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Part 3/3: Copyright under the Vietnamese Legislation in the Format Q&A
(Ngày đăng: 2020-09-15)

Part 3/3: Copyright under the Vietnamese Legislation in the Format Q&A

 

Email: vinh@bross.vn

 

 

34. When does copyright protection begin?

 

Copyright protection begins at the time a work is created and fixed in a certain material form with originality.

 

35. How long does copyright protection last?

 

The duration of protection varies subject to the type of copyrighted work, and under the laws of Vietnam the term of protection applicable for a set of moral rights is different from that of a group of economic rights. Section 19 moral rights such as (a) the right to give titles to their works, to attach their real names or pseudonyms to their works, (b) the right to have their real names or pseudonyms acknowledged when their works are published or used, (c) the right to protect the integrity of their works and to forbid other persons from modifying, editing or distorting their works in whatever form, causing harm to the honour and reputation of the author, and (d) the right to publish their works or to authorise other persons to publish their works, shall be protected indefinitely, except for the moral right under (d) above.

 

Relating to section 20, economic rights comprise the right (a) to make derivative works, (b) to display their works to the public, (c) to reproduce their works, (d) to distribute or import the original or copies of their works, (e) to communicate their works to the public by wireless or landline means, electronic information networks or other technical means, (f ) to lease the original or copies of cinematographic works and computer programs; in the event of publication, cinematographic, photographic, stage, applied art and anonymous works are protected for a period of 75 years from the date of first publication. Where these cinematographic, photographic, stage, applied art works have not been published for 25 years from the date of fixation, their protection term would be 100 years from their fixation date.

 

Works that are absent from the above list shall be protected for the whole life of the author plus 50 years after his or her death and, in case of a work of joint authors, the term of protection shall expire in the 50th year after the death of the last surviving co-author. It is worth noting that the last right belonging to the group of moral rights is the right ‘to publish their works or to authorise other persons to publish their works’ and has a definite term of protection the same as that of the economic rights mentioned above.

 

Update and trends

Vietnam may soon accede to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) so that it is able to control growing online copyright infringement and piracy. Vietnam is now expected to crack down on copyright infringement by putting into practice wilful copyright infringement on a commercial scale by prosecuting and adjudicating criminal offenders, whether natural persons or for-profit corporations, under the 2015 Penal Code in 2018.

 

36. Does copyright duration depend on when a particular work was created or published?

 

It depends on both point of creation and publication. For example, cinematographic works, photographic works, works of applied art and anonymous works have a term of protection of 75 years from the date of first publication; for cinematographic, photographic or applied art works which remain unpublished within 25 years from the date of fixation, the term of protection is 100 years from the date of fixation. For other remaining works, the general rule of protection is the whole life of the author plus 50 years after his or her death and for joint authorship, the term of protection expires in the 50th year after the death of the last surviving co-author.

 

37. Do terms of copyright have to be renewed? How?

 

No.

 

38. Has your jurisdiction extended the term of copyright protection?

 

No.

 

39. What constitutes copyright infringement?

 

Pursuant to section 28, there are 16 acts of copyright infringement:

  1. Appropriating copyright in a literary, artistic or scientific work.
  2. Impersonating an author.
  3. Publishing or distributing a work without permission from the author.
  4. Publishing or distributing a work of joint authors without permis- sion from the co-authors.
  5. Modifying, editing or distorting a work in any way which prejudices the honour and reputation of the author.
  6. Copying a work without permission from the author or copyright holder, except for two instances of fair use, being a copy of a work being made for scientific research or teaching purposes or the copying of a work by a library for archival and research purposes under section 25(1)(a)(dd).
  7. Making a derivative work without permission from the author or copyright holder of the original work, except for the section 25(1) fair use-based 10 circumstances.
  8. Using a work without permission from the copyright holder and without paying royalties, remuneration or other material benefits in accordance with law, except for the section 25(1) fair use-based 10 circumstances.
  9. Leasing out a work without paying royalties, remuneration or other material benefits to the author or copyright holder.
  10. Duplicating, producing copies of, distributing, displaying or com- municating a work to the public via a communications network or digital means without permission from the copyright holder.
  11. Publishing a work without permission from the copyright holder.
  12. Deliberately destroying or de-activating the technical solutions applied by the copyright holder to protect copyright in his or her work.
  13. Deliberately deleting or modifying electronic information in a work regarding the management of the rights to such work.
  14. Manufacturing, assembling, transforming, distributing, import- ing, exporting, selling or leasing out equipment when knowing, or having grounds to know, that such equipment may de-activate technical solutions applied by the copyright holder to protect copy- right in his or her work.
  15. Making and selling a work with a forged signature of the author of such work.
  16. Importing, exporting or distributing copies of a work without per- mission from the copyright holder.

