Nowadays, along with the development of information technology, the infringement of copyright and related rights is easier to detect but has no sign of decline and is manifested in many different forms. According to Vietnamese law, disputes over copyright and related rights can be resolved by various measures.
1. Grounds for determining acts of infringing upon copyright and related rights
Before taking measures to resolve disputes about copyright, related rights, the holders need to understand clearly to identify an act as an infringement of copyright and related rights based on any grounds. The grounds are specified in Article 64 of Decree 17/2023/ND-CP as follows:
- Subjects considered are 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;
- There is an element of infringing copyright, related rights in the subject, such as copying for commercial purposes without permission, impersonating the author;
- The person performing the act being considered is not the subject (holder) of copyright, related rights, except where the co-author, co-owner of copyright, or co-owner of related rights commits an infringing act with the remaining co-authors, co-owners of copyrights, co-owners of related rights are not authorized by law or competent authority.
2. 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 shall 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:
3. Civil measures
According to Clause 1 Article 57 of Decree No. 17/2023/ND-CP, which took effect on April 26, 2023, detailing some articles and measures to implement the Law on Intellectual Property on copyright and related rights (“Decree 17”), 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 have 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, phonograph, 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);
- Forced public apology and correction.
4. 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. Competent authorities, depending on the nature and extent of the behavior to apply:
- Monetary fine;
- 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, the name of the performer;
- Forcible revocation of copyright registration certificates and related rights registration certificates;
- Forcible removal of copies of infringing works, performances, phonograph, 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 that the statute of limitations for sanctioning an administrative violation of copyrights and related rights is 2 years from the time of detecting the violation or from the time when it ends. This can also be 2 years from the time of deciding on applying an appropriate measure against the administrative violations in the case of sanctioning of administrative violations transferred by the person competent to make administrative records.
5. Criminal measures
Criminal measures shall be implemented to address instances of infringement of copyright and related rights, in cases where such acts possess sufficient elements to constitute a crime as stipulated in Article 225 of the Criminal Code 2015, as amended and supplemented in 2017.
Accordingly, organizations and individuals having acts of copying works, phonograph, or video recordings or distributing to the public copies of works, copies of phonograph, 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, noncustodial reform for up to 3 years or sentenced to 5 years imprisonment. In addition, violating individuals and organizations may be banned or suspended from operating in certain areas.
Thus, Vietnamese law has prescribed measures to ensure the copyright, related rights of individuals and organizations against infringements to encourage creativity in the fields of literature and art, and entertainment, ensuring the legitimate interests of copyright, related rights holders. However, to avoid creating conditions for infringing acts to take place, copyright, related rights holders need to apply necessary measures to prevent such acts, for example, publishing works, phonograph, copies of video recordings, copyright registration with competent authorities, or other measures.