Copyright Claim and Copyright Strike in Cyberspace:

Vietnamese Takedown Request superior to American Takedown Request?

 Bross & Partners

Attorney Le Quang Vinh & Attorney Nguyen Khanh Linh

Email: vinh@bross.vn;  linh.nguyen@bross.vn

To crack down copyright infringement and piracy in the internet, many countries issued the so-called “notice and takedown process”. For example, in 1998, US Congress passed a DMCA takedown notice under Digital Millenium Copyright Act (“DMCA Takedown”). In April 2023, Vietnam first issued Notice-and-Takedown-Process including “72-Hour and 10-Working Day Process” and “24-Hour Process” under Decree 17/2023/ND-CP (also referred to as “Decree 17 Process” or “Vietnam Takedown”).

Vietnam Takedown is more advantageous than DMCA Takedown?

A DMCA takedown request is generally quite simple as it consists of only 3 steps. In particular, the first step is a request (complaint) with a link containing the infringing content filed by the right holder addressing to the designated representative of an online service provider (“OSP” or “ISP”) which is required to accept the claim for copyright infringement on its platform. Next, in step 2, OSPs are obligated expeditiously remove or disable access to the claimed infringing materials, and at the same time, notify the content creators or users of the removal or disabling access so that they can exercise the right to counterclaim (appeal) along with a request for restoration of the removed/disabled digital content. And, finally, in Step 3, the users have their digital content restored by OSPs within 10-14 working days from the time of objection, unless the right holder notify the OSPs that they brought the case to a court.[1]

Vietnam takedown is different from DMCA takedown in that Vietnam’s notice and takedown process is a dual process, consisting of “72-Hour and 10-Working Day Process” and “24-Hour Process”.[2]

Another significant difference is that while the DMCA process does not explicitly state how much time OSPs shall remove or disable access to infringing content “expeditiously” then Decree 17 process explicitly imposes that OSPs must temporarily remove or disable access to infringing materials within 72 hours (only 24 hours permitted for live-streamed digital content).

Subsequently, if OSPs do not receive a user’s counterclaim within 10 working days counting from the temporary removal, they officially remove or prevent access to the alleged infringing content. In the event of content creator’s objection, OSPs restores the removed content and transfer the content creator’s protest together with evidence to the right holders so that they can bring a lawsuit to a competent court and OSPs will comply with the court ruling.

A special feature that is different from the DMCA process is that the Decree 17 process also has a “24-Hour Process”. Accordingly, OSPs must remove or prevent access to pirated digital information within 24 hours of receiving a request made by an IP enforcement agency and report the removed act to the IP enforcement agency and notify the content creators no later than 24 hours. If dissatisfied, the right holder has the right to complain or initiate a lawsuit against the IP enforcement agency’s decision.

Comments

Practice shows that the DMCA process exposes loopholes and laxity leading to the abuse of complaints for copyrighted materials removal because it seems that OSPs do not have a procedure for thorough verification of complainants’ legal standing, especially when the complainants may knowingly misrepresent themselves as a right holder. As a result, it is likely that video recordings, digital content, or materials uploaded to online platforms, eg. YouTube, TikTok, Facebook, App Store, Google Play etc., are unfairly under “copyright strike”, or even worse it is likely that the right holders’ online channel may be stopped, even though it contains their own copyrighted works or recordings. For instance, in October 2021, the song “Giấc mơ trưa” (Noon Dream) on the Giang Sol official channel run by musician Giang Sol got copyright strike by YouTube. Musician Giang Sol affirmed that she herself did not sign any exclusive license agreement regarding this song in favor of anyone, and the musician also carefully used the remixed version of her CD “Giáng Son” that was released in 2007 with vocal Khanh Linh to put on her YouTube channel.[3]

No explanation about how “expeditiously remove” is in the DMCA takedown request can result in negative effects, for example, an OSP may intentionally delay or prolong its responsibility to remove infringing content while it can still enjoy the “safe harbor”, and on the other hand, the right holder can misuse the “copyright strike” mechanism to restrain, as long as possible, the content creators or users from their efforts for restoring removed/disabled digital content.

It appears that Vietnam’s “72-Hour & 10-Working Day Process” has overcome the limitations of the DMCA process in that it requires more stringent obligations to prove the status of a right holder in addition to proof of copyright infringement can help prevent “copyright strike” abuse by right holders. Furthermore, the fact that the Decree 17 process imposes a 72-hour obligation on the OSPs to remove or restore the allegedly infringing content instead of the vagueness of “expeditiously remove” provision in the DMCA process can establish a more balanced mechanism for dealing with the complex tripartite relationship of OSPs, content creators (users), and right holders, and for being able to reduce the possibility of OSPs to abuse delay or to bias right holders.

In short, Vietnamese right holders can choose Vietnam takedown request or/and American takedown request to claim copyright infringement, issue copyright strike, or resolve copyright strike. In their passive position, content creators (users) need to make efforts to prepare evidence and reasonable arguments to submit to OSPs to refute copyright infringement allegation, or depending on situation, they can initiate a civil lawsuit against the right holder or OSPs abuses over IP right protection procedure under Article 198(5) of IP Law 2022.

Bross & Partners, an intellectual property company ranked Tier 1 in 3 consecutive years (2020-2022) by Legal 500 Asia Pacific, has rich experience in resolving complicated IP disputes including trademarks, copyrights, patents, plant varieties, including those involved in copyright claim or copyright strike with OSPs, users, and right holders.

Please contact: Vinh@bross.vn; mobile: 0903 287 057; Zalo: +84903287057; Skype: vinh.bross; Wechat: Vinhbross2603.