Q&A on Copyright Law in Vietnam: Key protection issues you might encounter (PART 2)

Vietnam’s copyright law comprises a combination of domestic regulations and international treaties. These legal frameworks safeguard the creative output of authors and artists. Furthermore, these legal frameworks well-protect the original work both domestically and internationally.

7. Licensing and Assignment

7.1 What types of copyright licenses are available in Vietnam law?  

The transfer of copyright involves two different main types of contracts: assignments and licenses.

Assignment generally implies that the owner assigns all his rights in the work and confers full ownership of these rights on the assignee.

The license takes more the form and meaning of an authorization to use the copyright in the work without reserving this use solely to third parties. The various licensees will all have authorization to use the work (e.g., derivative products or the right to reproduce a work or a musical extract).

Whereas an assignment is generally granted for a period equal to the term of protection of the rights, a license generally contains a definite term.

7.2 What terms do they typically include? 

In addition to standard contract information, licenses and assignments require specific details. These include a precise description of the copyrighted works involved and the exact permitted uses for those works.

A clause also defines, in time and space, the limits of the transfer of rights.

This precision is required for two reasons:  

• The first reason is that the written form is a condition for the validity of these contracts.
• The second is to ensure that the scope of the transfer is precisely defined so that the value of the rights granted can be accurately assessed. If the transfer is too vague, it will not be possible to assess a fair financial consideration.

The above-mentioned provisions detail contract requirements. These provisions specify the information to include in the contract.

7.3 Can or must copyright licenses be officially recorded in Vietnam law? 

In the Vietnamese system, contracts for the transfer of copyright do not seem to require specific registration.

However, the provisions relating to copyright registration expressly provide for the situation in which the beneficiary of a licensing or assignment contract wishes to register the copyright; these provisions therefore enable the beneficiary to declare himself the owner of the rights in the work by means of registration.

The registration must include a written agreement detailing the rights transfer. This establishes the copyright purchaser as the owner with official recognition.

He then benefits from all the advantages of registration in terms of proof.

7.4 Are there any specific requirements for the validity of a copyright license in Vietnam law?  

According to the Law, the validity of a copyright transfer is subject to certain compulsory information:

For copyright assignment contracts:  

• Names and addresses of the assignor and the assignee;
• Assignment bases;
• Payment price and mode;
• Rights and obligations of the involved parties;
• Liability for contract breaches.

For copyright license contracts:  

• Full names and addresses of the licensor and the licensee;
• Licensing bases;
• Licensing scope;
• Payment price and mode;
• Rights and obligations of the involved parties;
• Liability for contract breaches.

Beyond the simple formal aspects, to conclude a balanced contract, it is crucial not to limit oneself solely to the compulsory terms of copyright transfer contracts.

The precision of the terms of the contract is a powerful tool in terms of predictability (to anticipate the occurrence of any potential dispute, as each imprecision entails a risk), but it will also enable you to increase the value of the rights transferred. Defining a precise use, a duration for that use, and a territory indirectly enables you to enhance the value of your rights over and above a simple transfer.

Precision therefore makes it possible to provide you with options for subsequent transfers, or if these rights are assigned on an exclusive basis, to enhance their value.

7.5 Is there a collective rights management regime in Vietnam? If so, how does it operate and who are the key players? 

Vietnam has a specific legal framework for collective copyright management. Specifically, this management system is organized through non-profit organizations. As these organizations represent a diverse group of authors.

The aim of these organisations is to manage large repertoires of works, and to negotiate with stakeholders the use of the rights to these inventions (conducting negotiations for licensing, collection and division of royalties, remunerations and other material benefits from the exercise of authorized rights).

The organization collects royalties. It then distributes these royalties to authors based on their contributions to the repertoire. The recent decree outlines the conditions for collecting royalties from users. The decree also specifies how to pay these royalties back to the authors.

In Vietnam, the best-known collective management company is VCPMC (Vietnam Music Copyright Protection Center). VCPMC is an official member of CISAC, the International Confederation of Societies of Authors and Composers, with 228 member societies in 119 countries.

CISAC represents more than 4 million creators throughout all geographic areas of the globe, including all types of artistic repertoires: music, audiovisual, drama, literature and visual arts.

