In Vietnam, intellectual property IP protection activities for‘broadcasting programs are intertwined with the concept of "state protection"This system, enshrined in Vietnamese law, utili
GENERAL THEORETICAL FRAMEWORK ON RELATED RIGHTS OF BROADCAST PROGRAMS
11 Overview of "Broadcasting", Broadcast Programs, and Broadcasting Organizations
The tem “broadcasting’ originally derived from agricultural and industrial contexts, signifying the action of sowing seeds over a wide area, particularly by hand American engineers later found this term fitting to describe the concept of transmitting signals wirelessly to the public Much like how a farmer "broadcasts" seeds across a large field, broadcasting stations employ transmitters, signal generators, or modulated amplifiers to transmit wirelessly to an openarea.
In legal terminology, depending on the legal context, "broadcasting" carries different definitions The definition of "broadcasting was first established in the Beme Convention of 1971 and the Rome Convention of 1961 Article 2bis(2), Article 3(3), and Article 11bis(1)G) of the Beme Convention refer to broadcasting as the transmission to the public of works by wireless means Regarding the Rome Convention, Article 3(f) defines "broadcasting" as the transmission by wireless means of sounds or images and sounds intended for the public reception Therefore, it can be understood that any form of wired transmission does not fall within the scope of "broadcasting" under these two definitions.
It can be observed that the original definitions of “broadcasting” were appropriate to the concept and level of development in the broadcasting and telecommunications industries, specifically at the time of the invention of radio broadcasting and wireless technology.
According to Article 2(f) of the WIPO Performances and Phonograms Treaty (1996), roadcasting" is defined as follows "The transmission by
4 wireless means of sounds, or of sounds and images, or of the representations thereof for reception by the public; transmission of such signals by satellite is also ‘broadcasting’, ‘broadcasting’ by wire includes the retransmission of the signals, but only where the transmission of the sounds or images is made for the purpose of public reception and not for further transmission to the public "
Based on intemational legal principles and inheritance, the concept of
“broadcasting” under Vietnamese intellectual property law is defined as follows
“Broadcasting is the transmission of sounds or images, or both sounds and images of works, performances, phonograms, video recordings, broadcast programs to the public through wireless or wired means, including transmission via satellite for reception by the public at their chosen locations and times."
(Asticle 4(11) of the Intellectual Property Law 2005)
After referencing all the aforementioned sources, in this paper, I will define “broadcasting” as follows: broadcasting is the wireless transmission of signals carrying programs generated electronically and received by the public through one or more broadcasting organizations on any medium or platform and through any means of transmission.
LL2 Overview of Broadcast Programs
Currently, there is no specific legal definition of broadcast programs in Vietnamese law Therefore, I will refer to several concepts and characteristics of broadcast programs through international documents.
In the Broadcasting Act of Canada in 1991 (Article 2(1)), a broadcast program is understood to be programs transmitted by radio waves or other means of telecommunication for reception by the public through broadcasting receiving apparatus but does not include any such transmission of programs made solely for performance or display in a public place; (radiodiffuston),
From another perspective, the Ukraine's Law on Television and Radio Broadcasting stipulates broadcast programs as a collection of programs, creative
15 works with dominant and consistent ideas, specifically named, and broadcasted bby broadcasting organizations on one or more specified broadcasting networks
In the 1988 Copyright, Designs and Patent Act - Article 6, a broadcast program is defined as a program electronically transmitting images or sounds or other information, which is transmitted for simultaneous lawful reception by the public or transmitted at a time unilaterally determined by the transmitter to address the public
Another reputable reference is the definition of television programming in Section 101 - Copyright Law of the United States, where a broadcast program is understood as an integrated block of information created solely for the purpose of transmission to the public in successive or segmented sequences, or the presentation of a performance or program using any device or process through which images or sounds are received outside the place from which they are broadcast Thus, it can be seen that there are several characteristics of broadcast programs as follows
Firstly, it can be asserted that broadcast programs currently encompass two main product Lines: television programs and radio programs Wherein, radio programs are transmissions consisting soley of audio without images Conversely, television programs transmit both elements through their product audio and images Therefore, it can be observed that the products exasting in the reality of broadcast programs are highly diverse, bearing various characteristics and natures,
Secondly, broadcasting programs hold a unique position in the legal landscape due to their inherent characteristics Unlike two-way communication, broadcasts transmit content from a single source to a vast, dispersed audience This one-way nature raises questions about potential liability for content and the limitations of audience response
Thirdly, the planned and scheduled nature of broadcasts, with pre- production and designated airtimes, contrasts with spontaneous communication.
