Luận văn the implementation of copyright and related rights of evfta in vietnam

HO CHI MINH UNIVERSITY OF LAW
FACULTY OF INTERNATIONAL LAW
-----------***------------

VU LE HANH THAO
STUDENT ID: 1753801011173

THE IMPLEMENTATION OF
COPYRIGHT AND RELATED RIGHTS
OF EVFTA IN VIETNAM
BACHELOR’S THESIS
Academic term: 2017 - 2021

Supervisor:
LL.M. Ngo Kim Hoang Nguyen

Ho Chi Minh City – 2021


1

STATUTORY DECLARATION
I hereby declare that this work has been originally carried out by me under the
guidance of LL.M. Ngo Kim Hoang Nguyen, lecturer of the Faculty of International
Law, Ho Chi Minh University of Law. This work has not been submitted either in
part, or in whole, for any degree at any University.
Ho Chi Minh City, July 2021.
Vu Le Hanh Thao


2

ACKNOWLEDGEMENT
It is with deep gratitude that I want to send to my supervisor, LL.M. Ngo Kim
Hoang Nguyen, lecturer of the Faculty of International Law, Ho Chi Minh University
of Law, for providing me invaluable guidance throughout this research. His
dynamism, vision and sincerity have motivated me to successfully complete this
thesis with the most completeness and satisfaction. It is a great honor to have him as
a consultant for the last four years studying in Ho Chi Minh University of Law and
as a supervisor for this last project before becoming an official LL.B., as well as an
alumnus of this beloved school.
I would also like to express the sincerest gratefulness to my family: Mom,
Dad, and my two dear elder sisters. Their love, caring, continuous support and
sacrifices help me become who I am today. Without them, nothing in my life would
be possible.
Vu Le Hanh Thao


3

TABLE OF CONTENTS
STATUTORY DECLARATION............................................................................. 1
ACKNOWLEDGEMENT........................................................................................ 2
INDEX OF ABBREVIATION ................................................................................. 5
PREFACE.................................................................................................................. 7
1. Thesis rationale ..................................................................................................7
2. Literature review ...............................................................................................7
3. Objectives of the study ....................................................................................10
4. Scope and delimitation ....................................................................................11
5. Methodologies of the study .............................................................................11
6. Structure of the thesis .....................................................................................11

CHAPTER I. AN OVERVIEW OF COPYRIGHT AND RELATED RIGHTS
UNDER THE EVFTA ............................................................................................ 12
1.1. Terms and definitions...................................................................................12
1.1.1. Copyright .................................................................................................12
1.1.2. Related rights ...........................................................................................17
1.2. Copyright and related rights under the EVFTA .......................................23
1.2.1. Copyrights ................................................................................................23
1.2.2. Related rights ...........................................................................................30
1.3. The enforcement of copyright and related rights in the EVFTA .............37
1.3.1. Civil remedies and procedures ................................................................38
1.3.2. Administrative remedies and procedure .................................................40
1.3.3. Criminal measures and procedure .........................................................43
CONCLUSION TO CHAPTER I ......................................................................... 45


4

CHAPTER II. SOME CHALLENGES FOR VIETNAM IN THE
IMPLEMENTATION OF COPYRIGHT AND RELATED RIGHTS UNDER
THE EVFTA AND RECOMMENDATIONS ...................................................... 46
2.1. Challenge in implementing the protection of reproduction rights from
digital temporary copies from the EVFTA in Vietnam ...................................46
2.1.1. The protection of reproduction rights from temporary digital copies in
the EVFTA and challenge in the current law of Vietnam ..............................46
2.1.2. Recommendations ...................................................................................51
2.2. Challenge in implementing rental rights in Vietnam ................................57
2.2.1. The protection of rental right in the EVFTA and the current challenge
in Vietnamese law and Vietnamese companies’ management ........................57
2.2.2. Recommendations ...................................................................................63
2.3. Challenge to the cooperation between Vietnamese and European

collective management organizations ................................................................69
2.3.1. Collective management organizations in Vietnam and challenge to the
international cooperation..................................................................................69
2.3.2. Recommendations ...................................................................................76
CONCLUSION TO CHAPTER II ........................................................................ 81
CONCLUSION TO THE THESIS ........................................................................ 82
BIBLIOGRAPHY ................................................................................................... 83
ANNEX .................................................................................................................... 91


5

INDEX OF ABBREVIATION
Berne Convention

The Berne Convention for the
Protection of Literary and Artistic
Works

Directive 2006/115/EC

Directive 2006/115/EC of the European
Parliament and of the Council of 12
December 2006 on rental right and
lending right and on certain rights
related to copyright in the field of
intellectual property

Directive 2001/29/EC

Directive 2001/29/EC of the European
Parliament and of the Council of 22
May 2001on the harmonisation of
certain aspects of copyright and related
rights in the information society

