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13015 Vietnam - Agreement Amending the Agreement of June 27, 1997 on the Establishment of Copyright Relations


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13015

 

 

COPYRIGHT

 

 


Agreement Between the
UNITED STATES OF AMERICA
and VIETNAM


Signed at Hanoi June 27, 1997


and


Amending Agreement

Effected by Exchange of Notes
At Washington December 23, 1998

 


 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

VIETNAM

Copyright

Agreement signed at Hanoi June 27, 1997;
Entered into force December 23, 1998.
And amending agreement.
Effected by exchange of notes
At Washington December 23, 1998;
Entered into force December 23, 1998.

Agreement between the Government of the United States of America and the
Government of the Socialist Republic of Vietnam on the
Establishment of Copyright Relations
The Government of the United States of America and the Government of the Socialist
Republic of Vietnam, hereinafter referred to as the Contracting Parties;
Desiring to promote further relations between them;
Recognizing the benefits to be derived by both States from the mutual protection of
copyrights;
Have agreed as follows:
Article 1- Definitions
For the purposes of this Agreement:
1. The term "Vietnam" means the territory of the Socialist Republic of Vietnam as
defined in its laws.
2. The term "United States" means the several states, the District of Columbia and the
Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the
United States Government.
3. The term "works" means all types of copyrightable works and sound recordings,
regardless of the medium in which they are fixed, including in electronic form.
Article 2 - National Treatment
Each Contracting Party shall, in accordance with its respective laws and procedures,
accord to the works of authors, creators, and artists who are nationals or domiciliaries of
the other Contracting Party, and to works first published in the territory of the Contracting
Party, copyright protection no less favorable than that it accords to its own nationals.
Article 3 - Covered Works
1. Works protected under this Agreement shall include works for which a national or
domiciliary of either Contracting Party owns economic rights granted by the copyright
law in the territory of the other Party or where such rights are owned by a judicial entity
2
directly or indirectly controlled by. or the majority of whose shares or other proprietary
interest is owned by, any national or domiciliary of either Contracting Party, provided that
ownership of such rights was acquired within one year following first publication of such
works in a country belonging to a multilateral copyright treaty to which either Contracting
Party belongs on the effective date of this Agreement. Indirect control means control
exercised through subsidiaries or through affiliates wherever located.
2. Each Contracting Party shall extend the protection required by this Agreement to
works of nationals and domiciliaries of the other Party, and to works first published in the
other Party, prior to the entry into force of this Agreement, if such works have not fallen
into the public domain in either Contracting Party after enjoying a full term of protection.
Nothing done by any person before the entry into force of this Agreement shall be taken
to constitute an infringement of copyright. Accordingly, the relevant law and/or
regulations of both Contracting Parties will specifically provide that the grant, enjoyment,
and enforcement of copyrights will apply to all such works.
Article 4 - Formalities
Neither Contracting Party may impose formalities, including among other things
publication or registration requirements, on the enjoyment or exercise of rights in works
of the other Contracting Party.
Article 5 - Minimum Rights
1. The Contracting Parties shall ensure that the right holder in a work shall have the
exclusive right to authorize or prohibit
a. the reproduction of a work, preparation of derivative works based upon the
work, and the distribution of copies of works;
b. in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, the public performance of
the work; and
c. in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the individual images
of a motion picture or other audiovisual work, the public display of the work.
2. The law of both Contracting Parties will include provisions which specifically set
out these rights.
3. The Contracting Parties will confine limitations and exceptions to the rights set
forth in Paragraph 1 of this Article to certain special cases which do not conflict with a
normal exploitation of the work and do not unreasonably prejudice the legitimate interests
of the right holder.
3
Article 6 - Enforcement
1. The Contracting Parties will provide full and effective enforcement of copyrights
in works within their territories, including:
a. making available in the context of civil actions preliminary injunctive
relief, permanent injunctive relief, damages, and the seizure and destruction of infringing
goods and the materials and machinery predominantly used to create them;
b. making available criminal procedures and penalties to be applied in the
case of copyright piracy on a commercial scale, including the imposition of fines and
imprisonment sufficient to provide a deterrent and the seizure and destruction of
infringing goods and the materials and machinery predominately used to create them; and
c. making available effective enforcement at the border, including the seizure
and destruction of infringing goods in transit or bound for import or export.
2. The law of both Contracting Parties will include provisions which specifically set
out these remedies, procedures and penalties.
Article 7 - Resolution of Disputes
If any dispute between the Contracting Parties arises out of the interpretation or
implementation of this Agreement, the Contracting Parties shall attempt to settle such
dispute amicably by consultation and negotiation.
Article 8 - Cooperation
The Contracting Parties agree to cooperate to achieve their shared goal of preventing and
addressing the infringement of copyrights. This can include technical assistance and
cooperation where appropriate under such terms and conditions as agreed by both
Contracting Parties.
Article 9 - Implementation of Obligations
The law and regulations of both Contracting Parties will include provisions which
specifically implement the obligations set out in this Agreement.
Article 10 - Amendment
This Agreement may be amended and supplemented at any time as agreed between the
Contracting Parties.
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Article 11 - Entry Into Force
1. Articles 1 through 10 of this Agreement shall enter into force upon the exchange
of written instruments indicating each Party's ability to undertake the obligations therein.
2. Each Contracting Party shall undertake best effort to exchange instruments in
accordance with Paragraph 1 above as soon as possible, but in any event no later than six
(6) months from the date this agreement is signed by both Parties.
3. Either Contracting Party may terminate this Agreement by giving six (6) months
notice of such intention. This Agreement will terminate on the expiration of the notice
unless the Contracting Party giving notice withdraws such notice before the expiration
thereof.
In witness whereof, the undersigned, being duly authorized by their respective
Governments, have signed this Agreement.
Done in duplicate at Hanoi , this 27th day of June, 1997, in the English
and Vietnamese languages, both texts being equally authentic.
FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA: SOCIALIST REPUBLIC OF VIETNAM:
DEPARTMENT OF STATE
WASHINGTON
December 23, 1999
Excellency:
I refer to the Agreement between the Government
of the United States of America and the Government
of the Socialist Republic of Vietnam on the
Establishment of Copyright Relations, done on the
27th day of June, 1997 (hereinafter referred to as
the "Agreement").
Article 11 of the Agreement provides that
Articles 1 through 10 shall enter into force upon
the exchange of written instruments indicating each
Party's ability to undertake the obligations
therein. On behalf of my Government, I have the
honor to state its assurances that, in accordance
with Article 11.1 of the Agreement, the United
States of America has the ability to undertake the
obligations contained in the Agreement. In this
regard, I draw your attention to the Proclamation
issued by the President of the United States of

