Khóa luận tốt nghiệp: Law on copyright protection in the age of digital transformation

ĐẠI HỌC QUỐC GIA HÀ NỘI KHOA LUẬT

Đặng Trần Bảo Trâm

LAW ON COPYRIGHT PROTECTION IN THE AGE OF DIGITAL TRANSFORMATION

KHÓA LUẬN TỐT NGHIỆP ĐẠI HỌC

CHUYÊN NGÀNH LÝ LUẬN VÀ LỊCH SỬ NHÀ NƯỚC VÀ PHÁP LUẬT

Hệ đào tạo: Chính quy Khóa học: QH-2018-L-CLC

HÀ NỘI, 2022

ĐẠI HỌC QUỐC GIA HÀ NỘI

KHOA LUẬT -

Đặng Trần Bảo Trâm

LAW ON COPYRIGHT PROTECTION IN THE AGE OF DIGITAL TRANSFORMATION

KHÓA LUẬN TỐT NGHIỆP ĐẠI HỌC

CHUYÊN NGÀNH LÝ LUẬN VÀ LỊCH SỬ NHÀ NƯỚC VÀ PHÁP LUẬT

Hệ đào tạo: Chính quy Khóa học: QH-2018-L-CLC

NGƯỜI HƯỚNG DẪN: PGS TS Nguyễn Minh Tuấn

HÀ NỘI, 2022

PLEDGE

I hereby declare that this thesis is an independent research work under the guidance of Assoc Prof Dr Nguyen Minh Tuan The entire content of the thesis is the product of research efforts during my time studying at the School of Law - Vietnam National University, Hanoi All references used in this writing are from credible sources and have been fully cited I promise that if any problems arise, I will take full responsibility

STUDENT’S SIGNATURE

Đặng Trần Bảo Trâm

ACKNOWLEDGEMENT

First and foremost, I would like to express my sincere gratitude to Assoc Prof Dr Nguyen Minh Tuan who directly supported me academically throughout the process of writing this thesis

I would also like to express my appreciation to all dedicated lecturers at the School of Law who had taught and helped me during my four years of studying here

Finally, I would like to thank my family and friends for always believing in me If it were not for your tremendous encouragement and support, I would never have the courage to explore my potential

Ha Noi, 2022

1.4 CONDITIONS FOR COPYRIGHT PROTECTION 16

2 DEFINITION, CHARACTERISTICS, CONTENT OF COPYRIGHT PROTECTION17

4 COPYRIGHT PROTECTION IN THE AGE OF DIGITAL TRANSFORMATION23

4.1 ADVANTAGES OF DIGITAL PLATFORM IN PROTECTING COPYRIGHT 23

4.2 CHALLENGES OF DIGITAL PLATFORM IN PROTECTING COPYRIGHT 23

CHAPTER 2: DEVELOPMENTS OF LAW ON COPYRIGHTS IN VIETNAM AND IN THE

CHAPTER 3: INTERNATIONAL EXPERIENCES AND LESSONS LEARNT FOR VIETNAM 34

1.1 BERNE CONVENTION 34

2 COPYRIGHT REGULATION IN DIGITAL PLATFORM IN SOME COUNTRIES39

2.1 US COPYRIGHT LAW 39

2.1.2 Copyright protection on digital platform in the United States 41

2.2 JAPAN COPYRIGHT LAW 44

CHAPTER 4: THE REALITY OF COPYRIGHT PROTECTION IN VIETNAM IN THE AGE OF DIGITAL TRANSFORMATION AND RECOMMENDATIONS 48 1 THE REALITY OF COPYRIGHT PROTECTION IN DIGITAL PLATFORM IN VIETNAM48

2.2 ACHIEVEMENT ON PROTECTING COPYRIGHT IN DIGITAL PLATFORM 64

2.3 SHORTCOMINGS AND CHALLENGES 65

LIST OF ACRONYMS

DMCA Digital Millennium Copyright Act

TRIPS Agreement The Agreement on Trade-Related Aspects of Intellectual Property Rights

TPMs Technological Protection Measures

INTRODUCTION 1 Thesis rationale

Intellectual property has always been a topic of debate for many legal experts It is also considered quite a modern topic regulated by law as it was only recognized a few centuries ago Article 27 of the Universal Declaration of Human Rights has recognized: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The right was also recognized in many other important international legal documents In Vietnam, the law has notably progressed throughout the years to adapt with the needs to protect IP In 1995, Vietnam Civil Code had a whole section for IP In 2005, Vietnam's first ever Intellectual Property Act came into effect, inheriting and promoting the existing regulations in the Vietnam Civil Code 1995 In the Vietnam Civil Code promulgated 2015, there are many new regulations on IP Vietnam has put great effort in protecting IP in legal aspects

When considering IP, there are plenty of layers and aspects to discuss One of those is copyright Copyright is a type of intellectual property that gives its owner the exclusive right to copy and distribute a creative work, usually for a limited time The creative work may be in a literary, artistic, educational, or musical form In earlier times, copyright was not a thing as there was neither great profit in copying others' work nor means to mass copy and produce them However, the printer was invented, giving authors and creators great deals of money as it could easily print and distribute the works But at the same time any one can sell or copy and claim the work as their own, leaving the right of authors easily infringed Copyright came into existence at the relatively same time the printer was created Therefore, we could say the birth of copyright is directly related to the innovation of technology

