Thông tư liên tịch 04/2003/TTLT-BVHTT-BXD của Bộ Văn hoá-Thông tin và Bộ Xây dựng hướng dẫn về quyền tác giả đối với tác phẩm kiến trúc

JOINT CIRCULAR

GUIDING THE COPYRIGHT OVER ARCHITECTURAL WORKS

Pursuant to the Government's Decree No. 76/CP of November 29, 1996 guiding the implementation of a number of provisions on copyright in the Civil Code (hereinafter referred to as Decree No. 76/CP for short);

Pursuant to the Government's Decree No. 60/CP of June 6, 1997 guiding the implementation of the Civil Code's provisions on civil relations involving foreign elements (hereinafter referred to as Decree No. 60/CP for short);

The Culture and Information Ministry and the Construction Ministry hereby jointly guide the copyright over architectural works as follows:

I. INTERPRETATION OF TERMS:

The following terms shall be understood as follows:

1. "Architectural works" defined in Clause 8, Article 4 of Decree No. 76/CP are design drawings which express creative ideas about houses, construction works, spatial planning (construction planning), whether materialized or not.

Architectural works include design drawings of ground planes, elevation, cross-section, perspective, expressing the creative ideas about houses, works, complex of architectural works, spatial arrangement, landscape architecture of an area or

Models, clay layouts and descriptions (if any) of specific houses, construction works or spatial planning are considered inseparable parts of architectural works, but cannot substitute for design

2. "Creation of architectural works"

3. "Reproduction of architectural works" means acts of re-drawing part or the whole of architectural works.

4. "Copying of architectural works" means acts of making duplicates of architectural works or parts thereof by photographing, photocopying or similar methods.

5. "Duplicates of architectural works" are reproduced or copied versions of part or the whole of such architectural works.

6. "Owners of architectural works" are individuals or legal persons that own the copyright over such works as prescribed by law.

7. "Co-authored architectural works" are works created jointly by two or more authors.

8. "Anonymous architectural works" are architectural works without the authors' names (real names or pen names) inscribed on such works when they are published or popularized.

9. "Architectural works with unidentified authors" are architectural works whose authors are unidentified when they are published or popularized.

10. "Posthumous architectural works" are architectural works published or popularized for the first time after their authors' death.

11. "Announcement and popularization of architectural works" mean the publicization of such works via publication, description, display or advertisement on the mass media.

II. PROTECTABLE ARCHITECTURAL WORKS:

1. The following architectural works shall be protected in Vietnam:

1.1. Architectural works whose authors are Vietnamese citizens;

1.2. Architectural works under the ownership of Vietnamese citizens, legal persons or organizations;

1.3. Architectural works of foreigners and foreign legal persons, which are created and expressed in Vietnam according to the provisions at Point 1, Section I of this Circular;

1.4. Architectural works of foreigners and foreign legal persons, which are announced or popularized for the first time in Vietnam;

1.5. Architectural works of foreigners and foreign legal persons, which are protected in Vietnam under the international treaties which Vietnam has signed or acceded to.

2. Architectural works, which are protected in Vietnam according to the provisions in Article 1, Section I of this Circular, other than industrial property protection objects, and have no contents specified in Clause 1, Article 749 of the Civil Code.

III. AUTHORS OF ARCHITECTURAL WORKS:

1. Authors of architectural works:

Authors of architectural works are persons who directly create the whole or part of architectural works.

2. Co-authors of architectural works:

Persons who join in directly creating an architectural work are co-authors of such architectural work.

3. Persons who support, give comments, supply materials, conduct the designing work under guidance, manage the designing, give advice to persons directly creating architectural works are not authors or co-authors of such architectural works.

