Decree No. 85/2011/ND-CP Amending and Supplementing Certain Articles of Decree No. 100/2006/ND-CP dated September 21, 2006, detailing and guiding the implementation of certain provisions of the Civil Code and the Law on Intellectual Property regarding copyright and related rights.

DECREE

Amending and supplementing certain articles of Decree No. 100/2006/NĐ-CP dated September 21, 2006

detailing and guiding the implementation of certain provisions of the Civil Code and the Law on Intellectual Property

concerning copyright and related rights

______________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Civil Code dated June 14, 2005;

Pursuant to the Law on Intellectual Property dated November 29, 2005;

Pursuant to the Law amending and supplementing certain provisions of the Law on Intellectual Property dated June 19, 2009;

1. To fully exploit and effectively utilize the potential, infrastructure system, and position of the Region, with Ho Chi Minh City as the leading force, to create a driving force for comprehensive development in the fields of culture, family, physical education and sports, and tourism, thereby promoting the cultural market, physical education and sports activities, and tourism throughout the country and other localities.

DECREE:

Article 1. Amending and supplementing certain articles of Decree No. 100/2006/NĐ-CP dated September 21, 2006 of the Government detailing and guiding the implementation of certain provisions of the Civil Code and the Law on Intellectual Property concerning copyright and related rights:

1. Supplementing Clauses 11, 12, 13, 14, and 15 of Article 4 as follows:

"11. A work of a foreign individual or organization first published in Vietnam is a work that has not been published in any country before its publication in Vietnam.

12. Simultaneous publication means the publication of a work of a foreign individual or organization in Vietnam within thirty days from the date of its first publication in any country.

13. Royalty is the amount of money paid by the user of the work to the author who created the work or the owner of the copyright for the right to use the work.

14. Remuneration is the amount of money paid by the user of the work to the author who created the work or the owner of the copyright; by the user of the performance to the performer for their creative activities in conveying the work under copyright to the public.

15. Material benefits are the amounts of money paid by the user of the audio or video recording to the producer of the audio or video recording, by the user of the broadcast program to the broadcasting organization.

Other material benefits are other material interests enjoyed by the author, the owner of the copyright, and the owner of related rights, apart from royalties and remuneration, such as receiving awards, free books when publishing, complimentary tickets to view performance programs, film screenings, exhibitions, and other related material forms."

2. Article 10 shall be amended as follows:

"1. Lectures, speeches, and other spoken works specified in Point b Clause 1 of Article 14 of the Law on Intellectual Property are types of works expressed through spoken language and must be fixed in a tangible form.

2. In cases where the author themselves fixes lectures, speeches, or other spoken works in audio or video recordings, the author enjoys copyright over the lectures, speeches, or other spoken works, while also being the owner of the rights to the audio or video recordings according to Clause 2 of Article 44 of the Law on Intellectual Property."

3. Supplementing Article 19a after Article 19:

"Article 19a. Copyright for computer programs

1. The author of a computer program specified in Point m Clause 1 of Article 14 and Article 22 of the Law on Intellectual Property enjoys the moral rights specified in Clauses 1, 2, and 4 of Article 19 of the Law on Intellectual Property.

Organizations and individuals investing financial resources and technical facilities to create computer programs and the author of the computer program may agree upon signing a creation contract regarding the right to name the computer program specified in Clause 1 of Article 19 of the Law on Intellectual Property, and regarding the modification and upgrading of the computer program specified in Clause 4 of Article 19 of the Law on Intellectual Property.

2. Organizations and individuals investing financial resources and technical facilities to create computer programs are the owners of the copyright and enjoy the right to publish specified in Clause 3 of Article 19 and the exclusive economic rights specified in Article 20 of the Law on Intellectual Property.

The author of the computer program receives royalties and other material benefits according to agreements with the owner of the copyright.

3. Organizations and individuals with legitimate rights to use copies of computer programs may make no more than one backup copy to replace the original copy if it is lost, damaged, or unusable."

4. Supplementing Article 20a after Article 20:

"Article 20a. Folk cultural and artistic works

Folk literary and artistic works specified in Clause 1 of Article 23 of the Law on Intellectual Property are protected and include:

1. Folk literary and artistic works specified in Point a Clause 1 of Article 23 of the Law on Intellectual Property are forms of oral art such as folk tales, fables, epic poems, myths, legends, anecdotes, poetry, folk songs, proverbs, riddles, and similar forms of expression.

2. Folk literary and artistic works specified in Points b and c Clause 1 of Article 23 of the Law on Intellectual Property are forms of performing arts such as traditional operas, Cheo opera, cải lương (reformed opera), singing styles, musical tunes; dance styles, theatrical performances, folk games, village festivals, and similar forms of expression.

3. Folk literary and artistic works specified in Point d Clause 1 of Article 23 of the Law on Intellectual Property are forms of visual arts such as graphics, paintings, sculptures, musical instruments; architectural models, and similar forms of expression."

