Vietnam’s Intellectual Property Law was first introduced in 2005, much later than developed countries in the world. Since its inception, the Intellectual Property Law has contributed positively to the protection of intellectual property of organizations and individuals in Vietnam. However, this legal document still has many shortcomings that need to be overcome to improve, in which copyright has certain shortcomings. After referring to the article of Master Nguyen Trong Luan (Faculty of Civil Law – Ho Chi Minh City University of Law), the lawyer would like to point out some shortcomings surrounding the concept of “work”.
The work is subject to copyright protection. Therefore, in order to determine whether the subject matter is protected by the author or not, a complete and accurate definition of a “work” is very important. Clause 7, Article 4 of the 2005 Intellectual Property Law (amended and supplemented in 2009) defines a work as follows: “A work is an innovative product in the field of literature, art and science expressed in any way. any means or form. ”
With the above definition in the Intellectual Property Law 2009, we concur with the opinion of Mr. Nguyen Trong Luan as follows:
“This definition has not yet highlighted the key, important signs for a creative product to be considered a work. First, the work is the creative product “spirit” of man. French intellectual property law [iii] uses the term “spiritual work” [iv] to emphasize works that are protected by copyright. Spiritual works can be understood as a product of intellectual and non-material creativity carried out in the fields of literature, art and human sciences. Thus, products in the fields of literature, art and science want to be considered as works, first of all it must be the mental creativity of people through the process of intellectual labor. Second, works that want to be protected by law must show the “personal mark” of the author in the work. Indeed, the work itself is a reflection of the objective world through the subjective lens of the author. Therefore, the work must be a unique creative product of the individual author, must show the author’s own “color”, created directly by his intellectual labor. The French court always takes this into consideration when evaluating whether a work is protected or not. In French law, the term “originality” (l’originalité) is often used to refer to the “author’s personal imprint” in a protected work.
Regarding the feature “expressed by any means or form” in the work definition in Clause 7, Article 4 of the 2005 Intellectual Property Law (amended and supplemented in 2009), there is a view that amended into “expressed in a certain material form” to conform to the provisions of Clause 1, Article 6; at the same time to avoid misleading that paragraph 7 of Article 4 identifies the protected work whether it is expressed in any form or form, and does not necessarily have to be in a material form and such is in conflict with clause 1 of Article 6. However, in our opinion, this interpretation is not correct. Firstly, the provisions of paragraph 7 of Article 4 are in accordance with the provisions of the works in the Berne Convention of 1886. Paragraph 1, Article 2 of this Convention defines: “Literary and artistic works include all works in the fields of literature, science and the arts, whether expressed in any form or in any form. ” Second, creative work can be expressed in two forms: physical form (such as on paper, on similar materials, on wood, on drives, on digital media) or nonmaterial form (like words). But only works which are fixed in a material form will be protected by Vietnamese law [viii]. For works expressed in non-material form (such as lectures, speeches and speeches) that want to be protected by law, they must be shaped by a certain material form. Thus, paragraph 7 of Article 4 (definition of work) and clause 1 of Article 6 (determining grounds for protected work) do not conflict.
The above arguments are made by Master Nguyen Trong Luan, a lawyer who fully agrees with the definition of the work as follows: “The work is a product of spiritual creativity, original in the field of literature, art and Science can be expressed by any means or form. ”
The above article is a personal opinion in the process of practice and legal research. Wish readers to contribute ideas.