IV. OWNERS OF ARCHITECTURAL WORKS:

1. Owners-cum-authors of architectural works:

Authors of architectural works shall be concurrently their owners in cases where the authors use their time, finance and other material conditions for creating their architectural works, including the following cases:

1.1. Authors are concurrently owners of part or the whole of works they have created, except for works created under assigned tasks or under contracts;

1.2. Co-authors are co-owners of works they have jointly created, except for works created under assigned tasks or under contracts;

2. Owners of architectural works who are not concurrently their authors:

Individuals or organizations responsible for providing funds or conditions for authors, which are decisive to the creation of architectural works shall be owners of such architectural works, except otherwise agreed upon by the parties, including the following cases:

2.1. Where architectural works are created by authors under assigned tasks, the agencies or organizations which assign the tasks shall be owners of such architectural works;

2.2. Where architectural works are created by authors under contracts signed between one party being the authors or designing organizations having the legal person status where the authors work, and the other party being individuals or organizations that hire the designing and have made package payments therefore in order to own such architectural works;

2.3. Where architectural works are created in competitions with their rules determining that the ownership over such architectural works does not belong to authors;

2.4. Where architectural works are transferred by their authors or owners to other persons under contracts, donated, presented as gifts, or inherited according to the provisions of law.

V. RIGHTS OF AUTHORS, RIGHTS OF OWNERS OF ARCHITECTURAL WORKS

1. Time when author's rights arise:

The author's rights over architectural works shall arise right after the authors' creative ideas are expressed in form of design drawings, regardless of whether such works have been made public or not; registered for protection or not.

2. Rights of authors of architectural works:

According to the provisions of Articles 750, 751, 752 and 755 of the Civil Code, Articles 8 and 10 of the Government's Decree No. 76/CP and Section III of the Culture and Information Ministry's Circular No. 27/2001/TT-BVHTT of May 10, 2001 guiding the implementation of Decree No. 76/CP of January 26, 1996, the Government's Decree No. 60/CP of June 6, 1997 guiding the implementation of a number of the Civil Code's provisions on copyright (hereinafter referred to as Circular No. 27/2001/TT-BVHTT for short), rights of authors of architectural works include personal rights and property rights.

2.1. For authors-cum-owners of architectural works:

2.1.1. Authors-cum-owners of architectural works shall have the non-transferable personal rights, including:

b/ Right to have their real names or pen names inscribed on their works; or state their real names or pen names when their works are made public, popularized or used;

2.1.2. Authors-cum-owners of architectural works shall have the personal rights, which can be wholly or partially transferred to other persons under written contracts, donated, presented as gifts, or inherited according to the provisions of law, including:

a/ Right to announce, popularize or let other persons announce or popularize their works in such forms as: publication, re-publication, reproduction of works; display of works to the public; communication of works to the public by any means or in any form; distribution of works or duplicates thereof by selling, leasing or other modes; import of duplicates of their works into Vietnam from foreign countries;

2.1.3. Authors-cum-owners of architectural works shall have the property rights, which can be wholly or partially transferred to other persons under written contracts, donated, presented as gifts, or inherited according to the provisions of law, including:

2.2. For authors who are not concurrently owners of architectural works:

2.2.1. Authors who are not concurrently owners of architectural works shall have the non-transferable personal rights, including:

b/ Right to have their real names or pen names inscribed on their works; or state their real names or pen names when their works are made public, popularized or used;

2.2.2. Authors who are not concurrently owners of architectural works shall have the personal rights which can be wholly or partially transferred to other persons under written contracts, donated, presented as gifts, or inherited according to the provisions of law, including:

The enjoyment of the property rights by authors who are not concurrently owners of architectural works as defined at this Point shall be effected on the basis of contracts between authors and owners of such architectural works.

2.3. Co-authors who are co-owners of architectural works shall be entitled to enjoy the author's rights provided for at Point 2, Section V of this Circular. The use and disposal of architectural works must be agreed upon by all co-authors. If any co-author dies, the consent of his/her lawful heir is required.

