Copyright infringement of cinematography works

Social media and online streaming platforms have become familiar to all of us. The development of social media has served as a catalyst for the increase in copyright infringement. In recent years, one of the most notable copyright infringement cases in Vietnam is the “phimmoi.net” case—one of the leading illegal movie streaming websites in Vietnam, which has been prosecuted. Additionally, the theft of ideas from movies is no longer a new phenomenon, as these acts continue to occur and remain a major issue that filmmakers wish to avoid. Before taking any action against infringement, it is essential to determine whether the act of copying constitutes copyright infringement under current Vietnamese law. This article will clarify what constitutes copyright infringement according to the current Vietnamese legal provisions. 

See more: Handling copyright infringements in Vietnam in a nutshell

1. Definition of cinematography according to Vietnamese regulation

Cinematographic works are among the types of works protected under copyright law. Specifically, cinematographic works are defined in clause 6 Article 6 of Decree 17/2023/ND-CP as follows: 
“Cinematographic works and works created by similar methods are works that contain content expressed through sequential moving images or images created by technical or technological devices, with or without sound and other effects, in accordance with the principles of cinematic language. Still images extracted from a cinematographic work are considered part of that cinematographic work. 

Cinematographic works do not include recordings intended for the dissemination of news on radio, television, cyberspace; performance art programs, video games; or recordings of the activities of one or more persons, describing events, situations, or reality programs.” 

In some cases, the definition of a cinematographic work is broad, leading to the question of whether a film is included as a cinematographic work. This has been clarified in clause 2 Article 3 of the Cinematography Law 2022, which states: 

“A film is a cinematographic work with content expressed through sequential moving images or images created by technical or technological devices, with or without sound and other effects, in accordance with the principles of cinematic language; recorded on materials, digitally or by other technical means, and disseminated to viewers. It includes feature films, documentaries, scientific films, animated films, and films that combine various forms. 

A film does not include recorded products intended for the dissemination of news on radio, television, cyberspace; performance art programs, video games; or recorded products depicting the activities of one or more persons, describing events, situations, or reality programs.” 
Based on these provisions, it can be determined that films are among the cinematographic works protected under copyright law, including short films shown on the internet or television. 

2. Basis for Determining Copyright Infringement in Vietnam 

To determine whether a work constitutes copyright infringement, it is necessary to establish the elements set forth in Article 64 of Decree 17/2023/ND-CP: 

“1. The subject under consideration falls within the scope of works currently protected by copyright and related rights. 

2. There is an element of copyright or related rights infringement in the subject under consideration.
3. The individual or entity performing the act under consideration is not the copyright or related rights holder.
4. The act under consideration occurred in Vietnam.”

2.1 The subject under consideration falls within the scope of copyright protection: 

Copyright arises from the moment a work is created and expressed in a tangible form, regardless of content, quality, form, medium, language, whether published or unpublished, registered or unregistered. A work will be protected if it meets two main conditions: 

1. Fixation: The work must be expressed in a certain tangible form. 

1. Originality: The work must be created by the author and be the result of the author’s original creativity. 

Accordingly, copyright arises at the moment the work is fixed in a tangible form without the need for any registration procedures. However, proving copyright ownership can be challenging if the copyright owner has not registered their copyright with the Copyright Office. Registration provides tangible evidence for the copyright owner when addressing infringement issues. 

2.2 There are elements of copyright infringement in the subject under consideration: 

Acts that are determined to have elements of copyright infringement are outlined in Article 66 of Decree 17/2023/ND-CP, including acts that involve elements of copying. According to Clause 3, Article 66 of Decree 16/2023/ND-CP: “To determine whether a copy or a work constitutes copyright infringement, it is necessary to compare the copy or work with the original work, considering the originality of the work’s creativity, the expression of creative ideas in the work, the time of completion, and the author’s access to the pre-existing work, including the time and context of that access.” 

Based on this regulation, the complete copying and posting of a work on social media platforms or movie websites is considered the reproduction of the work for commercial purposes without the copyright owner’s consent. Methods of copying today are relatively diverse and include actions like camcording and creating a new file version, among others. 

However, not all films that are similar to each other are deemed to be acts of copyright infringement. Current Vietnamese law does not provide any specific guidelines or related regulations on this matter. By referencing global cases and analytical articles on evaluating the level of infringement between two films, courts and experts typically assess infringement based on the following key elements: (i) characters, (ii) plot, (iii) setting, and (iv) the audience’s perception when watching the two films. The evaluation of these elements is conducted concurrently, meaning no single element is considered decisive. 

2.3 The individual carrying out the action is not the copyright holder: 

To prove a copyright infringement, the copyright owner must first demonstrate their rights to the protected work and that the infringing party has no rights to the work. This proof can be based on the grounds of rights acquisition, which may include a copyright registration certificate. However, in practice, not all works are registered for copyright protection with the competent state authority. In such cases, the copyright holder needs to establish their rights through presumed evidence. 

2.4 The infringement occurred in Vietnam 

The final condition to prove an infringement is based on the territorial scope of the infringement. For infringements involving tangible objects, proving the infringement is easier. For instance, if an individual copies a movie and stores it on a CD or USB for commercial purposes, and if the copying and distribution are done entirely in Vietnam, the basis for proving the infringement will be clearer. 

In reality, copying a work can be done in a cyberspace environment without territorial limits, such as on social media platforms or websites with servers located in multiple countries. The advancement of technology complicates the determination of territorial scope. 

When an act meets all the criteria outlined in Article 64 above, it is considered a copyright infringement. The copyright owner has the right to apply the measures prescribed in Clause 1, Article 198a of the Intellectual Property Law to protect their intellectual property rights, including civil, administrative, or criminal measures. 

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