5. Clause 2 of Article 23 shall be amended as follows:

"2. The right to reproduce a work specified in Point c Clause 1 of Article 20 of the Law on Intellectual Property is one of the exclusive economic rights of the copyright holder, which can be exercised by the holder or authorized to others to create copies of the work by any means or form, including creating copies in electronic form."

6. Article 26 shall be amended as follows:

"1. The term of protection of economic and moral rights specified in Clause 3 of Article 19 of the Law on Intellectual Property for posthumous works is fifty years, counted from the date of the first publication of the work.

The term of protection of economic and moral rights specified in Clause 3 of Article 19 of the Law on Intellectual Property for photographic works and applied art works specified in Point a Clause 2 of Article 27 of the Law on Intellectual Property is fifty years, counted from the date of the first publication of the work. Within fifty years, if the work has not been published, the term of protection is fifty years, counted from the date the work was fixed.

2. The term of protection for cinematographic works, photographic works, applied art works, and anonymous works specified in Point a Clause 2 of Article 27 of the Law on Intellectual Property, which have been amended and supplemented, shall be implemented as follows:

From the date the Law amending and supplementing certain articles of the Intellectual Property Law takes effect, cinematographic works, photographic works, applied art works, and anonymous works that still have protection periods under the Intellectual Property Law shall continue to enjoy protection periods as prescribed in point a, Clause 2, Article 27 of the Intellectual Property Law which has been amended and supplemented; for stage works that still have protection periods under the Intellectual Property Law, the protection period shall be implemented according to the provision at point b, Clause 2, Article 27 of the Intellectual Property Law which has been amended and supplemented, which is the lifetime of the author plus fifty years following the year of the author's death.

7. Article 28 is amended as follows:

"Article 28. Transfer of rights concerning anonymous works

The enjoyment of rights of the owner of anonymous works prescribed in Clause 2, Article 41, and point a, Clause 1, Article 42 of the Intellectual Property Law which has been amended and supplemented shall be carried out as follows:

1. Organizations and individuals currently managing anonymous works are permitted to transfer rights concerning such anonymous works to other organizations and individuals and are entitled to remuneration from such right transfers.

2. Organizations and individuals receiving the transfer of rights pursuant to Clause 1 of this Article shall enjoy the rights of the owner until the identity of the author is determined."

8. Article 36 is amended as follows:

"Article 36. Use of broadcasting programs

1. The owner of broadcasting programs prescribed in Clause 3, Article 44 of the Intellectual Property Law is the broadcasting organization that invests financial resources and technical infrastructure to broadcast.

2. When using works, sound recordings, and audiovisual recordings to produce broadcasting programs, the broadcasting organization must fulfill obligations towards the copyright owners and related rights owners as stipulated by law.

3. Organizations and individuals using broadcasting programs of another broadcasting organization as prescribed in points a and b, Clause 1, Article 31 of the Intellectual Property Law to relay, rebroadcast, or transmit over telecommunications networks, electronic information, or any technical means must comply with agreements and relevant laws. Any modification, cutting, supplementation of another broadcasting organization’s broadcasting program for rebroadcasting or transmission over telecommunications networks, electronic information, or any other technical means must be agreed upon with the owner of the broadcasting program."

9. Clause 1, Article 37 is amended as follows:

"1. Authors, copyright owners, and related rights owners as prescribed in Article 50 of the Intellectual Property Law may directly or authorize organizations and individuals to submit one application for registration of copyrights and related rights at the Copyright Office headquarters or the representative office of the Copyright Office in Ho Chi Minh City, Da Nang City, or the Department of Culture, Sports and Tourism where the authors, copyright owners, or related rights owners reside or have their headquarters. Applications can be sent via postal service."

10. Point a, Clause 1, Article 39 is amended as follows:

"1. The Copyright Office has the authority to issue, reissue, replace, or revoke the validity of the Certificate of Registration of Copyrights and Related Rights prescribed in Clauses 1 and 2, Article 51 of the Intellectual Property Law.

a) Authors, copyright owners, and related rights owners who wish to apply for reissuance or replacement of the Certificate of Registration of Copyrights and Related Rights must submit an application detailing the reasons and provide one application file as prescribed in Article 50 of the Intellectual Property Law at the Copyright Office headquarters or the representative office of the Copyright Office in Ho Chi Minh City, Da Nang City, or the Department of Culture, Sports and Tourism where the authors, copyright owners, or related rights owners reside or have their headquarters. Applications and files can be sent via postal service."

11. Article 41 is amended as follows:

"1. Collective management organizations of copyrights and related rights as prescribed in Clause 1, Article 56 of the Intellectual Property Law must comply with the following conditions when operating:

a) Collective management organizations of copyrights and related rights must be authorized by authors, copyright owners, and related rights owners.

b) Collective management organizations of copyrights and related rights must have written mandates with rights holders regarding the management of specific rights or groups of rights.

The collection, distribution of royalties, remunerations, and material benefits arising from the exploitation of rights or groups of rights as prescribed in the operational charter of collective management organizations of copyrights and related rights and mandates.

