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January 24, 2024

Vietnam’s Public Domain – Digging the Gold Mine with Care

Managing Intellectual Property

Mickey Mouse (or, rather, a specific early version of the iconic Disney character) famously entered the public domain in the United States on January 1, 2024, almost 100 years after his 1928 debut in the short film Steamboat Willie. Mickey’s arrival highlighted the increasingly wide annual observance of “Public Domain Day”—the day when creative works enter the public domain for the first time, after the expiration of their copyright terms. This date, however, is not international, and depends on the copyright laws of each country. In Vietnam, Mickey Mouse had been in the public domain for years.

Vietnam’s public domain regime

Under Vietnam’s IP Law, the duration of copyright protection for moral rights is indefinite, except for rights to publish the works, which, together with economic rights, have a protection term of 75 years from first publication for cinematographic works, photography, applied art, and anonymous works. When these works are not published within 25 years from the date of their creation, the protection term is 100 years from the date of creation. For anonymous works, the protection term is determined when information about the author becomes available. For other types of copyrighted works (such as literary and musical works), following the Berne Convention, the protection term is for the life of the author and 50 years after the author’s death. Works for which the terms of protection have expired belong to the public. Everyone is entitled to use such works but must respect the moral rights of the authors.

According to these regulations, Steamboat Willie and two other 1928 Mickey Mouse shorts, which are regarded as cinematographic works, have been in the public domain in Vietnam since 2003. This means that, for the past 21 years, anyone could legally copy, publish or distribute those shorts in Vietnam, and could also make derivative works from them — including prequels, sequels, spinoffs, and remakes using this particular version of the Mickey Mouse character.

The public domain privilege also largely benefits other type of works in Vietnam. Vietnamese publisher Dong A, for example, has introduced the Classic Literature bookshelf (Dong A Classics) with the release of 26 famous world-classic books that have come into the public domain, such as Tom Sawyer and Treasure Island. Other publishing houses and websites releasing e-books have taken advantage of the public domain to reissue works with expired copyrights, which can be gold mines for publishers. However, these gold miners should be careful when digging such precious ore, or they could face challenges to their claim.

Risk of infringing author’s moral rights

Article 19 of the IP Law lists the moral rights of authors, in which one controversial regulation is the right to “Protect the integrity of their works, and prevent others from modifying, mutilating or distorting their works in any form prejudicial to their honor and reputation.” As this moral right is protected perpetually and is non-transferable, the action of modifying a work, even after the protection term has expired, may still constitute infringement.

However, in practice, it is often difficult to determine whether a modification is “mutilating or distorting their works in any form prejudicial to their honor and reputation.” Proving the value of the works themselves is burdensome because there are no common criteria for evaluation. The evaluation of literary and artistic works is mainly based on each person’s subjective perspective.

Complications of derivative works

In addition to the copyright owned by the author, there are also rights to derivative works, which may still be valid. Therefore, even if an original work falls into the public domain, use of its derivative works may still constitute infringement.

Confusion can be caused when the copyright to a song (i.e., sheet music) has come into the public domain, but the related rights of a recording of such song are still in force. In 2021, before an AFF Cup soccer match between Vietnam and Laos, the viewing audience was surprised (and angry) when the Vietnamese national anthem “Tien Quan Ca” was muted on a streaming channel “due to copyright reasons.” It is commonly known that the song (including both music and lyrics) was donated by the family of the late musician Van Cao to the people of Vietnam. The song is in the public domain and anyone can record it or make derivative works from it. However, the reason behind this incident laid in the fact that the recording of “Tien Quan Ca” used in the match was produced and owned by foreign record label Marco Polo, and was still protected under copyright laws.

In contrast, when derivative works are made from works that have already entered the public domain, such as folk-art paintings, their creators can face an uphill climb defending their creations from copycat infringers, as anyone is free to derive works from the same source material and the creativity of the works will be difficult to assess.

Different protection terms in different countries

Because the copyright protection term of works can be different from country to country, use of works from foreign authors/right owners must be handled with extra caution.

For example, the American writer and presenter Dale Carnegie, author of the famous self-help book How to Win Friends and Influence People (Vietnamese title Dac Nhan Tam) died in 1955. Per the Berne Convention, the copyright of the work expired in Vietnam in 2005. However, in the U.S., the provisions of the Sonny Bono Copyright Term Extension Act extend the term of copyright protection to 70 years after the author’s death. Thus, the copyright protection period for How to Win Friends and Influence People in the U.S. has not yet expired.

In 2014, there was a dispute between Dale Carnegie Vietnam (the local franchise of U.S.-based training company Dale Carnegie & Associates, Inc.) against a former employee using a similar training course for his own business. As some copyrighted works of Dale Carnegie had fallen into the public domain in Vietnam, the company intended to bring the suit to a U.S. court where the copyright term was still valid.

To sum up, although public domain regulations in Vietnam and other countries can be beneficial for society as the free use may stimulate creation of other works, there are some more complex peripheral legal issues that should be well considered.

This article first appeared in Managing Intellectual Property.

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