ECJ

European Court of Justice

EU

European Union

EVFTA

EU–Vietnam Free Trade Agreement

Intellectual Property Law

Law on Intellectual Property No.
50/2005/QH11 dated November 29,
2005 (amended and supplemented by
Law No. 36/2009/QH12 and Law No.
42/2019/QH14)

Law amending and supplementing a

Intellectual Property Law Bill

number of articles of the Intellectual
Property Law Bill
Rome Convention

Rome Convention for the Protection of
Performers


6

TRIPS

WTO Agreement on Trade-Related
Aspects of Intellectual Property Rights

WCT

WIPO Copyright Treaty

WIPO

World Intellectual Property
Organization

WPPT

WIPO Performances and Phonograms
Treaty

WTO

World Trade Organization


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PREFACE
1. Thesis rationale
The EVFTA, after ten years of negotiating, finally took effect in August 2020.
This is an ambitious agreement that has a major impact on the economy of Vietnam
by eliminating 99% of the custom duties between Vietnam and EU. According to the
Ministry of Planning and Investment of Vietnam, this agreement is expected to
increase Vietnam’s GDP by 42.7% by 2025. Whereas in Europe, GDP is anticipated
to increase by $29.5 billion by 2035.1 Among the benefits that the EVFTA promises
to bring to the parties, higher protection levels for intellectual property, specifically
copyright and related rights is one of the mostly awaited since intellectual property
infringement in Vietnam has been an ongoing phenomenon with yet a thorough
solution.
Along with this opportunity, however, Vietnam will face difficult challenges
in order to implement important provisions of the EVFTA regarding copyright and
related rights. This stems from many reasons, from the gap between the legislation of
each party to the difference between the culture and economy of the member states.
Recognizing this, in 2019, the Ministry of Science and Technology, upon performing
the Government's and the Prime Minister's working program, had proposed a project
on the draft of Law amending and supplementing a number of articles of the
Intellectual Property Law. This is expected to be submitted to the National Assembly
for consideration and comments at the October 2021 session and for approval at the
May 2022 session. During this time, with the hope to bring a worthy and possibly
fruitful dedication to Vietnam’s current situation by closely studying the EVFTA, the
author decided to carry out the research: “The implementation of copyright and

related rights of EVFTA in Vietnam.”
2. Literature review

1

Shira, D. (2020, August 3). Vietnam-EU Trade: EVFTA Comes Into Effect. Vietnam Briefing.
/>

8

2.1. Foreign materials
Since EVFTA is a new agreement, most of the research is under the form of
journal articles, newspaper articles and reports made by the government, which are
extremely limited. Therefore, the author had to combine them with works that write
about copyright and related rights in Europe for a more in-depth knowledge since the
EVFTA, composed by Vietnam and the EU, more or less, will be relevant to
European copyright and related rights.
“EU Copyright Law: A Commentary” by Irini Stamatoudi and Paul
Torremans2 was the book that the author commenced with. This unique book presents
a comprehensive and new analysis of all EU law and case law in the field of copyright,
as well as the underlying basic concepts and principles. In addition, the book provides
readers with most recent amendments and initiatives by EU in the digital area.
Upcoming challenges for copyright and related rights are also discussed in the book
by a team of leading experts in the field, which makes the book extremely valuable.
Another book that has an immense influence on this thesis is “Copyright and
Fundamental Rights in the Digital Age” by Oreste Pollicino, Giovanni Maria Riccio
and Marco Bassini.3 This well-timed book analyzes the needed change in the
protection of copyright in the digital age in Europe in order to balance with other
fundamental rights and freedom of the human. Recognizing the development in
digital technologies as well as the internet, it specifically focuses on the effects of

recent reforms to the legal framework for EU’s copyright.
Following this, “Propertizing European Copyright” by Caterina Sganga4 is
also a worth-mentioning book since it provides an insight analysis of the cause and
effect of propertization of copyright throughout the history of EU, comparing them
to other national law and concluding experiences for EU, which Vietnam may gain

2

Stamtoudi, I., & Torremans. P. (Eds.) (2014). EU Copyright Law: A Commentary. Edward Elgar.
Pollicino, O., Riccio, G., & Bassini, M. (Eds.) (2020). Copyright and Fundamental Rights in the Digital Age.
Edward Elgar.
4
Sganga, C. (2018). Propertizing European Copyright. Edward Elgar
3


9

some lessons from this. Researchers in copyright will find this book very valuable
since is rich both in theory and practice.
“Guide to the EU-Vietnam trade and investment agreements” made by
Delegation of the European Union to Vietnam5 is totally indispensable since this
dogmatic guide is a great contribution to a better and more insight understanding of
the new generation agreements between the EU and Vietnam. Although not focusing
on copyright and related rights aspect, this guide, written in the most simple and clear
language, helped the author in understanding the basics of the EVFTA and
acknowledging the importance of this agreement to Vietnam’s economy. From this,
the author was able to determine the challenge to Vietnam’s current copyright and
related rights.
2.2. Vietnamese materials

