Vu Van Ngoc, PhD

Copyright

Copyright

¨ Copyright

¤The right to prevent the unauthorised reproduction by a third party of the tangible form in which a person has chosen to express his or her ideas.

¨ Statute

¤ Law on IP 2005, Civil Code 2005

¨ Substance of statute

¤Protects the physical expression of ideas (not the idea itself).

Copyright (cont.)

Subject matter (categories)

Original works Other than original worksu Literary uSoundrecordingsuMusical u Films editionsu Dramatic uPublisheduArtistic of works

Examples of copyright in original works

¨ Literary works

¤Books, tables of data, computer programs

¨Dramatic works

¤Ballet

¨ Artistic works

¤Paintings

¤ Sculptures

¤Drawings

Examples of copyright (cont.)

Copyright attaches to works of authorship� copyright subsists in � “original works of authorship” that are� “fixed in any tangible medium of expression”

� Nothing more is required� Registration of copyright is not required� Copyright notice is not required

To be original . . .

� Copyright subsists in ‘original’ works.� To be original:� it is not necessary for the work to be first of its kind� the work must originate with the author� the work must be more than a copy of some other material� author must have used some skill or experience in making the

work/product original.

Fixation

� A work is “fixed in a tangible medium of expression” when it is embodied in a material object of some kind – the pages of a book, a canvas, magnetic tape, a computer’s hard disk, a piano roll, . . .

Copyright as a negative right

� Copyright is a negative right� It does not give the owner a right to do something with or to the

work; � it gives the owner a right to exclude others from doing certain

things with or to the work

Duration of copyright

� Published work (i.e. supplied to public):

� 70 years after death of copyright owner

� Unpublished work:

� 70 years after publication for the first time

Infringement of copyright

¨Original works—by person performing any of the various acts in respect of the work without authorisation or consent of owner of copyright.

¨ Examples:

¤ Reproduction (i.e. copying) in a material form the whole or a substantial part of a literary, dramatic, musical or artistic work.

¤ Importing copies of an original work for sale, hire, exhibition or distribution.

¤ Performance of a work in public or broadcasting of a work without consent of the owner.

Change of medium is still an infringement

Recreating a photo …

Actions not amounting to infringement of copyright

� Use of insubstantial parts

� Fair dealing:

� Research or study

� Criticism or review

� Reporting of news

� Giving of professional advice by a legal practitioner or a patent attorney

Actions not amounting to infringement of copyright (cont.)

¨ Educational copying

¤ If adequate records maintained to enable compensation to owner of copyright

¨ Public readings

¨ Performances at home

¨ Copyright work available in libraries

¨ Incidental appearances of artistic work in films or television broadcasts

Fair Use

� Educators may use copyrighted materials within their own classrooms without express permission from the copyright owner.

� Copy from one, it’s plagiarism; copy from two, it’s research.

(John Burke)

Intext Citations and Works Cited Page

� If you are citing information in your paper that means you include an in-text citation and the full citation at the end of the paper.

Do not list citations in your work cited if you did not cite them in your paper

� Get Ready for University. Intext Citation Example. (20090 Edinburgh Napier University. 21 July 2009 http://www2.napier.ac.uk/getready/figures/citations_references.gif

"Sweat of the brow"� Is an intellectual property law doctrine� Chiefly related to copyright law. � According to this doctrine, an author gains rights through

simple diligence during the creation of a work, such as a database, or a directory. � Substantial creativity or "originality" is not required.

Examples� If A makes a work, in which copyright subsists, and B

subsequently adds his skill, judgement and labour, altering the form of A's work, B will potentially have a copyright in the work he produces. � This suggests that copyright is not about protecting

ideas, because one can acquire a copyright by expending skill, labour, and judgement, but no creativity or inventiveness.

Walter v Lane (1900)� Reporters took shorthand notes of a speech, punctuated

them, etc. and published them in the Times Newspaper. � The court held that the reporters were authors of the

published speech, and, as such, owned a copyright in the published speeches, because of the considerable skill, labour, and judgement they exercised.

University of London Press Ltd v University Tutorial Press Ltd (1916) 2 Ch. 601� The question arose as to whether certain mathematics exam

papers were original literary works. The exam papers just consisted of conventional maths problems in a conventional manner. � The court held that originality does not mean that the work

must be an expression of individual thought. � Even though these were the same old maths problems every

student is familiar with, and even though there was no creative input, the skill, labour, and judgement of the authors was sufficient to make the papers original literary works.