Collective management of these rights also enables organizations to optimize managing copyrights abroad: they negotiate the use of repertoires directly with their foreign counterparts.

8. Copyright Infringements

8.1 What constitutes copyright infringement in Vietnam?  

Concretely, infringement of copyright is constituted by any act that falls within the current exercise of copyright by a person who is not the owner or who has not been authorized by the owner.

These acts are specifically envisaged in cases of copyright breach, and in cases of related copyrights breach, for example:

• Copyright infringements:
  • Appropriating copyright to literary, artistic or scientific works.
  • Impersonating authors;
  • Publishing or distributing works without permission of authors;
  • Publishing or distributing works under joint authorship without permission of co-authors;
  • Modifying, mutilating or distorting works in such a way as prejudicial to the honour and reputation of authors;
  • But also, infringements intended to cover digital or digitised works such as:  Willingly cancelling or deactivating technical solutions applied by copyright holders to protect copyright to their works;
    Willingly deleting or modifying right management information in electronic form in works.
• Related copyrights infringements:
• Appropriating the rights of performers, producers of phonograms and/or video recordings and broadcasting organizations;
• Impersonating performers, producers of phonograms and video recordings and broadcasting organizations;
• Publishing, producing and distributing fixed performances, phonograms, video recordings and broadcasts without permission of performers, producers of phonograms and video recordings, or broadcasting organizations;
• With the same deployment of prohibitions designed to protect the use of these performances on the Internet.

Finally, any act that violates the dignity of the author and the integrity and respect of the work constitutes an infringement of the moral rights of the author, who may then obtain compensation for his prejudice before a Court.

8.2 Is secondary liability for copyright infringement recognised in your jurisdiction? If so, how is it incurred?  

The secondary liability theory is the imposition of liability on one whose action does not directly violate one’s right but what they commit as a role in the third party’s suffering, such as encouraging, facilitating, or profiting from the infringing act. Secondary liability typically comes in two principal forms: vicarious liability and contributory liability. These theories were mainly developed through case law.  

Contributory liability of Internet Service Providers (ISPs) for online copyright infringement is a major issue to guarantee effective protection of copyright on the Internet.

The rise of ISPs has enabled many users to access a wide variety of services but has also increased the number of infringements of intellectual property rights (sale of counterfeit products, illegal streaming, etc.).

At the time, there was no way to hold ISPs liable for profiting from this success, with the real culprits often anonymous and, for the most part, untraceable. The passive role of the platforms in the infringement was presumed.

In line with the above-mentioned international EVFTA treaty, which encourages the creation of a liability regime for online service providers, Vietnam has recently adopted comprehensive legislation on this subject.

The 2022 law created provisions upon which the legal liability for copyright and related rights for intermediary service providers has been enforced as a way to identify the responsibility of an intermediary service provider/company (internet/telecommunication network company) in copyright infringement cases, and is more precisely developed by Decree 17/2023/ND-CP.

According to the decree, the intermediaries covered by these provisions are companies that provide the following services:

• “Transmission only” service is a service that transmits on telecommunications networks and the Internet digital information content provided by service users or a service that provides access to telecommunications networks and the Internet;
• A “buffer storage” service is a transmission service on telecommunications networks and the Internet of digital information content provided by service users that automatically stores, transfers, and temporarily stores content. This automatic, transit, and temporary storage operation is carried out with the sole purpose of making the forwarding of such digital information content more efficient to other service users upon their request;
•  The service “storing digital information content on request” is a service for users to store digital information content provided by users at their request.

The purpose of this legislation is to make any ISP that provides the technical means for an infringement of intellectual property rights liable.

In response to this presumed liability, any ISP may be exonerated if it can prove that it has put in place the technical means to develop tools to receive requests to remove or prevent access to digital information content that infringes copyright or related rights. The decree precisely defines these tools for each type of service and access mode.