In Vietnam, although there are many research papers on copyright and related
rights when Vietnam joins the EVFTA, they are mostly carried out under the form of
short journal articles, magazine articles or online newspaper articles with less insight
recommendations. They mainly discuss the obvious chance to a higher level of
protection for copyright and related rights in Vietnam and the already seen challenge
de jure and de facto in Vietnam but leave practical and clear recommendations
something to be desired about.
In the article “Giải quyết những thách thức về sở hữu trí tuệ khi Việt Nam gia
nhập EVFTA” [Solving intellectual property challenges when Vietnam joins
EVFTA] by Nguyen Thi Huyen in Review of Finance,6 the author discusses chances
and challenges that the EVFTA will bring to Vietnam’s intellectual property in
general. However, the author has no intention of focusing on copyright and related
rights, which is why they are mentioned only by one challenge with no specific
solution.

5

Delegation of the European Union to Vietnam (2019). Guide to the EU-Vietnam trade and investment
agreements. />6
Nguyen Thi Huyen (2017). Giải quyết những thách thức về sở hữu trí tuệ khi Việt Nam gia nhập EVFTA
[Solving intellectual property challenges when Vietnam joins EVFTA]. Review of Finance, 653, 27-28.


10

A modest part in the article “Cam kết về sở hữu trí tuệ trong EVFTA cơ hội
và thách thức” [Commitment to intellectual property in EVFTA opportunities and
challenges] by Pham Thi Kem Len and Nguyen Minh Hien in Journal of Finance and
Accounting Research7 mentions copyright and related rights. However, similar to the
previous one, the author does not depict a thorough solution to the problem.

Other materials, although do not directly research on the relationship between
EVFTA and copyright in Vietnam, have suggested some directions for the current
Vietnamese law to follow in the digital area by making comparisons to other
countries. The works that can be mentioned include the master’s thesis “Hành vi xâm
phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa Kỳ, Pháp và
kinh nghiệm đối với Việt Nam” [Acts of copyright infringement in the digital
environment according to the laws of the United States, France and experience for
Vietnam] by Do Huynh Yen Vy,8 the book “Bình luận bản án quyền tác giả - Góc
nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản, Hàn Quốc” [Comments on copyright
judgments - Legal perspective of the US, France, Japan, Korea] by Nguyen Thai
Cuong9 and the article “Quyền tác giả đối với tác phẩm trong môi trường công nghiệp
4.0 tại các cơ sở giáo dục đại học” [Copyright for works in the industrial 4.0
environment at higher education institutions] by Vu Thi Hong Yen.10
3. Objectives of the study
First of all, this thesis intends to provide a fundamental understanding of
copyright and related rights as regulated in the EVFTA. It then attempts to justify the
challenges to the implementation of copyright and related rights of the EVFTA in
7

Pham Thi Kem Len & Nguyen Minh Hien (2020). Cam kết về sở hữu trí tuệ trong EVFTA cơ hội và thách
thức [Commitment to intellectual property in EVFTA opportunities and challenges]. Journal of Finance and
Accounting Research, 3(200), 41-44.
8
Do Huynh Yen Vy (2020). Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa
Kỳ, Pháp và kinh nghiệm đối với Việt Nam [Acts of copyright infringement in the digital environment according
to the laws of the United States, France and experience for Vietnam] (master’s thesis, Ho Chi Minh University
of Law). Ho Chi Minh University of Law Library.
9
Nguyen Thai Cuong (2020). Bình luận bản án quyền tác giả - Góc nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản,
Hàn Quốc [Comments on copyright judgments - Legal perspective of the US, France, Japan, Korea]. Hong

Duc.
10
Vu Thi Hong Yen (2019). Quyền tác giả đối với tác phẩm trong môi trường công nghiệp 4.0 tại các cơ sở
giáo dục đại học [Copyright for works in the industrial 4.0 environment at higher education institutions].
Journal of Legislative Studies, 21(397), 11-17, 36.


11

Vietnam. Based on this knowledge, the author suggests some mendments to the
Vietnam’s current law.
4. Scope and delimitation
Under restrictions of time and resources, this thesis will exhibit the following
limitations: First, since there already has been numerous research on classic and
comprehensive intellectual property agreements, namely TRIPS, Berne and Rome
Convention, any reference to these treaties may not be thoroughly explained but only
mentioned with a view to clarify author’s ideas. Second, this paper will not study the
steps involved in the procedure of copyright and related rights registration, both in
Vietnam and internationally. In other words, the thesis focuses on substantive
provisions and barely studies the procedural law. Finally, the author will focus only
on the challenges that have direct effect on pecuniary benefits of authors and related
subjects. This will explain for why other existing challenges will not be tackled in
this research.
5. Methodologies of the study
In chapter 1, the author adopts the methods of historical review, analysis and
synthesis to conclude the concept of copyright and related rights. Then, the analysis
and synthesis method is used again for the examination of the copyright and related
rights as well as their enforcement in the EVFTA. In chapter 2, the analytical method
is employed, along with the historical review and case study to outline the challenges
to Vietnam in the implementation of the EVFTA. Following this, the comparative

method is used for the formation of author’s suggestions.
6. Structure of the thesis
This thesis consists of 2 chapters:
– Chapter 1: An overview of copyright and related rights under the EVFTA.
– Chapter 2: Some challenges for Vietnam in the implementation of copyright
and related rights under the EVFTA and recommendations.