 

40. Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

 

In the IP Law, there is no provision regarding ‘secondary’ infringers, only primary infringers. However, some regulatory provisions guiding the implementation of the IP Law regarding ‘secondary’ infringers are found, for example, in Joint Circular No. 07/2012/TTLT-BTTTT- BVHTTDL on Stipulations on the Responsibilities for Intermediary Service Providers in the Protection of Copyright and Related Rights on the Internet and Telecommunications Networks (in force since August 2012). Under this joint circular, intermediary service providers are obliged, among other things, to remove and erase digital content in violation of copyright and related rights, and to cut off, stop and temporarily disconnect an internet cable or telecommunication transmission upon receipt of a written request by the Ministerial Inspectorates of Ministry of Information and Communications or the Ministry of Culture, Sports and Tourism or other competent ministries.

 

Also, intermediary service providers are liable directly for damage recovery due to their copyright or related rights violation in some cases, namely: (a) when they are the initial source that uploaded, transmitted or provided digital content through a telecommunication network and internet without the permission of copyright or related rights holders; or (b) when they modified, distorted or reproduced digital content in any form without the permission of the copyright or related rights holder.

 

41. What remedies are available against a copyright infringer?

 

Copyright infringement may be dealt with by using one of three remedies: a criminal penalty (section 225 of the 2015 Criminal Code as amended in 2017); an administrative violation fine of up to $22,000 under Decree No. 131/2013/ND-CP; or a civil lawsuit with a compensation claim in accordance with the IP Law and Civil Proceedings Code. When found guilty of a crime, an offender may face a fine of up to three billion dong or subject to non-custodial reform for up to three years or be jailed for up to three years. Special attention is paid that the first time in its development history of criminal jurisprudence and legislation, Vietnam accepted and passed the new inclusion of corporate criminal liability regime in the Criminal Code of 2015 as amended, whereby such criminal penalty is not only applicable for the offender (natural person) who committed a crime infringing a copyright or related right but also for the corporation for which the offender is working on behalf of or for its benefit.

 

It is worth noting that unlike most other countries, administrative measures against copyright infringement or piracy are commonly used by copyright holders rather than civil proceedings or criminal liability because they are less time-consuming and are a simpler procedure. However, it is recommended that copyright infringement or piracy cases are submitted before the Ministry of Culture, Sports and Tourism’s inspectorates or its provincial junior force as they are assigned by the state to control and deal with the culture sector and copyright and related rights matters.

 

42. Is there a time limit for seeking remedies?

 

Yes. The statute of limitation for initiating a copyright infringement lawsuit, where profit is directed at by both the plaintiff and defendant, is two years starting from the date on which the plaintiff knew that his or her right and legal interest was infringed. Where an infringement is dealt with via administrative remedy, the statute of limitation would be the same.

 

43. Are monetary damages available for copyright infringement?

 

Yes. Pursuant to article 204 of the IP Law, the types of monetary remedies available against a copyright infringer are remedies for material damage and spiritual damage.

Material damage includes property losses, decreases in income and profit, loss of business opportunities, reasonable expenses for prevention and remedying of such damage. Spiritual damage includes damage to honor, dignity, prestige, reputation and other spiritual losses caused to performers or authors of literary, artistic and scientific works.