In cases where an architectural work created by co-authors consists of separable parts for independent use, each author shall have the right to use their own separate part and enjoy the author's rights over such part according to the provisions at Point 2, Section V of this Circular, provided that the co-authors do not otherwise agree.

3. Rights of owners of architectural works:

According to the provisions in Articles 753 and 756 of the Civil Code, Article 9 of Decree No. 76/CP and Section III of Circular No. 27/2001/TT-BVHTT, rights of owners of architectural works, who are not concurrently authors thereof, include the following personal and property rights:

3.1. Personal rights which can be wholly or partially transferred to other persons under written contracts, donated, presented as gifts, or inherited according to the provisions of law, including:

3.1.1. Right to announce, popularize or let other persons announce or popularize their works in such forms as: publication, re-publication, reproduction of works; display of works to the public; communication of works to the public by any means or in any form; distribution of works or duplicates thereof by selling, leasing or other modes; import of duplicates of their works into Vietnam from abroad, except otherwise agreed upon by authors and owners of such works;

3.1.2. Right to permit or not permit other persons to use their works in such forms as: materialization into construction, reproduction or copying of works in any forms, except otherwise agreed upon by authors and owners of such works.

3.2. Property rights which can be wholly or partially transferred to other persons under written contracts, donated, presented as gifts, or inherited according to the provisions of law, including:

3.2.1. Right to materialize into construction, publish, re-publish, display or exhibit works;

3.2.2. Right to lease works.

The enjoyment of the property rights by owners who are not concurrently authors of architectural works as defined at this Point shall be effected on the basis of contracts between authors and owners of such architectural works.

4. Right to request the protection of rights of authors and owners of architectural works:

According to the provisions in Article 759 of the Civil Code and Article 7 of Decree No. 76/CP, when the rights of authors or owners of works are infringed upon, the work authors or owners have the right to request persons committing infringing acts or competent State agencies to compel persons committing infringing acts to stop their acts, make apologies, public corrections or compensations for damage.

The right to request the competent State agencies to effect the protection of the rights and legitimate interests of work authors and owners shall be exercised according to the current regulations on order and procedures for lodging complaints or denunciations or initiating lawsuits at administrative, civil or criminal court.

The competence to settle complaints and denunciations of work authors and owners are specified in Section VIII of this Circular.

5. Limitations of the author's rights:

5.1. Rights of authors, rights of owners of architectural works shall be protected on the basis of agreement between authors as well as owners of such architectural works and users thereof under contracts for use of architectural works prescribed in Section VI of this Circular and the provisions of the construction legislation.

5.2. Design drawings as constituents of architectural works, when being materialized into construction, must comply with the provisions of the construction legislation.

6. The duration for protection of the author's rights:

According to the provisions in Article 766 of the Civil Code and Article 14 of the Decree No. 76/CP, the duration for protection of the author's rights over architectural works is the author's whole life plus 50 years after his/her death. For co-authored architectural works, the duration of 50 years shall be calculated from the last co-author's death.

7. Transfer and inheritance of the author's rights:

7.1. According to the provisions in Article 763 of the Civil Code and Clause 1, Article 8 of Decree No. 76/CP, the personal and property rights of authors-cum-owners of architectural works as defined at Points 2.1.2 (a), 2.1.2. (b), 2.1.3 (a) thru 2.1.3. (d) of this Section; the property rights of authors who are not concurrently owners of architectural works defined at Points 2.2.2 (a) thru 2.2.2 (c) of this Section; the personal and property rights of owners of architectural works defined at Point 3 of this Section can be wholly or partially transferred to other persons under written contracts, donated, presented as gifts, or inherited according to the provisions of law.

7.2. According to the provisions in Articles 764 and 765 of the Civil Code and Article 13 of Decree No. 76/CP, heirs of authors-cum-owners of architectural works shall be entitled to enjoy the personal rights defined at Points 2.1.2 (a) and 2.1.2. defined at Points 2.1.3 (a) thru 2.1.3. (d)

In cases where there is no heir, heirs disclaim the inheritance or heirs are not entitled to inheritance, such rights shall belong to the State.

