International laws and laws of most countries now recognize and protect the intellectual property rights of organizations and individuals with the aim of encouraging creative activities and popularizing advances in science, technology, culture, and art for socio-economic development and improvement of the quality of life. The intellectual property really plays the role of a driving force to boost innovation, creativity to develop national intellectual property in both quantity and value, contributing to improving creative capacity and creating a healthy environment of competition.
In this article, the author would like to discuss some important aspects regarding the process to protect and handle the only copyright infringements in Vietnam.
1| What is the “copyright”?
Copyright is a legal term used to describe exclusive rights granted to authors, artists and other creators for their creations. These rights, generally, include: copying; publishing; translating; adapting and altering; distributing; etc., and are granted automatically following the creation of the work. The kinds of works that can be protected by copyright laws in Vietnam are defined as ‘literary, artistic and scientific works’, which principally include the below:
- Literary works, scientific works, textbooks, teaching courses;
- Lectures, speeches, and press works;
- Musical, stage, photographic and cinematographic works;
- Plastic artworks and applied artworks;
- Sketches, plans, maps and architectural works;
- Computer programs and data collections.
2| The copyright registration
Under the Vietnamese IP Law, there is no requirement of copyright registration: a work will have automatic protection if it is copyrightable.
The works protected by copyright must satisfy two criteria:
- Works are created by the author’s intelligence and not copied from others;
- They are not works deemed to be common news that anyone can access, an article that informs and quotes the original content of a legal document and its translation and is not articles that are theoretical and introduce concepts and pure data.
In principle, to enforce a copyright, copyright registration is not required. However, a certificate of copyright registration can be used as prima facie evidence of copyright ownership. Therefore, it is highly recommended to obtain a certificate of copyright registration. There is also no requirement for a deposit or notice of copyright work.
3| What are the copyright infringements?
According to IP Law, an act of copyright infringement includes:
- Appropriating copyright to literary, artistic or scientific works;
- Impersonating the author;
- Publishing or distributing works without the permission of the author;
- Publishing or distributing works under joint-authorship without the permission of the other co-author;
- Modifying, mutilating or distorting works in such a way that is prejudicial to the honor and reputation of the author;
- Reproducing works without the permission of the author or copyright holder (except for the cases specified the first and fifth points of Clause 1 of Article 25 of the IP Law);
- Making derivative works without the permission of the author or copyright holder to works used for the making of derivative works (except for the cases specified in the eighth point of Clause 1 of Article 25 of the IP Law).
4| Primary mechanisms to deal with copyright infringement
The Law on Intellectual Property provides two mechanisms to deal with copyright violations:
- Administrative sanctions: specifically, the monetary fines will be imposed provided the copyright infringement causes damage to the authors, consumers or society. The amount of the fine, depending on each act of violation, can range from VNĐ2 million to VNĐ250 million;
- Criminal sanctions: criminal elements who infringe intellectual property rights shall be prosecuted for criminal liability in accordance with criminal law.
Vietnamese law protects the copyright of the content posted on the websites of organizations and individuals from the moment that such contents are created and expressed by the author in a certain form, regardless of whether they are published and registered or not.
5| Legal solutions to protect copyright
When copyright infringement is discovered, depending on the severity of the infringement, organization or individuals may:
- Apply technological measures to stop copyright infringement;
- Request the organizations and individuals infringing copyright to apologize, rectify publicly and give compensation for damage.
- Submit a request to the competent state authority to handle the acts of infringement, following the provisions of the law on handling administrative, civil and criminal violations.
Before you submit a request to the state for rights protection, individuals whose rights have been violated should collect evidence (take screenshots of copying sites, collect relevant data, etc.). It is necessary to search for experts for guidance and preparation of legal documents to file a petition within the statute of limitations.
6| How is the liability of intermediaries, such as internet service providers treated?
Internet service providers (ISPs) have a duty to remove and delete digital content that violates copyright and related rights and can cut, stop or suspend an individual’s internet/telecommunication line under a state agencies’ order. In addition, ISPs are directly responsible for paying damages due to violation of copyright and related rights in the following circumstances:
- Where the ISP acts as the source of the start of any publishing, transmitting or supplying digital content by internet or telecommunication network without permission of the rights owner;
- Where the ISP is involved in editing, truncating, copying digital content in any manner without permission of the rights owner;
- Where the ISP intentionally disables any technical measures performed by the rights owners for protection of copyright and related rights;
- Where the ISP operates as a source of secondary distribution of digital content obtained through violation of copyright and related rights;
- ISPs may also be considered jointly liable with copyright infringers where they supply technical means to abet copyright infringement.
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.