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CHAPTER I. AN OVERVIEW OF COPYRIGHT AND RELATED RIGHTS
UNDER THE EVFTA
1.1. Terms and definitions
1.1.1. Copyright
According to Black’s Law Dictionary (2004, p. 824), copyright is defined as
“the right to copy”. To be more specific, is it “a property right in an original work of
authorship (including literary, musical, dramatic, choreography, pictorial graphic,
sculptural, and architectural works; motion pictures and other audiovisual works; and
sound recordings) fixed in any tangible medium of expression, giving the holder the
exclusive right to reproduce, adapt, distribute, perform, and display the work.” This
definition, although apparent and simple, it is not adequate when giving a limitative
list of works and rights of the author since there can be other forms of expressions
outside of the scope.
Approaching WIPO, we can find a similarity in interpreting the term. Pursuant
to them, copyright (or author’s right) is a legal term used for the description of “the
rights that creators have over their literary and artistic works. Works covered by
copyright range from books, music, paintings, sculpture, and films, to computer
programs, databases, advertisements, maps, and technical drawings.”11 It must be
stressed that copyright under WIPO’s explanation only includes the rights of the
author only, with the exclusion of related rights. This is different from the

interpretation of WTO, when copyright in a broad sense can also include related
rights.12 The separation between the terms is due to the variation in legal systems,
which would be explained below.
In the view point of legal science, commonly, the term has already spoken for
itself, it is the right to make copies of a given work (at first it meant simply written

11

WIPO. (n.d.). Copyright. WIPO – World Intellectual organization. Retrieved April 10, 2021, from
/>12
WTO. (n.d.). Intellectual property: protection and enforcement. World Trade Organization. Retrieved April
10, 2021, from />

13

work) and the right to prohibit others from making a copy without one’s permission.13
Copyright, which has the same goals as intellectual property right, aims for (1) the
assurance of patrimonial rights as well as moral right of the author; (2) the public
access to the works; (3) the impulse for creative activities, which is the fundamental
undertaking for the development of society.14
The recognition of the term is said to appear since the invention of printing
press in European countries in mid-15th century, with the pioneer being the German
inventor Johannes Gutenberg. The technique was then introduced to neighboring
countries such as England, Italy and so forth, which resulted in the special
relationship between the King and the printers as well as the publishers.15
Correspondingly, written statutes were born to adjust this matter, typically the Act of
Anne in 1710. However, it is only the right to copy that was officially recognized, not
the term “copyright” itself.16 It was not until 1838 that the term was used by the
French lawyer Augustin-Charles Renouard in his famous book entitled Traitt des
droits d'auteurdans la litttrature, les sciences et les beaux arts.17 By using this term

for his work, “copyright” for the first time replaced “literary and artistic works” as
well as “intellectual property” and it was accepted as an official legal term by scholars
and legislators. However, it must be acknowledged that Charles used the term in
plural form as in “copyrights”, this is to imply the abundance of rights that the author
will have to his works. The author of this thesis believes that this is the correct form
to use of the term but through time, the variant of the original term has become more
preferred.

13

Goldstein, P. (2003). Copyright's Highway: From Gutenberg to the Celestial Jukebox. Stanford Law and
Politics.
14
Roş, V., Bogdan, D., Spineanu-Matei, O. (2005). Dreptul de autor si drepturile conexe: tratat [Copyright
and related rights]. Publishers C.H. Beck.
15
Erer, N. (2014). A Short History of Copyright in the West, in the Ottoman Empire and in Turkey. Turkish
Librarianship journal, 28(4), 638-644.
16
Dumitru, C. (2011). Comparison between copyright and ownership in common law. Romanian Journal of
Intellectual Property Law, 2011(2), 32-59.
17
Renouard, C. (2018). Traitt des droits d’auteur, dans la literature, les sciences et les beaux-arts [Treatise
on copyright, in literature, science and the fine arts]. Forgotten Books.


