Intellectual Property Crime in Vietnam: What constitutes Section 225 Copyright Infringement Offence?

Lawyer Le Quang Vinh – Bross & Partners

Email: vinh@bross.vn

To implement its international commitments in the TRIPs and CPTPP[1] on criminal handling of trademark counterfeiting and copyright piracy, Vietnam identified some acts of infringement of copyright (authors’ rights), neighboring rights (related rights), and a number of acts of infringement of industrial property rights are IP crime, specifically including Section 225 - crime of infringement of copyright, related rights, and Section 226 - crime of infringement of industrial property rights in the 2015 Penal Code as revised in 2017 (“Penal Code”), Bross & Partners below analyzes the basic legal signs constituting a Section 225 offence.

Basic theory of crime in Vietnamese criminal law

Elements constituting a crime are the only legal basis for determining crimes because criminal law defines crimes by describing the signs of criminal acts. From that legal basis, theorists generalized into common characteristic signs called four-elements for crime.[2] The Penal Code does not define what constituents of a crime mean. Criminal theoretical researchers define crime as the totality of typical legal signs of a specific crime as stipulated in the Penal Code, in particular, a crime must meet four elements: objectivism, subjectivism, objective aspect, and subjective aspect.[3]

Constituents of a crime under Section 225

5. Subjectivism of the crime: Section 225 does not stipulate special signs for the subjectivism of this crime. Therefore, the subjectivism of this crime is any individual 16 years of age or older with criminal liability capacity. The subjectivism of this crime can also be a commercial legal entity (legal person) as defined in Article 75 of the 2015 Civil Code.[4]

5. Objectivism of the crime: This crime is classified by lawmakers into the group of other crimes violating economic order, not in the same group of crimes that violate economic management order in production, business, and commerce (eg. crimes of producing and trading counterfeit goods stipulated in Sections 192-195). This means that the crimes of infringement of authors’ rights, related rights have the same general objectivism and categorial objectivism as the crime group of crime of couterfeiting goods but differs in direct objectivism.

The subject of impact of the crime of infringement of authors’ rights, related rights include only 2 types of property rights (economic rights), namely reproduction right, and distribution right under 2 forms of legal protection of intellectual property rights: authors’ right and related rights are protected in Vietnam. Acts of infringing moral rights, or other property rights such as right to lease, right of communication to the public, right to make derivative works, public performance right with respect to works, phonograms, video recordings are not subject to the crime. Hence, infringement of the reproduction right or distribution rights is an obligatory sign of the crime.

5. Objectiveness of the crime: the objective act of this crime is the act of copying (duplicating, making copies) or the act of distributing works, audio recordings, or video recordings without the permission of the rights holder. This crime has a material constitution, meaning that the consequences occurred are mandatory signs of the crime. However, the objectiveness of this crime requires that the threshold "on a commercial scale" happen. Although Section 225 does not explain what “on a commercial scale” is, lawmakers have added legal signs immediately after the phrase “on a commercial scale” to indicate that other types of consequences caused by crime in the form of damage thresholds converted into cash can be equivalent to “on a commercial scale”, namely, illegal profits of 50 million VND or more, causing damage to rights holders of 100 million VND or more, or infringing goods worth 100 million VND at minimum.

5. Subjectiveness of the crime: the offender infringes authors’ rights, related rights with his/her willful fault (direct or indirect fault), meaning that he is clearly aware that his act is an infringement of reproduction right and right of distribution, foreseeing the consequences of that act and, and expecting the consequences to occur, or foreseeing the consequences of that act can happen, even though he/she does not expect it, he/she still consciously let the consequences happen. Business purpose is not a mandatory sign of this crime.

Regarding the criminal liability of legal persons, the crime of infringing authors’ rights, related rights is one of the crimes that the Penal Code 2015 imposes the criminal liability on commercial legal entities (businesses and other economic organizations) are legal entities whose main goal is to seek profits and share profits to their shareholders.