America, on December 23, 1998, a copy of which is
His Excellency
Le Van Bang,
Ambassador of Vietnam.
-2-
enclosed, pursuant to the provisions of Section
104(b)5 and section 104A(g) of Title 17 of the
United States Code. On behalf of my Government, I
propose that Article 11.1 of the Agreement be
amended to provide as follows: "This Agreement shall
enter into force upon the exchange of written
instruments indicating each Party's ability to
undertake the obligations therein." I further
propose that Article 11.2 of the Agreement be
amended to provide as follows: "Each Contracting
Party shall undertake its best efforts so that the
instrument exchange in accordance with Paragraph 1
above will take place as soon as possible."
If these proposals are acceptable to the
Government of the Socialist Republic of Vietnam, I
propose that the Agreement, amended as proposed
herein, enter into force upon receipt of your
Excellency's note providing assurances under Article
11.1 and concurring herein.
Accept, Excellency, the renewed assurances of
my highest consideration.
For the Secretary of State:
Enclosure:
The President's Proclamation
EXTENDING UNITED STATES COPYRIGHT PROTECTIONS TO THE
WORKS OF THE SOCIALIST REPUBLIC OF VIETNAM
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Section 104(b)(5) of title 17 of the United States
Code provides that when the President finds that a particular
foreign nation extends, to works by authors who are nationals
or domiciliaries of the United States of America or to works
first published in the United States, copyright protection
on substantially the same basis as that on which the foreign
nation extends protection to works of its own nationals and
domiciliaries and works first published in that nation, the
President may by proclamation extend protection under that
title to works of which one or more of the authors is, on the
date of first publication, a national, domiciliary, or sovereign
authority of that nation, or which are first published in that
nation. Section 104A(g) of title 17 of the United States Code
provides that when the President finds that a particular foreign
nation extends, to works by authors who. are nationals or domi-
ciliaries of the United States, restored copyright protection
on substantially the same basis as provided under that section,
the President may by proclamation extend the restored protection
provided under that section to any work of which one or more of
the authors is, on the date of first publication, a national,
domiciliary, or sovereign authority of that nation, or which
was first published in that nation.
Satisfactory assurances have been received that as of the
date of entry into force, December 23, 1998, of the Agreement
between the Government of the United States of America and the
Government of the Socialist Republic of Vietnam on the Establish-
ment of Copyright Relations (the "Copyright Agreement"),
2
Vietnam will extend, to works of United States nationals and
domiciliaries and works first published in the United States,
copyright protection in the Socialist Republic of Vietnam on
substantially the same basis as works of Vietnamese national.
and domiciliaries and works first published in Vietnam, and that
Vietnam will extend, to works by authors who are nationals or
domiciliaries of the United States, restored copyright protection
on substantially the same basis as provided under section 104A of
title 17 of the United States Code.
NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the
United States of America, by the authority vested in me
by section 104(b)(5) and section 104A(g) of title 17 of the
United States Code, do declare and proclaim that, as of the date
of entry into force of the Copyright Agreement, the conditions
specified in section 104(b)(5) and section 104A(g) of title 17
of the United States Code have been satisfied in the Socialist
Republic of Vietnam with respect to works of which one or more
of the authors is, on the data of first publication, a national
or domiciliary of the United States of America, or which are
first published in the United States, and that as of the date
of entry into force of the Copyright Agreement, works of which
one or more of the authors is, on the date of first publication,
