COPPYRIGHT FOR PHOTOGRAPHIC WORKS
Question: DTD & Associates LLP let me ask: During my trip to Sapa on December 16, 2019, I took a picture of Sapa landscape as a souvenir. I then posted to the "Photographers Association". On March 24, 2020 there was a contest for photographers, another photographer took my work to this contest and changed the author's name on that picture and won the first prize. It is known that he is also a member of the "Photographic Society". So, do I get copyright protection and what should I do to get my work back? I sincerely thank!
Answer: Hello, thank you for trusting and sending your request for legal advice to DTD & Associates LLP. The content of your question has been researched and advised by our team of lawyers as follows:
Legal grounds:
Law No. 50/2005/QH11 issued by the National Assembly dated November 29, 2005 on Intellectual Property amended by Law No. 36/2009/QH12 (“the Intellectual Property Law”)
Decree No.22/2018/ND-CP issued by the Government dated February 23, 2018 on guidelines for certain number of articles of the intellectual property law and law on amendments to the intellectual property law 2009 in terms of the copyright and related rights (“Decree No.22/2018/ND-CP”)
According to the information you have provided, the Sapa landscape picture that you have taken is a photographic work as prescribed in Article 14 of Decree 22/2018 / ND-CP.
“Photographic works specified at Point h, Clause 1, Article 14 of the Intellectual Property Law means works showing images of the objective world on photosensitive materials or other media on which images are created or can be created by chemical, electronic or other technical methods. Photographic works may whether or not have captions.”
Therefore, according to the provisions at Point h, Clause 1, Article 14 of the Intellectual Property Law, this photo is one of the types of copyright protection and is entitled to certain rights under Article 19 and Article 20 of the Law on Intellectual Property.
Pursuant to Article 27 on the term of copyright protection of the Intellectual Property Law, your copyright is still in the protection period. However, your work has been used by another and the author's name has been changed to participate in the contest. This is considered as one of the copyright infringements stipulated in Clause 1, Article 28 of the Intellectual Property Law.
“Article 28. Conduct constituting infringement of copyright
1.Appropriating copyright in a literary, artistic or scientific work.”
With respect to appropriating copyright as above, you can use the self-protection right in Article 198 of the Intellectual Property Law.
“Article 198. Right to self-protection
1. An intellectual property right holder shall have the right to apply the following measures to protect the intellectual property rights of such holder:
(a) To apply technological measures to prevent acts of infringement of its intellectual property rights;
(b) To request any organization or individual who commits an act of infringement of the intellectual property rights of the holder to terminate such act, make a public apology or rectification, and pay damages;
(c) To request the competent State body to deal with acts of infringement of its intellectual property rights in accordance with the provisions of this Law and other relevant laws;
(d) To initiate a lawsuit at a court or a claim at an arbitration center to protect the legitimate rights and interests of the holder.
2. Organizations and individuals who suffer loss and damage caused by acts of infringement of intellectual property rights or who discover acts of infringement of intellectual property rights which cause loss and damage to consumers or society shall have the right to request the competent State body to deal with such acts in accordance with the provisions of this Law and other relevant laws.”
Therefore, in order to get back your work, you can apply technological measures to prevent infringement or request competent state agencies to address such acts to protect your legitimate interests and rights.
In addition, you can also apply other measures to deal with infringements of intellectual property rights according to Article 199 of the Intellectual Property Law.
“Article 199. Remedies when dealing with acts of infringement of intellectual property rights
1. Any organization or individual who commits an act of infringement of the intellectual property rights of another organization or individual shall, depending upon the nature and seriousness of such infringement, be dealt with by the application of civil, administrative or criminal remedies.
2. In necessary cases, the competent State body may apply provisional urgent measures, measures to control intellectual property related imports and exports, preventive measures and measures to secure enforcement of an administrative penalty in accordance with the provisions of this Law and other relevant laws.”