In cases where heirs of work authors or owners die before the expiry of the protection duration, the former's heirs shall enjoy the rights of work authors or owners defined at this Point till the expiry of the protection duration. Persons inheriting the rights of work authors or owners can partially or wholly transfer such rights to other persons.

For co-authored architectural works where co-authors are composite co-owners of such architectural works, when a co-author dies without any heir or his/her heir renounces the inheritance or is not entitled to the inheritance, the property rights of such co-author shall belong to the State.

VI. USE OF ARCHITECTURAL WORKS

The use of architectural works must be effected by mode of contracts for use of architectural works between one party being their authors or designing organizations with the legal person status where the authors work, and the other party being individuals or organizations that use such architectural works.

According to the provisions in Articles 767 thru 772 of the Civil Code, Articles 15 thru 18 of Decree No. 76/CP, the contents of the contracts for use of architectural works include clauses principally on the forms of work use; scope and duration of work use; royalties, remunerations and other material benefits; payment modes; liabilities of each party for breaching contracts; and other contents agreed upon by the parties in compliance with the current law provisions on contracts.

The signing of contracts for use of co-authored architectural works must be agreed upon by the co-authors, or by persons who are transferred the co-authors' rights over the works, and the work users regarding the contents prescribed at this Point. Co-authors or transferees of co-authors' rights and work users shall both have to sign their names on the contracts.

VII. REGISTRATION OF AUTHOR'S RIGHT AND OWNERSHIP RIGHT OVER ARCHITECTURAL WORKS

1. Registration:

According to the provisions at Point a, Clause 1, Article 762 of the Civil Code, the provisions in Chapter V of Decree No. 76/CP and Section V of Circular No. 27/2001/TT-BVHTT, individuals and/or organizations being authors or co-authors of architectural works can directly register, or authorize copyright service-providing individuals or organization, or organizations collectively managing the copyright to register the copyright thereof at the Copyright Department of the Ministry of Culture and Information or the Culture and Information Services of the provinces or centrally-run cities where authors or owners of works reside.

2. A copyright registration dossier includes:

2.1. An application for registration of author's right or ownership right;

The application for registration of author's right or ownership right must be written in Vietnamese and signed by the work author or owner or the person authorized to submit the application. Applications of legal persons must be signed and sealed according to the regulations;

2.2. Architectural works to be registered for copyright shall be made in two copies, which fully and clearly express the creative ideas of the architectural works in design drawings, and two sets of black and white photos of clay layouts and models (if any);

2.3. Lawful copies of relevant documents and papers. Those documents and papers, if in foreign languages, must be enclosed with their lawfully notarized Vietnamese translations.

3. Responsibility to grant copyright registrations:

3.1. The Culture and Information Ministry's Copyright Department shall have to examine the dossiers of application for copyright registration and return results thereof at the places where such dossiers are received first within 10 working days, counting from the date of receipt of complete and valid dossiers as prescribed at this Point. In case of refusal to grant copyright registration, the Culture and Information Ministry's Copyright Department shall have to reply in writing, clearly stating the reasons therefore;

3.2. The Culture and Information Services of the provinces and centrally-run cities shall have to guide registration applicants to carry out the procedures for registration, receive and transfer dossiers of application for copyright registration to the Copyright Department right after accepting valid dossiers as prescribed at this Point; collect copyright registration fee as prescribed by the competent State agencies and expenses incurred due to dossier transfer; and notify results to the dossier applicants right after receiving them from the Culture and Information Ministry's Copyright Department.

4. Individuals and organizations that are granted copyright registration shall have to pay the fee therefore as prescribed by the State.

5. The director of the Culture and Information Ministry's Copyright Department can grant and withdraw copyright certificates in cases where he/she identifies that copyright registration grantees are neither authors nor owners of registered works and where works are not protectable objects according to the provisions of the copyright legislation.

