Copyright on VN propaganda posters?

From: Kien Tran <trankien.law@gmail.com>

Sent: Sunday, November 22, 2020 8:11 AM

To: Mitchell, Carol <clmi@loc.gov>

Cc: Judith A N Henchy <judithh@uw.edu>; Michael Mauer <mmauer99@hotmail.com>; Harriet Phinney <harriet.phinney@gmail.com>; mchale@gwu.edu; vsg@u.washington.edu

Subject: Re: [Vsg] Copyright on VN propaganda posters?

I would like to offer my views on this question as an intellectual property law lecturer in Vietnam.

There is no right or wrong answer to this question, especially in relation to the posters created before 1986. This is because technically speaking, the first regulatory provisions on droit d'auteur or copyright as you say in Vietnam was enacted in 1986 with the adoption of Decree 142. However, the Decree and its guiding Circular No.04 of the Ministry of Culture of 1987 say nothing about retrospective effect. That is to say all works created before 1986 were not covered and technically speaking not protected. Provisions enacted after 1986 also very unfortunately remain silent on this issue unlike for instances American laws. Anonymous or pseudonymous posters created after 1986 were equally troublesome in determining their authorship to get permission for use from them.

My informal suggestion to you is that you should try to locate the author(s) of the poster you want to use at least one using all information you can get access to. In case you are not successful, you can go forward to use the posters with proper disclaimer that you have tried to track down the author without any success. And if, upon publication, the author appears or anyone knows the author(s) of the poster, they can contact you to claim their work. In that case you will happily seek permission from them. It has become a common practice in Vietnam.

In relation to this question, I would like to introduce that I have recently published a book in Vietnamese on The Intellectual Property Law of Vietnam during French Colonial Era: Laws and Cases. The book is based partly on my PhD dissertation on the History of the IPL in Vietnam from 1864 to 1994 defended at the University of Glasgow in 2015. In my book, I for the first time I can confidently claim, present the emergence and development of IPL in Vietnam through legal provisions and court decisions during the colonial time. I thus disapprove all previously published research from all authors claiming that the IPL of Vietnam has only arisen since 1986. Vietnam is probably the first country in the entire world to codify the term Propriété intellectuelle in an Act of Law with the promulgation of the 1941 Law by King Bao Dai. Vietnam is also the first country in the entire world that actually codified various intellectual property laws into one with the said Act of Law. Something France only did with its new IP law passed in 1952.

I will continue to write about copyright law during the socialist era from 1945 to 1986 in which the copyright law was blended with censorship provisions to control the works of mind. Nhan Van Giai Pham is a major case from this perspective.

Sincerely

Tran Kien

On Sun, 22 Nov 2020 at 05:30, Mitchell, Carol <clmi@loc.gov> wrote:

As already noted, generally rights management for publications are bit higher.

You might also check with the requirements of your publisher?

World Intellectual Property Organization has translations of the copyright laws:

https://wipolex.wipo.int/en/members/profile/VN

Provides Vietnamese and translation into English

Carol L. Mitchell, Ph.D.

Field Director, Jakarta Office

Library of Congress

clmi@loc.gov

From: Vsg <vsg-bounces@mailman11.u.washington.edu> on behalf of Judith A N Henchy <judithh@uw.edu>

Sent: Friday, November 20, 2020 1:57 PM

To: Michael Mauer; Harriet Phinney; mchale@gwu.edu

Cc: vsg@u.washington.edu

Subject: Re: [Vsg] Copyright on VN propaganda posters?

Michael, It would be my guess that most of these would come under “work for hire” which means that the copyright owner would be the Party?

I’ve forwarded this question to our Libraries Copyright Lawyer. I hope she’ll have time to look at it.

Best

Judith Henchy

Judith Henchy, Ph.D., MLIS

Head, Southeast Asia Section

Special Assistant to the Dean of University Libraries for international Programs

Affiliate Faculty, Jackson School of International Studies

University of Washington Libraries

From: Vsg <vsg-bounces@mailman11.u.washington.edu> On Behalf Of Michael Mauer

Sent: Friday, November 20, 2020 11:52 AM

To: Harriet Phinney <harriet.phinney@gmail.com>; mchale@gwu.edu

Cc: vsg@u.washington.edu

Subject: Re: [Vsg] Copyright on VN propaganda posters?