This planning might influence censorship regulations or legal considerations for content deemed harmful Additionally, the ephemeral quality of traditional broadcasts (disappearing after airing) presents challenges for copyright infringement claims or defamation based on program content
Furthermore, the broad reach of broadcasts targeting diverse audiences presents legal challenges Catering content to a varied demographic raises concems about discrimination or unsuitable content for certain groups The traditionally passive nature of broadcast consumption, compared to interactive media, requires different legal considerations for areas like advertising regulations or content liability.
Importantly, the evolving media landscape presents both challenges and opportunities Convergence with the intemet blurs the lines between traditional broadcasts and other media, raising questions about copyright protection across platforms and content regulation Fragmentation of traditional audiences due to increased media choices requires legal scrutiny of niche programming and targeted advertising to prevent discrimination and ensure e access to public service announcements
Finally, the growing trend of interactive elements in broadcasting necessitates legal analysis Audience interaction through social media or voting platforms introduces potential defamation risks and necessitates clear guidelines for user-generated content Understanding these characteristics of broadcasting programs provides a valuable framework for navigating legal issues in various areas, such as intellectual property law and consumer protection regulations
LL3 Overview of Broadcasting Organizations
INTERNATIONAL LAWS AND VIETNAMESE LAW ON THE PROTECTION OF RELATED RIGHTS FOR
2 Regulations on the Protection of Related Rights for Broadcasting Programs in Some International Legal Documents
This part delves deeper into the regulations protecting related rights for
‘broadcasting programs in several countries, highlighting key points with more details and nuances:
‘Main Policies/Important Policies: This focuses on the core legal framework goveming related rights for broadcasters, including relevant intemational treaties
Related Rights for Broadcasting Entities This examines the specific rights granted to national television stations,
‘broadcasting organizations, and television service providers, along with any limitations or exceptions.
Protection Conditions: This explores the criteria a broadcasting program must meet to qualify for related rights protection, including considerations of originality, investment, and program format.
Intellectual Property Rights Granted: This identifies the main intellectual property rights a broadcasting organization can obtain, including both related rights and copyright.
Main Policies/important Policies: South Korea's Broadcasting Act(2000) and the Korean Copyright Act (1962) form the foundation for related rights protection for broadcasters Additionally, South Korea is a signatory to several relevant intemational treaties, incuding
‘The Rome Convention (1961): Protects the rights of performers, producers of phonograms, and broadcasting organizations.
‘The Beme Convention for the Protection of Literary and Artistic Works (1886): While not directly addressing related rights, it establishes the foundation for copyright protection, which can be relevant for certain program elements
The WPPT (Wodd Intellectual Property Organization Performances and Phonograms Treaty) (1996): Further strengthens the protection of performers and producers of phonograms
Related Rights for Broadcasting Entities: Korean broadcasters hold related rights that allow them to:
Authorize or prohibit the retransmission of their programs by third parties: This includes both terrestrial and satellite retransmissions However, limitations exist for public interest purposes, such as educational or news reporting uses.
Control the reproduction and distribution of their programs: This allows broadcasters to control copying and distribution of their programs in physical formats (¢g, DVDs) and digital formats (&g, online downloads) However, exceptions might exist for private copying for personal use
Publicly perform their programs (eg, broadcast them):
Broadcasters have the exclusive right to transmit their programs to the public.
Be attributed as the rightful owner of their programsBroadcasters deserve recognition for the programs they create and broadcast.
Conditions for Protection: Programs must be created by: “A Korean
‘broadcasting service provider A foreign entity from a country with a reciprocal agreement with South Korea, ensuring similar protection for Korean broadcasters in that country.”
Additionally, the program should exhibit a certain level of originality and investment Originality can encompass the selection, arrangement, and presentation of content within the program The level of investment can consider factors like production costs, technical expertise, and creative effort
Main Intellectual Property Rights Granted: Korean broadcasters can obtain:
Neighboring Rights: These encompass the rights mentioned above for authorizing retransmission, controlling reproduction, and public performance.