6. Assorted certificates of copyright of architectural works granted by Vietnam Copyright Protection Firm, Vietnam Copyright Protection Agency or the Copyright Department of the Ministry of Culture and Information before the effective date of the Civil Code shall continue to be valid. Authors and owners of architectural works shall enjoy the rights provided for by the Civil Code.

Authors and owners of architectural works who wish to apply for re-granting or renewal of certificates of copyright certificates shall have to submit applications clearly stating the reasons therefore and file dossiers according to the provisions in Section VII - 2 of this Circular.

VIII. INSPECTION, EXAMINATION AND HANDLING OF DISPUTES AND VIOLATIONS:

1. According to the provisions in Articles 33 and 36 of Decree No. 76/CP:

Authors and/or owners of architectural works, when having their rights infringed upon by other persons, shall have the right to request the infringers to stop their infringing acts, make apologies or public corrections, and pay damage compensations; request or lodge complaints to the Culture and Information State Inspectorates (the Inspectorate of the Culture and Information Ministry or inspectorates of the provincial/municipal Culture and Information Services) or the People's Courts to consider and handle such infringements according to their competence.

Individuals and organizations, upon detecting acts of infringing upon the rights of authors or owners of architectural works, shall have the right to lodge complaints or denunciations to the Culture and Information Ministry (the Copyright Department), the provincial-municipal Culture and Information Services or other State agencies competent to handle them according to their respective competence.

The Culture and Information Ministry's Copyright Department, the provincial-municipal Culture and Information Services shall coordinate with the Construction Ministry's Department for Architecture and Planning Management, the specialized Construction Inspectorate, the provincial/municipal Construction Services or the provincial/municipal Planning and Architecture Services in handling complaints and denunciations according to their competence.

2. The Culture and Information Ministry's Copyright Department shall exercise the State management over the copyright protection throughout the country, having the following responsibilities:

2.1. To guide and inspect the observance of the provisions of the copyright legislation throughout the country;

2.2. To reply to complaints and denunciations related to the copyright protection or forward them to the Inspectorate of the Culture and Information Ministry, the inspectorates of the provincial/municipal Culture and Information Services or the competent State agencies for handling according to the provisions of law;

2.3. To coordinate with the provincial/municipal Culture and Information Services, the Inspectorate of the Culture and Information Ministry and the concerned agencies for timely handling of acts of violating the provisions of the copyright legislation.

3. The provincial/municipal Culture and Information Services or the provincial/municipal Culture, Information and Sport Services shall assist the People's Committees of the provinces or centrally-run cities in exercising the State management over the copyright protection in their respective localities, having the following responsibilities:

3.1. To guide and inspect the observance of the provisions of the copyright legislation in their respective localities;

3.2. To reply to complaints and denunciations related to the copyright protection or request the competent State agencies to handle them according to the provisions of law;

3.3. To coordinate with the Culture and Information Ministry's Copyright Department and Inspectorate, the specialized Construction Inspectorate, the provincial/municipal Construction Services or the provincial/municipal Planning and Architecture Services and the concerned agencies in promptly handling acts of violating the provisions of the copyright legislation.

4. The Inspectorate of the Culture and Information Ministry and the inspectorates of the provincial/municipal Culture and Information Services shall perform the function of specialized culture and information inspection according to the provisions in Article 34 of Decree No. 76/CP.

IX. ORGANIZATION OF IMPLEMENTATION

1. The Culture and Information Ministry's Copyright Department and the Construction Ministry's Architecture and Planning Management Department shall have to guide the protection of copyright over architectural works according to the provisions of this Circular.

2. This Circular takes effect 15 days after its signing.

Any problems arising in the course of implementation of this Circular or unclear contents should be promptly reported by the concerned individuals and organizations to the Culture and Information Ministry and the Construction Ministry for additional guidance.