The 21st century has witnessed the massive expansion of technology It is hard to believe that only four decades ago, there was no internet The explosion of the internet has opened a digital era where people can update, store and distribute any types of

information on the internet Thanks to the internet, anyone can make profits from sharing their works and it can reach out to audiences from all over the world However, the rise of technology does come with bad side effects As the digital world is quite new, there has debatably not been enough regulation to protect copyright as the cases of copyright infringement still happen frequently on digital platforms Now that the quality of life has significantly increased, people have more and more need for entertainment, thus there are more potential profits from creative works on all platforms In the context that Vietnam is amending Intellectual Property Law to implement its commitments under the European - Vietnam Free Trade Agreement (EVFTA), it is rational to assess the need for strong protection of copyright in the digital age

2 Purpose of the thesis

This dissertation is written with an aim to provide information about copyright, copyright evolution throughout the years, point out some shortcoming of current regulations and give some suggestions

To provide the information, the thesis will give basic information about copyright What is copyright, why do we need it, why do we need to improve the protection in the digital age? The thesis will also give information about the copyright evolution of the world in general and in Vietnam to be specific

To point out the shortcoming of copyright in Vietnam, the thesis will investigate the current regulations to see any nonconformities and present the copyright regulation in other countries to find the recommendations that are suitable for Vietnam

- Điêu Ngọc Tuấn (2004), Khái quát về quyền tác giả và bảo hộ quyền tác giả ở Việt Nam, Tòa án nhân dân

- PGS.TS Trần Văn Nam (2014), Quyền tác giả ở Việt Nam: Pháp luật và thực thi, NXB Tư pháp Hà Nội

- Phạm Thị Hương Giang (2008), Công ước Berne và việc thực hiện trong lĩnh vực xuất bản ở việt nam, Luận văn thạc sĩ, Đại học Quốc gia Hà Nội

- Nguyễn Phương Nhung, Vũ Công Giao (2017), Bảo vệ quyền tác giả và quyền liên quan theo pháp luật Việt Nam,

- Trịnh Văn Tú (2012), “Bảo hộ quyền liên quan theo Luật Sở hữu trí tuệ Việt Nam”, Luận văn Thạc sĩ ngành Luật dân sự, Khoa Luật, Đại học Quốc gia Hà Nội - Trần Kiên (chủ biên) (2020), Luật sở hữu trí tuệ Việt Nam dưới thời pháp thuộc,

NXB Đại học Quốc gia Hà Nội

- William Fisher (2001), Theories of intellectual property, Stephen Munzer, ed New Essays in the Legal and Political Theory of Property, Cambridge University Press

- Peter Drahos (1996), The philosophy of intellectual property - Justin Hughes (1988), The Philosophy of Intellectual Property

- Lawrence C Becker (1993), Deserving to Own Intellectual Property, 68 Chi.-Kent L Rev 609

However, the subject of copyright protection in the digital age is still quite limited in researches:

- TS Vũ Thị Phương Lan (2018), Bảo hộ quyền tác giả trong môi trường kỹ thuật số theo điều ước quốc tế và pháp luật việt nam, (sách chuyên khảo), Đại học Luật Hà Nội

- Lê, V T U (2017) Vấn đề bảo hộ quyền tác giả trên Internet theo quy định của các điều ước quốc tế và pháp luật Việt Nam Luận văn thạc sĩ, Đại học Quốc gia Hà Nội, Việt Nam

- Phạm Thị Mai Khanh (2018), Hậu TPP - Việt Nam có cần điều chỉnh các quy định liên quan tới bảo hộ quyền tác giả trong môi trường Internet? Tạp chí phát triển Khoa học & Công nghệ: chuyên san kinh tế - luật và quản lý, tập 2, số 3, 2018 - Shrayberg, Y.L., Volkova, K.Y (2021), Features of Copyright Transformation in

the Information Environment in the Age of Digitalization Sci Tech Inf Proc

4 Signification of the thesis

The thesis investigates the origins and purpose of copyright, as well as provides various suggestions to increase the efficiency of copyright protection The thesis was created with the intention of raising awareness on copyright, contributing to the reform of Vietnam's policies and regulations, and assisting rights holders in preserving their rights in the digital era The thesis can be used as a reference for legal studies

5 Scope and method of thesis

Copyright concerned with a lot of aspect but this thesis will only focus on understanding the basic aspects of Copyright under a number of legal systems in the world and in Vietnam such as: object, subject, content, history and acts of copyright infringement; closely adhere to the provisions of the Law on Intellectual Property of Vietnam 2005 amended 2009 Then assessing the adaptability of current regulations on copyright with the rising trend of technology and digital information

In the process of making this thesis, here are some of the research methods that had been used:

- Historical method

- Methods of document research

- Methods of analyzing and synthesizing information - Comparative method

6 Structure of the thesis

Chapter 1: Overview of copyright in the age of digital transformation Chapter 2: Developments of copyright in the world and in Vietnam

Chapter 3: International law and law of some countries on copyright protection in the age of digital transformation

