INTA’s Comprehensive Survey on Criminal Copyright Enforcement

Criminal Copyright Enforcement in Vietnam

Embark on a journey of remarkable insights as we delve into INTA’s comprehensive international survey on criminal copyright enforcement across 44 countries. This revised edition not only explores copyright protection requirements, available remedies, and more, but also unveils invaluable Vietnamese perspectives. While this survey serves as a preliminary guide, highlighting the dynamic nature of laws, its Vietnamese insights will empower you to shape your copyright enforcement strategies effectively. Get ready to unlock a world of knowledge tailored to Vietnam’s unique landscape.

1. What “works” are subject to copyright (List in alphabetical order)?

We would like to advise that under Article 14 of Vietnam IP Law these following works are subject to copyright protection:

1.Architectural works;

2.Cinematographic works and works created by a process analogous to cinematography (below collectively referred to as cinematographic works);

3.Computer programs and data

4.Dramatic works;

5.Folklore and folk-art works of folk culture;

6.Lectures, addresses and other sermons;

7.Literary and scientific works, textbooks, teaching courses and other works

8.Musical works;

9.Photographic works;

10.Press works;

11.Sketches, plans, maps, and drawings related to topography, architecture, or scientific works;

12.Works of art, works of applied

2. Is there an exhaustive list of copyrightable works?

No.

3. (If no exhaustive list, outline) requirements for obtaining copyright protection.

We note that under IP Law of Vietnam, requirement for obtaining copyright protection include:

  • A work is created directly by a natural person (Art. 12(a) and 14.3)
  • A work must be fixed in a certain material form (Point 2, 6)
  • A work must be completed (Point 4, 19)
  • A work has to have originality (Point 3, 14)

We note that the following objects are not protected as copyrighted works (not covered by copyright protection) under Art. 15 of IP Law of Vietnam:

1. News of the day as mere items of press

2. Legal documents, administrative documents and other documents in the judicial domain and their official translations of these documents.

3. Processes, systems, operation methods, concepts, principles, and

4. Is copyright registration required to initiate a civil case?

No. In principle, a copyright registration certificate is not required to initiate a civil case under IP Law, Civil Code and other regulations of Vietnam. However, in this case, a copyright holder and a plaintiff need to provide evidence proving he or she has created the original work and is the true owner of the work before the court.

5. Are there any exceptions to the registration requirement to initiate a civil case?

No.

6. What types of infringement can be used to initiate a civil case?

The following types of copyright infringement can be used to initiate a civil case (under Art. 28 of IP Law of Vietnam)

 

1. Appropriating copyright to literary, artistic, or scientific

2. Impersonating

3. Publishing or distributing works without permission of authors.

4. Publishing or distributing works under joint-authorship without permission of co-authors.

5. Modifying, mutilating or distorting works in such a way as prejudicial to the honor and reputation of

6. Reproducing works without permission of authors or copyright holders, except: Duplication of works for personal scientific research or teaching purpose and Performance of dramatic works or other performing-art works in mass cultural, communication or mobilization activities without collecting any charges in any

7. Making derivative works without permission of authors or holders of copyright to works used for the making of derivative works, except Transcription of works into Braille or characters of other languages for the blind

8. Using works without permission of copyright holders, without paying royalties, remunerations, or other material benefits according to the provisions of law, except for the cases specified in Clause 1, Article 25 of Vietnam IP

9. Leasing works without paying royalties, remunerations or other material benefits to authors or copyright

10. Duplicating, reproducing, distributing, displaying, or communicating works to the public via communication networks and by digital means without permission of copyright holders.

11. Publishing works without permission of copyright

12. Willingly canceling or deactivating technical solutions applied by copyright holders to protect copyright to their

13. Willingly deleting or modifying right management information in electronic form in

14. Manufacturing, assembling, transforming, distributing, importing, exporting, selling, or leasing equipment when knowing or having grounds to know that such equipment may deactivate technical solutions applied by copyright holders to protect copyright to their

15. Making and selling works with forged signatures of authors of original

16. Exporting, importing, or distributing copies of works without permission of copyright

7. Who has standing to initiate a civil case?

A Copyright holder has the right to initiate a civil case to protect their intellectual property rights (under Art. 198 of IP Law of Vietnam).

8. Do multiple authors all have to join the lawsuit?

Yes. Multiple authors all have to join the lawsuit if the work has joint authors (multiple authors).

9. Is there prosecution for copyright infringement in the digital medium/electronic medium/mobile network/Internet?

Yes, copyright infringement in the digital medium/electronic medium/mobile network/Internet shall be prosecuted under Art. 28 of IP Law and Art. 225 of Criminal Code of Vietnam.

According to Art.28.10 of IP Law, acts of duplicating, reproducing, distributing, displaying, or communicating works to the public via communication networks and by digital means without permission of copyright holders shall be considered as copyright infringement.

 

Also, under Art.225.1 of Criminal Code of Vietnam, any person who, without permission of the copyright or related right holder, intentionally commits one of the following acts, infringing upon copyright or related rights being protected in Vietnam on a commercial scale trade or gain illicit profits from VND 50,000,000 (about 2,000USD) to under VND 300,000,000 (about 12,000USD) or cause damage to the copyright or related right holders from VND 100,000,000 (about 4,000USD) to under VND 500,000,000 (about 20,000USD) or the infringing goods are valued at between VND 100,000,000 (about 4,000USD) and under VND 500,000,000 (about 20,000USD). From 100,000,000 VND to under 500,000,000 VND, the offenders shall be subject to a fine of from 50,000,000 VND (about 2,000USD) to 300,000,000 VND (about 12,000USD) or a non-custodial reform for up to 03 years:

1. Copying works, phonograms, or video recordings;

2. Distributing to the public copies of works, copies of phonograms, copies of video

10. If online copyright infringement is actionable will courts exercise a long-arm jurisdiction over a counterfeiter that is outside the territorial jurisdiction of the local court?

