GV Lawyers would like to introduce an article by Lawyer Le Quang Vy and Paralegal Vo Tran Hoang Sa titled “Who is the real author between a conceiver of creative ideas and a ghostwriter?” published on Vietnam Lawyer Journal dated 15 April 2021.
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(LSVN) – It is about the copyright dispute between the family of Writer Huu Mai and the family of General Vo Nguyen Giap related to “the Memoirs of General Vo Nguyen Giap” ghostwritten by Writer Huu Mai; or the frustration of Writer Vo Dieu Thanh when he accepted to write memoirs for a famous person … This is the problem of copyright disputes between a conceiver of creative ideas and a ghostwriter, which is currently happening in social life. Thus, how does the law provide for in terms of authors, co-authors, copyright owners?
Like other countries, the 2005 and as amended in 2009 Intellectual Property Law of Vietnam (IP Law) clearly states that copyright only arises when a work is created and expressed in a particular material form (Article 6, IP Law). This means that if a person comes up with an idea, but the idea has not been expressed in a material form such as articles, phonograms, video recordings … the work has not been formed, and thus is not protected by law. In other words, copyright law does not protect a work when it is just an idea creation in mind, and the law only protects when the idea creation in mind is expressed in a particular material form.
Difference among author, co-creator and copyright owner
We know that the subject of all rights always has two objects: natural person (man of nature, product of creation) and legal person (man from the perspective of law). Therefore, copyright holders can be natural persons or legal entities. However, when it comes to an author, it cannot be a legal person, but can only be a natural person because only such natural person can create a work directly.
Accordingly, Article 6.1 of Decree 22/2018/ND-CP on guidelines on the 2005 and amended in 2009 IP Law on copyright and related rights (Decree 22/2018 /ND-CP) stipulates: “An author means a person who personally creates part or the whole of the literary, artistic or scientific works”.
Article 6 The Swiss Federal Copyright Law introduces the concept “Authors are natural persons who create works”. Legally, we should probably use the term “creative natural person / individual” rather than “creator”, because as aforesaid, in a sense, “creator” can be understood as a juridical person that cannot create from the perspective of law.
In short, only individuals who, by their own labour, directly create a part or the whole of literary, artistic or scientific works expressed in particular material forms, is the author of the work, protected by law. A work is considered to be co-authored when many authors use their time, money and facilities to co-create that work.
The Law on Intellectual Property also clarifies cases in which an author is also a copyright owner and an author is not concurrently a copyright owner. Accordingly, an individual using his own time, finance and other material conditions directly creates the work, then that individual is both the author and the owner of the copyright (Article 37 IP Law). In this case, the author has full ownership of moral and property rights to the work he has created. For works with co-authors, the co-authors are also co-owners of the copyrights. The law also predicts where any of co-authors has his own creation, which can be separated for independent use without prejudice to remaining co-authors, he is eligible for full ownership of moral rights and property rights over that independent creation (Article 38 of the Law on Intellectual Property). In case the author is only the creator of the work according to the assigned task or creation contract (the hired author), the author only has moral rights, while the property rights will belong to the individual or organization that gives job assignment to or signs a contract with the author.
Thus, the organization that assigns the task or the organization or individual that enters into a contract with a work creator will be the copyright owner of the work (Article 39 of the Law on Intellectual Property). In addition, the Intellectual Property Law also stipulates cases in which the copyright owner is the heir, the person to whom the right is transferred or in which case the copyright owner is the State.
Is the ghostwriter an author or co-author?
Writers for another person are called “ghostwriters” in English and are defined as “a person who writes a book, etc.” for another person as a hirer, under whose name it is then published”[1]. Article 6.3 of Decree 22/2018/ND-CP stipulates: “Persons who support, give opinions or provide materials for others to create works are not recognized as authors or co-authors”. Thus, under the legal perspective, if the writer or typist only supports the creative author in creating the work, it will not be considered the author or co-author. Obviously, the ghostwriter is only the person who implements the idea of the author who created the work in a particular material form. Therefore, the writer is not the creator of the work and is not considered an author.
Copyright law of some countries around the world also does not recognize the role of the ghostwriter, or the supporter will have copyright for the work when performing the supporting work to express the creative ideas of the author (such as typing, document collection, …).
In the United States, when discussing the copyright issue of the ghostwriter, the ghostwriter will not have the right to the work after having received the full payment from the author for such supporting work. Ownership of the copyright of the work will belong to the ordering party, and the ghostwriter will not have any copyright or ownership of the copyright on the work [2]. However, copyright disputes arise when the contract or agreement between the parties does not have a clear provision regarding the ghostwriter’s role in the relationship with the author. In addition, in Switzerland, the element of “co-creation” is compulsory to define the role of “co-author” for the work, accordingly, the concept of co-authoring is also only posed to those who co-contribute to the creation of the work and copyrights belong only to these people rather than other supporting subjects (such as ghostwriters) who do not play the role of contributing to that creation of the work [3].
A copyright dispute between the famous French author and writer in France is known between the famous French great writer Alexandre Dumas and his assistant in writing famous novels – Auguste Maquet. Accordingly, Auguste Maquet filed a lawsuit in Court to demand recognition of him as co-author with Alexandre Dumas for the famous novels he has co-authored with Alexandre Dumas, regardless of the cooperation contract stating Auguste Maquet agreed not to recognize the contribution to the creation of these novels. As a result, the Court ruled that only Alexandre Dumas – who really had creative ideas for the new work had copyright for these novels after paying the costs of hiring Auguste Maquet to write the novel over a period of 11 years [4].
However, in judicial practice, it is not obvious that 100% of the dispute settlement agency will choose a resolution based on the law only, because inherently, the terms agreed between the parties in this cooperative relationship play an important role when considering dispute resolution. Therefore, when hiring ghostwriters or assistants to carry out related work, it is important to pay attention to building a clear basis in the contract or cooperation agreement to best protect their own interests. On both legal and practical terms, a contract with strict provisions and clear affirmation of the supporting role of the ghostwriter to express the author’s creative idea in the work is a necessary legal basis for the parties to settle disputes when it happens later.
Back to the families of Writer Huu Mai and General Vo Nguyen Giap related to the Memoirs of General Vo Nguyen Giap, maybe when these works were published, Vietnam did not have an IP Law or otherwise, the parties did not clearly establish the contract. Vietnam’s current IP law is relatively clear, in keeping with the progressive law of many countries around the world. It is thought that this will be the legal basis for the parties to together reach a mutual agreement. In terms of its purpose and meaning, the IP Law not only creates a legal corridor to protect the authors, but also ensures a balance of interests between the author, the communicator and the public (beneficiary), creating conditions for the dissemination of good works to help spiritual products serve the society better and better.
[1] https://www.oxfordlearnersdictionaries.com/definition/english/ghostwriter?q=ghostwriter
[2] According to the US writer Lawrence Watt-Evants at the Quora response site
[3] Retrieved at https://www.fedlex.admin.ch/eli/cc/1993/1798_1798_1798/en
[4] According to information published at the World Intellectual Property Organization WIPO https://www.wipo.int/wipo_magazine/en/2008/05/article_0011.html