Chapter 4: Reality of copyright protection in digital platform in Vietnam

Copyright is the type of right that is used to protect intangible property Copyright is the combination of moral rights and property rights given to creators for the works that are the results of their labor It originated from the need of authors to be protected so that they can freely create new works and the need to encourage creators to produce more original works by providing them sufficient protection This right can be given to individuals, groups or organizations This right is a way for the community to give creators incentive so that they can feel safe to keep on creating new works for the greater benefit of the society However, we can not prioritize creators rights above everything else There must be a balance between creators rights and community rights to access and develop these works

In the world and in Vietnam, there are many definitions of copyright Black's Law Dictionary defines copyright as, "the right to copy; specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic,

pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work."1

As Merriam-Webster dictionary, copyright is “the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (such as a literary, musical, or artistic work)”

According to WIPO definition of copyright: “Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.”

So it can be concluded that copyright is the exclusive right of authors, the owner of the works, to exploit the material and immaterial benefits from the literary and artistic works that they created or have ownership to

1.2 Characteristics

Copyright is a civil right, so it would contain the characteristics of any civil rights The right will be protected by the law and authorities, any infringements will proceed in accordance with the law Other than that, copyrights would contain other specific traits

First, copyright protects authors’ intangible property to their creative work In the

sense that the author not only has the right to his one tangible specific work, but also the creativity and novelty of it For example, when a composer writes sheet music, not only does he have ownership to that specific sheet, he also has ownership of the specific arrangement of notes in that sheet

Black's Law Dictionary the sixth edition

Second, the subject of copyright is literary and artistic works This is what

differentiates copyright from other cornerstone of intellectual property which are trademarks and patents

Third, copyright only protects the expression of ideas, not the ideas itself This can

be considered the most interesting characteristic of copyright Copyright protects not ideas, concepts, systems, or methods of doing something, but it protects your arrangement of words, how you express your ideas We can look at the example of Truyện Kiều – one of the most outstanding works of classical Vietnamese literature Truyện Kiều was written by Nguyễn Du, he based most of Truyện Kiều plot on Kim Vân Kiều Truyện Although Kim Vân Kiều Truyện was a prose written by Qingxin Cairen, Nguyễn Du has turned it into Nôm poetry and changed the narrative of the story Hypothetically there was copyright law back then, Nguyen Du still would not have infringed the copyright of Qingxin Cairen as he has presented the book in an entirely different way Or another example, if a business man wrote a book on how to start a business and others used his ideas and succeeded, the writer can not infringe on them for using his ideas His copyright is only infringed when someone copies and sells his book

for their own gain

1.3 Content

In theory, every creator has exclusive rights to their works However, for those rights to be protected, there must be a legal basis to secure and remedy those who infringed The legal regulations are varied depending on each country In most national law and international law, the copyrights are divided into moral rights and property rights

Moral rights include:

- Right to name the works

- Right to put their real name or pseudonym on the works

- Right to announce real name or a pseudonym when the work is published, used

- Right to publish the work or to authorize others to publish the work

- Right to protect the integrity of the work, to forbid others from modify, distort or mutilate the work in any way that is prejudicial to the honor and reputation of the author

Moral rights are distinctly personal, they are the rights that are attached to the author's identity and dignity Hence most of the rights are intransferable Moral rights are (perpetual) protected forever, and they remain with the authors even after the authors have transferred their economic rights Moral rights can be enforceable even after the author’s death Nonetheless, moral rights that have economic nature might be transferable such as the right to publish the work

Property rights include:

- Right of reproduction of the work

- Right of preparation of derivative works - Right of public distribution of the work - Right of public performance of the work - Right of public display of the work

- Right to communication to the public of their work - Right of public digital performance of a sound recording

The property rights are the author's exclusive rights to use the work They allow right owners to derive financial reward from the use of their works by others Unlike moral rights, these rights are transferable and they are limited in time The right to communication to the public of their work and the right of public digital performance of a sound recording is a newly added right to cope with the changing era of digital

1.4 Conditions for copyright protection

To qualify for copyright protection, the work must meet three requirements, which are work of authorship, originality, and fixation

Works of authorship refer to the product of creative expressions, such as writings, reports, drawings, sculptures, illustrations, video recordings, audio recordings,…Originality is the minimum requirement for copyright protection Unlike patents, which require novelty and innovation, the standard for originality in copyright is quite low, as long as the work is written by the authors and not a copy of earlier work and contains a little bit of creativity, it can be considered original Fixation is the last condition for copyright protection In order to have copyright protection, the work cannot be ephemeral, it has to be fixed in a tangible form, such as a draft, the unedited film footage,…For example, if you give a presentation, it will not be considered as a fixed form until you have a script or a record of that presentation

2 Definition, characteristics, content of copyright protection

So we can say that copyright protection is to cover or to shield the author’s right to exploit the material and immaterial benefits from their literary and artistic works from exposure, injury, damage, or destruction

Objectively, copyright is a collection of legal provisions on copyright in order to confirm and protect the rights of the author and the copyright owner, and to determine the obligations of the subjects in the creation and use of literary, artistic and scientific works Stipulate the order of exercise and protection of those rights when there is an infringement

Merriam Webster Dictionary https://www.merriam-webster.com/dictionary/protect

Subjectively, copyright is a specific civil right including property rights and moral rights of the subject as an author and copyright owner for literary, artistic works,scientific works and the right to sue or not to sue when their rights are violated.3

According to Dr Vu Thi Phuong Lan: “Copyright protection is the State's recognition of the author's right to a work, stipulation and protection for the author of specific legal rights over the work in order to enable the author to truly enjoy the economic and moral benefits obtained from copyright.”

