In the context of globalization and the rapid development of information technology, software copyright protection is not only a legal issue but also a key factor affecting the sustainable development and competitiveness of businesses in the technology industry. For Vietnam, a country that is deeply integrating into the global economy, establishing and strengthening the legal framework on software copyright is essential to create a healthy business environment and promote innovation.

This article will provide an overview of the “General Legal Framework for Software Copyright in Vietnam” through the international commitments that Vietnam has joined, such as WTO, CPTPP, and EVFTA, and their impact on domestic businesses.

1. International Treaties to which Vietnam is a member

Vietnam, an official member of the World Trade Organization (WTO) since 2007, has committed to complying with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The TRIPS Agreement requires all member countries to provide a certain level of protection for intellectual property rights, including software copyright. These protection standards ensure that creative works, including computer software, must be protected by copyright under national law but not below the level of protection provided by TRIPS.

Article 10 of the TRIPS Agreement clearly states that computer programs, whether expressed in source or object code, shall be protected as literary works under the Berne Convention. This requires member countries, including Vietnam, to protect software copyrights.

“Computer Programs and Compilations of Data

1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
2. Compilations of data or other material, whether in machine-readable or other forms, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.”

The TRIPS Agreement also sets out requirements for members to establish and ensure enforcement procedures under the national law of each member country that must protect the commercial interests of the parties involved based on the enforcement of intellectual property rights fairly and equitably.

“Article 41

1. Members shall ensure that enforcement procedures as specified in this Part are available under their law to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide safeguards against their abuse.
2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.”

In addition, Vietnam is also a member of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the EU-Vietnam Free Trade Agreement (EVFTA). Both agreements emphasize the importance of protecting intellectual property rights, including software copyright.

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), signed by 11 countries, requires member countries to adhere to higher intellectual property (IP) protection standards than those under TRIPS. The CPTPP focuses on providing a robust legal framework for IP rights, while also strengthening enforcement to address IP infringement in the digital and cross-border environment, including software-related issues. As exemplified in Chapter 18 of the Agreement, there is a requirement for the protection of intellectual property rights, including software copyright. Member countries, including Vietnam, commit to providing protection not only for software but also for accompanying materials and data generated by that software.

“2. Each Party shall confirm that the enforcement procedures set out in Articles 18.74 (Civil and Administrative Procedures and Remedies), 18.75 (Provisional Measures), and 18.77 (Criminal Procedures and Penalties) shall be consistent with acts of infringement of trademark rights, copyright, and related rights in the digital field.

3. Each Party shall undertake that the procedures relating to the enforcement of intellectual property rights shall be fair and equitable. These procedures need not be overly complex and costly or give rise to additional time limits or unwarranted delays. “

The EU-Vietnam Free Trade Agreement (EVFTA) has also made similar requirements to the CPTPP. This agreement not only opens the market for products and services but also sets out strict rules on intellectual property protection. It ensures that businesses from the EU can invest in Vietnam with confidence, knowing that their software products and other intellectual property will be adequately protected.

2. National law and appropriate adjustment

Vietnam’s commitments to international treaties are reflected not only in the agreements but also in the process of adjusting and updating domestic laws in Vietnam to ensure compliance with international standards for the protection of software copyright and intellectual property in general.

Vietnam amended its Intellectual Property Law in 2009 and 2019 to comply with its commitments in the WTO, CPTPP, and EVFTA. The amendments include expanding the scope of copyright protection, improving enforcement measures for intellectual property rights, and strengthening protection for creators and intellectual property owners, including software copyright.

To promote Vietnam’s implementation of its commitments under international treaties, in recent years, in addition to adjusting national laws, seminars and conferences have been regularly organized both domestically and internationally for sharing experiences, building capacity, and enforcing software copyright laws.

To develop a monitoring and enforcement system, the Vietnamese government has strengthened the capacity of law enforcement agencies such as the Copyright Office and the Intellectual Property Office to monitor and handle software copyright infringement cases more effectively. This is to ensure that international copyright protection regulations are strictly enforced domestically.

Given the rapid pace of technological advancements, it is evident that competent authorities in the field of intellectual property are constantly updating and adjusting regulations to ensure compatibility and effectively address software-related issues. However, with the current rapid development of technology in Vietnam as well as the recent trend of investing capital in the software sector from Investors and Investment Funds, it is considered that the government needs to make further efforts to build a strong legal framework and improve the capacity of the responsible staff in the competent authorities.

Time of writing: 22/04/2024

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You can refer for more information:

• Foreign contractor tax obligations of foreign investors when conducting business in Vietnam (Part 1)
• Contractor tax for enterprise providing services in Vietnam
• Procedure for software copyright registration in Vietnam
• The necessity of copyright registration for computer software