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Decree No 17/2023/ND-CP elaborating the law on intellectual property regarding copyrights and related rights

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on amendment to the Law on Government Organization and the Law on Local Government Organization dated November 22, 2019;

Pursuant to the Law on Intellectual Property dated November 26, 2005; the Law on amendments to the Law on Intellectual Property dated June 19, 2009; the Law on amendments to the Law on Insurance Business, the Law on Intellectual Property dated June 14, 2019, and the Law on amendments to the Law on Intellectual Property dated June 16, 2022;

At request of the Minister of Culture, Sports and Tourism;

The Government promotes Decree elaborating the Law on Intellectual Property regarding copyrights and related rights.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decree elaborates the Law on Intellectual Property; the Law on amendments to the Law on Intellectual Property dated 2009; the Law on amendments to the Law on Insurance Business, the Law on Intellectual Property dated 2019, and the Law on amendments to the Law on Intellectual Property dated 2022 (hereinafter referred to as “the Law on Intellectual Property”) regarding copyrights and related rights.

2. This Decree does not prescribe royalty rates and payment methods for cases where the Government represents the ownership of copyrights and related rights, the Government represents the right to management of copyrights and related rights; cases that falls under limited copyrights or limited related rights shall comply with Article 35 of this Decree.

Article 2. Regulated entities

This Decree applies to:

1. Authors, holders of copyrights, performers, holders of related rights according to the Law on Intellectual Property.

2. Other organizations and individuals whose operations are relevant to copyrights and related rights.

3. Competent authorities in copyrights and related rights.

Article 3. Definitions

In this Decree, terms below are construed as follows:

1. “posthumous work” means a work which is published for the first time after the death of its author.

2. “anonymous work” means a work which has an unknown or undisclosed author (real name or pseudonym) when the work is published.

3. “fixation” means the expression of a work in form of handwriting, other symbols, lines, blocks, composition, color, audio, images, or the recreation of audio, images in a definite tangible form from which the work is recognized, duplicated, or communicated.

4. “original work” means the first tangible copy upon which creation of the work takes place for the first time.

5. “copy” means a direct or indirect imitation of the entirety or part of a work on any medium or format.

6. “audio recording, video recording” mean fixation of audio, images of a performance or other audio, images or fixation of recreation of audio, images other than fixation accompanying a work of motion picture or a work created in similar fashion. Audio recordings and video recordings can be recordings that are used in news outlets on radio, television, internet services; art performance recordings; recording of activities of one or many people, description of events, situations, or reality television.

7. “copy of audio recording, video recording” means an indirect or direct copy of the entirety or part of audio recording, video recording on any medium or format.

8. “publication of fixed work, performance, audio recording, video recording” means publication, with consent of holders of copyrights and holders of related rights, of copies of works, fixed performances, video recordings, audio recordings on any medium in a reasonable quantity for public access depending on the nature of the works, performances, audio recordings, video recordings Works of art and works of architecture are considered to have been published if they are placed in public areas with the consent of holders of copyrights to public access and duplication.

Performance of dramatic works, works of music; screening of motion picture; public recital of works of works of literature; broadcasting of works of literature, works of art; display of works of art; or building of constructions from works of architecture is not considered to be publication.

9. “work of foreign organizations, individuals first published in Vietnam” means a work which has not been published in any other country prior to being published in Vietnam.

10. “work of foreign organizations, individuals published simultaneously in Vietnam” means a work published in Vietnam within 30 days from the date on which the work is first published in another country.

11. “rebroadcast” means to broadcast again after the broadcast has ended or broadcast programs simultaneously received from another broadcasting organization.

12. “encrypted program-carrying satellite signals” means a satellite signal carrying a transmitted program which has its audio, image, or audio and image modified and altered in order to prevent people who do not possess legal decrypting devices from illegally receive the program carried by the signal.

13. “other tangible benefits” mean benefits which authors, holders of copyrights, and holders of related rights are eligible to receive such as receiving awards, receiving gift books post-publication, receiving tickets to performance shows or screening of motion pictures, product exhibition, galleries.

14. “infringing element” means an element created by the infringement of copyrights, related rights.

15. “examined act” means an act suspected of infringing copyrights and/or related rights and being reviewed in order to determine whether the act infringes copyrights and related rights.

16. “examined subject” means a subject suspected for infringing copyrights and/or related rights and being reviewed in order to determine whether the work infringes copyrights and related rights.

