‘Safe Harbor’ Provision under the 2022 Intellectual Property Law of Vietnam

Attorney Le Quang Vinh – Bross & Partners

Email: vinh@bross.vn

Holding an ISP (intermediary service providers) or an OSP (online service providers) responsible for copyright, neighboring rights on the internet is the statutory provision first time included in the Third Revision to the 2005 IP Law (the “2022 IP Law”) which was adopted by the National Assembly on June 16, 2022 and will come into effect from January 1, 2023. The immunity available to ISPs or OSPs against copyright infringement on the Internet is widely known as ‘safe harbor’ provision or ‘safe harbor’ protection. Bross & Partners would like to keep you posted on Section 198b safe harbor.

Section 198b Legal Liability Immunity for ISPs or OSPs

Section 198b is materially transposed from Article 12.55[1] of the EVFTA. It states that an ISP or OSP is exempt from liability for infringement of copyright, related rights on the internet environment performed by individuals, organizations using his/her services in 3 types of activities:

(1)       Transmission of digital content or the provision of access to the digital content (‘mere conduit’)

(2)       Transmission in a telecommunication network of information provided by a user characterized by the automatic storage, temporary, intermediate, and for the sole purpose of making the transmission of information more effectively to another user (‘caching’) on the conditions:

(a) transforming information only for technological reasons

(b) complying with the conditions of access to and use of digital content

(c) complying with specified rules on updating digital content in a manner that is widely recognized and used by the industry

(d) not preventing the lawful use of widely recognized technology in the industry to obtain data on the use of digital content; and

(e) removing digital content or denying access to digital content knowing that such digital content has been removed at the originating source or the originating source has canceled access to such digital content.

(3)       Storage of digital content of service users at the request of service users (‘hosting’) on condition that:

(a) ISPs or OSPs does not know that such digital content violates copyright, related right; and

(b) ISPs or OSPs takes prompt action to remove or prevent access to such digital content upon learning that such digital content infringes upon copyright or related rights.

(4)       Other cases as prescribed by the Government.

Legal Consequences of Section 198b

The following four legal consequences can be inferred from Section 198b including the possibility of an ISP or OSP being sued by a copyright or related right holder:

1.         Scope of applicability: Only works, performances, phonograms, video recordings (audio and visual fixation), broadcasts that have been digitalized and that are copyrightable are subject to this Section 198b. This also means that no ISP/OPS may be held liable for infringement of other forms of IP legal protection such as trademarks, counterfeit marks, geographical indications, industrial designs, or patents.

2.         Which ISP/OSP is affected: Section 198b only raises the issue of conditional liability exemption for 3 types of services provided by ISPs or OSPs, including:

(a) only performing the function of transmitting information (‘mere conduit’) of users in the telecommunications network

(b) transmission in the telecommunications network of users' information which is automatically, intermediately, and temporarily stored and for the purpose of making the transmission of information more efficient to other users (‘caching’)

(c) storing digital information content of service users at the request of service users (‘hosting’).

For the reason, all ISPs or OSPs operating in all five forms under the Vietnamese laws, including: (i) internet service providers; (ii) telecommunications enterprises; (iii) businesses that provide rental services for digital information storage, including rental services for websites; (iv) enterprises providing online social networking services; and (v) businesses providing digital information search services; may be affected by Section 198b.

3.         Conditions for exemption: ISPs or OSPs are not automatically exempt from liability, but they are first responsible for implementing technical measures, coordinating with the state agencies, stakeholders to enforce measures to protect copyright and related rights. This regulation implies that ISPs or OSPs must receive and monitor the possibility of copyright infringement upon receipt of claims by the right holders.

4.         Conditional immunity: Even if Section 198b stipulates 3 types of services consisting of mere conduit, caching and hosting are enjoyed the ‘safe harbor’ protection, ISPs or OSPs providing these services are not automatically exempt from liability, unless they have met prescribed conditions. For example, both two conditions for an ISP or OSP providing hosting service immunized from legal liability are satisfied: (a) such ISP or OSP does not know that digital information content infringes copyright and related rights; and (b) such ISP or OSP takes prompt action to remove or prevent access to such digital content when it becomes aware that such digital content infringes upon copyright or related rights.

Bross & Partners, an intellectual property company ranked First (Tier 1) by Legal 500 Asia Pacific, has experience in resolving complicated IP disputes including trademarks, copyrights, patents, plant varieties

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