Copyright: Broadcasters might hold copyright over specific diements within their programs, such as scripts, musical compositions, or original graphics This copyright protection exists independently of related rights and offers additional safeguards for those creative elements.
Main Policies/Important Policies: The EU framework for related rights for broadcasters is multifaceted, involving several directives and intemational agreements Key regulations include
@) European Agreement on the Protection of Television Broadcasts
(ESC) (1993): Guarantees the protection of transmitted signals against unauthorized retransmission for a period of 20 years from the initial broadcast This agreement focuses on the signal itself, not the program content nu
(2) _ European Satellite Convention (EAT) (1994): Extends protection to satellite transmissions of television programs, similar to the ESC but specifically for satellite broadcasts
(3) InfoSoc Directive Directive 2006/115/EC): Harmonizes certain aspects of copyright and related rights across the EU, induding rights for broadcasters It recognizes the “making of a fixation" right, which allows broadcasters to control the fixation of their broadcasts (eg, recording them).
(4) Satellite and Cable Directive (Directive 2001/29/EC): Addresses issues related to satellite broadcasting and cable retransmission, recognizing broadcasters’ rights and requiring cable operators to obtain authorization for retransmitting protected signals,
Related Rights for Broadcasting Entities: EU broadcasters enjoy related rights similar to those in South Korea, including control over retransmission, reproduction, and public performance of their programs
Main Policies/Important Policies: Japan's Copyright Act (1970) incorporates provisions for related rights protection for broadcasting organizations alongside traditional copyright protections Japan is also a
‘member of the World Intellectual Property Organization (WIPO) and adheres to intemaional treaties like the Beme Convention for the Protection of Literary and Artistic Works, which strengthens the intemational frameworks for related rights
Related Rights for Broadcasting Entities: Japanese broadcasters hold a set of related rights that grant them control over various aspects of their programs:
Retransmission Right: Broadcasters can authorize or prohibit the retransmission of their programs by third parties This includes both terrestrial and satellite retransmissions However, limitations exist for fair use purposes, such as news reporting or incidental inclusion within another program.
Reproduction Right: Broadcasters can control the reproduction of their programs in various formats This encompasses physical copies (eg, DVDs) and digital recordings (eg, downloaded files) Exceptions might include private copying for personal use, similar to other countries.
Public Performance Right: Broadcasters have the exclusive right to publicly perform their programs, which essentially translates to the right to broadcast them.
Making of a Fixation Right: This right allows broadcasters to control the fixation of their broadcasts (e.g recording them) This becomes relevant when broadcasters authorize third parties to record or distribute their programs
Conditions for Protection: Japan's legal framework doesn't explicitly define a specific originality threshold for related rights protection However, courts generally consider the program's format, content selection, and investment in production, Programs with a demonstrable level of creativity or significant effort in creation are more likely to receive strong protection.
Main Intellectual Property Rights Granted: Japanese broadcasters benefit froma combination of rights
@ Related Rights: These provide the core protections mentioned above for retransmission, reproduction, public performance, and fixation
@® Copyright Broadcasters might hold copyright over specific creative elements within their programs, such as scripts, musical compositions, or original graphics This copyright protection exists independently of related rights and offers additional safeguards for those creative elements.
2.14, United States of America (USA)
Main Policies/Important Policies: The USA Copyright Act (1976) offers a unique approach to related rights for broadcasting programs Unlike some countries with dedicated neighboring rights provisions, the USA relies on an extended definition of copyright to protect broadcasters This approach has been subject to debate, with some arguing for a dedicated neighboring rights system for broadcasters.
Related Rights through Copyright: American broadcasters benefit from certain copyright protections that function similarly to neighboring rights
