Personal moral rights under intellectual property agreements have become a concern among individuals and organizations. The following article outlines the legal provisions governing personal moral rights under intellectual property agreements and addresses several related legal issues to assist individuals and organizations in safeguarding their lawful rights and interests.

I. Current issues relating to personal moral rights under intellectual property agreements

In practice, the legal framework governing personal moral rights under intellectual property agreements still presents numerous shortcomings and challenges. Intellectual property disputes have demonstrated that competent authorities often have difficulties in determining the appropriate amount of damages as well as assessing the extent of actual loss serving as the basis for compensation. In addition, contracting parties are still not fully aware of, or do not clearly understand, the legal provisions governing their respective rights and obligations under intellectual property agreements.

II. Concept of personal moral rights under intellectual property agreements

1. What are personal moral rights under intellectual property agreements?

Pursuant to Clause 1, Article 4 of the Law on Intellectual Property 2005, as amended by Point a, Clause 1, Article 1 of the amended Law on Intellectual Property 2025, intellectual property rights are the rights of organizations and individuals to copyright and related rights, industrial property rights, and rights to plant varieties.

Pursuant to Clause 1, Article 25 of the Civil Code 2015, personal rights prescribed by the Civil Code are civil rights inherently attached to each individual and are non-transferable, except where otherwise provided by relevant laws.

Accordingly, personal moral rights under intellectual property agreements are rights associated with the author's honour, reputation, and spiritual interests, reflecting the personal nature of legal transactions involving intellectual property assets.

2. What are the differences between personal moral rights and economic rights under intellectual property agreements?

Pursuant to Articles 19 and 20 of the Law on Intellectual Property 2005, as amended by Clause 5, Article 1 of the amended on Intellectual Property 2022, the distinctions between personal moral rights and economic rights under intellectual property agreements may be summarized as follows:

Regarding concept and legal nature:

  • Personal moral rights are rights associated with the author's honour, reputation, and spiritual interests and are personal in nature.
  • Economic rights are rights relating to the commercial exploitation of the economic value of a work and are commercial in nature.

Regarding transferability:

  • Personal moral rights are generally non-transferable, except that the right to name a work may have its right of use transferred.
  • Economic rights may be assigned or licensed to third parties.

Regarding specific contents:

  • Personal moral rights include giving a title to the work; being the author's real name or pseudonym indicated on the work; publishing the work or authorize another person to publish it; preserving the integrity of the work; and preventing any distortion, alteration or modification that may prejudice the author's honour or reputation.
  • Economic rights include creating derivative works; performing the work before the public; reproducing the work; distributing or importing copies of the work; broadcasting or communicating the work to the public by any means; and renting the original or copies of cinematographic works or computer programs (except where the computer program is not the principal object of the rental).

3. In which categories of intellectual property objects do personal moral rights arise?

Pursuant to Article 18 of the Law on Intellectual Property 2005, copyright in works prescribed by the Law comprises both personal moral rights and economic rights.

Pursuant to Clause 1, Article 29 of the Law on Intellectual Property 2005, as amended by Clause 9, Article 1 of the amended Law on Intellectual Property 2022, performers are entitled to personal moral rights and economic rights in relation to their performances in accordance with the Law.

III. Legal provisions governing personal moral rights under intellectual property agreements

1. Duration of protection of personal moral rights under intellectual property agreements

Pursuant to Article 27 of the Law on Intellectual Property 2005, as amended by Clause 8, Article 1 of the amended Law on Intellectual Property 2009, the duration of copyright protection is as follows:

- The personal moral rights prescribed in Clauses 1, 2 and 4, Article 19 of the Law are protected indefinitely, including:

  • The right to give a title to the work.
  • The author is entitled to transfer the right to use the right to title the work to the organization or individual acquiring the economic rights prescribed in Clause 1, Article 20 of the Law.
  • The right to have the author's real name or pseudonym indicated on the work and to have such name or pseudonym acknowledged when the work is published or used.
  • The right to preserve the integrity of the work by preventing any distortion, alteration or mutilation in any form that prejudices the author's honour or reputation.

