[Episode 2: Under legal perspective]

Back to the story of a part of the audience who boycotted the film for assuming that the filmmaker infringed the rights of Le Linh, let’s be a wise consumer, make an objective assessment of the case under the perspective of the law. The copyright issue is stipulated in the Intellectual property law 2005, amended, and supplemented in 2009 and 2019 (herein referred to as “IP law”) and guiding documents.

1. The author and the copyright owner can be different.

When it comes to copyright, usually only the author is widely known. However, according to the IP law, the subject of copyright includes the author and the copyright owner. In which the author is “the person who directly creates a part of the entire literary, artistic or scientific works.” according to article 6.1 Decree no. 22/2018/ND-CP). When the author is “Authors who use their own time, finance and material or technical facilities to create works,” the author shall also be the owner of the copyright (Article 37 IP law). In other cases, the copyright owner is not the author. In particular, the copyright owner may be:

1. An organization, individual assigns the task of doing the work to the author or to enter into a contract with the author (Article 39 IP law).
2. The person inheriting the copyright (article 40 IP law).
3. Assigned a part of the entire copyright (article 41 IP law).
4. The state of (article 42 IP law).

The content of the copyright includes property rights (artic). When the author is concurrently the owner, there will be both property and moral rights. If the author and owner are different, the authors only possess moral rights (except the right to publish the work), and the copyright owner has economic rights and the right to post the works.

So, to conclude that there is an infringement of copyright or not, we have to determine: (1) who is the author, who is the copyright owner ; (2) the copyright owner and the author shall be entitled to the rights respectively, according to the provisions of IP law. Then determining whether or not an act of infringement does exist.

2.    The original work and derivative work are all protected under copyright

The subjects of copyright protection are literary, artistic, and scientific works. When classify, the work could be: Literary works, scientific works, textbooks, teaching courses, and other works expressed in written language or other characters; b, Lectures, addresses, and other speeches; (c) Pressworks; (d) Musical works; (dd) Stage works; e) Cinematographic works and works created by a process analogous to cinematography (after this all referred to as cinematographic works); (g) Plastic artworks and applied artworks; (h) Photographic works; (i) Architectural works; (k) Sketches, plans, maps and drawings related to topography or scientific works; (l) Folklore and folk artworks; (m) Computer programs and data collections.

Based on the origin, the work may be original work or derivative work. Derivative works mean a work translated from one language into another; or an adapted, modified, transformed, compiled annotated, or selected work. (article 4.8 IP law). Accordingly, the original work is the work created for the first time. Content and forms are expressed unidentical to other work; derivative work is based on the change of an already work (original works). Without prejudice to the copyright of the original works, derivative works can be protected as original works (article 14.2 IP law). Thus, however, formed based on other work, the derivative work is still protected by copyright thoroughly, as an independent work.

Source: Kenh14.vn

3.   The legal situation of the case “Than dong Dat Viet”

According to the court’s judgment of Ho Chi Minh city people’s court in the appellate civil judgment no 774/2019/DSPT dated September 3, 2019, Mr. Le Phong Linh was recognized as the sole author of the form of the character Trang Ti, Suu Eo, Dan Beo and Ca Meo of Than dong Dat Viet series from episode 01 to episode 78, as he directly created them in a particular material form. Phan Thi LLC is the copyright owner of the work (the material form of 4 characters), which is entitled to use the four characters in its production activities because Phan Thi is the organization that assigned Mr. Le Phong Linh to illustrate his work.

So, as the copyright owner of “Than dong Dat Viet” comic books, Phan Thi LLC can: Create derivative works; To display their works to the public; To reproduce their works; To distribute or import the original or copies of their works; To communicate their works to the public by wireless or landline means, electronic information networks or other technical means; To lease the original or copies of cinematographic works and computer programs (article 20.1 IP law), and the right to publish their works or to authorize other persons to publish their works (article 19.3 IP law).

As the author but not the copyright owner, Mr. Le Phong Linh can: give titles to his works; attach his real names or pseudonyms to his works; have his real names or pseudonyms acknowledged when his works are published or used; protect the integrity of their works; and to forbid other persons to modify, edit or distort his works in whatever form, causing harm to the honor and reputation of the author. (article 19.1, 19.2, 19.3 IP law).