Article 4. Government’s policies pertaining to copyrights and related rights

1. Provide financial support to allow state agencies and organizations tasked with disseminating works, performances, audio recordings, video recordings, broadcasting programs with ideology, scientific, educational, and artistic value serving public goods and socio-economic development to purchase copyrights.

2. Prioritize investment in training and improving public officials, public employees managing and providing copyright, related right protection from central to local governments.

3. Prioritize investment, application of science and technology, and digital transformation in state management activities pertaining to copyrights and related rights.

4. Promote communication to raise awareness and compliance with the law pertaining to copyrights and related rights. Promote education about copyrights and related rights in schools and other education institutions depending on level of education and training.

5. Mobilize social resources, invest, and provide financial support in order to encourage creativity, exploitation, transfer, and development of culture industries, improve copyright and related right protection system, and satisfy socio-economic development and international integration requirements.

6. Prioritize copyright and related right protection for organizations, individuals, and enterprises promoting culture industry development; promoting conversion of works to a more accessible format for persons with disability as per the law and enabling persons with disability to access the works.

Article 5. State management responsibilities and details pertaining to copyrights and related rights

1. The Government shall perform joint state management pertaining to copyrights and related rights.

2. The Ministry of Culture, Sports and Tourism is responsible to the Government for performing state management pertaining to copyrights and related rights and shall:

a) develop and promulgate within their competence or request competent authority to promulgate, coordinate and organize implementation of regulations, policies, legislative documents, strategies, planning, plans, programs, schemes pertaining to copyright and related right protection, development of culture industries having copyright and related right protected;

b) take charge and cooperate in implementing measures protecting legal rights and benefits of organizations, individuals, Government, and society in the field of copyright and related right protection;

c) manage and utilize copyrights of works and related rights of performances, audio recordings, video recordings, broadcasting programs whose ownership or management is represented by the Government; receive transfer of copyrights and related rights from organizations and individuals to the Government as per the law;

d) approve the use of anonymous works; published works, performances, audio recordings, video recordings, broadcasting programs of Vietnamese organizations and individuals in case copyright holders and related right holders cannot be identified;

dd) provide guidelines on providing cooperating, placing orders, using, and securing copyrights of works and related rights of performances, audio recordings, video recordings, and broadcasting programs;

e) approve translating works from foreign languages to Vietnamese and duplicating the works for lecture, study purposes and non-commercial purposes in accordance with Appendix of the Berne Convention for the Protection of Literary and Artistic Works;

g) manage operation of organizations acting as collective representatives of copyright or related rights and counseling organizations, service providers regarding copyright, related rights;

h) approve royalty rate and payment method developed by organizations acting as collective representatives of copyright or related rights;

i) issue, re-issue, revise, and annul Certificate of registered copyrights, Certificate of registered related rights;

k) produce and manage the National register of copyrights and related rights; authenticate copyrights;

l) publish and promulgate the Registration catalog on copyrights and related rights;

m) take charge and cooperate with relevant ministries in managing and coordinating scientific research, training, advanced training, professional personnel development pertaining to copyrights and related rights; granting commendations regarding copyrights and related rights;

n) direct, guide, encourage, and organize education, communication activities to disseminate knowledge, laws, regulations, and policies regarding copyrights and related rights; provide professional training and advanced training regarding copyrights and related rights;

o) implement statistical operations regarding copyrights, related rights, and culture industries benefiting from copyright, related right protection;

p) organize communication and media activities regarding copyrights, related rights, and culture industries benefiting from copyright, related right protection;

q) manage and organize assessment of copyrights and related rights; issue, re-issue, and revoke assessor’s cards for copyrights and related rights, certification for assessing body of copyrights and related rights;

r) take charge and cooperate with competent authorities in examining, inspecting, resolving complains, accusations, and taking actions against violations relating to copyrights and related rights;

s) implement international cooperation regarding copyrights and related rights; negotiate, sign, join, and organize implementation of international treaties regarding copyrights and related rights; propose resolution to conflicts between Vietnam and other countries regarding copyrights and related rights;

t) implement other tasks assigned by the Government.

3. Ministries, ministerial agencies, and Governmental agencies, within their functions and powers, are responsible for cooperating with Ministry of Culture, Sports and Tourism in performing state management pertaining to copyrights and related rights.

