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Fair Use, Fair Dealing or Also Known As “Cases of Use of Published Works Where Permission and Payment of Royalties and/or Remunerations Are Not Required” under The Copyright Legislation of Vietnam

08

JUL

2020

Limitations and exceptions to copyright infringement

Limitations and exceptions to copyright infringement are a legal principle available in international law for the purpose of protecting the right of public access to information. This legal principle is asserted in the TRIPs Agreement, stating that Member States shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder[1]

As a member of the TRIPs Agreement, Vietnam transplanted and transposed such limitations and exceptions to copyright infringement into Articles 25 & 26 of its IP Law. Accordingly, the act of making copies or using copies by individuals or organizations of the literary artistic scientific works as legally published in some special cases under certain conditions is not considered as copyright infringement even though author or copyright owner do not agrees

The fact that a third party (an individuals or organization), without the author or copyright holder’s consent, uses or reproduces a published work in some certain situations, will not be deemed as having infringed upon copyright but he or she is required to pay royalties or remuneration to the author or copyright holder. This circumstance is provided for in Article 26 of the Intellectual Property Law, which is alternatively referred to as limitations to copyright infringement[2].

Exceptions to copyright infringement, or fair use, or cases of use of published works where permission and payment of royalties and/or remunerations are not required

Unlike the limitations to copyright infringement under Article 26 above, exceptions to copyright infringement is set forth in Article 25 of the Intellectual Property Law under the title “cases of use of published works where permission and payment of royalties and/or remunerations are not required”. By Article 25, to be considered an exception to the exclusive right, all of the six conditions as follows must be satisfied:

  1. The work being copied or used by a third party must be the published work; and
  2. The work being copied or used shall not include any of three types of work: cinematographic works, or plastic works, or software and computer programs; and
  3. Use or reproduction is permitted only in conjunction with the 10 cases described in Article 25 (upon reallocation only 7 cases, namely: (i) self-duplication of works by the user for scientific research or teaching purpose, reproduction by libraries for archival and research purpose; (ii) quoting works for commentary, writing newspaper and teaching; (iii) performing dramatic works or other performance arts without collecting any charges in any form; (iv) audiovisual recording of a performance for teaching or reporting; (v) photographing or televising plastic art, architectural, photographic, applied-art works displayed photography or television of visual, architectural, photography, applied art works be displayed at public places for purpose of presenting images of such works; (vi) transcription of works into Braille or characters of other languages for the blind; and (vii) importing a copy of the work of other for one’s own use; and
  4. Copy or use of the above works must not conflict with the normal exploitation of the work; and
  5. Copy or use of the above works must not unreasonably prejudice the legitimate interests of the right holder; and
  6. Copy or use of the above works must attribute author's name, source and origin of the work.

The 6-conditions too long and complicated as mentioned above originally stem from a three-step test, which is derived from Article 9(2) of the Berne Convention, saying that the reproduction of such

Works shall not copyright infringement if all of the three steps are met: (a) such copying is permitted only in special cases that are clearly indicated by national law; and (b) such copy does not conflict with the normal exploitation of the work; and (c) such copying does not cause unreasonable harm to the legitimate interests of the author[3].


[1] See Article 13 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement)

[2] In other words, the user of a published work is waived by the law from his obligating to obtain permission from the copyright holder but he or she is still forced to pay remuneration to the right holder. See more our earlier article 10 types of exclusive rights ascribing to copyright and forcible limitations to the copyright holder’s enforcement of those exclusive rights”: http://bross.vn/newsletter/ip-news-update/10-types-of-exclusive-rights-ascribing-to-copyright--and-forcible-limitations-to-the-copyright-holder%E2%80%99s-enforcement-of-those-exclusive-rights

[3] View more our earlier article regarding the three-step test titled Is the three-step test as a fair use against copyright or related right infringement claim forgotten in Vietnam”: http://bross.vn/newsletter/ip-news-update/IS-THE-THREESTEP-TEST-AS-DISMISSAL-OR-APPROVAL-OF-FAIR-USE-DEFENSE-AGAINST-COPYRIGHT-OR-RELATED-RIGHTS-INFRINGEMENT-CLAIM-FORGOTTEN-IN-VIETNAM

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Address 21st Floor, Charm Vit Tower, 117 Tran Duy Hung Str., Cau Giay, Hanoi, Vietnam.
Tel 84-24-3555 3466
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