Therefore, copyright protection can be understood as the state's establishment, recognition and guarantee of exclusive rights for creators of works in order to control the exploitation and use of works; allow or prevent other subjects from exploiting the work in accordance with the provisions of law

Copyright protection can be done by the author himself, the copyright owner and the State In which, the State, with power to create law, has always been identified as the main and most important subject in copyright protection

In order to protect copyright, the State can prepare national legal documents, signs and participates in international treaties, establishes state agencies responsible for enforcing copyright laws, implementing enforcement measures to protect copyright such as: inspecting and monitoring the publication of publications, detecting and handling copyright infringement cases…

2.2 Characteristics

The first characteristic of copyright protection is that it protects the right of the

author, the creator of the work This seems to be the obvious, but when the concept of copyright was introduced, copyright was just the monopoly right given to government authorities Then the printing press became massive, and the government realized the authors must be given rights to be able to produce quality works for the greater benefits

Trường Đại học Luật Hà Nội (2009), Giáo trình Luật sở hữu trí tuệ, NXB Công an Nhân dân

of society Thus, copyright became the right of authors This part will be discussed further in the later chapter

Second, authors have automatic copyright protection For the work to have

copyright, the author does not have to register to any government authorities Other types of copyright protection highly suggest or require you to register to government authorities in order to be protected However, copyright is automatically granted to your work and is protected by national law as long as it is published in the territory of that nation

Third, copyright is territorial Each country protects their author’s right by national

law, so the copyright protection is only effective in that specific country So whether an act is considered an infringement of copyright or not depends on the protection regime of

each country, not the country where the work is first published

2.3 Purpose of copyright protection

There are many purposes for copyright protection that have been given throughout the years In which, there are two most popular theory to explain the need for copyright protection as following: The natural law theory and The utilitarian theory

First the purpose of copyright can be explained by the utilitarian theory

Utilitarianism is a normative ethical theory by two prominent advocates are Jeremy Bentham and John Stuart Mill In a nutshell, utilitarianism holds that the most ethical choice is the one which will produce the greatest good for the greatest number So how does this theory help in justificating copyright? The utilitarian theory, now more known as the economic theory, suggests that property rights should be the maximization of net social welfare The utilitarian theory aim is to optimal balance between, on one hand, the power of exclusive rights to stimulate the creation of inventions and works of art and, on the other, the partially offsetting tendency of such rights to curtail widespread public enjoyment of those creations4 The aim is to maximize the benefits of society Authors have enough space and incentive to keep contributing new works and society has access

William Fisher (2001), Theories of intellectual property, Stephen Munzer, ed., New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001)

to enjoy and promote, develop the available published United State copyright systems are largely based on this theory

Second, the need for copyright is explained through the natural law theory.Natural law promotes equality, fairness, private property, and other fundamental human rights for all people There are two central theories that play a part of general natural law theories which are the labor theory and the personality theory.5 The two theories emphasize on the relationship between the author and his or her work and rationalize the need of protecting copyright To summarize, the labor theory explains the need for copyright based on the assumption that the author has a natural right in the fruits of his or her labor The fruits of labor might be the result from hours of hard work (e.g writing a book) or just fleeting moments (e.g taking a photograph) Nevertheless, most creators, such as painters, authors, researchers, photographers…, have to spend time and resources to master their craft in order to produce resources Hence the fruits of labor must belong to the author This justification is a development of a general and common justification for property rights, ascribed in the literature mainly to philosopher John Locke According to Locke, every person has a right over his or her body, hence, also a right over the fruits of his or her labor The personality theory, like the labor theory, focuses more on the ownership of the author rather than the economic aspect However, the difference between the two theories is Personality theory concerned with the emotional bond between the artist and their creation One’s creative work is how a person expresses their personality and inner will, and that these are necessary for the realization of autonomy, freedom, and confidence In this context, acknowledging the right to property answers the expectation of a person for continuous control over his or her external identity.6 According to personality theory, the intellectual works of authors represent their personal expression, will, and identity in the external world Hence, the author should be given control over

the work that represents the external expression of his or her personality7 The natural right theory is a big influence on the copyright regimes of French and German

Nonetheless, no countries build their copyright regimes solely based on one or the other theory The copyright regime is the combination and consideration of both philosophies Though we can still see favoritism in different copyright protection regimes

3 Digital transformation

3.1 Definition

Before the rise of technology, the world’s information was predominantly recorded by hand, distributed and stored through on paper The distribution of knowledge was evidently slow and limited within certain communities The printing technique was found in China during the Tang Dynasty The printing technique relied on blocks cut from wood, which is still quite primitive and unproductive In the 14th century, Johannes Gensfleisch zur Laden zum Gutenberg, a German inventor, printer, publisher, and goldsmith, created the movable-type printer and introduced printing to Europe His invention has begun one of the first media revolutions.Printing was the first ever process of media mass production, raising the need and the creation of copyright protection The next revolution is the invention of computers and the internet