14

Due to the historic development, however, there exists a difference in
understanding the term in civil law system and common law systems. As for the

former, “copyright” is referred to as droit d’auteur (author’s right), which includes
the economic rights and moral rights of the author. For European scholars, copyright
is the most personal property right of a person, which does not exist due to its
codification, but it is the unique creative activity of each author that gives birth to the
right.18 The idea is said to be rooted from the decrees of 1791 and 1793 (the Law of
Suspects), which restricted the rights and privileges of those who are favoured by the
King after the French revolution.19 Supporting this notion, the father of social bounds
of copyright theory, Otto van Gierke, considered that copyright is the extension of
one’s personality and therefore, it can not be separated from the author’s creative
activity, from the creative process to when the works have been published.20 With
regard to the author himself, the famous French poet and author Alphonse de
Lamartine stated that literary property is the “most sacred of property”. In other
words, for the author, copyright is considered as the most personalized and intimate
form of property as it represents the author himself and his internal thoughts, while
original forms of property speak for external things only.21 This is also the reason for
the separation between author’s right and related rights in civil law countries since
producers, broadcasters and performers are not considered as authors and hence, they
are only granted generally narrower rights under a different title. Clearly, the civil
law system when dealing with copyright tends to be emotional, revolutionary and
extremely connected with idealism.
On the contrary, “copyright” in common law countries indicates both author’s
rights and related rights. In fact, the concept of “related rights” basically does not
exist since the role of authors and producers, broadcasters and performers are
18

Monta, R. (1959). The concept of copyright versus the droit d’auteur. Southern California Law Review,
32(2), 177-186.
19
Id.
20

Gierke, O. (1889). Die soziale Aufgabe des Privatrechts. Springer.; Kohler, J. (2010). Das Autorrecht: Eine
Zivilistische Abhandlung. Kessinger Publishing.
21
Planiol, M. (1915). Traite Elementaire de Droit Civil [Civil Law Treaty]. Librairie Générale de Droit y de
Jurisprudence.


15

regarded as having equally importance in promoting the works to the betterment of
society. This stems from the history of copyright in common law countries, England
to be precise, where the rights and privileges were originally granted to publishers
and printers by the Crown. It was the legislation that brought these rights to life, not
the author. Nowadays, under this system, there is a copyright in what a creator himself
creates, known as the copyright in original works, and there is also a copyright in the
products of technical skill, known as copyright in sound recording, films, broadcasts
and suchlike. There is furthermore a pecuniary relationship between the author and
the copyright owner. In which, the employee (the author) is hired to create a work
under a contract and the employer, who may have nothing to do with the creative
process, is the legitimate copyright owner of the work, after having accomplished his
obligations as in the contract. Due to this liberty between the parties as well as the
high status of producers, broadcasters and performers in common law system, which
tends to be more rational and practical, the concept of copyright is a one and all
inclusive right of a pecuniary nature, with no appearance of moral rights.22
The adoption of the Berne Convention in 1886 was a milestone for moral
rights of the author as they were internationally recognized. Although most of
common law countries do not implement this protection, until now, there have been
many national law revisions in common legal system as to consider whether to adopt
moral rights provisions or not in order not to violate the reciprocal principle.23 For
example, UK when considering the implications of ratification of the Berne

Convention revision in 1948 had to discuss whether to distinct moral rights from
copyright or not.24 However, hitherto, the debate on the legal nature of copyright is
still a never-ending story, with the split of two schools’ arguments, monist and dualist
theory.25

22

See supra note 18.
Small, R. R. (1977). The Author's Moral Right. Trent Law Journal, 1, 69-86.
24
Id.
25
See supra note 16.
23


16

Monism, with the representative being common law countries, claims that
there is an inseparable link between the economic and moral rights of the author;
therefore, it is impossible to divide the copyright into different categories, namely
patrimonial rights and non-patrimonial rights. Pursuant to this school, the
prerogatives of copyright are made up by moral rights, which have the same value
and duration as economic rights.26 However, the theory is easily subject to criticism
as it loses sight of the fact that patrimonial rights only come to existence if the author
perform his moral rights. Furthermore, there seems to be no causal link between
economic rights and moral rights as they represent different objective and areas of
application.27
Dualism, on the other hand, states that economic rights and moral rights “have
a distinct existence and legal regime.”28 In this case, the latter even plays a more

important role than the former. Therefore, the duration of moral rights should not be
limited to the life of the author as economic rights but extended after his death. The
rationales for this argument are as follow:
– The work of an author is the result of one’s creation. Therefore, he will have
the power to communicate his work to the public and decide if his work deserves to
be known or not. Only by performing this action will the material benefits of the
author appear and hence, we can come to the conclusion that patrimonial rights take
root from non-patrimonial ones.
– Every aspects of copyright are immensely influenced by moral rights as
moral rights ensure the connection between the author and his works, while economic
rights only recognize the author’s material interest.
– If one violates the author’s moral rights, the result will be monetary damage.
Therefore, economic rights stem from moral rights.29

26

Id.
Id.
28
Roş, V. (2016). Dreptul proprietatii intelectuale [Intellectual property law], vol. I. Publishers C.H. Beck.
29
Eminescu, Y. (1997). Dreptul de autor [Copyright], Lumina Lex Edition Bucharest.
27