I know nothing about permutations in Vietnam, but the law on copyright is a bit more nuanced. Many (too many) works are produced as "works for hire." This is meant to apply to creative work done while in the employ of an entity. When that's the case, it's the entity, not the creator, that holds the copyright.

(Though this is not my area of expertise, I am -- unfortunately -- a lawyer.)

-----------------------------------

Michael Mauer

Senior Labor Advisor, AAUP

From: Vsg <vsg-bounces@mailman11.u.washington.edu> on behalf of Shawn McHale <mchale@gwu.edu>

Sent: Friday, November 20, 2020 13:39

To: Harriet Phinney <harriet.phinney@gmail.com>

Cc: vsg@u.washington.edu <Vsg@u.washington.edu>

Subject: Re: [Vsg] Copyright on VN propaganda posters?

Copyright belongs to the author, not the entity that reprints. Only exceptions, I think, are for family members who actively take over a copyright once a family member dies.

On Fri, Nov 20, 2020 at 2:33 PM Harriet Phinney <harriet.phinney@gmail.com> wrote:

Hi Nora, Shaun, Karen

Thank you for your ideas. I should clarify: I want to use these images for a book publication. I bought replicas of propaganda posters at various

museums and shops in Hanoi. Some posters have no name and no dates, some have dates and name. Some are reprinted in a book published by the VN Women's Museum

with names and dates. All are after 1971. Does that mean the Women's Museum has rights and I could ask them? Tracking down these individual artists seems difficult!

Thank you for your time.

Harriet

On Fri, Nov 20, 2020 at 11:12 AM Shawn McHale <mchale@gwu.edu> wrote:

Not a lawyer, but I was previously interested in this issue.

"Fair use" is, I believe, an American exception to copyright laws that the WTO recognizes.

The issue is what exactly you mean by "permission to use" posters. If you mean in class, sure, go ahead. If you mean to publish in a book , , , I think it is trickier.

Vietnam signed treaty called TRIPS but seems to incorporate into it, with updates, the Berne Convention on copyright,

https://wipolex.wipo.int/en/text/283698

often updated, which states:

"3) In the case of anonymous or pseudonymous works, the term of protection granted by this Convention shall expire fifty years after the work has been lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, the term of protection shall be that provided in paragraph (1). If the author of an anonymous or pseudonymous work discloses his identity during the above-mentioned period, the term of protection applicable shall be that provided in paragraph (1). The countries of the Union shall not be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years."

So, HYPOTHETICALLY, the poster is covered. BUT this would mean anything before 1970 (1971 if you publish next year) is in the public domain.

Being realistic, it seems to me that if the poster is undated and unsigned, and you can't date it easily from clues, and you make a good faith effort to track down the author . . . and you think it may be before, say, 1971 . . . go ahead. That's what I, not a lawyer, would do.

Shawn McHale

On Fri, Nov 20, 2020 at 1:36 PM Turner, Karen <kturner@holycross.edu> wrote:

Hello Harriet, I am using a few posters in a film and one of them I purchased in Hanoi, so I technically own it. I checked about permission to use and was told by someone at BBC that some posters don't have individual authorship, so need not be credited. Fair use as I understand it means that one uses the material in a way that directly pertains to the information being conveyed. Not sure this helps and would like to hear what others have to offer about the issue. Best, Karen Turner

On Fri, Nov 20, 2020 at 1:16 PM Harriet Phinney <harriet.phinney@gmail.com> wrote:

Hi all,

I should know this, but I don't.

Do I need to get copyright permission to use images from VN propaganda posters from 1970s - 1990s or in the 2000s? Or do they fall into the fair use category? I assume that since they are in the public domain and are after all public, they are fair use, but I want to be sure.

If I do need permission who would I ask?

Thank you,

Harriet Phinney

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Karen Gottschang Turner

Distinguished Professor: History and Humanities, emerita, College of the Holy Cross

Senior Research Fellow: East Asian Legal Studies, Harvard Law School

kturner@holycross.edu

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