2. In cases where works, sound recordings, audiovisual recordings, or broadcasting programs are related to the rights and interests of multiple authorized collective management organizations representing different rights or groups of rights, the parties may agree for one organization to negotiate licensing, collect, and distribute funds, and report to the Ministry of Culture, Sports and Tourism before implementation.

3. The management, collection, and distribution of royalties, remunerations, and material benefits as prescribed in point a, Clause 2, Article 56 of the Intellectual Property Law shall be carried out as follows:

a) The collection and distribution of royalties, remunerations, and material benefits by collective management organizations of copyrights and related rights shall be conducted on the principles of transparency and openness.

b) Collective management organizations may retain a reasonable amount of money from the total royalties, remunerations, and material benefits collected to cover expenses for performing their duties based on agreements with the mandators. The retained amount can be adjusted based on the effectiveness of collective management activities based on agreements with the mandators and may be determined as a percentage of the total amount collected.

c) The collection and distribution of royalties, remunerations, and material benefits from corresponding organizations abroad or international organizations shall be carried out in accordance with foreign exchange management regulations.

4. Collective management organizations of copyrights and related rights shall implement semi-annual, annual, or ad hoc reporting systems as prescribed in point c, Clause 3, Article 56 of the Intellectual Property Law as follows:

a) Report to the Ministry of Culture, Sports and Tourism, the Ministry of Home Affairs, and the Ministry of Finance including the following contents: amendments and supplements to the Charter and operational regulations; changes in leadership personnel; participation in international organizations; other external activities; pricing, payment methods for royalties, remuneration, and material benefits; long-term and annual programs and plans; operational status, power of attorney contracts, licensing usage contracts; revenue collection activities, revenue levels, distribution methods; ways to implement the distribution of royalties, remuneration, and material benefits; other related activities.

b) In cases of amending and supplementing the Charter, a report must be submitted to the competent authority for approval before implementation.

12. Supplement Article 45a after Article 45:

"Article 45a. Principles and methods of paying royalties, remuneration, and material benefits

1. Royalties, remuneration prescribed in Clause 3 of Article 20, Clause 4 of Article 29, and material benefits prescribed in Clause 2 of Article 30, Clause 2 of Article 31 of the Intellectual Property Law shall be determined according to the following principles:

a) The payment of royalties, remuneration, and material benefits must ensure the interests of creators, users, and the public, in line with the practical situation of the country.

b) The level of royalties, remuneration, and material benefits shall be based on the genre, form, quality, quantity, or frequency of use of the work.

c) Co-authors and collective authors shall agree on the ratio of distribution of royalties and remuneration according to the degree of creativity reflected in the work, in accordance with the form of use.

d) Authors of works, organizations, and individuals performing performances, sound recordings, film recordings, broadcasting programs for children, ethnic minorities; Vietnamese people directly creating works in foreign languages, Han Chinese people directly creating in ethnic minority languages, this ethnic minority person directly creating in another ethnic minority language; performing under difficult, dangerous conditions, and special cases shall receive additional royalties, remuneration, and material benefits as encouragement.

đ) The use of copyright and related rights and the payment of royalties, remuneration, and material benefits must be carried out through written contracts in accordance with the provisions of the law.

e) Agencies and organizations using state budget, state-owned enterprises shall prepare budgets for expenses on royalties, remuneration, and material benefits within the scope of the budget and other sources of income in accordance with the provisions of the law.

2. The Ministry of Culture, Sports and Tourism shall take the lead, in coordination with the Ministry of Finance and the Ministry of Information and Communications, to issue pricing and payment methods for royalties, remuneration, and material benefits in accordance with Clause 1 of Article 26 and Clauses 1 and 2 of Article 33 of the Intellectual Property Law that has been amended and supplemented."

13. Supplement Clause 4 of Article 46 as follows:

"4. Copyrights and related rights protected according to the provisions of effective legal documents prior to the date when the amended and supplemented Intellectual Property Law takes effect, if they still have protection periods, shall continue to be protected according to the provisions of the amended and supplemented Intellectual Property Law.

Copyright registration applications submitted to the competent authorities before the date when the amended and supplemented Intellectual Property Law takes effect shall be processed according to the current laws at the time of application submission.

Any acts infringing copyrights and related rights or violating contracts before the date when the amended and supplemented Intellectual Property Law takes effect shall be handled according to the current laws at the time of the violation."

14. Replace the term "Ministry of Culture - Information" with the term "Ministry of Culture, Sports and Tourism".

Replace the term "Department of Culture - Information" with the term "Department of Culture, Sports and Tourism".

Replace the term "Copyright Office for Literature and Arts" with the term "Copyright Office".

Article 2. Effective Date

This Decree shall take effect from November 10, 2011.

Article 3. Responsibility for Implementation

1. Ministers, Heads of Ministries equivalent to ministries, Heads of government agencies, Chairmen of provincial People's Committees under central cities, agencies, organizations, and individuals with relevant rights and obligations shall be responsible for implementing this Decree.

2. The Minister of Culture, Sports and Tourism shall be responsible for guiding the implementation and organizing the enforcement of this Decree./.