17

Nowadays, countries unanimously agree to disagree on this matter as
prolonging the debate would not solve anything. The most effective and common
solution is that common law countries when entering an international treaty on

intellectual property protection should consider adopting moral rights provisions or
not, depending on their current circumstances.
In conclusion, according to the author of this thesis, to be most thorough and
suitable with international context, the interpretation of copyright should be as
follow: copyright are the rights of an author to his original works (works include but
not limited to the list of literary and artistic works regulated in Article 2 of the Berne
Convention and possible new forms of work in the future), which include moral rights
and economic rights. However, it is the right of each country to decide whether to
cover moral rights in the interpretation of copyright or not.
1.1.2. Related rights
Related rights, according to Black’s Law Dictionary (2004, p. 824), which are
also termed as “neighboring rights” or “entrepreneurial rights”, are “intellectual
property rights of a performer or of an entrepreneur such as a publisher, broadcaster,
or producer, as distinguished from moral rights belonging to an author or artist as the
work’s creator.” Compared to the term “copyright”, “related rights” conforming to
Black’s interpretation is more adequately explained as it is not restricted by a
limitative list, though still very simple to understand. Overall, related rights are rights
belonging to an individual (performer) or a legal entity (publisher, producer,
broadcaster and so forth) who is not the author of the work.
WIPO, on the other hand, provides a very detailed interpretation of the term.
Pursuant to them, related rights, also referred to as neighboring rights, are rights that
“protect the legal interests of certain persons and legal entities that contribute to
making works available to the public or that produce subject matter which, while not
qualifying as works under the copyright systems of all countries, contains sufficient
creativity or technical and organizational skill to justify recognition of a copyrightlike property right. The law of related rights deems that the productions that result


18

from the activities of such persons and entities merit legal protection as they are

related to the protection of works of authorship under copyright. Some laws make
clear, however, that the exercise of related rights should leave intact, and in no way
affect, the protection of copyright.” Subjects that are granted these rights usually are
(1) performers; (2) producers of sound recordings (also referred to as phonograms)
and (3) broadcasting organizations. Intrinsically, this interpretation is the same as
Black’s, which also approaches related rights as rights of those who have close
connection to the work of the author. The only dissimilarity here is the further
explanation of WIPO as why related subjects deserve to be granted with such rights.
In legal science, it does not exist a unified concept of related rights.
Researchers and scholars often regard them as rights which belong to individuals or
legal entities who are involved in the original literary and artistic works but are not
the author. The subjects of these rights often are performers with regard to their
performances, producers of phonograms with regard to their phonograms and
audiovisual producers, broadcasting organizations with regard to their broadcasts.30
However, from the examination of the legislation of different legal systems,
there is a slight distinction in the interpretation of the term. In civil legal system, as
explained above in section 1.1.1, they do not recognize the rights of those who are
not authors, albeit the knitted link one may have to the original work. It was not until
the 1930s – the era of neighboring rights that related subjects started to fight for their
rights to be acknowledged.31 To be able to fully understand the concept of “related
rights” in civil system, it is imperative to examine the development history of it.
Already in the late 1920s, music performers were threatened by the appearance of
mechanical music (loudspeakers, records, radio…) and as a result, musician’s union
from all over Europe had loosely proposed the idea of forming a legislation protecting
the rights of performers. The demand for the protection of live music and for the

30

Gervais, D. (2018). Related rights in united states law. Journal of the Copyright Society of the USA, 65(4),
371-[viii].

31
Laing, D. (2004). Copyright, Politics and the International Music Industry. In S. Frith and L. Marshall (eds),
Music and Copyright (pp. 70-85). Routledge.


19

taxation on mechanical music as a way to compensate for musicians and their families
started to intensively emerged in the 1930s which gained the attraction from overseas,
namely the American Federation of Music. However, due to the unstoppable
popularity of mechanical music, the aim of musicians’ unions at that time was not a
compensation anymore, but a fund to conserve the value of live music for young
generation, with the advent of the Music Performance Trust Fund. The International
Labour Organization (ILO), upon receiving this proposal from musician’s unions,
promoted this matter as a labor legislation for a whole profession, not as individual’s
rights.32
Although performers were the first to demand for protection, the record
industry successfully gained the most recognition. In the late 1930s, records sales fell
dramatically due to the impact of the Great Depression and as a result, the
International Federation of the Phonographic Industry (IFPI) was founded to handle
the situation.33 Throughout the 1930s, IFPI maintained a close relationship with the
Italian government and was influenced heavily by the fascist idealism, leading by the
Italian lawyer Amedeo Giannini. He proposed two solutions to the problem, which
was considered as conceivable, the first one was that the sound recorded on a
phonograph record could be protected as an industrial design by the Paris Convention,
the second one was that record company would be protected as the author under
provisions of Berne. However, he opposed to performers being similarly protected
due to the humble intellectual activity they have in connection with the original
work.34 The second alternative quickly encountered objections from musician’s
unions and the solution that is at equilibrium was a new convention for the protection

of record companies; it must be stressed, however, that this would form a sui generis

32

Fleischer, R. (2015). Protecting the musicians and/or the record industry: On the history of neighboring rights
and the role of fascist italy. Queen Mary Journal of Intellectual Property, 5(3), 327-343.
33
Frith, S. (2006). The Industrialization of Music. In A. Bennet, B. Shank and J. Toynbee (eds), The
Popular Music Studies Reader (pp. 68-79). Routledge.
34
Giannini, A. (1934). Rechtsprobleme der Schallplatte [Legal problems of the record]. Archiv für Medienrecht
und Medienwissenschaft (UFITA), 7, 267 et seq.