- The personal moral right to publish a work or authorize another person to publish a work as prescribed in Clause 3, Article 19 of the Law shall be protected for the following terms:

  • Cinematographic works, photographic works, applied art works, and anonymous works shall be protected for seventy-five (75) years from the date of first publication. Where cinematographic works, photographic works, or applied art works are not published within twenty-five (25) years from the date they are fixed, the term of protection shall be one hundred (100) years from the date of fixation. In the case of anonymous works, where information identifying the author subsequently becomes available, the term of protection shall be determined in accordance with Point b of this Clause.
  • Works other than those specified above shall be protected throughout the author's lifetime and for fifty (50) years after the year of his or her death. If a work has co-authors, the term of protection shall expire in the fiftieth (50th) year after the year in which the last surviving co-author dies.
  • The terms of protection shall expire at 24:00 on December 31st of the year in which the protection term ends.

2. Does the law permit the authorization of the exercise of certain personal moral rights under an intellectual property agreement?

- Pursuant to Clause 2, Article 47 of the Law on Intellectual Property 2005, as amended by Clause 13, Article 1 of the amended Law on Intellectual Property 2022, an author may not transfer the right to use the personal moral rights prescribed in Clauses 2 and 4, Article 19 of the Law. Likewise, a performer may not transfer the right to use the personal moral right prescribed in Clause 2, Article 29 of the Law.

- Pursuant to Clause 2, Article 47 of the Law on Intellectual Property 2005, an author may not assign the personal moral rights prescribed in Article 19, except for the right to publish the work. Similarly, a performer may not assign the personal moral rights prescribed in Clause 2, Article 29 of the Law.

Accordingly, the law only permits the authorization of the publication of a work. Thus, the author has the right either to publish the work personally or to authorize another person to publish it. It is the only personal moral right in the field of intellectual property that may be transferred or exercised through authorization.

3. How are disputes concerning personal moral rights resolved?

  • Negotiation and mediation: It is the primary and most common dispute resolution method and is encouraged as it helps save time and costs while preserving the relationship between the parties. The parties may negotiate directly or through a third party in order to reach a mutually acceptable settlement.
  • Administrative remedies: The right holder may submit a complaint to competent authorities, such as the Inspectorate, the Intellectual Property Office of Vietnam, the Market Surveillance Authority, the Customs Authority, or the Police, requesting action against infringing acts. Administrative measures are generally implemented promptly and may include monetary fines, compulsory destruction of infringing goods, or suspension of business operations under Clause 3, Article 200 of the Law on Intellectual Property 2005, as amended by Point b, Clause 65, Article 1 of the amended Law on Intellectual Property 2025.
  • Court proceedings: Where negotiations fail or the infringement causes substantial damage, the parties may initiate legal proceedings before a competent court pursuant to Article 202 of the Law on Intellectual Property 2005, as supplemented by Clause 67, Article 1 of the amended Law on Intellectual Property 2025, requesting the Court to apply civil remedies.

IV. Questions relating to personal moral rights under intellectual property agreements

1. Can an author assign all personal moral rights to an enterprise under an intellectual property agreement?

Pursuant to Clause 2, Article 45 of the Law on Intellectual Property 2005, an author may not assign the personal moral rights prescribed in Article 19, except for the right to publish the work. Likewise, a performer may not assign the personal moral rights prescribed in Clause 2, Article 29 of the Law.

Accordingly, an author is not permitted to assign all personal moral rights to an enterprise under an intellectual property agreement, except for the right to publish the work.

2. Does altering, mutilating, or distorting a work during the performance of an intellectual property agreement constitute an infringement of personal moral rights?