8.3 Is criminal enforcement of copyright possible in Vietnam law? 

In accordance with the Criminal Code, infringement of copyright is punishable by imprisonment and payment of a fine: 

“A person who, without the consent of the holders of copyrights and relevant rights, deliberately commits any of the following acts which infringe upon copyrights and relevant rights protected in Vietnam and earns an illegal profit of from VND 50,000,000 to under VND 300,000,000 or causes a loss of from VND 100,000,000 to under VND 500,000,000 to the holders of such copyrights and relevant rights, or with the violating goods assessed at from VND 100,000,000 to under VND 500,000,000 shall be liable to a fine of from VND 50,000,000 to VND 300,000,000 or face a penalty of up to 3 years’ community sentence.” 

However, in practice, rightful claimants rarely have recourse to criminal proceedings and turn to the civil courts instead. Damages are usually the central claim in any civil lawsuit because it allows the right holder through a civil action to request a court to compel the infringing party to pay compensation for material and moral losses caused by intellectual property right infringements.

8.4 Are damages available for copyright infringement in Vietnam law? What factors will the court consider in determining the value of damages?

Damages are usually the central claim in any civil lawsuit because it allows the right holder through a civil action to request a court to compel the infringing party to pay compensation for material and moral losses caused by intellectual property right infringements. In consequences, damages may therefore be claimed in support of an infringement action based on the Civil Code.

Damages and Liability in Vietnamese Copyright Law:

Moreover, the Judicial Council of the Supreme People’s Court recently issued Resolution No. 02/2022/NQ-HDTP aimed to interpret this provision when it is invoked in support of an infringement action, providing 3 factors that plaintiff is obliged to prove when determining the tort liability for compensation because of a defendant’s IP infringement, specifically:

• a commission of an infringement upon the reputation, property, rights and other’s legitimate interests (i);
• a damage incurred that is material damage and/or mental damage (ii);
• a causal relationship between the damage occurring and IP infringement. The damage must be the inevitable result of the infringement and vice versa, the infringement is the cause of the damage (iii).

Material damage is assessed as an actual monetary loss. It includes irreparable property loss, lost or reduced actual income, and other reasonable costs to prevent or repair damage.

To claim compensation for mental damage, the plaintiff must demonstrate a loss of moral standing. This loss must prove a direct link to the copyright infringement and impact their reputation or other legitimate interests.

Damage Assessment in Vietnamese Copyright Law:

The recent decree outlines different types of damages related to copyright infringement. It also offers guidelines for calculating these damages, which can include:

• Mental damage: leads to damage to honour and dignity, reduction or loss of trust, reputation, reputation, trust due to misunderstandings, time endure the loss, the level of pain, sadness, emotional loss;
• Property damage: according to the degree of decrease or loss in the monetary value of the protected copyright object
• Decrease in income and profits: based on income and profits obtained from direct or indirect illegal exploitation and use of copyright objects;
• And loss of business opportunities: based on the ability to generate profits and increase copyrights value.

8.5 What measures can copyright owners take to help prevent infringement of their rights in Vietnam under the law?

There is obviously no miracle cure for counterfeiting. However, proactive measures can protect your rights. These steps can also prepare you to respond effectively to potential infringements.

• register your copyright: publicly validating your copyright ownership. It allows you to benefit from a strong presumption in the event of a dispute;
• use the © symbol when publishing your work, and subsequently for any communication about it, which will remind third parties that your creation is registered;
• employ professional surveillance services is beneficial. This allows for early detection of counterfeit outbreaks.

8.6 What is the statute of limitations for copyright infringement under Vietnamese law?

The statute of limitations for infringement proceedings will depend on the procedure used.

• For a civil action, the limitation period is three years from the date the copyright holder becomes aware of the infringement.
• For an administrative action, the limitation period is two years from the date the infringement ceases or the date the copyright holder becomes aware of the infringement.
• For a criminal action, the limitation period for criminal prosecution is five years, counting from the date a crime is committed. If the offender commits another crime during this period, the clock resets. The time elapsed before the new crime is disregarded, and the statute of limitations starts anew.

9. Enforcement and Remedies 

9.1 What remedies are available against copyright infringement in Vietnam?

Notes: See above 1.3 in Part 1.

9.2 What is the procedure for pursuing claims for copyright infringement?  

To start a copyright infringement case, the claimant must submit a petition and required documents to the appropriate people’s court. This court can be located in a rural district, urban district, provincial capital, or provincial town. The claimant has a three-year timeframe from the discovery of the infringement to file the petition.

