Is computer software eligible for copyright protection in Vietnam?

Is computer software eligible for copyright protection in Vietnam?

1. Legal Basis

• Document No. 11/VBHN-VPQH dated July 8, 2022 consolidating the Law on Intellectual Property.
• Decree No. 17/2023/ND-CP of the Government dated April 26, 2023 detailing a number of articles and measures to implement the Intellectual Property Law on copyright and related rights.

2. Copyright protection of software

2.1. What is Software?

Software (also known as computer software) is a set of commands written in one or more programming languages to perform functions or solve certain tasks.

According to Clause 6, Article 1 of the Law amending and supplementing a number of articles of the Intellectual Property Law 2022, Computer program means a set of instructions expressed in the form of commands, codes, diagrams and other forms which, when incorporated in a device run by computer programming languages in a manner that is enables a computer or device to perform a job or achieve a specific result. Computer programs are protected in the same manner as literature works, whether they are source codes or machine codes.

Based on the above two concepts, it can be determined that software is considered a computer program. The software will be protected according to regulations on computer program protection.

2.2. Copyright of Software

Copyright for software arises when the software is created and expressed in a certain physical form, regardless of content, quality, form, media, language, or software are published/ unpublished, registered/ unregistered. When copyright arises in software, the author or copyright owner will have moral and economic rights in the software.

According to Clause 5, Article 1 of the Law amending and supplementing a number of articles of the Intellectual Property Law 2022, the author’s moral rights to software include:

• The right to name their works.
• The right to have their real names or pseudonyms attached to their works; the right to have their real names or pseudonyms announced when their works are published or used;
• The right to publish or permit other persons to publish their works;
• The right 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 honor and reputation of the author.

As for the copyright owner, the only moral right is to publish the software or allow others to publish the software.

The author’s economic rights to software include:

• The right to create derivative works;
• The right to publicly perform their works, whether directly or via audio and video recordings or any technological devices, at a location that is publicly accessible but the public cannot select the time and part of the works.
• The right to directly or indirectly reproduce the entire or part of the work using any means or form;
• The right to distribute, import for public distribution by sale, or transfer of other rights to ownership of the original or copies of their works in tangible forms;
• The right to lease the original or copies of computer programs, unless these computer programs are not the main subject matter of the lease.

However, copyright owners do not have the right to prohibit other organizations or individuals from performing the following acts:

• Reproducing the work only for exercising other rights prescribed by this Law; temporarily reproducing the work following a technological process during the operation of the devices in order to transmit within a network between third parties via intermediates, or legally using the work without independent economic purposes and the copy is automatically deleted and cannot be recovered;
• Subsequent distribution, import for distribution of the original or copy of a work the distribution of which has been carried out or permitted by its copyright owner.

2.3. Duration of copyright protection for software

According to Clause 8, Article 1 of the Law amending and supplementing a number of articles of the Intellectual Property Law 2009, the duration of copyright protection for software is determined as follows:

• For moral rights: protected indefinitely.
• For the right to publish software or allow others to publish software, the term of protection is the entire life of the author and fifty years following the year of the author’s death; In case the software has a co-author, the term of protection ends in the fiftieth year after the year the last co-author dies.Computer programs are protected in the same manner as literature works, the software author or software owner will have moral and property rights to the software according to intellectual property laws.

3. Reference

Website of the Ministry of Culture, Sports and Tourism: https://bvhttdl.gov.vn/thu-tuc-hanh-chinh/1018.htm