Tim Berners-Lee, inventor of the World Wide Web, introduced the world to the key invention that integrated the different digital technologies comprising the Internet, catalyzing the digital information revolution around the world, making computer technology accessible to billions of people As technology develops, there are now myriad variations of internet-accessing devices Now accessing the digital world is easier than ever as the majority of people have smartphones, computers, laptops…, which enableus to use the enormous storage of information on the internet

Orit Fischman Afori (2004, Human Rights and Copyright: The Introduction of Natural Law Considerations into American Copyright Law , 14 Fordham Intell Prop Media & Ent L.J 497

For the definition, we can understand a digital environment as “A virtual or generated environment accessed or created through the use of one or more digital devices such as a computer, tablet, or a cellular phone.”8

cyber-3.2 Characteristics

The innovation of the digital world is a multifaceted event that affects every aspect of our life Within this thesis, the author will only discuss the characteristics that have an influence on copyright protection

First, the digital world makes it easy to reproduce and distribute anything

Although the invention of printing does have the same issue, the object of duplication and distribution on the internet is way more massive Printing is produced in physical form and it faces the challenge of transportation whereas the internet makes the process of reproduction and distribution quick and efficient The reproduction can happen to music, written and video content, digital art, painting,… and still preserve the original quality Anything can be reposted with a few simple actions The target audience is also broader on the internet Its 'viral' nature allows content to spread quickly and attract a large audience This makes identifying who has received the information and how it will spread and perceive challenging

Second, creative work can be created and exchanged rapidly Thanks to the

convenience of the internet, various programs have been invented to make the work of artists easier It is common now to design a billboard, create digital art, movies, animation, producing music, writing… within the comfort of your personal computer And the work can be easily duplicated and sent between person to person

Third, digital platforms give people the ease of storage Storing information online

or on a hard drive helps preserve the quality of the original Digital storage is getting denser every year Small devices such as smartphones or laptops can store and give

access to thousands of pieces of information

Toward a Working Definition of Digital Literacy

Fourth, digital environments have different levels of discoverability A person can

upload and store information and share it to the public, to a few selected people or just keep it private to themselves

4 Copyright protection in the age of digital transformation

4.1 Advantages of digital platform in protecting copyright

It is undeniable that the revolution of technology and the internet has begun a new era for authors in many ways

The internet offers unlimited space for authors to store their work so that their work is not only preserved from physical forces, but also lasts the test of time Moreover, authors can now promote their work widely and gain deserving recognition thanks to the internet In the earlier time, the work of authorship can only reach a limited audience, which also limits the author’s profit Thanks to the dissemination and virality of the internet, anyone can access to the work and the author can advertise their work to desired customers

The internet now is not just the storage, but also the place where people create and publish their creative works for the first time It is not rare nowadays to see people write, create music, painting, movies, animations…through computer programs and store it on the internet The internet and internet-accessing devices have made the production of creative works much easier than before Not only is the internet a great help in creating traditional art, it has also invented a new form of expression In modern times, we have graphics designs, computer programs, electronic music instruments, new media art…all of which are new works of authorship that only come to existence through computers This paves a new art form for all artists to create new work and new transformation of work

4.2 Challenges of digital platform in protecting copyright

Useful as it is, the digital platform does bring deflects The digital world has no border but the copyright protection regime does So it is much harder to protect copyright

as the copyright infringer can be anywhere in the world Thus, raising the need for a copyright protection regime for digital platforms

The digital platform also raises the question of balancing the public interest and author’s rights This problem has always been prominent in copyright protection However, as the internet makes it easier to access and infringe on copyright, the need for author protection becomes a hot issue Nevertheless, the access and exchange of information has no doubt increased the common knowledge and benefits for society, but strict copyright protection might harm this progression So the argument of whether public interest or author rights should be valued more in the digital environment is predictably an ongoing battle for a long time to come

The internet has also changed the term “personal use” In Vietnam, the term “personal use” describes one of the cases where one can use copyright work without infringing the copyright However, personal use is hard to control on the internet due to its discoverability For example, if a person uploads a copyright work on the internet for private research and he sends it to his friend, this friend then copies it and sends it to other people, then does this case be deemed as copyright infringement?

Digital era has introduced new forms of arts that can be qualified as creative work But the copyright regulations might not catch up with the various new forms of work of authorship As there is a blurred line between technology and art, it is hard to classify the work, whether it is work of authorship or technological creativity

5 Sub-conclusion

Copyright is a very special right that protects the author’s right to their intangible property, specifically the result of their creative work The digital transformation is a new wave of technology that has entirely changed our ways of life The age of digital transformation has brought advantages as well as challenges to copyright holders On the one hand, digital transformation helps the author preserve their work and make work

accessible to everyone who owns electronic communication devices, thus bringing great profit On the other hand, digital transformation has made copyright protection more complicated as the authors cannot control who their work will reach and who has illegally made profits of their work Thus, there is the need for a strong legal basis to protect the author's right