PRACTICES AND SOLUTIONS TO ENHANCE THE EFFECTIVENESS OF PROTECTING RELATED RIGHTS OF
3.1 Practices in Protecting Related Rights of Broadcasting Programs in Vietnam.
3.11 Achievements in Protecting Related Rights of Broadcasting Programs
The Vietnamese legal framework for protecting related rights in
‘broadcasting programs has witnessed significant progress in recent years Several real-world achievements exemplify the positive impact of Vietnamese policies
VCPMC vs FPT Television - Ensuring Fair Compensation for
‘Music Royalties m , the VCPMC successfully pursued a legal case against FPT Television, a major Vietnamese broadcaster The lawsuit centered around unpaid royalties for copyrighted music used within FPT Television's programs The court ruled in favor of VCPMC, setting a precedent for fair compensation for music used in broadcasts This landmark case not only secured royalties for the affected artists but also sent a strong message to
‘broadcasters regarding their obligations to obtain proper licenses for copyrighted music (Source: Vietnam News Agency [VNA], "VCPMC Wins Lawsuit Against FPT Television Over Music Royalties")
Collective Licensing Agreements: Streamlining Processes and Boosting Revenue
‘The Vietnamese government actively encourages the use of collective licensing agreements These agreements, facilitated by CMOs like VCPMC and DALO, allow broadcasters to obtain a single license covering the rights
5 of multiple performers, producers, and rights holders for a specific program This streamlined approach simplifies the licensing process for broadcasters and reduces administrative burdens A 2023 report by VCPMC highlights the increasing adoption of collective licensing agreements by Vietnamese broadcasters, resulting in a significant rise in royalty collections for rights holders (Source: Vietnam Association of Music Recording Rights
Government Initiatives: Fostering Public Awareness and Collaboration
The Vietnamese govemment, through the NOIP, has undertaken various initiatives to raise public awareness about intellectual property rights.
‘These initiatives include educational campaigns, workshops targeted at rights holders and broadcasters, and public service announcements Additionally, the NOIP actively collaborates with intemational organizations like WIPO to share best practices and develop robust enforcement mechanisms This multi- pronged approach has contributed to a growing understanding and respect for intellectual property rights within the Vietnamese public, fostering a more supportive environment for creators and rights holders (Source: National Office of Intellectual Property of Vietnam [NOIP], “Public Awareness Activities on Intellectual Property Rights")
These real-world examples demonstrate the effectiveness of
‘Vietnamese policies in protecting related rights in broadcasting programs The successful enforcement of music royalties, the adoption of streamlined licensing practices, and govemment initiatives promoting public awareness all contribute to a more secure and rewarding ecosystem for creators and rights holders within the Vietnamese broadcasting industry,
3.12, Remaining Limitations in Protecting Related Rights of Broadcasting Programs
Despite the aforementioned advancements, significant challenges persist in effectively protecting related rights within Vietnam's broadcasting industry.
Online Piracy: The ubiquitous nature of the internet has facilitated the rise of online piracy, posing a significant threat to Vietnamese broadcasting programs [legal streaming websites and platforms readily offer unauthorized access to copyrighted content, causing substantial revenue losses for rights holders A recent article in Business Insider highlights the ongoing struggle
‘Vietnam faces in addressing online piracy, emphasizing the negative impact it has on the creative industries (Source: Business Insider, "Vietnam Faces Challenges in Addressing Online Piracy")
Limited Resources for Enforcement: While legal provisions exist to deter copyright infringement, enforcing intellectual property rights, particularly in the digital realm, requires significant resources Vietnamese enforcement agencies might face limitations in manpower and technical expertise to effectively combat large-scale online piracy operations The U.S Chamber of Commerce, in a report on intellectual property enforcement challenges in Vietnam, underscores the resource constraints faced by enforcement agencies, highlighting the need for continued investment in this area (Source: US Chamber of Commerce, "Intellectual Property Rights Enforcement Challenges in Vietnam")
Complexities in Identifying Rights Holders: Broadcast programs are often a collaborative effort, involving contributions from a diverse range of performers, producers, and rights holders Identifying and managing the intricate web of rights ownership can be a significant challenge This
7 complexity can create hurdles for licensing and hinder enforcement actions against infringement A recent article in the Viemam Law & Legal Development Joumal delves deeper into these complexities, highlighting the challenges associated with identifying rights holders in a collaborative environment like broadcasting (Source: Vietnam Law & Legal Development Joumal, "Challenges in Protecting Related Rights of Broadcasting Programs in Vietnam")
3⁄2 Solutions to Enhance the Effectiveness of Protecting Related Rights of Broadcasting Program.