No.

11. List the remedies provided for infringement in the jurisdiction (injunction/damages and profits/statutory damages/seizure and disposition of infringing articles/attorneys’ fees and costs).?

Under Art. 202 of IP law of Vietnam, the remedies provided for IP/copyright infringement in Vietnam include:

1. Compelling the termination of infringing acts;

2.Compelling the public apology and rectification;

3. Compelling the performance of civil obligations;

4. Compelling the payment of damages;

5. Compelling destruction, distribution or use for non-commercial purposes of goods, raw materials, materials and means used for the production or trading of intellectual property right- infringing goods, provided that such destruction, distribution, or use does not affect the exploitation of rights by intellectual property right

 

12. Damages/Profits: If available, how do the courts measure damages?

According to Art. 204 of IP Law of Vietnam, principles for determining damage caused by infringement of intellectual property rights are as follows:

Damages caused by acts of infringing upon intellectual property rights/copyrights include:

1. Material damage, including loss of property, decrease in income, profit, loss of business opportunities, and reasonable costs to prevent and remedy the damage;

2. Mental damage includes loss of honor, dignity, prestige, reputation, and other mental losses caused to authors of literary, artistic, or scientific works; Performers; Authors of inventions, industrial designs, layout designs, plant

3. The degree of damage is determined on the basis of actual losses suffered by the intellectual property right holder due to acts of infringement of intellectual property rights.

13. Damages/Profits: Are there legal minimums and maximums to damages?

Yes. There are legal minimums and maximums to damages in some cases. Under Art. 205 of IP Law, basis for determining the level of compensation for damage caused by infringement of intellectual property rights/copyrights are as follows:

1. In cases where the plaintiff can prove that the act of infringing upon intellectual property rights has caused material damage to him/her, he/she has the right to request the Court to decide on the level of compensation according to one of the following grounds:

2. Total material damage in monetary terms plus profits earned by the respondent from committing acts of infringing upon intellectual property rights, if the plaintiff’s reduced profits have not been included in the total material damage;

3. The price for licensing the right to use an intellectual property object, assuming that the defendant is assigned the right to use that object by the plaintiff under the contract to use the intellectual property object, within the scope corresponding to the act of infringement; offenses committed;

4. Physical/material damage by other calculation methods proposed by the intellectual property right holder in accordance with the provisions of law;

5. In case it is not possible to determine the compensation level for material damage according to the grounds specified at Points a, b and c of this Clause, the compensation level for material damage shall be fixed by the Court, depending on the level of damage, but not exceeding VND 500,000,000 (about 20,000USD).

6. In cases where plaintiffs can prove that acts of infringing upon intellectual property rights have caused mental damage to them, they have the right to request the Court to decide on the compensation level between VND 5,000,000 (about 250USD) and VND 50,000,000 (about 2,500USD), depending on the level of the (mental)

7. In addition to the compensation for damage specified in Clauses 1 and 2 of this Article, the intellectual property right holder has the right to request the court to force an organization or individual that commits acts of infringing upon intellectual property rights to pay reasonable costs to hire a lawyer/lawyers.

14. Post Seizure: How are goods dealt with at end of civil lawsuit

Under Art. 202 of IP Law of Vietnam, at end of civil lawsuit, the plaintiffs may request or the court may order to compel destruction, distribution or use for non-commercial purposes of goods, raw materials, materials and means used for the production or trading of intellectual property right-infringing goods, provided that such destruction, distribution, or use does not affect the exploitation of rights by intellectual property right holders.

15. Court: Is there a specialized court(s) to adjudicate copyright infringement cases.

No. At present, there is not any specialized court(s) to settle copyright infringement cases in Vietnam. All copyright infringement cases shall be handled by economic Court belonging to People’s Civil Court at provincial court level.

16. Limitation: If applicable, what is the time limit for commencement of legal proceedings?

Damages for infringement on economic rights of copyrighted works must be claimed within 03 years, from the date that the copyright holder knows (material) damages (under Art. 588 Civil Code).

There is not any regulation relating to the time limit (status of limitation) for commencement of legal proceedings for claim for mental damages of copyright infringement. Accordingly, the copyright holder can claim for mental damages of copyright infringement as to the copyright infringer at any time as soon as he/she finds out a mental copyright infringement.

17. Key benefits in Civil Action

We opine that key benefits in civil action shall include (but not limited to):

– Judgments have high legal value, forcing the infringing party to execute;

– The copyright holder is partially reimbursed for damages when the work is infringed;

– Forcing an apology to the infringing party must make a public apology;

– Restore the reputation of the right holder;

– Actively protect your intellectual property

18. Key Challenges of Civil Action

We think that key challenges of civil action shall include (but not limited to):
(i) Difficult to enforce judgment;
(ii) Time consuming;
(iii) Compensation level still is not high enough for preventing copyright infringement;
(iv) it is difficult to gather evidences proving actual damages for the plaintiff/copyright holder;
(v) Cost for settling a copyright infringement case in court is high.

 

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ELITE LAW FIRM – 255 Hoang Van Thai Str., Thanh Xuan Dist., Hanoi, Vietnam

Tel: 0243 7373 051 | Hotline/Whatapps: 0988 746 527 | Email: info@lawfirmelite.com

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