complete and valid application files as stipulated herein; collecting registration fees for copyright according to the regulations of competent state agencies and incidental costs arising from transferring files; and issuing results to applicants immediately upon receipt of results from the Copyright Department under the Ministry of Culture and Information.

4. Individuals and organizations that apply for copyright registration must pay the prescribed registration fee.

5. The Director of the Copyright Department under the Ministry of Culture and Information has the authority to issue and revoke certificates of copyright registration in cases where it is determined that the person registered for copyright is not the author or owner of the work, or when the work does not fall within the scope of protection as provided for by the law on copyright.

6. Certificates of copyright registration for architectural works issued by the Vietnam Copyright Protection Agency, the Vietnam Copyright Protection Authority, and the Copyright Department under the Ministry of Culture and Information before the Civil Code comes into effect shall remain valid. Authors and owners of architectural works shall enjoy rights as provided for in the Civil Code.

Authors and owners of architectural works who wish to reissue or replace certificates of copyright registration must submit a written request stating the reasons and comply with the provisions set forth in Section VII-2 of this Circular.

VIII. INSPECTION, AUDIT AND DISPUTE RESOLUTION
VIOLATIONS:

1. Pursuant to Article 33 and Article 36 of Decree No. 76/CP:

When authors and owners of architectural works are infringed upon their copyright or ownership rights, they have the right to demand the infringer to cease the infringement, apologize, make public corrections, and compensate for damages; or to lodge complaints or appeals with the State Inspectorate for Culture and Information (Inspectorate under the Ministry of Culture and Information, Inspectorate under the Provincial Department of Culture and Information) or the People's Court for consideration and resolution according to their jurisdiction.

Individuals and organizations, upon discovering acts of infringement of copyright or ownership rights of architectural works, have the right to submit complaints or reports to the Ministry of Culture and Information (Copyright Department), Provincial Department of Culture and Information, or other competent state agencies for handling in accordance with the law.

The Copyright Department under the Ministry of Culture and Information and Provincial Departments of Culture and Information shall cooperate with the Architecture Management and Planning Department under the Ministry of Construction, specialized construction inspection agencies, Provincial Construction Departments, or Provincial Planning and Architecture Departments to handle violations according to their jurisdiction.

2. The Copyright Department under the Ministry of Culture and Information shall implement national-level state management functions regarding the protection of copyright, and shall be responsible for:

2.1. Guiding and inspecting the implementation of laws on copyright throughout the country;

2.2. Responding to complaints and reports related to copyright protection or transferring them to the Inspectorate under the Ministry of Culture and Information, Inspectorate under the Provincial Department of Culture and Information, and other competent state agencies for handling according to the law;

2.3. Cooperating with Provincial Departments of Culture and Information, the Inspectorate under the Ministry of Culture and Information, and relevant agencies to promptly address violations of laws on copyright.

3. Provincial Departments of Culture and Information or Provincial Departments of Culture and Sports shall assist provincial People's Committees in implementing state management functions regarding the protection of copyright locally, and shall be responsible for:

3.1. Guiding and inspecting the implementation of laws on copyright in their respective localities;

3.2. Responding to complaints and reports related to copyright protection or requesting competent state agencies to handle them according to the law;

3.3. Cooperating with the Copyright Department, the Inspectorate under the Ministry of Culture and Information, specialized construction inspection agencies, Provincial Construction Departments, or Provincial Planning and Architecture Departments, and relevant agencies to promptly address violations of laws on copyright.

4. The Inspectorate under the Ministry of Culture and Information and Inspectorates under Provincial Departments of Culture and Information shall perform specialized cultural and information inspection functions as stipulated in Article 34 of Decree No. 76/CP.

IX. IMPLEMENTATION:

1. The Copyright Department under the Ministry of Culture and Information and the Architecture Management and Planning Department under the Ministry of Construction shall be responsible for guiding the implementation of copyright protection for architectural works as prescribed in this Circular.

2. This Circular shall take effect fifteen days from the date of signature.

3. During the implementation of this Circular, if there are any difficulties or unclear contents, individuals and organizations concerned shall promptly report to the Ministry of Culture and Information and the Ministry of Construction for supplementary guidance.