The plaintiff can request the court to decide on the compensation level of the above damages on one of the two following bases: (i) total material damage calculated in an amount of money plus profit gained by the defendant as a result of an act of IP infringement where the reduced profit amount of the plaintiff has not yet been calculated into such total material damage; (ii) the price of the licensing of an IP object with the presumption that the defendant has been licensed by the plaintiff to use that object under a licence contract within a scope corresponding to the committed infringing act. If it is impossible to determine the level of compensation on those two bases, such compensation level will be set by the court, but must not exceed 500 million dong (US$23,000).

 

44. Can attorneys’ fees and costs be claimed in an action for copyright infringement?

 

Yes. According to article 205.3 of the IP Law, the plaintiff has the right to request the court to compel the defendant to pay reasonable costs of hiring attorneys.

 

45. Are there criminal copyright provisions? What are they?

 

Yes. Criminal offence for infringing copyright or related rights set out in section 225 of the Criminal Code of 2015 as amended provides that: a person who, without the consent of the holders of copyrights and relevant rights, deliberately commits any of the following acts which infringe upon copyrights and relevant rights protected in Vietnam and earns an illegal profit of from 50 million dong to under 300 million dong or causes a loss of from 100 million dong to under 500 million dong to the holders of such copyrights and relevant rights, or with the violating goods assessed at from 100 million dong to under 500 million dong shall be liable to a fine of from 50 million dong to 300 million dong or face a penalty of up to three years’ community sentence: (a) reproducing works, phonograms or video recordings, or (b) distributing to the public copies of works, phonograms or video recordings. In the case a crime that has been committed in any of the following cases shall carry a fine of from 300 million dong to 1 billion dong or a penalty of three to six years’ imprisonment: (a) the offence is committed by an organised group; (b) the offence has been committed more than once; (c) the illegal profit reaped is 300 mil- lion dong or over; (d) the loss incurred by the holders of copyrights and relevant rights is 500 million dong or over; and (e) the illegal goods are assessed at 500 million dong or over.

 

The offender might also be liable to a fine of between 20 million dong and 200 million dong and prohibited from holding certain positions or doing certain works for one to five years.

 

Punishments incurred by a corporate legal entity that commits any of the offences specified in this article are as follows: (a) any corporate legal entity that commits an offence specified in clause 1 of this article despite the fact that it previously incurred a civil penalty or has a previous conviction for the same offence which has not been expunged shall be liable to a fine of from 300 million dong to one billion dong; (b) a corporate legal entity that commits this offence in the case specified in clause 2 of this article shall be liable to a fine of between one billion dong and three billion dong or have its operation suspended for six to 24 months; and (c) the violating corporate legal entity might also be liable to a fine of between 100 million dong and 300 million dong or is prohibited from operating in certain fields or raising capital for one to three years.

 

46. Are there any specific liabilities, remedies or defences for online copyright infringement?

 

There are no individual statutory provisions on online copyright infringement.

 

47. How may copyright infringement be prevented?

 

Copyright holders should be proactive and prompt in detecting and requesting the state bodies to handle the infringement

 

48. Which international copyright conventions does your country belong to?

 

At present, Vietnam is a member of five international copyright conventions and treaties: the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention); the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention); the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva Convention); the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (Brussels Convention); and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement). In addition, Vietnam has signed bilateral agreements and memoranda for closer cooperation and strengthening of copyright protection.

 

49. What obligations are imposed by your country’s membership of international copyright conventions?

 

By acceding to the above copyright-related international treaties, Vietnam is fundamentally deemed obedient having already transposed its obligations into its national laws.

 

Should you have needs, please contact us at Email: vinh@bross.vn; Mobile: 0903 287 057; WeChat: Vinhbross2603; WhatsApp: +84903287057; Skype: vinh.bross; Zalo: +84903287057.

 

Bross & Partners, a renowned and qualified Patent, Design, Trademark and Copyright agent of Vietnam, constantly ranked and recommended by the Managing Intellectual Property (MIP), World Trademark Review (WTR), Legal 500 Asia Pacific, AsiaLaw Profiles, Asia IP and Asian Legal Business, is providing clients all over the world with the reliable, affordable contentious and non-contentious IP services including enforcement, anti-counterfeiting,  litigation regarding trademark, trade name, industrial design, patent, copyright and domain name.

 

 

 

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