CHAPTER 2: DEVELOPMENTS OF LAW ON COPYRIGHTS IN VIETNAM AND IN THE WORLD

1 History of Law on copyright in the world

Humans have always had the need for entertainment Since the Stone age era, the homo sapiens has been found to have a signature form of singing, painting, dancing within each community At that time of course, there was no need for copyright as the priority was to stay alive Homo sapiens tended to live in packs, so any work of intellectuals belongs to the community Furthermore, any socializing between individuals of different communities back then would have been considered betrayal so there is no way for the intellectual work to be stolen But the product of creators and creative works has existed since the earliest period of human culture However, the only way to store and distribute these was through human memory and passed orally from generation to generation

Fast forward in time, writing was invented in several civilizations from 3400 BCE to 500 BCE, making the storage of humanity more durable But the writing materials are very rudimentary There was no paper, so they often had words on leaves, bark, skin and animal bones, turtle shells, copper, stones or pieces of bamboo Later on, the Chinese invented printing by carving words onto pieces of wood and applying ink to print This saved authors from having to write every single copy by hand, however, the technique still required hard work and was barely profitable Throughout history people had started developing certain rights and laws to protect those rights However at that time, the law only protected the carrier, the container of intellectual property right, or to be candid, the property right According to that law, if you were the author, you wrote the book, you could do anything to it, you could sell it, donate it, or get rid of it and no one had the right to do those things without your permission But if someone copied most of your works or all of your work verbatim and claimed it as their own, there was almost nothing you could do about it

Until the 14th century when Johannes Gensfleisch zur Laden zum Gutenberg invented movable-type printers and introduced mass printing to Europe, risks for authors became much bigger Once that mass production was available, creator’s works are vulnerable not only to distributors who sell the works without authorization, but also to competitors who might freely copy the arrangements of words from popular works

In 1662, the British Parliament promulgated one of the most influential documents

in the history of Anglo - American copyright law, the Licensing of the Press act9 Important as it was, the Act came to existence for an infamous reason The full name of the Act is “An Act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Books and Pamphlets and for regulating Printing and Printing Presses” The Act was promulgated by Charles II, who had just returned to England and was shocked by the publications and pamphlets that were seditious, irreligious, and scandalous widely circulated in London The purpose of that act was to censor what got printed and what not by requiring all future releases must register with the Stationer’s company – government printing The Stationer’s company – government printing have the monopoly in printing and the members had “copyright” which is the right to print This actively gave “royal prerogative” and protected the royal class from any negative opinions from civilians The Act required all publications to be approved by the government before being printed The number of authorized printing shops were limited and the King’s delegate was allowed to examine any houses, shops and confiscate what they considered unlawful The right to copy was just a way to control the press but at least the writers, or the registered, who managed to publish their works were granted the exclusive right to copy

It was not until the XVII century when British parliamentary power had overtaken that of an absolutist monarchy, royalty censorship was somewhat softened As individualism was on the rise, the author's right was viewed independently, not just as a side benefit for

Karen Nipps, (2014), Cum Privilegio: Licensing of the Press Act of 1662, The library Quarterly: Information, Community, Policy

the royal anymore In 1709, the British Parliament circulated the statue of Anne - the

statute was the first copyright law in the world This time the law truly focused on protecting the rights of creators The Statute argued that copyright is a true property right, just like estate and house, and if not protected, it will lead to “…very great detriment and too often to the Ruin of them and their family…”10

According to the statue of Anne, Stationers’s company no longer had a permanent title to copy The authors still had to register their works to the Stationer’s company but they could choose their desired publisher The author’s have 14 years of monopoly ownership to their work and can be renewed for another 14 years, making the total of 28 years, the authors could transfer this exclusive right to publishers Not only protected the author’s rights, the statute had also informed about dissemination of information as right in thepreamble of the statute stated: “…the encouragement of learning…”11 Commenting on the Statute of Anne, academic Ithiel de Sola Pool said “The new concept of intellectual property embodied in copyright is derived from printing technology The printer is a funnel for checking and controlling publications In the transition from the author's pen to the reader's hand, the printer is a logical place to exercise control, whether it is censoring blasphemies, seeds of rebellion, or protecting intellectual property of the author.”12

The duration of copyright back then was 14 years and authors can register for another 14 years, making the total duration 28 years After the Statue of Anne was promulgated, many countries soon followed and released their copyright law, with the scope of protection within the territorial limits of each country13 The copyright law back then only protected the economic rights of authors It was not until 1777 did the term author’s right (droit d’auteur) get promoted in France by Pierre-Augustin Caron de Beaumarchais This term is used widely in civil law countries till this day

Deep political and social developments, particularly the growth of the bourgeoisie, the spread of education, literature, and freedom in Europe had considerably raised the demand for literary and artistic works at the beginning of the nineteenth century Publishing, as well as book sales and libraries, rose dramatically As international trade, travel, and communication expand, more and more books are sold internationally Along with the increased number of books imported and exported are the problem of worldwide piracy The situation demanded an international copyright law And thus the Berne convention was created, proving the legal basis for copyright protection and controlling the copyright protection of the signatories