4. People’s Committees of provinces and central-affiliated cities (hereinafter referred to as “provincial People’s Committees”) shall perform state management pertaining to copyrights and related rights in local government and:

a) develop, promulgate within competence and organize implementation of regulations, policies, legislative documents, strategies, planning, plans, programs, and schemes regarding copyright and related right protection in provinces;

b) direct, guide, encourage, and organize education activities, dissemination, and popularization of knowledge, laws, regulations, and policies regarding copyrights and related rights in provinces. Coordinate scientific research operation, provide professional guidance, organize training, advanced training, and professional training pertaining to copyrights and related rights in provinces;

c) organize protection of copyrights and related rights in provinces; implement protection of legal rights and benefits of the Government, organizations, and individuals regarding copyrights, related rights; organizations developing culture industries in provinces in accordance with Article 4 of this Decree;

d) guide and assist organizations, individuals in processing procedures regarding copyrights and related rights in provinces;

dd) examining, inspecting, and resolving complaints, accusations, and violations of the law regarding copyrights and related rights in provinces;

e) conduct other tasks and powers as per the law.

5. The Copyright Office of Vietnam affiliated to the Ministry of Culture, Sports and Tourism is responsible for assisting the Minister of Culture, Sports and Tourism in performing state management pertaining to copyrights and related rights.

Chapter II

COPYRIGHTS AND RELATED RIGHTS

Section 1. COPYRIGHT

Article 6. Types of works eligible for copyright protection

1. Works of literature, scientific works, textbooks, course books, and other works expressed in form of handwriting or other symbols specified under Point a Clause 1 Article 14 of the Law on Intellectual Property:

a) Works of literature, scientific works, and other works expressed in form of handwriting include: Novels, novellas, short stories; memoirs; poems, narrative poems; scripts; cultural, literature, art, scientific study works, and other written materials;

b) Textbooks are published works that specify requirements of full-time education program, are approved and allowed by the Minister of Education and Training to be used as official teaching materials in full-time education institutions;

c) Course books are official teaching, studying, research materials which have contents appropriate to training programs and are approved, selected by heads of higher education institutions, vocational education and training facilities or approved by competent state authorities as per the law;

d) Works expressed in other symbols are works displayed in form of tactile letters for visually impaired, shorthand symbols, and symbols representing handwritings that can be understood and reproduced by individuals and organizations by different methods.

2. Lectures, speeches, and other talks specified under Point b Clause 1 Article 14 of the Law on Intellectual Property are works expressed by spoken language and must be fixed in a definite tangible medium.

3. Journalism works specified under Point c Clause 1 Article 14 of the Law on Intellectual Property mean works which have independent contents and complete structure, include: Report, newsflash, narration, interview, reflection, investigation, commentary, leading article, treatise, journalistic prose, and other forms of journalism which are then published or broadcasted on printed newspaper, talking newspaper, photo newspaper, online newspaper, or other media.

4. Musical works specified under Point d Clause 1 Article 14 of the Law on Intellectual Property are works that are expressed in form of notes in a musical arrangement or other music symbols regardless whether they are performed or not.

5. Theatrical works specified under Point dd Clause 1 Article 14 of the Law on Intellectual Property are works that fall under performance arts and include: “Chèo”, “tuồng”, “cải lương”, dance, puppetry, contemporary dance, ballet, play, opera, folk play, physical theater, musical theater, circus, comedy, variety shows, and other performance arts.

6. Motion pictures and works created in similar methods specified under Point e Clause 1 Article 14 of the Law on Intellectual Property are works which have contents expressed by a series of still images in succession or images created by technical, technological equipment; with or without audio and other effects according to film language principles. Still images extracted from a motion picture are parts of that motion picture.

Motion pictures do not include video recordings serving news propagation on radio broadcasting services, television services, the internet; performance art programs, video games; video recordings of activities of one or many people, events, situations, or reality shows.

7. Works of art specified under Point g Clause 1 Article 14 of the Law on Intellectual Property are works which are expressed by lines, color, shapes, composition, including:

a) Paintings: Paintings of lacquer, oil paint, powder, water color, dó paper, and other materials;

b) Graphics: Wood engravings, metal engravings, rubber engravings, plaster engravings, unique prints, rock prints, propaganda paintings, graphic design, and other materials;

c) Sculpture: Statues, monuments, relief, memorials, symbolic blocks;

d) Installation arts and other forms of contemporary art.

Works of art, sculpture, installation art, and other forms of contemporary art exist as unique copies. Works of graphic art can be depicted to the 50th iteration which must be numbered and signed by the authors.