20

right, not directly related to composers’ copyright. This right, as drafted by three of
the most influential organizations in Europe, all bear different interpretation.
The draft by IFPI, which is considered as the final draft for the modern Rome
Convention, was based on the fascist philosophy of eminent Italian lawyers Valerio
de Santics and Eduardo Piola-Caselli. According to the former, he presented the rights
of record producers as a collective managing tool for the fascist organization of all
industries. In other words, although he acknowledged the private property of
individual should be protected, he opposed to the idea that participants could perform
their rights separately, but only through the management of specific entities.35
Therefore, related rights in his sense only meant the rights of organizations having
related to the original work and also the tool for economic reform. This was also the
approach of Eduardo, with the addition that performers would have the right to
compensation.36 It seems that for IFPI, the aim of presenting related rights was not
only to protect the right of neighboring subject, but also to use music industry as

instrument for fascist economic reform.
For ILO, it was performers’ rights that they wanted to protect conforming to
the proposals of musicians’ unions as mentioned above, not record companies.37 In
fact, related rights as protected by ILO would be presented as a separate legislation
on labour matter and interpreted as labour rights by performers. However, as the ILO
has a tripartite structure, every decision of it must be agreed by representatives of
labour unions, employers’ associations and member states. In this case, the second
foundation of it, as led by IFPI’s chairman, strongly objected this idea which resulted
in the denial of ILO’s draft. The third organization that contributed to the formation
of related rights was Swedish Copyright Committee – the result of efforts by the

35

Sanctis, V. (1934). Urheberrecht und Interesse der Allgemeinheit [Copyright and general interest]. Archiv
für Medienrecht und Medienwissenschaft (UFITA), 7, 236 et seq.; see also Sanctis, V. (1938). Das Urheberrecht
und die Grundsiitze des korporativen Systems [Copyright law and the principles of the corporate system].
Archiv für Medienrecht und Medienwissenschaft (UFITA), 11, 211 et seq.
36
Caselli, P. (1938). Die Regelung der Konflikte zwischen dem Urheberrecht und manchen benachbarten oder
dihnlichen Rechten [The settlement of conflicts between copyright law and certain neighboring or similar
rights]. Archiv für Medienrecht und Medienwissenschaft (UFITA), 11, 59 et seq.
37
See supra note 32.


21

governments of Denmark, Finland, Norway and Sweden. The approach of them to
related rights (known as the Nordic proposal) was in the same hierarchy as of ILO,
with the highest priory belonged to authors (composers), followed by the rights of

performers and at the bottom of the list were producers, who got no rights to the
secondary use of the records.38 A slight difference from ILO in the interpretation of
the Nordic proposals was that related rights were not labour rights of performers, but
individual rights of those who are close to the records. This direction, soon enough,
was opposed by IFPI, whose chairman had to fly from London to Stockholm to
directly negotiate with the Committee. His argument was that the rights granted for
record companies would also implicitly protect musicians and therefore, the intensive
attention given to performers was unnecessary.39 In the end, as a prediction that the
draft by IFPI would become a new convention on related rights, Nordic countries, not
wanting to be left out, reluctantly complied with the same approach.
The result of the conflict between civil countries was the formation of the
Rome Convention with the interpretation of related rights as followed: it is a set of
rights of those who are closely connected with the record (later, record is expanded
to other kinds of works) which is inferior to author’s rights. In this right, producers
and broadcasting organizations would gain the highest level of protection, followed
by performers.
Common law countries, contrary to this, before the Rome Convention, rights
of performers, producers and broadcasters are protected under their national law as
copyright since there is no separation between the two terms, as explained in section
1.1.1. In fact, the number of common law countries joining the Rome Convention
grew very slowly due to the fact that they were not interested being bounded by
another international treaty on this matter as they regarded that gramophone and
broadcasts were already subject to protection under Berne Convention.40 However,

38

Id.
Id.
40
WIPO. (2004). Guide to the Copyright and Related Rights Treaties Administered by WIPO and Glossary of