The court can receive the lawsuit petition in two ways:

• Direct submission at courts;
• Sending them to courts by post.

The court will review the complaint. Within five working days of receiving the petition, the court must issue a decision. Possible decisions include:

• Accept the case;
• Transfer the lawsuit petition to other competent courts;
• Or return the lawsuit petition to the litigator for legal reasons more precisely defined by law.

The court will assess whether it has jurisdiction over the case and if the lawsuit petition is complete. The court will assess if both conditions are met. Then, the court will inform the claimant in writing if successful. To officially accept the case, the claimant must then submit proof of payment of the required court fee advance.

In theory, the court aims to reconcile the parties during the submission of written arguments. However, this is not mandatory for all cases. The court does not permit conciliation for certain types of disputes.

The parties will attempt to reach an agreement. If they fail, the court will conduct first-instance court sessions. These sessions will follow the rules outlined in the articles.

9.3 What is the procedure for appealing a decision in litigation of copyright law in Vietnam?  

In main proceedings, the defendant has the right to appeal the judgment of the first instance court to the immediate superior court within 15 days from the date of the announcement of the judgment.

The head of the procuracy is also entitled to appeal against first-instance court’s judgments or decisions, within 15 days or 1 month considering different procuracies’ level.

Where an appeal is lodged against a decision, operative parts of the decision which are the subject of the appeal may not be enforced, except in exceptional cases defined by Law.

On the other hand, measures that are not the subject of an appeal become enforceable on the date of expiry of the time limit for appeal.

At this stage, a new set of proceedings begins, with procedural rules similar to those at first instance. The appeal judgment will replace the first instance judgment for the measures appealed against.

10. Foreign Copyright in Vietnam

10.1 Are foreign copyrighted works protected in Vietnam? If so, how?  

Inside the Berne Union system, the Berne Convention is the primary tool for determining the rights held by nationals of countries that are parties to the Convention and seeking copyright protection in Vietnam. Nationals of a Berne Union country enjoy in Vietnam:

• Rights specifically granted by the Berne Convention;
• The same rights as Vietnamese nationals regarding copyright protection.

This principle of reciprocity allows an equal level of protection in each country between nationals and foreigners.

Out of the Berne Union system:

Vietnamese law imposes specific requirements for copyright protection on nationals of countries outside the Berne Union. To claim copyright protection within Vietnam, these individuals must comply with domestic eligibility criteria. Notably, foreign nationals can claim copyright protection in Vietnam under specific conditions. Their work must be published in Vietnam either before or within 30 days of its publication elsewhere.

10.2 What key concerns and considerations should be borne in mind by foreign copyright holders in seeking to protect their works in Vietnam?  

Copyright owners should determine their situation initially. Importantly, they should check if it is covered by the Berne Union or another relevant bilateral convention. This information is crucial. As it will influence the level of copyright protection available in Vietnam.

Then, and especially for nationals of countries in which the registration of copyright does not exist (for example France), to have the reflex to proceed as quickly as possible to their registration.

11. Trends and Predictions

11.1 How would you describe the current copyright law and prevailing trends in Vietnam? Is there any new developments or proposed legislative reforms occur within the next 12 months?

The Latest Copyright Regulations

As of now, the copyright law in Vietnam is gradually improving and becoming more robust. Fortunately, The Vietnamese government has been making efforts to strengthen intellectual property laws and enforce copyright protection.

Luckily, Vietnam has employed various strategies to achieve its goals. One prominent method involves entering agreements with the EU to reduce trade barriers. The newly implemented EVFTA is a prime example of this. Additionally, the soon-to-be-implemented EU-Vietnam Investment Protection Agreement (EVIPA) is another significant step in this direction.

These moves will improve intellectual property protection. Besides, it will also remove trade barriers for foreign investors. These actions will result in increased investment levels. For instance, during the first five months of 2023, the Netherlands alone invested nearly USD 602 million in the Vietnamese economy through new registered, adjusted, and contributed capital.

Vietnam’s Progress in Copyright Protection

Furthermore, Vietnam has made significant progress in updating its legal framework to comply with international standards. In 2019, Vietnam ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which includes provisions for intellectual property rights protection.