8. Works of applied art specified under Point g Clause 1 Article 14 of the Law on Intellectual Property are works expressed by lines, color, shapes, and compositions with useful functions, potentially associated with a useful item, and manufactured manually or industrially and include: Graphic design (presentation of product logos, identity, and packaging; presentation of characters); fashion design; aesthetic design associated with forming products; aesthetic interior design, interior and exterior decoration. Works of applied art are expressed by aesthetic shaping of products, cannot be easily created by persons with average understanding in respective field, and do not require aesthetic exterior in order to function.

9. Works of photography specified under Clause 1 Article 14 of the Law on Intellectual Property are works depicting images of an objective world on light-sensitive materials or media on which images are created or works depicting images of an objective world created chemically, electronically, or by other technical measures. Works of photography may or may not be accompanied by notes.

10. Works of architecture specified under Point i Clause 1 Article 14 of the Law on Intellectual Property are works in the field of architecture, including:

a) Architectural design drawing of constructions or a combination of constructions, interior, scenery;

b) Constructions.

11. Flow charts, graphs, maps, drawings specified under Point k Clause 1 Article 14 of the Law on Intellectual Property include flow charts, graphs, maps, drawings relating to topography, scientific and architectural constructions.

12. Works of folk literature and art specified under Point 1 Clause 1 Article 14 and Clause 1 Article 23 of the Law on Intellectual Property include:

a) Works of folk literature and art specified under Point a Clause 1 Article 23 of the Law on Intellectual Property are arts of words;

b) Works of folk literature and art specified under Point b and Point c Clause 1 Article 23 of the Law on Intellectual Property are performance arts such as “chèo”, “tuồng”, “cải lương”, puppetry, singing rhythm, folk songs, melodies; dance, folk dance, play, folk games, folk festivals, village festivals, other forms of folk ceremonies.

Article 7. Derivative works

Derivative works specified under Clause 2 Article 14 of the Law on Intellectual Property are works created on the basis of one or many existing works, including:

1. Works of translation mean works depicted in languages other than original languages of the works being translated.

2. A derived work is a work that imitates the contents of another work, possibly changes the genre or contains other changes in the same genre, including changing the composition of the original work to better fit different use conditions.

3. A compiled work is a work compiled from a part or the entirety of existing works in a definite theme and may include commentary, assessment.

4. A supplementary work is a work created by clarifying the meaning and words, phrases, sentences, events, anecdotes, and locations mentioned in the supplemented work.

5. A selected work is a work selected from existing works of one or many authors in a definite period or theme, including anthology.

6. A modified work is a work that is re-compiled, re-written, re-arranged, or having its expression changed relative to the original work for a specific purpose or requirement.

7. An adapted work means a work that is adapted from one medium to another or one art style to another relative to the work based on which the adapted work is created.

Article 8. Works not eligible for copyright protection

1. Purely reporting news specified under Clause 1 Article 15 of the Law on Intellectual Property are short, daily information, short news, factual figures which are informative but not creative in nature.

2. Legislative documents specified under Clause 2 Article 15 of the Law on Intellectual Property include documents of Governmental agencies, political organizations, socio-political organizations, socio-profession-political organizations, social organizations, socio-profession organizations, and people’s armed forces.

3. Procedures, systems, methods of operation, concepts, principles, and figures specified under Clause 3 Article 15 of the Law on Intellectual Property are construed as follows:

a) Procedures are sequences of actions which must be complied with in order to carry out tasks;

b) A system is a combination of factors, units of the same types or functions that are closely connected or correlated and create a unified form;

c) Methods are ways of studying, perceiving natural phenomena and social life;

d) Concepts are thoughts reflecting overview of real things and phenomena and how they are connected;

dd) Principles are basic, general rules that govern a series of phenomenon; important initial thoughts or theories and starting points for further development of other theories.

Article 9. Copyrights of lectures, speeches, and other talks

If authors fix lectures, speeches, or other talks in form of audio recordings or video recordings, they shall hold copyrights of the lectures, speeches, and other talks and simultaneously act as right holders of the audio recordings and video recordings in accordance with Point b Clause 1 Article 44 of the Law on Intellectual Property.

Article 10. Copyrights of motion pictures

1. Individuals mentioned under Point a and Point b Clause 1 Article 21 of the Law on Intellectual Property shall have the right to have their names attached to the motion pictures and be named when the motion pictures are published or used. It is permissible to not include name of everyone in the cast and persons carrying out creative works specified under Point b Clause 1 Article 21 of the Law on Intellectual Property in a motion picture due to the use of said motion picture.

