How to deal with a backstabbing friend who stole your idea
Dear Hadrien and Marijn,
I am a freelance software developer specializing in mobile phone applications for Apple and Android devices. Last month, I told my best friend (well, my former best friend) about an idea for a new edutainment app. We talked about it extensively, and I shared with him my intention to further develop and market the app. Yesterday, I found out that the f# b&! has developed an app based exactly on my idea and that he sold it to an IT company taking all the credit and money for my concept! I am furious like an Angry Bird now. This is the Social Network all over again…
What are my options in this situation?
Dear Binh,
We understand your frustration and it must be painful to see someone else taking all the credit for your hard work. When we talk about protecting the rights of an author on so-called “intellectual assets,” we are talking about intellectual property rights or simply “IPR.” As a software developer, we are sure that you have heard of this concept before.
In Vietnam, the most important legal document relating to your question is the Intellectual Property Law of 2005, which was amended in 2009 (the “Vietnamese IP Law”). This law broadly divides intellectual property rights into three categories: copyright and related rights, industrial property rights, and rights to plant varieties.
Your question regarding a mobile phone app touches upon a relatively new field of IP rights, and the Vietnamese IP Law does not (yet) explicitly mention this topic. In practice, however, a mobile phone app itself being a computer program, as well as its script and its graphic design can be protected by copyright. Copyright arises at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and regardless of whether or not such work has been published or registered with the competent authorities.
Copyright can protect persons who have directly created a work, whereas other copyright holders may include an employer in case the work is created in the course of employment, a co-author and/or a person to which a copyright is assigned.
Vietnamese law provides copyright holders with several measures to protect them from infringements. Among those measures is the right to request an infringing party to terminate his or her actions, to request a public apology or a rectification, and/or to request the payment of the actual material and spiritual damages that a copyright holder has suffered as a result of the infringement. Furthermore, copyright holders can request the competent Vietnamese authorities to deal with the act(s) of infringement, and they can also initiate a civil lawsuit to protect their legitimate interests.
It is important to note that in infringement cases, it is up to the acclaimed holder of a copyright to prove both the existence of such copyright and the actual infringement of it. And especially for these cases, it is advisable to register your copyrights with the Copyright Office of Vietnam.
Turning to your specific situation, we should first determine whether a copyright has actually arisen on your mobile phone app. As mentioned before, under Vietnamese law a copyright shall arise at the moment a work is created and fixed in a certain material form. This is so important, because the Vietnamese IP Law does not protect mere ideas that have not been fixed in a certain medium yet. To give you some practical examples, a copyright may be established when music is recorded on a CD, or when a script is written on a piece of paper.
With regard to your edutainment app, if what you had developed at the time you shared it with your friend was merely an idea without it being fixed in a material form, you may not be able to prove that you are the author of the app and that your former friend has infringed the copyright that you would hold. However, if you believe you can prove that your friend’s app is a copy, at least partially, of something that you have developed and fixed at an earlier stage, it may be worth considering one of the legal remedies that we described above.
On the other hand, considering the time and money that such remedies may cost, trying to find an amicable solution with your friend would be an advisable first step. And next time you meet him, perhaps you can bring some Angry Birds along!
Every month, Hadrien and Marijn answer legal questions from Oi readers. If you have any legal question you want answered, send them to legal@oivietnam.com
*A member of the Paris Bar, Hadrien Wolff has been practicing law in Vietnam for more than eight years, currently as a partner of Audier & Partners based at its HCMC office. With extensive legal experience obtained in the Netherlands and in Cambodia, Marijn Sprokkereef is now an associate at the Hanoi office of the same firm. Audier & Partners is an international law firm with presence in Vietnam, Myanmar and Mongolia, providing advice to foreign investors on a broad range of legal issues.
