The need to enhance the protection of online copyrighted contents under the pressure of EVFTA05/03/2021 admin
Online piracy is a growing problem in Vietnam. Experts indicate that a large volume of all digital content (music, movies, e-books, software and mobile phone applications) provided to users on the Internet in Vietnam is pirated. The copyright enforcement has been facing big challenges due to the scale and the borderless nature of the internet. In this context, the role of online service providers in protecting online contents from copyright infringement must be carefully taken into account. Under current Vietnam legal framework, the liability of online intermediaries is mainly governed by the Law on Intellectual property law 2005, amended in 2009, 2019 and the Law on Information Technology 2006 and relevant decrees, circulars.
The current Vietnamese intellectual property legal framework has been issued on the ground of the country’s IP commitments under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Although this also is a major important international treaty in IP field, it is obvious that the TRIPS’s standard concerning IP right protection and enforcement measures are lower than that of the EU. Thus, entering EVFTA may require Vietnam government to adjust the current IP laws to comply with the new higher commitments.
Under Vietnam intellectual property framework, the liability of online intermediaries is mainly governed by the Law on intellectual property law 2005, the law on information technology 2006 and relevant decrees, circulars. The first decree on this issue is Decree No. 55 adopted in 2001. Regarding the EVFTA, intellectual property matters are regulated in Chapter 12 of the Agreement. The objectives of this Chapter are to facilitate the creation, production and commercialization of innovative and creative products between the Parties, contributing to a more sustainable and inclusive economy in each Party; and achieve an adequate and effective level of protection and enforcement of intellectual property rights. Furthermore, the Agreement also requires that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
However, there are still some inconsistencies that Vietnamese laws must be enhanced to comply with commitments under EVFTA. Firstly, the Vietnam’s current IP law still lacks regulations specifying four commitments concerning (i) exclusive right of performers and phonogram producers to make public their performances and phonograms; (ii) protection of 169 EU’s geographical indications listed in the FTA; (iii) extension of terms of pharmaceutical patents as compensation for delayed licensing; and (iv) presumption of authorship or ownership.
The other legislation that governs the liabilities of online service provider on the intellectual property infringements on the internet is the Law on Information Technology 2006. Accordingly, this law explicitly exempts online intermediaries from liabilities in certain circumstances. In order to further clarify the implementation of the information technology law, the Joint Circular No. 07 was issued. Accordingly, telecommunications service suppliers, internet service suppliers, providers of online social network services, providers of information search services, and companies leasing digital information storage space are directly liable for infringing content only in limited circumstances. The circumstances include when intermediary service provider:
a) Is the source of uploading, transmitting or providing digital information content through telecommunications networks and the Internet without the permission of the right holder;
b) Fix, mutilate, copy digital information content in any form without the permission of the right holder;
c) Deliberately cancel or disable technical measures taken by the right holder to protect copyright and related rights;
d) Act as a secondary distribution of digital information content due to copyright and related rights violations.
Intermediary service providers are responsible for removing and deleting digital information that violates copyright and related rights, cutting, stopping and suspending Internet transmission and telecommunications lines after receiving written requests of the Inspectorate of the Ministry of Information and Communications or inspectors of the Ministry of Culture and Information or other competent agencies. In terms of copyright law, based on the above regulations, Internet service providers have no duty to remove and delete digital content that violates copyright and related rights without the written requests of competent state authorities.
Nonetheless, EVFTA imposes more specific regime related to the liability of online intermediary service providers to prevent toe IP infringements. Accordingly, this legislation requires Vietnamese government to provide for limitations or exemptions in its domestic legislation regarding the liability of intermediary service providers, in relation to the provision or use of their services, for infringements of copyright or related rights that take place on or through telecommunication network. The limitations or exemptions shall cover at least the following activities:
(a) the transmission in a telecommunication network of information provided by a user of the service, or the provision of access to a telecommunication network (“mere conduit”);
(b) the transmission in a telecommunication network of information provided by a user of the service concerning the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other users of the service upon their request (“caching”);
(c) the storage of information provided by a user of the service at the request of a user of the service (“hosting”) on condition that the provider:
(i) does not have the knowledge of illegal information; and
(ii) upon obtaining such knowledge, acts expeditiously to remove or to disable access to information.
It seems that the EVFTA is following the notice-and-takedown mechanism. Accordingly, if online intermediaries already know about the existence of infringing contents on their platforms and have not removed it, they must be liable for such infringement. By contrast, the Vietnamese copyright law has so far not accepted an official notice-and-takedown regime and the remedies for copyright infringements so far is not really a deterrent. Thus, it still requires more effort from lawmakers and rightsholders to improve copyright legal framework and effectively deal with online copyright infringements.
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.