Notice and Takedown Process under Vietnamese Copyright Legislation
Attorney Le Quang Vinh – Bross & Partners
Intermediary service providers (“OSP” or “ISP”) shall be legally responsible for secondary copyright infringement conducted by users on the OSP’s platform. This provision first appeared in the IP Law 2022 (Article 198b). Bross & Partners briefly introduces the mechanism for removing or preventing access to digital content that violates copyright and neighboring rights (related rights) as guided in Decree 17/2023/ND-CP, effective since April 26, 2023 (“Decree 17”).
Joint Liability for OSPs
Decree 17 defines secondary liability (indirect liability) for OSPs. It stipulates that OSPs will have joint obligations established when a right holder sues an OSP for copyright infringement committed by a user of digital content on that OSP's platform. This applies if there is evidence proving that the OSP has failed to comply with the conditions for liability immunity. If an OSP directly commits copyright infringement (as opposed to indirect liability), it will be regarded as a direct infringer and will be liable for damages like other regular infringers.
Among the three types of services - “mere conduit”, “caching” and “hosting” - Decree 17 only imposes the requirement to establish a tool for receiving requests for removal or prevention of access to digital content that infringes copyright on OSPs providing hosting service (on-demand digital content storage). This receiver may take the form of a computer program, email, or e-portal. In addition, an OSP is also obliged to notify its contact point, including email and contact phone number, to the Ministry of Culture, Sports and Tourism.
OSPs providing hosting service are obligated, upon request of the IPR enforcement authority or the right holder, to remove or prevent access to the digital content when they become aware that such digital information infringes copyright.
“72-Hour & 10-Working Day Process” and “24-Hour Process”
To protect copyright in the internet environment, Decree 17 establishes a mechanism that allows both enforcement agencies and rights holders to request an OSP to remove suspected infringing digital content.
For the process of removing or preventing access to digital content infringing copyright at the requested of the right holder (“72-Hour & 10-Working Day Process”), the OSP will temporarily remove or prevent access to the suspected infringing digital content within 72 hours upon receiving submissions from the right holder. These submissions should include evidence of the right holder’s standing, acts of infringement, location, and a link to the suspected infringing digital content. The OSP is also required to notify both the right holder and the party having such digital content.
If, within 10 working days from the date of temporary removal or blocking as stated above, the OSP does not receive a notice of objection against the temporary removal or blocking, accompanied by documentation substantiating such objection, the OSP will remove or prevent access to the digital content. In case of receiving an objection from the party having such digital content subject to a takedown request, the OSP will restore the removed or blocked digital information within 72 hours and forward the written objection, along with relevant evidence submitted by the party having such digital content, to the right holder.
If the objection, along with evidence, has been forwarded to the requesting party, but neither party initiates a civil lawsuit nor requests the enforcement agency to handle the infringement, or if the court or the enforcement agency does not accept the application, the OSP restores the removed or blocked digital information. However, if a court or enforcement agency accepts the petition, the OSP will act upon the decision issued by the court or enforcement agency.
Regarding digital information that is streamed in real-time, the right holder should proactively provide evidence of infringement to the OSP at least 24 hours before the live broadcast time for timely prevention. Accordingly, the OSP shall immediately temporarily remove or prevent access to the digital content, notify the requesting party and the requested party, and continue to follow the “72-Hour & 10-Working Day Process” as described above.
As for the process for requesting the removal of infringing digital content (“24-Hour Process”): OSPs must remove or prevent access to digital content that infringes copyright or related rights no later than 24 hours after receiving the request from the enforcement agency. Simultaneously, they must notify the party whose digital content has been removed and report the results to the enforcement agency within no more than 24 hours.
In case of objection by the party whose digital content is taken down or blocked, or by OSPs, either of these subjects has the right to lodge a complaint, denunciation, or commence a lawsuit in accordance with the law against the enforcement agency’s decision.
It should be noted that an enforcement agency’s request to remove or prevent access to digital content that infringes copyright or related rights is evidence that the OSP has knowledge of the infringement. As a result, the OSP is no longer entitled to the ‘safe harbor’ provision.
Bross & Partners, an intellectual property company ranked Tier 1 by Legal 500 Asia Pacific, has experience in resolving IP disputes, including trademarks, copyrights, patents, plant varieties.
Please contact: Vinh@bross.vn; mobile: 0903 287 057; Zalo: +84903287057; Skype: vinh.bross; Wechat: Vinhbross2603.