REPORT FOR THE COPYRIGHT COMMITTEE
Vietnam Country Report – APAA 2007
Presented by Mrs. Le Huong Giang
GINTASSET Intellectual Property Law Firm
Law on Intellectual Property: effective as from July 1, 2007, comprising of 6 parts, 18 chapters and 222 articles.
a. Part II, chapters from 1st to 6th: Contents of, Limitations on and Term of Protection of Copyright and Related RightsPart V, chapters from 16th to 18th : Protection of IPRs, Application of Civil Remedies in Dealing with Infringements of Intellectual Property Rights, Dealing with Infringements of Intellectual Property Rights by Application of Administrative and Criminal Measures; Control of Intellectual Property Related Imports and Exports;
Decree No. 100/2006/ND-CP dated September 22, 2006 of the Government detailing and guiding the implementation of some provisional in the Civil Code and the Intellectual Property Law regarding the copyright and related rights.
This Decree contains general provisions on the protection of the copyright and related rights of authors, performers, broadcasting organizations, and sound and video recording producers; the importation and distribution of works; the duration of protection; the protection of foreign authors’ works in Vietnam; copyright registration; and other related matters.
Decree No. 105/2005/ND-CP dated September 22, 2006 detailing and guiding the implementation of some provisions of the law on intellectual property on protection of intellectual property rights and on state management of intellectual property.
This Decree contains general provisions on legal remedies for the enforcement of IP rights. Other key provisions govern the determination of infringing acts, damages for compensation, and the procedures and required documents for the enforcement of IP rights.
Instruction Number 04/2007/CT-TTg Date 22nd February 2007 on the strengthening of computer program copyright protection
1. Detailed regulations:
2.1. Competent authorities involved in copyright protection:
Ministry of Culture, Sport and Tourism (the former Ministry of Culture and Information) is the governmental agency in charge of State management of copyright protection.
Literary and Art Copyright Office has responsibility to assist the Ministry of Culture, Sport and Tourism to perform the State management over copyright. The Office has the following functions and duties: to draft bills, laws, decrees and other legal documents on copyright protection; to issue and withdraw the Copyright Certificate, the License on professional activities and services of copyright; to perform international cooperation activities with other countries and international organizations in terms of copyright;
Authority for dealing with acts of infringement of intellectual property rights: courts, inspectorates, market management offices, customs offices, police offices and people's committees at all levels.
The application of civil and criminal remedies shall fall within the authority of courts. In necessary cases, courts may apply provisional urgent measures stipulated by law.
The application of administrative remedies shall fall within the authority of inspectorates, police offices, market management offices, customs offices and people's committees at all levels. In necessary cases, such bodies may apply preventive measures stipulated by law or measures to secure payment of administrative fines stipulated by law.
The application of measures to control intellectual property related imports and exports shall fall within the authority of customs offices.
2.2. Enforcement of IPRs and Copyright-related provisions:
Remedies for protection of IPRs: civil, administrative, import-export controls, unfair-competition and criminal remedies
Determination of acts of infringement: An examined act shall be regarded as an act of infringement of intellectual property rights specified when all the following bases exist:
· The alleged subject matter is a protected one.
· The alleged subject matter contains an infringing element.
· The person that takes the alleged act is neither the intellectual property right holder nor any person permitted by law or a competent agency
· The alleged act takes place in Vietnam. An alleged act that takes place in the Internet but is targeted at consumers or information users in Vietnam shall be regarded to take place in Vietnam.
Legal bases for determination of protected subject matters: For copyright and rights of performers, rights of producers of phonograms or video recordings, rights of broadcasting organizations that are not registered with competent agencies, these rights shall be determined on the basis of the original exemplar of the work, the first fixation of the performance, phonogram, video recording, broadcast and relevant documents, if any.
When the original exemplar of the work, the first fixation of the performance, phonogram, video recording, broadcast and relevant documents no longer exist, copyright or rights of performers, of producers of phonograms or video recordings or of broadcasting organizations shall be deemed to be true on the basis of information that is usually shown on lawfully published copies on authors, performers, producers of phonograms or video recordings or broadcasting organizations and on the subject matters of copyright or related rights.
Infringing elements of copyright and related rights
An infringing element of copyright may take one of the following forms: Illegally made copy of a work; Illegally made derivative work; Work with the forged name and signature of the author, impersonation of the author or appropriation of copyright; Illegally recited, duplicated or incorporated part of a work; Product with an illegally deactivated technical device used for copyright protection. Products containing an infringing element defined in this Clause shall be regarded as copyright-infringing products.
