Circular No. 05/1998/TT-BVHTT guides the implementation of certain provisions of the Agreement between the Government of the Socialist Republic of Vietnam and the Government of the United States of America on establishing relations of copyright.

CIRCULAR

Guidance on implementing certain provisions of the Agreement between the Government of the Socialist Republic of Vietnam and the Government of the United States of America on establishing relations concerning copyright.
Implementing Directive No. 04/1998-CT-TTg dated January 22, 1998 of the Prime Minister on measures to implement the Agreement between the Government of the Socialist Republic of Vietnam (Vietnam) and the Government of the United States of America (USA) on establishing relations concerning copyright (hereinafter referred to as the Agreement), after exchanging and reaching consensus with the Ministry of Foreign Affairs and the Ministry of Justice, the Ministry of Culture and Information guides the implementation of certain provisions of the Agreement as follows:
concerning the establishment of copyright relations

1. Protected works:

Works specified in Sections 1.1, 1.3, 1.5, and 1.7 below are protected in the USA under the Agreement and US copyright laws. Works specified in Sections 1.2, 1.4, 1.6, and 1.8 below are protected in Vietnam under the Agreement and Vietnamese copyright laws stipulated in Chapter I, Part Six of the Civil Code and related provisions.

1.1. Works of authors who are citizens of Vietnam or residents in Vietnam;

1.2. Works of authors who are citizens of the USA or residents in the USA;

1.3. Works first published in Vietnam by persons who are not citizens of Vietnam or residents in Vietnam;

1.4. Works first published in the USA by persons who are not citizens of the USA or residents in the USA;

1.5. Works where a citizen of Vietnam or resident in Vietnam enjoys economic rights under US copyright law or where such economic rights belong to a legal entity directly, indirectly controlled by, or having ownership over a majority share or assets of a citizen of Vietnam or resident in Vietnam, provided that: such economic rights arise within one year from the date of the first publication of the work in a member country of a multilateral treaty on copyright and at the time the Agreement comes into effect, Vietnam is a member of such treaty;

1.6. Works where a citizen of the USA or resident in the USA enjoys economic rights under Vietnamese copyright law or where such economic rights belong to a legal entity directly, indirectly controlled by, or having ownership over a majority share or assets of a citizen of the USA or resident in the USA, provided that: such economic rights arise within one year from the date of the first publication of the work in a member country of a multilateral treaty on copyright and at the time the Agreement comes into effect, the USA is a member of such treaty;

1.7. Works of authors who are citizens of Vietnam or residents in Vietnam and works first published in Vietnam before the Agreement comes into effect but have not yet entered the public domain in Vietnam after enjoying the full term of protection;

In cases where the term of protection for these works under US law is shorter than the term of protection under Vietnamese law, the work will not be protected in the USA if at the time the Agreement comes into effect, the term of protection under US law has expired.

1.8. Works of authors who are citizens of the USA or residents in the USA and works first published in the USA before the Agreement comes into effect but have not yet entered the public domain in the USA after enjoying the full term of protection;

In cases where the term of protection for these works under Vietnamese law is shorter than the term of protection under US law, the work will not be protected in Vietnam if at the time the Agreement comes into effect, the term of protection under Vietnamese law has expired.

2. Scope of protected rights:

2.1. The rights protected under the Agreement include:

a. The minimum rights prescribed in Clause 1, Article 5 of the Agreement.

b. In addition to the minimum rights prescribed in point a above, non-US citizens or non-residents in the USA whose works are first published in the USA, US citizens, and residents in the USA whose works are also entitled to enjoy rights under the Agreement in Vietnam not less favorably than Vietnamese citizens under Vietnamese law.

c. In addition to the minimum rights prescribed in point a above, non-Vietnamese citizens or non-residents in Vietnam whose works are first published in Vietnam, Vietnamese citizens, and residents in Vietnam whose works are also entitled to enjoy rights under the Agreement in the USA not less favorably than US citizens under US law.

2.2. Limitations and exceptions:

a. Protection of works specified in Sections 1.1, 1.3, 1.5, and 1.7 of this Circular in the USA must comply with limitations and exceptions under the Agreement and US law.

b. Protection of works specified in Sections 1.2, 1.4, 1.6, and 1.8 of this Circular in Vietnam must comply with limitations and exceptions under the Agreement and Vietnamese law.

3. Registration of works:

3.1. Works specified in Sections 1.1, 1.3, 1.5, and 1.7 of this Circular may be registered with competent authorities in the USA in accordance with US law.

3.2. Works specified in Sections 1.2, 1.4, 1.6, and 1.8 of this Circular may be registered with competent authorities in Vietnam in accordance with Vietnamese law.