2 History of Law on copyright in Vietnam

In Vietnam, for many reasons the intellectual law is quite behind compared to other countries Vietnam was constantly going through war from the first Northern feudal period up until Reunification Day 30th April 1975 The first copyright law in the world and most of its revolution started in Europe and the West, so it is often thought that the concept of copyright was imported of foreign However, newly published research of professor Tran Tuyen Nhung shows that since XVII century, the South of Vietnam had recorded the transactions that were highly related to copyright14 Essentially, researchers have discovered 62 stone epitaphs transferred Cua dinh songs rights, or certain exclusive Ca Tru wards are allowed to perform specific songs and dances at a communal house and receive money for that performance These stone epitaphs are reported to have dated from XVII to XIX century in many southern villages of Vietnam15 This finding shows that although the written law would not recognize copyright until a long time later, back then people had had some vague idea about the right to intangible works and added the right into their legal customs

After the French imposed their ruling on Vietnam during the colonization, did Vietnam have the written legal system on copyright The French enforced an ordinance establishing the judicial system for Cochinchina, in which stipulated that all French in-force law at the time of ordinance promulgation, as well as amendments and supplements issued in the future, were effective in Cochinchine This led to the application of all copyright law in France, including the two French literary and artistic property Act of 1793 and International Copyright Act 1852 The Vietnamese legal system has imported a lot of French copyright regulations during this time However, this only lasted until 1959 when the Supreme People's Court issued Directive 772 requesting an end to the application of colonial and feudal laws in the Democratic Republic of Vietnam, paving the way for the application of copyright regulations according to the Soviet legal model.16

Due to the consequences of the war, the government at this time centrally planned economic policy to rebuild the country This had made the legal provisions on protecting intellectual property rights stagnated for a long time The first regulation of the Socialist Republic of Vietnam on copyright was in Decree No 142/HDBT on November 14, 1986 of the Council of Ministers on copyright However, the regulations on copyright back then were censorship to protect the newly established government There were little to none provisions on protecting the rights of the author, as well as ensuring the economic benefits for the author

Until 1994, when the country was more solid, authors and those who are active in the field of creativity and art were given more freedom to work This has raised the need to protect the copyright of the authors Given the contemporary situation, on December 10, 1994, the Ordinance on Copyright Protection was promulgated by the National Assembly Standing Committee This Ordinance has detailed regulations on the rights and obligations of authors and owners of works Compared to the previous ordinance, this is a big step for the author's right to protection

Trần Kiên (chủ biên) (2020), Luật sở hữu trí tuệ Việt Nam dưới thời pháp thuộc, NXB Đại học Quốc gia Hà Nội

Then came the Civil Code 1995, passed by the National Assembly The civil code 1995 is the first time that the term “intellectual property” was used in a law of Vietnam Intellectual property was regulated in Chapter VI of the Civil Code 1995, made up from two components: copyright and industrial property rights Along with the Code were the government's legal documents which have been issued to detail and guide the implementation of regulations on intellectual property rights, in which there was Decree No 76-CP of November 29th, 1996 guiding the implementation of a number of provisions on copyright in the Civil Code, making the regulations applicable in daily life The regulations on copyright continued to progress under Vietnam law Although Vietnam's copyright rules have been found to be fairly comprehensive and mostly comply with the TRIPS Agreement, they are not unified and lack legal authority The reason for such assessment was the majority of the legal documents that regulate copyright are sub-law documents, leading to low legal enforcement

Acknowledged the expansion of international law on intellectual property, in 2005, Vietnam had promulgated the Civil Code and Law on Intellectual Property, marking a critical turning point in the evolution of Vietnam's intellectual property law system In the Civil Code 2005, the provisions on intellectual property rights in general and copyright in particular are principled and oriented regulations, designed to ensure legal power of intellectual property owners in other civil relations The 2005 Intellectual Property Law uniformly and comprehensively adjusted intellectual property relations In addition, the Government issued a series of decrees guiding the implementation of the Intellectual Property Law to guarantee its applicability

In 2009, the Law on Amending and Supplementing a Number of Articles of the Law on Intellectual was passed by the National Assembly The law was promulgated to meet the requirement of the new era where international integration and the emergence of technology was on the way In the following years, the government also promulgated several decrees guiding the application of copyright law to cope with the changing time

Vietnam had not only developed the set of national law but also joined the international treaties for copyright As of 2022, Vietnam had joined the following treaties:

- The Berne Convention for the Protection of Literary and Artistic Works, effective in on October 26th, 2004

- The Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, effective in Vietnam on July 6th, 2005

- The Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, effective in Vietnam on January 12th, 2006

- Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, effective in Vietnam on March 1st, 2007

- The Agreement on Trade-Related Aspects of Intellectual Property Rights, effective in Vietnam on January 11th, 2007

- World Intellectual Property Organization Copyright Treaty, effective in Vietnam on February 17th, 2022

- The World Intellectual Property Organization Performances and Phonograms Treaty

3 Sub-conclusion

Copyright is not a fundamental right, it is the right that was invented due to the rise of technology It can be said that the copyright is tied closely with the development of technology Starting as just the right to copy, nowadays, copyright has extended the scope to protect the author's moral right and economical right, at the same time, balance the benefits of society As the world become more and more progressive, the need for knowledge and entertainment also rise Acknowledge this trend, Vietnam has promulgated regulations and laws on intellectual property as the whole and copyright to be specific, as well as joining international treaties to better protect the intellectual works of authors

