EVFTA, WHAT BENEFITS DO AUTHORS AND MUSICIANS GET?

It can be said that the regulations related to copyright stipulated in Vietnam’s Intellectual Property law also meet many international standards and can ensure copyright rights. However, when the EVFTA Agreement comes into effect, authors and performers will enjoy more benefits in the field of intellectual property.

1. Guaranteed similar benefits from the Most Favored Nation treatment commitment

EVFTA’s first commitment to intellectual property protection in general and Copyright and Related Rights in particular is the commitment to the Most Favored Nation Treatment. Accordingly, Article 12.3 of the Agreement affirms:

In relation to the protection of intellectual property, any advantage, preference, privilege or immunity granted by a Party to nationals of any third country shall be accorded immediately and unconditional to nationals of the other Party, with the exceptions provided for in Articles 4 and 5 of the TRIPS Agreement.

This commitment is also contained in WTO Agreements, including the TRIPs Agreement on trade aspects related to intellectual property rights between WTO member countries.

This provides opportunities for writers, artists and copyright law consultants to research, explore and apply “case studies” in different countries to consider and apply to own situation in Vietnam. Because in a “flat world” like today, the music market in particular and cultural and artistic activities in general are increasingly developing on the internet environment, it seems that exchanges no longer have borders. Therefore, copyright disputes between Vietnamese artists and writers and entities in other countries, as well as between artists around the world and entities in Vietnam, are inevitable. Therefore, the Parties granting each other the status of most favored nation treatment is a fair and reciprocal thing according to international standards.

2. Having exclusive rights to the work  

According to EVFTA, the regulations on Exclusive Rights are as follows:

Each Party shall grant authors the exclusive right to allow or prohibit:

(a) Direct or indirect copying by any means or form of part or all of the work;

(b) any form of distribution to the public through sale or other transfer of ownership of the original or copies of its work; and

(c) any communication of a work to the public by wire or wireless means, including the dissemination to the public of one’s work in such a manner that the public can choose for themselves where and when to access the work Products.”

Regarding this issue, Vietnamese law also has corresponding provisions in Article 20, Article 28.6 of the Intellectual Property Law and Article 3.1 of Decree 22/2018/ND-CP, according to which Vietnamese Law defines a copy of a work is a direct or indirect copy of part or all of the work by any means or form. Copying a work without the permission of the author or copyright owner is an act of copyright infringement.

Similarly, regarding the exclusive rights of performers, Vietnam’s current Intellectual Property   Law also meets the provisions of the basic EVFTA including rights such as:

– Shaping the performance;

– Directly or indirectly copy your performance;

– Broadcast or otherwise transmit to the public your performance;

– Distribute your performances to the public through sale, rental or transfer of ownership.

3. Entitled to remuneration

EVFTA provides that performers and producers of phonograms have the right to reasonable remuneration paid by users when the phonogram has been published for commercial purposes or a copy of the phonogram used for broadcasting by wireless means or for communicating to the public. Each Party shall ensure that such remuneration is apportioned between the performers and the producers of phonograms concerned. Each Party may stipulate the conditions for the division of this remuneration in the absence of an agreement between the performer and the producers of the phonogram.

Article 33 of Vietnam’s Intellectual Property Law stipulates the right to remuneration of performers and producers of audio and video recordings in cases where organizations and individuals use published audio or video recordings for the commercial purposes and in business and commercial activities. This remuneration shall be paid according to agreement; in case no agreement can be reached, it shall be according to Government regulations or filing a lawsuit in Court.

Thus, Vietnam’s current Intellectual Property Law does not have regulations on the conditions for dividing this remuneration in case there is no agreement between the performer and the recorder. Although the EVFTA is not required to regulate, it only “can” stipulate the conditions for receiving remuneration. But I think that making the law clear helps the parties have a standard to follow. Vietnam needs to add conditions to divide remunerations between producers and performers.

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4. Have the right to resell works of art for profit  

EVFTA provides that for the benefit of the author of the original work of art, each Party may provide for the right to resell, defined as an inalienable right, to receive a royalty based on the sale price for any any resale of the work after the author’s first delivery of the work. This is a regulation that ensures authors receive additional benefits from their works and has been regulated by many countries around the world.

Vietnam’s Intellectual Property Law does not regulate the author’s resale rights to works of art. Related rights in Vietnam are established on the basis of an Assignment Contract or Use Rights Transfer Contract. Accordingly, the parties themselves agree in the Contract on royalties. Whether the author receives additional remuneration when the purchaser of the work transfers the work to a third party, although the Intellectual Property Law has not yet adjusted, is based on civil issues if not contrary to law and ethics society, the parties still have the right to reach their own agreement in the Contract.

But the provision of artists’ resale rights for works of art stipulated in the EVFTA has guaranteed the rights of authors as well as encouraged the spirit of creativity in society, bringing many benefits to authors.