Building on the identified achievements and limitations in Vietnam's current approach, this section explores potential solutions informed by successful strategies in developed countries, along with considerations for implementation within the Vietnamese context Here, I will delve into various strategies that could enhance the effectiveness of safeguarding the rights of performers, producers, and broadcasters
321 Strengthening the Legal Framework and Enforcement Mechanisms
A critical first step towards enhancing the effectiveness of protecting related rights in Vietnam's broadcasting industry involves strengthening the legal framework and enforcement mechanisms Aligning Vietnam's Intellectual Property Law with intemational treaties like the WPPT and the Rome Convention demonstrates Vietnam's commitment to protecting these rights ona global stage This fosters intemational cooperation in enforcement efforts, strengthens Vietnam's position in attracting foreign investment in the
‘broadcasting industry, and positions the country as a responsible player in the global creative economy.
To achieve this alignment, a comprehensive review of the current Intellectual Property Law is necessary This process should involve collaboration with international organizations like WIPO and consultations with legal experts specializing in intellectual property rights The review should identify areas where provisions can be revised to align with intemational standards, focusing on clear definitions of protected works (e.g, types of broadcasts, performances) and standardized procedures for rights
Another crucial step involves addressing ambiguities within the legal framework Ambiguous provisions can create loopholes that hinder effective enforcement By clarifying these ambiguities, Vietnam can streamline the process for rights holders and enforcement agencies The National Assembly of Vietnam, in collaboration with NOIP and legal scholars, can initiate a legislative review process to identify and clarify these ambiguities Public consultations with stalceholders like broadcasters, performers’ associations, and rights management organizations can be conducted to ensure the revised law addresses practical concems and fosters a more robust legal environment.
Furthermore, increased investment in NOIP is essential This investment equips them with the resources (manpower, technology) to effectively combat online piracy and other forms of infringement Increased
‘budgetary resources from the Vietnamese govemment can allow for recruitment of additional personnel trained in intellectual property law and enforcement techniques Additionally, investments in advanced technological tools for online content monitoring and infringement detection can significantly enhance enforcement capabilities.
A strong legal framework is only as effective as its enforcement Improved cross-border collaboration between Viemamese enforcement agencies and their intemational counterparts (eg, US Copyright Office,
EUIPO) is crucial in today's interconnected digital world Establishing formal Memoranda of Understanding (MOUs) with these agencies can facilitate efficient information sharing, joint investigations, and mutual legal assistance in copyright infringement cases that transcend national borders Additionally, Vietnam can actively participate in intemational forums and initiatives focused on combating online piracy, demonstrating its commitment to protecting intellectual property rights and fostering a global environment that rewards creativity and innovation,
Finally, increased judicial training plays a vital role Judges with specialized knowledge of intellectual property law, particularly related rights, are better equipped to deliver informed and consistent rulings in infringement cases The Vietnamese judicial system can establish specialized training programs for judges on intellectual property law in collaboration with intemational intellectual property law experts These programs can focus on the intricacies of related rights and recent case law, strengthening the legal framework and providing greater predictability for rights holders seeking legal recourse
3.2.2, Technological Solutions and Industry Cooperation
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‘TRUONG ĐẠI HỌC LUẬT HÀ NỘI Độc lập - Tự do - Hạnh phúc
PHIEU ĐÁNH GIÁ KHÓA LUẬN TOT NGHIỆP
(Dành cho giảng viên hướng dẫn)
Hi và tn người nhận xé: Phạm Minh Huyền
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“Thuộc chuyên ngành: Luật Sở hữu trí tuệ
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PHIÊU ĐÁNH GIÁ KHÓA LUẬN TOT NGHIỆP
(Dành cho thành viên hội đẳng)
Ho và tên người nhận xét: Nguyễn Phan Diệu Linh
“Chức danh trong hội đồng: Thư ký
Bon vị công tác: Khoa Pháp luật Dân sự - Trường Đại học Luật Hà Nội
Ho tên sinh viên: Vũ Đảo Hoàng Linh Lớp: 4526
“Tên đề ti khóa luận: Protecting related rights for broadcast program - Actual situation and recommendation (Bảo hộ quyền liên quan đối với chương trình phát sóng ~ Thực trạng và giải pháp)
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PHIÊU ĐÁNH GIÁ KHÓA LUẬN TỐT NGHIỆP
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PHIẾU DANH GIÁ KHÓA LUẬN TOT NGHIỆP
Sự cần thiết của việc nghiên cứu đề tải khóa luận
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