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)� Facts:� Rural Telephone Service Company, Inc. is a telephone

cooperative providing services for areas in northwest Kansas, with headquarters in the small town of Lenora, in Norton County. The company was under a statutory obligation to compile a phone directory of all their customers free of charge as a condition of their monopoly franchise.

� Feist Publications, Inc. specialized in compiling telephone directories from larger geographic areas than Rural from other areas of Kansas. They had licensed the directory of 11 other local directories, with Rural being the only hold-out in the region. Despite Rural's denial of a license to Feist, Feist copied some 4000 entries from Rural's directory. Because Rural had placed a small number of phony entries to detect copying, Feist was caught.

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)� Prior to this case, the substance of copyright in United States

law followed the sweat of the brow doctrine, which gave copyright to anyone who invested significant amount of time and energy into their work.� Decision:� The Court ruled that information contained in Rural's phone

directory was not copyrightable and that therefore no infringement existed. � Information alone without a minimum of original creativity

cannot be protected by copyright.

Remedies for infringement of copyright

� Injunction

� Damages, e.g.:

� loss sustained

� account of profits

Copyright under Vietnam’s IP Law

� Types of works which are protected by copyright� Subject matter outside the category of copyright protection� Copyright� Duration

Grounds for the generation and establishment of copyright (Art. 6 (1), Law on IP)� Copyright shall arise at the moment a work is created and

fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered.

Types of works which are protected by copyright (Art. 14, Law on IP) (1)1. Literary, artistic and scientific works which are protected

by copyright comprise:(a) Literary works, scientific works, textbooks, teaching

courses and other works expressed in written language or other characters;

(b) Lectures, addresses and other speeches;(c) Press works;(d) Musical works;(dd) Stage works;

Types of works which are protected by copyright (Art. 14, Law on IP) (2)(e) Cinematographic works and works created by a process

analogous to cinematography (hereinafter all referred to as cinematographic works);

(g) Plastic art works and applied art works; (h) Photographic works;(i) Architectural works;(k) Sketches, plans, maps and drawings related to

topography or scientific works;(l) Folklore and folk art works;(m) Computer programs and data collections.

Types of works which are protected by copyright (Art. 14, Law on IP) (3)2. Derivative works shall only be protected pursuant to the

provisions of clause 1 of this article if such protection is not prejudicial to the copyright in the works used to create such derivative works.

3. Protected works as stipulated in clauses 1 and 2 of this article must be created personally by authors through their intellectual labour and without copying the works of others.

Subject matter outside the category of copyright protection (Art. 15, Law on IP)1. News of the day as mere items of information.2.Legal instruments, administrative and other documents in the

judicial domain, and official translations of such documents.3.Processes, systems, operational methods, concepts,

principles and data.

Copyright (Art. 18 of Law on IP)� Copyright in works regulated in this Law shall comprise

moral rights and economic rights (personal right and property right)

Moral rights (Art. 19 of Law on IP)Moral rights [of authors] shall comprise the following rights:

1. To give titles to their works.2.To attach their real names or pseudonyms to their works; to have

their real names or pseudonyms acknowledged when their works are published or used.

3. To publish their works or to authorize other persons to publish their works.

4. To protect the integrity of their works; and to forbid other persons to modify, edit or distort their works in whatever form, causing harm to the honour and reputation of the author.

Economic rights (Art. 20 of Law on IP)Economic rights [of authors] shall comprise the following rights:(a) To make derivative works;(b) To display their works to the public;(c) To reproduce their works;(d) To distribute or import the original or copies of their works;(dd) To communicate their works to the public by wireless or

landline means, electronic information networks or other technical means;

(e) To lease the original or copies of cinematographic works and computer programs.

Copyright in computer programs and data collections (Art. 22 of Law on IP) (1)� Computer program means a set of instructions expressed in the

form of commands, codes, diagrams and other forms which, when incorporated in a device readable by a computer, are capable of enabling such computer to perform a job or achieve a specific result.� Computer programs shall be protected the same as literary

works, irrespective of whether the computer programs are expressed in the form of source codes or machine codes.

Copyright in computer programs and data collections (Art. 22 of Law on IP) (2)� Data collection means a set of data selected or arranged in a

creative way and expressed in electronic or other forms.� Copyright protection of data collections shall not extend to

protection of the data itself, and must not be prejudicial to copyright in the data itself.

Duration of protection� Shall be protected for the whole life of the author and for

fifty (50) years after his or her death. In the case of a work of joint authors, the term of protection shall expire in the fiftieth year after the death of the last surviving co-author; (adopted Berne Convention approach)