3.3. Copyrights for protected works are not dependent on whether the works have been registered or not.

4. Prevention and handling of copyright infringements:

4.1. Every individual, legal entity engaged in activities related to works specified in Sections 1.2, 1.4, 1.6, and 1.8 of this Circular in Vietnam shall strictly comply with the provisions of the Agreement and Vietnamese law, take necessary measures to prevent acts of infringement or protected interests, negotiate and mediate before filing a lawsuit in case of infringement to minimize potential damage and costs.

4.1. Every individual and legal entity engaging in activities related to works specified in Sections 1.2, 1.4, 1.6, and 1.8 of this Circular in Vietnam shall strictly comply with the provisions of the Agreement and Vietnamese law, implement necessary measures to prevent acts of infringement of protected rights or interests, negotiate and attempt to resolve disputes amicably before filing a lawsuit in cases of infringement in order to minimize potential damage and costs.

4.2. Every individual or legal entity having rights or interests in the works specified in Sections 1.2, 1.4, 1.6, and 1.8 of this Circular shall be protected under the Agreement in Vietnam and have the right to implement measures prescribed by Vietnamese law to protect their rights or interests when they are infringed upon in Vietnam.

4.3. Every individual or legal entity having rights or interests in the works specified in Sections 1.1, 1.3, 1.5, and 1.7 of this Circular which are protected under the Agreement in the United States shall strictly comply with the provisions of the Agreement, relevant provisions of Vietnamese law, and United States law, and have the right to implement measures prescribed by United States law to protect their rights and interests when they are infringed upon in the United States.

4.4. The resolution of disputes and handling of copyright infringement concerning the works specified in Sections 1.1, 1.3, 1.5, and 1.7 of this Circular in the United States shall be carried out in accordance with the Agreement and United States law.

4.5. The resolution of disputes and handling of copyright infringement concerning the works specified in Sections 1.2, 1.4, 1.6, and 1.8 of this Circular in Vietnam shall be carried out in accordance with the Agreement and Vietnamese law.

5. Use of Works After the Agreement Takes Effect:

5.1. For the works specified in Sections 1.2, 1.4, 1.6, and 1.8 of this Circular that were published in Vietnam before the date on which the Agreement begins to take effect without prior agreement between the user and the owner of the work, depending on the type of work, may continue to be used for a suitable period consistent with international law and practice, provided that such use does not unreasonably prejudice the legitimate interests of the author or the owner of the work.

5.2. Except for limitations and exceptions provided for by Vietnamese law, Vietnamese individuals and organizations wishing to use the works specified in Sections 1.2, 1.4, 1.6, and 1.8 of this Circular must negotiate and enter into contracts with the authors, owners of the works, or their lawful representatives. The conclusion of contracts shall be carried out in accordance with Section 3, Chapter I, Part Six of the Civil Code, Chapter III of Decree No. 76/CP dated November 29, 1996 of the Government guiding the implementation of certain provisions on copyright in the Civil Code and related provisions. The usage contract and related documents will serve as the basis for competent state authorities in Vietnam to review the production, business, and service plans of Vietnamese individuals and organizations.

6. Organization of implementation:

6.1. The Copyright Office has the duty to assist the Ministry of Culture and Information in organizing inspections and supervision of the implementation of the Agreement; compiling and reporting on the implementation situation of the Agreement nationwide; coordinating with relevant agencies of the Ministry of Foreign Affairs, the Ministry of Justice, and other relevant agencies to prepare and organize the implementation of Directive No. 04/1998/CT-TTg dated January 22, 1998 of the Prime Minister, this Circular, and the Implementation Plan of the Agreement issued together with Decision No. 280/1998/QĐ-BVHTT dated February 27, 1998 of the Minister of Culture and Information.

6.2. The specialized inspection agency of the Ministry of Culture and Information and the Departments of Culture and Information have the duty to resolve disputes and handle violations according to administrative procedures.

6.3. Other Departments, Bureaus, and related organizations under the Ministry of Culture and Information shall cooperate with the Copyright Office to guide, organize the implementation, and inspect the enforcement of the Agreement within the scope of their functions, duties, and authority.

6.4. Provincial Departments of Culture and Information under the central government have the duty to organize inspections, supervision, and submit regular reports on the implementation of the Agreement at the local level to the Ministry of Culture and Information (Copyright Office).

6.5. The provisions of this Circular shall apply from the date the Agreement begins to take effect.

6.6. During the implementation of this Circular, if there are difficulties or obstacles, ministries, sectors, provincial People's Committees directly under the central government, and Departments of Culture and Information need to promptly report to the Ministry of Culture and Information for consideration and resolution./.