To indict a commercial legal entity, the procedure-conducting bodies must prove that the conduct of a commercial legal entity through its legal representative simultaneously satisfies 4 conditions: (1) the crime is committed on behalf of a commercial legal entity; (2) the violation was committed for the benefit of the commercial entity; (3) the criminal act is committed with the direction, control or approval of a commercial legal entity; and (4) the statute of limitations for criminal prosecution has not yet expired.

Specific crime cases according to Section 225

The offences of authors’ rights, related rights have two main penal frames applicable to individual offenders and commercial legal entities. Individuals who commit crimes according to frame 1 (basic crime constituents) are subject to the main penalty of a fine from 50 million to 300 million VND or non-custodial reform for up to 3 years if damage caused as a result of the crime has reached on a commercial scale, or the offender gained illegal profits from 50 million to under 300 million, or caused damage to the right holder from 100 million to under 500 million, or the infringing goods worth between 100 million to under 500 million.

If one of the 5 aggravating circumstances below appears, the individual offender will have his or her criminal liability increased according to frame 2, specifically a fine of between 300 million and 1 billion VND or a fixed-term imprisonment of between 6 months and 3 years:

(a) Organized crime (with accomplices and close collusion between people who committed the crime)

b) Committing the crime 2 times or more.

c) Gaining illegal profits of 300 million VND or more.

d) Caused damage to the right holder 500 million VND or higher.

d) Infringing goods worth 500 million VND or higher.

In addition to the main penalty, individual offenders may also be subject to additional penalties including a fine (if the main penalty is not a fine) from 20 million to 200 million, a ban from holding positions, practicing a profession, or working as a specific job between 1 year and 5 years.

For commercial legal entities, in addition to ensuring the four conditions for criminal liability as indicated above, and independently of the individual criminal liability, commercial legal entities may be considered guilty of authors’ rights, related rights and subject to the main penalty of a fine between 300 VND million and 1 billion VND if the physical damage (consequences) caused reaches the minimum threshold converted into money, including:

1. Illegal profits from 200 VND million to under 300 VND million, or illegal profits from 100 VND million to under 200 VND million but have been administratively sanctioned for one of the acts specified in this law, or have been convicted as for this crime, the criminal record has not been erased but is still being violated; or
2. Causing damage to the right holder from 300 VND million to under 500 million VND, or causes damage from 100 million VND to under 300 million VND but has been administratively sanctioned for one of the acts specified in this section, or has been convicted of this crime, not yet having his criminal record erased but still violating it; or
3. Infringing goods worth from 300 million VND to 500 million VND, or infringing goods worth from 100 million VND to less than 300 million VND but have been administratively sanctioned for one of the acts specified in this law, or have been convicted of this crime, not yet erased criminal record but still infringes it.

If an individual offender meets the criteria for an aggravated crime according to Section 225.2 of the Penal Code, the commercial legal entity (presumption that 4 conditions according to Section 75 of the 2015 Penal Code are satisfied) will also have the penalty increased, ie. it will be fined from 1 billion to 3 billion VND or suspended from operations for a period of 6 months to 2 years as stipulated at Section 225.4.b of the 2015 Penal Code.

In addition, commercial legal entities may also be subject to additional penalties including fines between 100 million VND and 300 million VND (if the main penalty does not apply a fine), ban on business, ban on operating in certain fields ranging from 1 to 3 years.

Authors’ rights, related rights are two independent forms of legal protection of intellectual property rights prescribed in the 2022 IP Law, so suppose one person illegally copies 10,000 books, and distributes to the public of Trinh Cong Son's album on Youtube (likely accessed by thousands of views), he/she must be criminally responsible for two crimes: authors’ rights, and related rights infringement offences. Accordingly, the procedure-conducting bodies and the courts need to prosecute many crimes and decide penalties for each crime and summarize the penalties according to Section 55 of the 2015 Penal Code.

Bross & Partners, an intellectual property firm ranked First (Tier 1) in 2021 by Legal 500 Asia Pacific Magazine, has experience in civil and criminal litigation related to intellectual property rights in Vietnam.

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