An infringing element of related rights may take one of the following forms:
Illegally made first fixation of a performance; Illegally made copy of the fixation of a performance, illegally made copy of a phonogram, video recording or broadcast; Illegally duplicated, extracted or incorporated part or whole of a fixed performance, a phonogram or video recording; illegally received, decoded and distributed part or whole of a broadcast; Product with an illegally deactivated technical device used for related rights protection; the fixation of a performance from which related rights management information has been illegally disengaged or modified; Products containing an infringing element defined in this Clause shall be regarded as related rights-infringing products.
The basis for determination of an infringing element of copyright shall be the scope of copyright protection determined according to the forms of expression of the original work. For determination of infringing elements of derivative works, the basis shall be the characters, images; ways of expression of characters’ personalities, images and circumstances of the original work.
The basis for determining an infringing element of related rights shall be the scope of related rights protection already determined according to the forms of expression of the first fixation of the performance, phonogram, video recording or broadcast.
Principles for determination of damage: damage as a result of intellectual property right infringement provided are actual losses including both physical and spiritual losses directly caused to the intellectual property right holder by acts of intellectual property right infringement.
Actual losses shall be regarded as having been occurred when all of the following bases exist:
- The physical or spiritual benefit is real and belongs to the aggrieved person;
- The aggrieved person could achieve the benefit referred to at Point a of this Clause;
- There is a decrease in or loss of the benefit of the aggrieved person after the act of intellectual property right infringement is committed as compared to the possibility of achieving such benefit if such act of intellectual property right infringement would not happen and it constitutes the direct cause of such decrease in or loss of the benefit.
The level of damage is determined in accordance with the infringing elements of the intellectual property right subject matters, which should be based on the evidence of the damage furnished by the parties, including the assessment results and damage declarations that clearly state the bases for determination and calculation of the level of damage.
2.3. Protection of Computer Program Copyrights:
Prime Minister’s instruction No. 04/2007/CT-TTg entrusted Ministers and Heads of some ministries and state agencies namely Ministries of Finance, Planning and Investment, Trade, Public Security, Defense, Foreign Affairs, Justice, Post and Telematics, and Culture, Sport and Tourism (former Ministry of Culture and Information), Chairmen of People Committees of provinces and centrally-administered cities with direct and set up detailed measures to take towards copyright protection of computer programs; set aside a budget for purchasing copyright of computer programs for their agencies and localities; develop a plan in accordance with their competence to settle the unlicensed computer programs used in agencies and localities.
Prime Minister entrusted Ministry of Culture, Sport and Tourism in drafting instruments for the purpose of completion of the legal framework on computer programs copyright;
2. International Conventions and Treaties Participation:
Vietnam officially became member of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
On 1 December 2006, the Vietnamese Government completed all accession procedures and officially became Contracting Party to the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. The Rome Convention officially came into force in Vietnam on 1 March 2007.
Up to now, Vietnam is the member of the following International conventions and treaties relating to Copyrights:
- Bern Convention for the Protection of Literary and Artistic Works, since 26 Oct. 2004
- Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms since 6th July 2005
- Brussels Convention Relating to the Distribution of Program-Carrying Signals, since 12 January 2006
3. Enforcement – Government Report on the activities of inspections, survey and dealing with copyright infringement in the first five months of 2007:
According to the statistics of the Inspector of the Ministry of Culture and Information, in the first five months of 2007, the inspector of the Department of Culture and Information of 64 provinces and cities inspected, surveyed, and dealt with administrative infringement in activities of culture and information, particularly in the area of copyright and related rights.
Inspectors surveyed 2,671 enterprises and cultural services; detected and dealt with 960 pirated shops; suspended 35 pirated shops; warned 41 shops; examined 972 pirated CD discs; dismounted 2,024 pirated signs, banners, and advertisements; and seized the following: 180,021 records of various kinds, 6,798 unauthorized book titles, 200 book covers, 2,728 kilograms of pirated books and cultural products; in excess of 1.5 tons of publications, 2,777 divination books, 11 computer monitors, 4 television sets, and 21 CPUs (1 containing 15 films with illegal content). They fined 3,139,089,000 VND.
The combination of: Inspector of the Ministry of Culture and Information, C15—the Ministry of Public Security, and an Inspector from a Department of Culture and Information alone surveyed eight computer enterprises in Ho Chi Minh City, Nghe An, and Ha Tinh, fined 110.000.000 VND, and destroyed pirated software in 117 computers.
The inspector force of the culture and information in the enforcement of the copyright and related rights protection acted in accordance with the regulations of the Intellectual Property Law and other legislative documents protecting the rights and legal interests of authors and right-holders. The results of the inspections have contributed positively to Vietnam’s status as a new member of the World Trade Organization.