Copyright and Related Rights Terms. WIPO.
39


22

since the number of common law parties joining the Rome Convention increased day
by day, the existence of related rights became more familiar for them and the rights
of performers, producers and broadcasters in these countries are no longer adjusted
by the Berne Convention, but by the Rome Convention. Different from civil law
countries, nonetheless, common law countries regarded related rights as rights of
related subjects to the original works, which are equal to author’s right (copyright).
One may argue that this understanding about related rights is incorrect because it is
clearly stated in the first article of the Rome Convention that “protection granted
under this Convention shall leave intact and shall in no way affect the protection of
copyright in literary and artistic works. Consequently, no provision of this
Convention may be interpreted as prejudicing such protection.” Responding to this,
common law countries claimed that the intention of legislators was that author’s
rights and related rights is independent each other with no hierarchical relationship.41
However, as a common sense in both common law and civil law countries, related
rights cover pecuniary prerogatives of the related subjects only and leave no room for
moral rights.
In conclusion, as the legal system around the world is diverse, there will
certainly be dispute involving the interpretation on different matters. In this case, it
is for the term “related rights” that has no uniform definition. However, an observable
trend in treaties on intellectual property after the Rome Convention is that related
subjects will receive the same level protection as authors, which implicitly admits
that related rights are equal to copyright. This is totally reasonable since the subjects
of this right are performances, broadcasts, records and so forth, which are not works
and therefore, have some certain dependency. In addition, as types of literary and arts

are getting more diverse, the amount of creativity of performers and people who
invest in bringing the works to the public like producers and broadcasters is not less
than that of authors. Therefore, from a painstaking research into the developing

41

Ricketson, S and Ginsburg, J. (2006). International Copyright and Neighbouring Rights. Oxford University
Press.


23

history of the term as well as the philosophy behind it, according to the author of this
thesis, related rights should earn the recognition it deserves and be interpreted as
economic rights of subjects who are not the author but related to the original works
(works are as included but not limited to Article 2 of the Berne Convention). These
rights are independent from copyright and no words in this definition will be
interpreted as making related rights have a lesser value than copyright.
Overall, as copyright and related rights are becoming more and more important
in bilateral as well as multilateral trade agreements in today’s world, it is extremely
essential to completely comprehend the concept of these terms, especially in the case
that parties do not define them in such an agreement, as in the EVFTA. With a
thorough explanation made in section 1.1, the author of this thesis hopes to ensure a
common understanding of key concepts and terminology is shared between the author
and the audience throughout this thesis, particularly when “copyright” and “related
rights” have a rich variation of definitions during the history of intellectual property.
Furthermore, by clearly defining such terms, the author wishes the reader would be
able to capture the essence of the author’s idea each time the term is used in this
thesis.
1.2. Copyright and related rights under the EVFTA

1.2.1. Copyrights
Pursuant to Article 12.5 of the EVFTA, since the rights and obligations of each
parties have to comply with the TRIPs and Berne Convention, these conventions are
considered integrated into the EVFTA and they should be interpreted consistently
with each other. As the EVFTA does not give an interpretation on which category of
works are to be protected, Berne Convention fills the gap by containing a list of nonlimitative list of such works in Article 2, which includes the production of any
literary, scientific and artistic works, under whatever mode or form of expressions.
Derivation of the works such as translations, adaptions and so forth will receive the
same level of protection as the original works as well.42 According to the
42

Article 2(3) of Berne Convention for the Protection of Literary and Artistic Works, September 28, 1979.


24

Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore of WIPO, traditional literary and artistic
productions which are sufficiently “original” and for which the author or authors are
known, may be protected as copyright works; works which have not yet been
“published” and which have “unknown authors” who are assumed to be nationals of
a country of the Berne Union are protected as copyright works, under Article 15.4 of
the Berne Convention; collections, compilations and databases of traditional cultural
expressions, whether pre-existing or contemporary, may be protected as copyright
works as such.43 Therefore, traditional cultural expressions such as folklore,
traditional knowledge or suchlike are also subject to the protections of this agreement.
Besides the aforementioned traditional forms of literary and artistic works, as
the world if becoming more digitalized, computer programs and compilations of data
are also added by TRIPs into the list of protected literary and artistic works under
Article 10. According to which, computer programs are protected as literary works

only and not as artistic works, this is to guide the parties to the interpretation of
protected works not to be solely relied on the term “scientific works” in Article 2 of
the Berne Convention and to discard any confusing reference to “applied arts” as
regulated in the Convention. Meanwhile, compilations of data are protected as works
even though the contents may not be the original works protected by copyrights with
the reason that intellectual creations consisting of the selection and/or arrangement
of the contents are the subject of intellectual property protection.44
Due to the aforementioned fact that the interpretation of the EVFTA is to be
read with other international treaties, the authors’ rights set out in Article 12.6 of this
agreement is quite brief and simple, namely:
– The right to reproduction: “reproduction”, in the most common sense, means
copy. Clearly, EVFTA legislators have been influenced by the Berne Convention

43

The Secretariat of WIPO (2018, December 10-14). The Protection of Traditional Cultural Expressions:
Updated Draft Gap Analysis [Conference Session]. Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore, Geneva.
44
WIPO. (1996). Implications of the TRIPS Agreement on treaties administered by WIPO. WIPO.