Amending the Law on Intellectual Property: Protecting the copyright in the context of the economic foundation

Amending the Law on Intellectual Property: Protecting the copyright in the context of the economic foundation

In 2005, The first Law on Intellectual Property of Vietnam is through under pressure of The World Trade Organization accession process. Although, awareness of the function of this Law, protect and execute Intellectual Property rights are not the number one priority yet of the lawmaker at that time. In 2020, Amending the Law on Intellectual program is warmed up. In 2020, Amending the Law on Intellectual program is warmed up under pressure Vietnam signs series of new generation trade agreements with very high standards on intellectual property issues. However, The present background has changed very much compared to 15 years ago, besides the external pressure of joining economic agreements, we are also deal with practical more motivation come from within ourself, that is the dominance of “platforms” in the digital economy.

Commenting on the challenge of short video sharing platform Tiktok, David Isrealite (President of the National Association of Music Publishers) used to think that Intellectual Property Lawsuit can not avoid this rising platform. Now, This prediction has come true in Vietnam. Specifically, May 28, 2020, Joint Stock Company VNG (owner platform of listening to music online Zing MP3) has sued Tiktok Inc (owner platform of social networking sharing short video Tiktok) to People’s Court of Ho Chi Minh City with accusing. Tiktok has carried out behaviour communicating to the public many audio and video recordings of musical works performed by VNG without the consent of VNG, constitutes infringements of related rights under Clause 8, Article 35 of the Intellectual Property Law.

In the context of the current legal provisions on the responsibility of platforms to enforce copyright in the digital environment is a hot (and sensitive) issue in Vietnam and many countries around the world, the parts of VNG and TikTok Inc. will be the fight attractive between powerful platforms. This fight result will likely be resolved throughout measures outside the court. However, when it is recalled that VNG itself also used to be the defendant of similar lawsuits from actors, artists. The final question to be resolved is not the judgment of the case on which is how such lawsuits may become effective legal tool even for person create content.

Enterprises providing intermediary services (ISP) have long benefited from exception cases their neutral state. Whereby, ISPs only have to remove the copyright infringement contents if they are properly notified of such infringement. Announcer normally is the owner of the copyright has been violated (personal content creation). The question is that with the huge amount of information posted to the internet every day, how artists, musicians, YouTubers, etc can control the content of other people to upload that infringes my rights?

Actual above also go with the problem of mole game (whack-a-mole problem). Where by, if player try to catch mouse on this case. Whereby, if the player tries to catch a mouse on this cave, the mouse will appear in another cave after that. The player will not be able to know which cave the mouse will continue to reappear. The game continues like that. So, the problem is not catching the mouse, that more important is how to make the mouse don’t easily reappear on another cave. Fighting copyright infringement on today’s social networking platforms is like playing mole. If a infringement content is removed on this post, that once can be easily reposted on another status. Therefore, if there aren’t any support solutions for authors “catch mouse” effectively, the game will be increasingly unbalanced in a negative direction for content creators.

To partly solve the above problem, March 26, 2019, The European Parliament has passed the copyright law in the digital environment in an effort to find the status “reasonable balance” between the rights holders and the platform. The most controversial point is article 17 of this Act, in which European lawmakers require internet service intermediaries to actively control and remove content that infringes the copyright of other subjects without notice from the right owners. The above law will take effect from 2021 throughout Euro. Although there are still a lot of argumentative that new copyrights Law will negatively influence freedom of speech, freedom of access to information and will “change the Internet forever”, The immediate positive impact is the copyright of the content creators will protect better. This is the first step in eliminating extreme neutrality status that ISPs are benefiting from.

In VietNam, Now, Basically, Joint Circular 07/2012/TTLT-BTTTT-BVHTTDL solves responsibility of ISPs which is applying notice and takedown mechanism (“notice-and-takedown”) as approaching way of the US and the EU. Even so, While the EU and the US request IPSs removing the content if there are trustworthy announce from copyrights owners, Vietnam only requires ISPs to remove the content according to notified of state agencies. However, rarely State agencies appraisal request remove content copyright classification of an individual. Thus, although there is a learning approach, Vietnam did not achieve the level of protection of authors as strong as the United States and the EU are applied.

The difference in approaching way of Vietnamese Law comes in part from differences in Western and Eastern Cultural about protecting copyrights problem. While Western common law countries appreciate Jonh Locke’s theory for the fruit of labour, civil law countries and Eastern countries appreciate community Value of product rather than personal ownership. Besides, Law on Intellectual Property VietNam, with borning in 2005 as a requirement to meet WTO accession, is out of date and can not predict the current boom of internet and present platform economy.

As one of the fastest-growing internet in the world and aiming to build a digital economy, Vietnam is being a later country in the completed process of copyrights law on the internet. Although following to nation digital transfer project, to 2025, Vietnam will have about 50% of enterprises doing business on digital platforms, Legal framework for copyrights protection in the digital environment in Vietnam is still incomplete. Joint Circular 07/2012/TTLT-BTTTT-BVHTTDL as mentioned is only eight articles, of which there are only two articles direct stipulate about handle responsibility mechanism of ISPs in Vietnam. Currently, Draft decree amending and supplementing the Decree 72/2013/ND-CP dated July 15, 2013, of Government about management, supplement, using the internet and electrical information services that Ministry of Information and Communication is taking opinions still keep silence about this issue. This is a blockage point easiest to see in  the current legal framework of responsibility of ISPs in Vietnam.

The information technology revolution has risen in the context of the value of copyright law being challenged by its own traditional principles. Now, Vietnam is facing the biggest problem that Law on Modern Copyrights is facing: Solving traditional exceptions of law in the context of the new environment and at the same time maintain the developing motivation of digital economy as a developing country.

No matter want or not, Vietnam has to give a choice. Promulgating a draft law too harsh like the way EU is carrying out can not be a good solution for a developing country as Vietnam. However, Vietnam can completely approach that solution in a softer and more flexible way. The regulations about the responsibility of ISPs in copyrights protections need to be adjusted to make sure satisfactory level of protection and balance between a side is the right of the right holder and a side is rights to use and access to knowledge and technology of the society as well as appreciate role (“gate guard”) of ISPs. In the context of preparing to amend intellectual property law and implement the EU-Vietnam Free Trade Agreement, lawmakers should consider the above issues. Only then will we be able to ensure the diversity and sustainability of the digital economy.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.