In this case, Phan Thi has objected to the view that Phan Thi has violated the integrity of the work or violated the rights of Le Linh because Le Linh has quit working for Phan Thi after episode 78. From episode 79 onwards, Phan Thi has hired another artist to illustrate and form different expressions than four characters in 78 previous bouts. Phan Thi claimed that they do not violate the rights of Le Linh because the company has the right to do derivative works and episode 79 or other episodes onwards are all derivative works. This statement was rejected by the Ho Chi Minh city people’s court, expressly: Phan Thi “cannot prove what action they made among translating, adapting, modifying, transforming, compiling—annotating or selecting the original work. “This is considered the form of the original work.” Phan Thi LLC is the owner of works with the right to do derivative works but not repair the original work.”

Thus, through the judgment of the sentence: Phan Thi violates the integrity of the author’s work, from nature: the form of the work is the original work. The correction of original works is the right of the author, as stipulated in IP law. However, the right to make derivative works from the original work belongs to Phan Thi, as the company is the copyright owner of the original work.

 4. What to do with “Trang Ti”

“Trang Ti” is a derivative work of “Than dong Dat Viet,” transformed from a literary work into a cinematographic work.

As Phan Thi possesses the right to do derivative works, Ngo Thanh Van has to pay royalties, remuneration, or other material benefits to Phan Thi if she wants to transform “Than dong Dat Viet” a movie (article 20.3 IP law). According to Ngo Thanh Van’s announcement on the media, film crews signed contracts and received permission from Phan Thi for the transformation.

Since Le Linh is not the work’s copyright owner, Ngo Thanh Van does not need to ask for permission or pay royalties and remuneration fees to Le Linh. However, under the emotional perspective, Ngo Thanh Van still invited Le Linh to join the team, but he declined. The artist has also confirmed this information on the media.

So, the only controversial problem is whether a change in the expression of the four characters in “Than dong Dat Viet” constitutes an infringement according to IP law? In particular, should it be a “violation of the integrity of the work” without the consent of Le Phong Linh? The answer is YES if “Trang Ti” is the original work/expression and NO if it is a derivative work. Because:

Firstly, this originates from the nature of the derivative work that it is the work created based on changing the original work. Therefore, it is impossible to require that the derivative work is expressed as identical as the original one. Because if it is the same as the original work, the content must be determined whether it is the right to reproduce the work or other rights related to the use, utilization of the original work.

Besides, the derivative work is also protected as an independent work. People who directly produced cinematographic works will be identified as authors, including directors, screenwriters, camera operators; montage makers; music composers; art designers; studio sound, lighting, art designers, studio props, etc, technical effects designers, and persons engaged in other creative jobs. According to the agreements, these authors, if they are not the work’s copyright owner, are entitled to the author’s moral rights and other rights. Organizations, individuals who invest in finance and infrastructures to produce cinematographic works are copyright owners of works and possess economic rights and rights to publish the works (article 21 IP law). That means, though “Trang Ti” is a derivative work, it is still an independent work with the author and copyright owner and has economic rights and moral rights as any other independent work.

Secondly, this is also a fundamental argument used in the appellate judgment of the “Than dong Dat Viet” case when the Ho Chi Minh city people’s court determines that episode 79 is still the expression of the original work. Therefore, if the form is a derivative work, the infringement is not set out.

In conclusion, Ngo Thanh Van’s film project team asked the copyright owner of the original work of “Than dong Dat Viet” to make derivative works meet the legal requirements of the IP law. In terms of public opinion, film crews have invited Le Linh to be a consultant with professional issues with respect for the author. The changes of some details on the characters’ shirts are protected by IP law for derivative works. To the point that these changes violate the integrity of the work, why don’t you raise the issue: the original work are the images on paper. At the same time, technology devices record the characters in the movie, so is transforming the images into real people a violation of the integrity of the work? We can see: A derivative work has its independent life and respect and the protection under copyright as an original work.

Thus, the opposition to the film due to infringing the integrity of the work, even due to the obligation to ask Le Linh for permission when making the films, is unreasonable based on the IP law, especially when the market needs such cultural, educational oriented and professional products. Still, those can serve people from every social status.

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