a national, domiciliary, or sovereign authority of Vietnam, or
which are first published in Vietnam, are entitled to copyright
protection and restored copyright protection under title 17 of
the United States Code.
I hereby request the Secretary of State to notify the
Government of the Socialist Republic of Vietnam that the date
on which works of which one or more of the authors is, on the
date of first publication, a national, domiciliary, or sovereign
authority of Vietnam, or which are first published in Vietnam,
3
are entitled to copyright protection and restored copyright
protection under title 17 of the United Sates Code is
December 23, 1998, the data on which the Copyright Agreement
enters into force.
IN WITNESS WHEREOF, I have hereunto set my hand this
twenty-third day of December, in the year of our Lord
nineteen hundred and ninety-eight, and of the Independence of
the United States of America the two hundred and twenty-third.
EMBASSY OF VIETNAM
1233 20th Street, NW, Suite 400 . Washington, D.C. 20036
Tel: (202) 861-0737 . Fax: (202) 861-0917
No: 104 /CH — 98
Washington, D.C., December 23rd, 1998
The Honorable Madeleine K. Albright
Secretary of State
U.S. Department of State
Washington, D.C. 20520
Dear Madam Secretary of State,
I have the honor to acknowledge the receipt of your note of December
23rd, 1998, which reads as follows:
"I have the honor to refer to the Agreement between the Government
of the United States of America and the Government of the Socialist
Republic of Vietnam on the Establishment of Copyright Relations, done on
the 27th day of June, 1997 (hereinafter referred to as the "Agreement").
Article 11 of the Agreement provides that Articles 1 through 10 shall
enter into force upon the exchange of written instruments indicating each
Party's ability to undertake the obligations therein. On behalf of my
Government, I have the honor to state its assurances that, in accordance with
Article 11.1 of the Agreement, the United States of America has the ability
to undertake the obligations contained in the Agreement. In this regard, I
draw your attention to the Proclamation issued by the President of the
United States of America, on December 23rd, 1998, a copy of which is
enclosed, pursuant to the provisions of section 104 (b) (5) and section 104 A
(g) of Title 17 of the United States Code.
On behalf of my Government, I propose that Article 11.1 of the
Agreement be amended to provide as follows: "This Agreement shall enter
into force upon the exchange of written instruments indicating each Party's
ability to undertake the obligations therein." I further propose that Article
1
11.2 of the Agreement be amended to provide as follows: "Each Contracting
Party shall undertake its best efforts so that the instrument exchange in
accordance with Paragraph 1 above will take place as soon as possible."
If these proposals are acceptable to the Government of the Socialist
Republic of Vietnam, I propose that the Agreement, amended as proposed
herein, enter into force upon receipt of your Excellency's note providing
assurances under Article 11.1 and concurring herein."
On behalf of my Government, I have the honor to state its assurances
that, in accordance with Article 11.1 of the Agreement, the Socialist
Republic of Vietnam has the ability to undertake the obligations contained in
the Agreement. In this regard, I draw your attention to Decision Number
1130/TTG, dated December 26th, 1997, ratifying the Agreement between the
Government of the Socialist Republic of Vietnam and the Government of the
United States of America on the Establishment of Copyright Relations, and
to Circular No. 05/1998/TT-BVHTT, Guidelines for implementing a number
of Provisions in the Agreement between the Government of the Socialist
Republic of Vietnam and the Government of the United States of America
on the Establishment of Copyright Relations, dated September 12th, 1998.
My Government has also instructed me to concur in your
Government's proposal to amend Articles 11.1 and 11.2 of the Agreement.
The Government of the Socialist Republic of Vietnam considers that the
Agreement, as amended, shall enter into force on this date.
For the Government of
the Socialist Republic of Vietnam
Ambassador
(Signed)
Le Van Bang
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