Updated October 2023
In this article, we will analyze four proposed measures to address copyright infringement, aiming to create an environment that encourages the sustainable development of cultural, artistic, and intellectual endeavors.
1. Grounds for determining acts of infringing upon copyright and related rights
In Article 64 of Decree 17/2023/ND-CP:
- Considered subjects:
- Including works that are protected by copyright and related rights as prescribed by law.
- It should be noted that copyright arises at the time the work is formed without the need for registration. Therefore, the holders of the work need to prove the grounds for the arising of their rights.
- Elements of infringing copyright-related rights in the subject matter:
Such as copying for commercial purposes without permission, or impersonating the author. - The person performing the act is being considered:
The person performing the act being considered is not the subject (holder) of copyright-related rights except:- Co-author
- Co-owner of copyright
- Co-owner of related rights commits an infringing act with the remaining co-authors
- Co-owners of related rights are not authorized by law or a competent authority.
2. 4 strict measures to handle copyright infringement in Vietnam
2.1 Self-protection measures
When there is a ground to determine that an organization or individual has committed acts of infringing upon the copyright-related rights, the holders have the right to apply self-protection measures such as:
- Requests the infringing individuals, organizations terminate such infringement;
- Request the removal and deletion of infringing content on the telecommunications network and the internet;
- Request an apology, public correction, or compensation for damages.
In case this termination request is not met, the copyright or related right holders who suffer damages have the right to request the application of the following measures.
2.2 Civil measures
According to Clause 1 Article 57 of Decree No. 17/2023/ND-CP, civil measures may be applied to handle infringing acts at the request of copyright related rights holders or individuals, organizations suffering damages due to such infringement acts caused even if such acts has been or is being handled by administrative or criminal measures, specifically:
- Request a competent court to settle according to legal procedures disputes over intellectual property rights with fixed works, phonograms and video recordings; or
- Request commercial arbitration to settle the case in which copyright related rights holders suffer damages and individuals or organizations committing acts of infringement have an arbitration agreement.
In addition, competent authorities may apply the following civil measures:
- Forcible termination of infringing act(s); or
- Forced public apology and correction.
2.3 Administrative measures
Copyright related rights holders suffering damages due to infringements by other individuals or organizations may file a request for handling to a competent authority.
Accordingly, depending on the nature and extent of the action, the competent authority will apply the following measures:
- Monetary fine;
- Warning;
- Confiscate or forcibly destroy intellectual property, counterfeit goods, and means used mainly for the production and trading of intellectual property counterfeit goods.
Additionally, competent authorities may apply remedial measures such as:
- Forcibly correcting the name of the author, the name of the work, and the name of the performer;
- Forcible revocation of copyright registration certificates and related rights registration certificates;
- Forcible removal of copies of infringing works, performances, phonograms, video recordings and broadcasts in electronic form on the Internet and digitally;
- Forcible return to copyright holders and related rights holders of royalties, remunerations and material benefits obtained from the commission of infringing acts.
Note: The statute of limitations for sanctioning an administrative violation of copyright and related rights is 2 years from the time of:
- Detecting the violation; or
- Ending the violation; or
- Making a decision on sanctioning administrative violations in the case of sanctioning of administrative violations transferred by the person competent to make records of administrative.
2.4 Criminal measures
Criminal measures shall be applied to handle acts of infringing upon a copyright-related right in cases where such acts have sufficient elements to constitute a crime as prescribed in Article 225 of the Criminal Code 2015, as amended and supplemented in 2017.
Accordingly, organizations and individuals having acts of copying works, phonograms or video recordings or distributing to the public copies of works, copies of phonograms or copies of video recordings on a commercial scale or gain an illegal profit of VND 50 million or more or cause damages to the holders of copyright related rights or infringing goods from VND 100 million, the offenders may be subject to:
- A fine;
- Non-custodial reform for up to 3 years, or sentenced to 5 years imprisonment;
- In addition, such individuals and organizations may be banned or suspended from operating in certain areas.
To avoid creating conditions for infringing acts to take place, copyright-related rights holders need to:
- Carry out the publication of works, sound recordings, and video recordings;
- Register copyrights with the competent authorities or take other measures.
4 strict measures to handle copyright infringement in Vietnam
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