This has led to stricter enforcement measures and greater incentives for copyright holders.

For example: Recent amendments to Article 198(b) of the IP Law have introduced new penalties for copyright infringement. These include financial compensation and a public apology for the infringer. Interestingly, the public apology requirement could potentially benefit authors by increasing their public profile.

There are also ongoing efforts to combat copyright infringement in Vietnam. The government has enhanced its enforcement actions, including conducting raids on infringing businesses and websites. Increased cooperation between copyright holders and law enforcement agencies has resulted in more successful cases against copyright infringement.

In terms of legislative reforms, Vietnam will continue making changes to its intellectual property laws. Vietnam is currently drafting a new intellectual property law. This law aims to update and strengthen copyright protection measures. However, predicting specific legislative changes within the next 12 months is challenging. The legislative process is often time-consuming and complex.

Overall, Vietnam is making progress in protecting copyright and intellectual property rights. Despite progress, challenges remain in Vietnam’s copyright landscape. These include difficulties in enforcing copyright online and the need to increase public awareness of copyright laws. Continued efforts and reforms will be necessary to further improve the copyright law in Vietnam.

12. Elements of Vigilance 

12.1 What are your top tips for protecting copyrighted works in Vietnam and what potential sticking points would you highlight?

To protect copyrighted works in Vietnam, consider the following tips:

Protect Your Intellectual Property with PLF Law Firm:

• It is advisable to consult with local professionals. They can provide expert advice on Vietnamese law and introduce you to common legal practices. Intellectual property is a major asset in a company’s competitiveness. Investing in your intellectual property capital means securing it with the help of legal professionals.PLF Law Firm provides expert advice on Vietnamese intellectual property legal services.  Given that, this ensures your trademark is under the protection. Trust us to guide you through the legal landscape with confidence and ease.

Secure Your Trademark Before Entering the Market:

• Secure your rights on a trademark before starting any operations: divulging your brand image and starting major business operations prematurely can be risky. Moreover, operating without a prior monopoly on your trademark usage can harm your market entry. Consequently, competitors, including those with similar trademarks or local businesses, may easily capitalize on your brand by registering their own mark first. It can lead to the unwanted problem of stealing your market share.
• Apply trademark registration in Vietnam procedure: You can secure international trademark protection through the Madrid Agreement or traditional national applications.
• Carry out a prior trademark search in Vietnam: under the principle of territoriality, a similar or identical prior trademark may already occupy your relevant market in Vietnam. In such cases, coexistence with your trademark entails two major risks:
  • Firsly,, there is a risk of ambiguous coexistence between your trademark and an earlier trademark. This could lead the owner of the earlier trademark to take legal action. Such actions might include seeking to invalidate your trademark registration or claiming infringement of their products or services;
  • Last but not least, there is a risk that your trademark may not be distinct enough compared to existing trademarks. As a result, this could make it difficult to differentiate your business in your target market. Ultimately, this might weaken your brand image.

Potential sticking points to consider include:

• Enforcement challenges: Enforcement of copyright laws in Vietnam can be challenging. Clearly, it is often due to limited resources, inadequate legal frameworks, and bureaucratic obstacles. Thus, it may be a challenge to effectively stop infringement or seek compensation.
• Counterfeit products and piracy: Vietnam has a reputation for counterfeit goods. Thereby, this poses a significant challenge for copyright protection. Stay vigilant and work with customs and law enforcement authorities to prevent the import and sale of counterfeit goods.
• Cultural differences and awareness: Vietnam has its own cultural norms and attitudes towards intellectual property. These may differ from those in other countries. For this reason, raising awareness about the importance of copyright and educating the public can be a challenge.
• Online infringement: The rise of the internet and digital technologies has led to a significant increase in online activity. Consequently, online infringement of copyrighted works has become a major concern as a result. This can be harder to monitor and enforce, requiring cooperation with internet service providers and platforms

Overall, a comprehensive approach to copyright protection in Vietnam is essential. In addition, this should combine legal measures, proactive monitoring, enforcement actions, and public awareness campaigns.

Explore more on this topic in previous parts: [Part 1]  or Download full PDF version: [here].

Read more about Copyright law in Vietnam: “4 strict measures to handle copyright infringement in Vietnam“.