CHAPTER 3: INTERNATIONAL EXPERIENCES AND LESSONS LEARNT FOR VIETNAM

1 International treaties

1.1 Berne convention

The Berne convention was created on September 9th 1886 in Berne, Switzerland This is the world's first attempt to protect copyright between nations The Berne convention was Europe's way to tackle the increasing international piracy during that time

The Berne Convention protects all literary and artistic works The term "Literary and Artistic Works" in the Berne Convention is understood as all creative products in the field of literature, science and art expressed in any form, in any methods

There are three basic principles in the Berne convention:

First, the prior principle is national treatment National treatment can be considered as

one of the cornerstones of international practices Essentially, national treatment is the principle of giving others the same treatment as one’s own nationals17 Correspondingly, national treatment in the Berne convention means each member country, works originating in the other member countries enjoy the same treatment as those of nationals.18

Second, automatic protection Authors from Member countries can enjoy the

Convention's minimum rights completely automatically, without having to go through any formality whatsoever The protection is validated even when the work is not protected in the country of origin

Third, independence of protection The rights provided for under the Berne Convention

are exercised and enjoyed independently of any other rights enjoyed in the country of origin of the work

The Berne convention recognize and protect the author’s moral rights and economic rights19 Since it was first created in 1886, the Berne convention has been revised many times, the last revision was in 1979 We can not deny the impact of the Berne convention in providing a legal basis and legally binding on nations As of September 2020, there are 179 states that are parties to the Berne Convention20 However, since the convention was last revised in 1979, there has been an emergence of technology, which made some of the regulations in the Berne convention no longer fitting

First, the country of origin in the Berne convention is quite ambiguous now The

regulation was made in the time when computers were underdeveloped and the main form of publishing was physical However, because of the publishing possibilities provided by modern technology, we now live in a world of simultaneous publication, in which works that are originally published online are simultaneously published in every country in the world with Internet access The Berne Convention fails to point to a single country of origin of a work, making it hard to determine whether a work first published over the Internet is a domestic or foreign work for the purpose of applying national

Second, the object of copyright in the Berne convention is quite narrow for the digital

age Technology innovation has introduced many new concepts such as new media art, computer programs, computer databases, computer layouts, web designs,…

WIPO, Summary of the Berne Convention for the Protection of Literary and Artistic Works See more:

https://www.wipo.int/treaties/en/ip/berne/summary_berne.html#:~:text=The%20Convention%20also%20provides%20for,the%20author's%20honor%20or%20reputation

WIPO-ADMINISTERED TREATIES See more:

https://wipolex.wipo.int/en/treaties/ShowResults?start_year=ANY&end_year=ANY&search_what=C&code=ALL&treaty_id=15

Fitzgerald, B., Shi, S.X., Foong, C., Pappalardo, K (2015) Country of Origin and Internet Publication: Applying the Berne Convention in the Digital Age In: Fitzgerald, B., Gilchrist, J (eds) Copyright Perspectives Springer, Cham

1.2 TRIPS agreement

The TRIPS agreement's full name is The Agreement on commercial aspects of intellectual property rights This is a multilateral agreement in the system of agreements of the World Trade Organization (WTO) The TRIPs Agreement consists of 73 articles, stipulating minimum standards for the protection of intellectual property rights in general and the protection of copyright and related rights in particular The TRIPS agreement adopted the Berne convention and added supplements So by joining the WTO, a nation is bound by the provisions of the TRIPs Agreement, and the Berne Convention as well, even if the country is not a signatories Furthermore, disputes with regard to compliance of the Berne convention can be brought before the WTO as the WTO had a dispute settlement body and effective dispute settlement mechanism This is the first international legal document to provide remedies for members who do not meet the minimum standard

The TRIPS agreement has two principles:

National treatment Same with the Berne convention, TRIPS agreement also recognized

national treatment as its basic principle National treatment is the principle of giving others the same treatment as one’s own nationals Correspondingly, national treatment in the TRIPS agreement means each member country, works originating in the other member countries enjoy the same treatment as those of nationals

Most-Favored-Nation Treatment This is a basic assumption in The General Agreement

on Tariffs and Trade (GATT) However, the TRIPS agreement is the first international

intellectual property treaty to recognize Most-Favored-Nation Treatment as its basic principle Most-Favored-Nation Treatment means a country normally does not discriminate between foreign nations While national treatment demands that foreign nationals be treated equally to or better than domestic citizens, Most-Favored-Nation treatment is based on the premise that all foreign nationals must be treated equally

The TRIPS agreement inherits, promotes and supplements the provisions of Berne convention to prepare for the digital era In Article 10 of the agreement:

“Article 10 Computer Programs and Compilations of Data

1 Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)

2 Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.”

TRIPS agreement officially recognized computer programs and compilations of data as the object of copyright protection The article had expanded the object of copyright protection of Berne Convention, as well as put an end to the debate on whether computer programs should be protected by patent or by copyright The TRIPS agreement also recognized copyright protection for compilations of data, something that Berne convention had not provided enough legal basis for

The agreement also added another economic right – rental rights for authors To be specific, article 11 stated:

“Article 11 Rental Rights

In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or the right to prohibit the commercial rental to the public of originals or copies of their copyright works A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their