2. In case of agreement on naming and/or editing of motion pictures according to Point d Clause 1 Article 21 of the Law on Intellectual Property, screenwriters and directors are not allowed to take advantage of their moral rights to prevent the naming and editing of motion pictures which are compliant with creative and use requirements of the motion pictures.

Authors and copyright holders of scripts in musical works and musical works which are used in motion pictures are only allowed to prohibit distortion of their scripts in musical works and musical works or revision, editing of their scripts in musical works and musical works which harm their reputation or credibility.

3. The right to lease original or copy of motion pictures mentioned under Point e Clause 1 Article 20 of the Law on Intellectual Property is the right of copyright holders to exclusively lease or authorize other individuals to lease for a limited amount of time.

Article 11. Copyrights of architectural works

1. Authors who are copyright holders shall benefit from moral rights under Article 19 of the Law on Intellectual Property and economic rights under Article 20 of the Law on Intellectual Property.

2. Authors who are not copyright holders shall benefit from moral rights under Clauses 1, 2, and 4 Article 19 of the Law on Intellectual Property; copyright holders shall benefit from rights under Clause 3 Article 19 and Article 20 of the Law on Intellectual Property.

3. Authors and organizations, individuals investing finance and technical infrastructures in creation of architectural works can negotiate about repair of architectural works.

Article 12. Copyrights of computer programs

1. Authors who are copyright holders shall benefit from moral rights under Article 19 of the Law on Intellectual Property and economic rights under Article 20 of the Law on Intellectual Property.

2. Authors who are not copyright holders shall benefit from moral rights under Clauses 1, 2, and 4 Article 19 of the Law on Intellectual Property; copyright holders shall benefit from rights under Clause 3 Article 19 and Article 20 of the Law on Intellectual Property.

3. Organizations and individuals that have the right to legally use copies of computer programs are allowed to fix errors of the computer program copies when necessary.

4. The right to lease computer programs under Point e Clause 1 Article 20 of the Law on Intellectual Property is the right of copyright holders to exclusively lease or allow other individuals to lease the computer programs for a limited amount of time.

5. The right to lease computer programs does not apply if the computer programs are not the main subject matter of the lease in accordance with Point e Clause 1 Article 20 of the Law on Intellectual Property such as computer programs associated with normal operation of traffic vehicles or other technical machinery, equipment.

Article 13. Copyrights of works of folk literature and art

1. Works of folk literature and art specified under Points a, b, and c Clause 1 Article 23 of the Law on Intellectual Property shall be protected by copyrights regardless of their fixation.

2. The use of works of folk literature and art specified under Clause 2 Article 23 of the Law on Intellectual Property means collecting, studying, performing, and introducing values of works of folk literature and art.

3. Citing origins of works of folk literature and art specified under Clause 2 Article 23 of the Law on Intellectual Property means specifying origins, locations of community where the works of folk literature and art are created.

Article 14. Moral rights

1. The right to name their works specified under Clause 1 Article 19 of the Law on Intellectual Property does not apply to works translated from one language to another. The naming of the works must not violate regulations under Clause 2 Article 7 of the Law on Intellectual Property and other relevant law provisions.

2. The right to have their real names or pseudonyms attached to their works under Clause 2 Article 19 of the Law on Intellectual Property applies even when their works are used for derivative works. When authors’ works are published or used for derivative works, real names or pseudonyms of the authors must be specified.

3. The right to publish their works or permit other persons to publish their works specified under Clause 3 Article 19 of the Law on Intellectual Property is the issuing of copies of the works in any format in a reasonable quantity for public access depending on the nature of the works by authors or copyright holders or other individuals, organizations with consent of the authors or copyright holders.

Article 15. Public performance right

The right to perform publicly either directly or indirectly via audio recordings, video recordings, or any technological devices in areas accessible to the public where the public cannot freely choose the time or part of the works specified under Point b Clause 1 Article 20 of the Law on Intellectual Property is construed as follows:

1. With respect to works depicted by language or handwritings specified under Points a and b Clause 1 Article 14 of the Law on Intellectual Property: Copyright holders have the right to exclusively enable or permit other persons to enable the public to audibly perceive the works while the public cannot freely choose time or part of the works. Perception of the works can be done from within the presentation locations, via screens, monitors, speakers, or similar technological devices.

2. With respect to musical works specified under Point d Clause 1 Article 14 of the Law on Intellectual Property: Copyright holders have the right to exclusively enable or permit other persons to enable the public to audibly perceive the works or perceive the works performed live on stage while the public cannot freely choose time or part of the works. Perception of the works can be done from within the presentation locations, via screens, monitors, speakers, or similar technological devices.

