Vietnam’s Intellectual Property Law Amendment Draft: Protecting property rights in a digital environmentAAA IPRIGHT2
One of the issues that lawyers and delegates attending the seminar “Consultation about the project to amend and supplement several articles of the Law on Intellectual Property” held in Ho Chi Minh City on 12/3/2021 concern is about the intellectual property rights in the digital environment.
Most people expect this revision of the Intellectual Property Law will contribute to improving the efficiency of enforcement of intellectual property rights in Vietnam.
In August 2020, VNG Corporation sued TikTok – a social networking platform specializing in posting short Chinese videos. VNG claimed that TikTok had infringed on the copyright of songs owned by Zing (a subsidiary of VNG). Accordingly, VNG has filed a lawsuit with the People’s Court of Ho Chi Minh City, obliging Tik Tok to stop using Zing’s music. Furthermore, VNG demanded compensation of $ 9.5 million (about 221 billion VND). Although it is unknown where the results of the lawsuit will go, until now, users can still easily search for songs owned by Zing on TikTok.
A need to change the IP rights in the digital world in Vietnam
This unprecedented lawsuit is one of the outcomes stemming from the infringement of intellectual property rights in the digital environment in Vietnam. Recently, the report “2020 Review of Notorious Markets for Counterfeiting and Piracy” by the Office of the US Trade Representative (USTR) has announced the website phimmoizz.net is one of the most visited websites in Vietnam. Thousands of movies have been posted illegally on this website. Infringement of intellectual property rights in general and in the digital environment in particular not only creates damage to honest entrepreneurs but also makes foreign businesses afraid to invest in Vietnam.
The reduction of cases of infringement of intellectual property rights in digital environments such as VNG and TikTok is expected to become a reality through the current project amending the Intellectual Property Law.
“Besides the fulfillment of Vietnam’s commitments in the new generation of free trade agreements, the goal of amending the Intellectual Property Law is to deal with problems in practice and create a complete legal framework for Vietnam’s intellectual property activities,” the Minister of Science and Technology Huynh Thanh Dat emphasized
The Intermediaries cannot deny responsibility
The handling of infringement of intellectual property rights is never simple, especially in the digital environment. Because the violators can easily “disappear” and continue the infringement through setting up a website or another account. In the case of phimmoizz.net, for example, the original address was phimmoi.net. However, when discovered and forced to shut down, the violators quickly set up a new website similar to phimmoizz.net.
Major Vietnam stations such as Vietnam Television (VTV) also have to struggle frequently with the infringement of copyright (rights to literary, artistic, scientific works, etc.) and related rights (rights to phonograms, video recordings, broadcasts, etc.) on the digital environment. In 2018, VTV sent a “call for help” to the Ministry of Information and Communications because only three days after the opening of the World Cup, VTV discovered more than 700 cases of piracy for broadcasting this tournament online. If the infringers do not promptly stop the broadcast and let the broadcast signal spread outside the territory, the International Football Federation (FIFA) may stop the broadcast at any time, causing damage to the copyright purchaser as well as the viewer in Vietnam.
The draft amendment of the Intellectual Property Law on the digital environment
In order to resolve this crisis, the draft amendment of the Intellectual Property Law has supplemented the provisions on the responsibilities of intermediary service providers, including internet service providers.
Someone once contacted an intermediary internet service provider to request a resolution. According to lawyer Phan Vu Tuan at the law firm Phan Law: “they said they were just the archiving unit. This statement of them seems to deny responsibility, but in fact, storing their copyrighted products is similar to the storage of pirated goods.”
Accordingly, enterprises providing intermediate services must set up a system to examine, monitor, and process information stored and transmitted on the internet and telecommunications networks to prevent copyright and related rights infringement.
At the same time, enterprises providing intermediate services must remove and delete digital information content that infringes copyright, related rights. This provision has contributed to the resolve of the pressing problems of digital infringements.
Rising in the world’s charts
The provision of the responsibility of the intermediary service provider in dealing with intellectual property infringement in the digital environment not only fulfills Vietnam’s commitments in the EVFTA Agreement but also follows the world’s current IP trend. In developed countries around the world, the liability of intermediaries extends to industrial property (trademarks, industrial design, etc.). For example, in response to businesses’ feedback about counterfeit trademark goods on the Amazon e-commerce platform (USA), the company has developed technical measures to track infringers.
Can we do more?
Although they realize that this is a progressive step, experts still want this regulation to be more flexible so that it can be processed quickly and save more time. Specifically, when detecting infringement, instead of sending a request through the inspection agency, etc., the copyright owners/related right owners can send the request directly to the middle service provider.
“The draft stipulates that intermediaries only remove works that infringe rights upon request of inspection agencies or state management agencies. However, piracy often takes place and spreads very quickly, for example, a football match only takes place about 90 minutes. In such a short amount of time, will we be able to submit an application to inspectors and will they demand the infringers to take it down in time? In such circumstances, we want the copyright owners/ related rights owners to also request the intermediary service provider to remove it,” said lawyer Phan Vu Tuan.
The managers are also aware of this problem, but the problem is “we have to study and see how the amendment is suitable with reality”, Ms. Pham Thi Kim Oanh, Deputy Director of the Copyright Department (Ministry of Culture, Sports and Tourism) said.
“This has to do with two issues, first how to respond to a quick and timely removal in a digital environment, and the second, how to avoid abuse of the takedown request right. For example, people lose a lot of money invested to have a certain number of views, but if someone abuses the right to make these products remove immediately, it will cause damage. This is the problem we are looking at.” She added
Remove problems in copyright disputes
To ensure the effectiveness of the enforcement measures of intellectual property rights, this revised draft proposed the content on the assumption of copyright and related rights. Specifically, in civil, administrative, and criminal proceedings regarding copyright and related rights, if there is no evidence to the contrary, the entity named in the usual way is the authors, producers, broadcasting organizations, … will be considered the right holders of the creations, performances, phonograms, video recordings, broadcasts, etc.
This new development in the IP Law will contribute to the removal of many problems that arisen while dealing with infringement cases and disputes over copyrights and related rights. For example, to prove the owner of a movie, how do you prove it? How can I get the autographs of all the actors/actresses? Therefore, there should be provisions on the assumption of copyrights and related rights, the people named on it are of course considered the owners until there is evidence to the contrary.
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– You could visit here to see the Trademark Registration in Vietnam.
– You can also check the Vietnam Trademark Law: Detailed Guide And Legal Notes.
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