Pursuant to Clause 4, Article 19 of the Law on Intellectual Property 2005, as amended by Clause 5, Article 1 of the amended Law on Intellectual Property 2022, an author's personal moral rights include the right to preserve the integrity of the work by preventing others from distorting, altering, or mutilating the work in any manner that is prejudicial to the author's honour and reputation.

Furthermore, Clause 1, Article 28 of the Law on Intellectual Property 2005, as amended by Clause 8, Article 1 of the amended Law on Intellectual Property 2022, expressly provides that any act of altering, mutilating, or distorting a work constitutes an infringement of the personal moral rights prescribed in Article 19 of the Law.

3. Are personal moral rights under an intellectual property agreement protected after the author's death?

Pursuant to Article 27 of the Law on Intellectual Property 2005, as amended by Clause 8, Article 1 of the amended Law on Intellectual Property 2009, personal moral rights under an intellectual property agreement continue to be protected after the author's death. However, the duration of protection depends on the specific category of personal moral right, as follows:

- The personal moral rights prescribed in Clauses 1, 2, and 4, Article 19 of the Law are protected indefinitely and therefore remain protected after the author's death, including:

  • The right to give a title to the work.
  • The right to have the author's real name or pseudonym indicated on the work and to have such name or pseudonym acknowledged whenever the work is published or used.
  • The right to preserve the integrity of the work by preventing any distortion, alteration, or mutilation in any form that may prejudice the author's honour or reputation.

- The personal moral right to publish a work or authorize another person to publish a work, as prescribed in Clause 3, Article 19 of the Law, continues to be protected after the author's death, except in respect of the following categories of works:

  • Cinematographic works, photographic works, applied art works, and anonymous works;
  • Cinematographic works, photographic works, and applied art works;
  • Anonymous works where the identity of the author has not yet been disclosed.

4. How are personal moral rights determined where a work is created under an employment contract?

Pursuant to Clause 2, Article 45 of the Law on Intellectual Property 2005, an author may not assign the personal moral rights prescribed in Article 19, except for the right to publish the work. Likewise, a performer may not assign the personal moral rights prescribed in Clause 2, Article 29 of the Law.

Accordingly, if a work is created under an employment contract, the employee, as the author, retains the fundamental personal moral rights that are inseparable from the author and incapable of assignment, including:

  • The right to give a title to the work.
  • The right to have his or her real name or pseudonym indicated on the work and to have such name acknowledged whenever the work is published or used.
  • The right to preserve the integrity of the work by preventing any alteration, mutilation, or distortion that may prejudice the author's honour or reputation.

With respect to the employer, the right to publish the work generally belongs to the employer unless otherwise agreed by the parties in writing.

5. May an author request termination of an intellectual property agreement if his or her personal moral rights are seriously infringed?

Pursuant to Article 199 of the Law on Intellectual Property 2005, as guided by Article 57 of Decree No. 17/2023/ND-CP, any organization or individual committing acts that infringe upon the intellectual property rights of another organization or individual may be subject to civil, administrative, or criminal sanctions depending on the nature and severity of the infringement.

Pursuant to Clauses 1 and 4, Article 428 of the Civil Code 2015, a party is entitled to unilaterally terminate the performance of a contract without liability for damages if the other party commits a serious breach of its contractual obligations, if such right has been agreed upon by the parties, or where it is prescribed by law. The party suffering damage as a result of the other party's failure to properly perform its contractual obligations is entitled to claim compensation.

V. Why should you seek legal advice from NPLaw regarding personal moral rights under intellectual property agreements?

The foregoing provides an overview of the legal issues relating to personal moral rights under intellectual property agreements for your reference. With a team of highly experienced lawyers and legal professionals, NPLaw is committed to providing reliable and professional legal services, ensuring the fullest protection of our clients' lawful rights and interests. Should you require legal assistance or advice on intellectual property matters, please contact NPLaw for dedicated support.

The information provided above is for reference purposes only. Should you require detailed legal advice tailored to your specific circumstances, please contact NPLaw Firm for prompt professional consultation.