3. With respect to motion pictures specified under Point e Clause 1 Article 14 of the Law on Intellectual Property: Copyright holders have the right to exclusively enable or permit other persons to enable the public to access, perceive motion pictures via technological devices while the public cannot freely choose time or part of the works.

4. With respect to works of fine arts and works of photography specified under Points g and h Clause 1 Article 14 of the Law on Intellectual Property: Copyright holders have the right to implement or permit other persons to implement exhibitions, display, projection of the works to allow the general public to perceive original works or copies of the works.

Article 16. Joint authorship and joint copyright ownership

1. Co-authors who also are co-owners of copyrights shall negotiate about the exercising of moral rights and economic rights of the works in accordance with Clause 3 Article 12a of the Law on Intellectual Property.

2. Co-authors who are not co-owners of copyrights of the works shall negotiate about the exercising of moral rights while co-owners of copyrights of the works shall negotiate about the exercising of economic rights of the works in accordance with Clause 3 Article 45 and Clause 3 Article 47 of the Law on Intellectual Property.

3. Co-authors and co-owners of copyrights are not allowed to reject the use of their works in a regular manner and for common interests.

4. Co-owners of copyrights of the works have the right to waive the rights specified under Clause 3 Article 19 and Clause 1 Article 20 of the Law on Intellectual Property in writing and notify other co-owners of copyrights. Rights of co-owners of copyrights who have waived their rights shall be automatically transferred to other co-owners.

Article 17. Copyright term of post-humous works

Copyright term of post-humous works shall conform to Article 27 of the Law on Intellectual Property.

Article 18. Copyright holders

Copyright holders specified under Article 36 of the Law on Intellectual Property include:

1. Vietnamese organizations and individuals.

2. Foreign organizations and individuals whose works are created and expressed in a definite tangible medium in Vietnam.

3. Foreign organizations and individuals whose works are first published in Vietnam.

4. Foreign organizations and individuals whose works are protected in Vietnam in accordance with International treaties to which Vietnam is a signatory.

Section 2. MORAL RIGHTS

Article 19. Rights of performers

1. The right to directly reproduce performances fixed on audio recordings, video recordings in accordance with Point b Clause 3 Article 29 of the Law on Intellectual Property is the right of right holders to exclusively produce or permit other persons to produce other copies from the audio recordings and video recordings.

2. The right to indirectly reproduce performances fixed on audio recordings, video recordings in accordance with Point b Clause 3 Article 29 of the Law on Intellectual Property is the right of right holders to exclusively produce or permit other persons to produce other copies from other than the audio recordings and video recordings such as reproducing from broadcasting programs, electronic information network, telecommunication network, the internet, and other similar means.

3. The right to communicate unfixed performances to the public specified under Point c Clause 3 Article 29 of the Law on Intellectual Property is the right of right holders to exclusively communicate or permit other persons to communicate unfixed performances to the public by any other technological measures other than broadcasting.

Article 20. Use of broadcasting program

1. Right holders of broadcasting programs specified under Point c Clause 1 Article 44 of the Law on Intellectual Property are broadcasting organizations that invest finance and their technical facilities in broadcasting, unless otherwise agreed.

2. If works, audio recordings, video recordings are used for the purpose of producing broadcasting programs, broadcasting organizations must fulfill obligations towards copyright holders and related right holders as per the law.

3. Organizations and individuals using broadcasting programs of other broadcasting organizations according to Point a and Point b Clause 1 Article 31 of the Law on Intellectual Property to re-broadcast or transmit via cables, electronic information network, telecommunication network, the internet, or any other technological means shall comply with agreements and relevant law provisions. The revision, editing, and addition to broadcasting programs of other broadcasting organizations for the purpose of re-broadcasting or transmitting via cables, electronic information network, telecommunication network, the internet, or any other technological means require agreement with right holders of the broadcasting programs.

Section 3. LICENSING OF COPYRIGHT AND RELATED RIGHTS, USE OF WORKS, PERFORMANCES, AUDIO RECORDINGS, VIDEO RECORDINGS, BROADCASTING PROGRAMS IN SPECIFIC SITUATIONS

Article 21. Licensing of copyright and related rights

Licensing of copyright and related rights specified under Article 47 of the Law on Intellectual Property include permitting organizations and individuals to exclusively or jointly use one or some or all of the rights specified under Clause 1 and Clause 3 Article 19, Clause 1 Article 20, Clause 3 Article 29, Clause 1 Article 30, and Clause 1 Article 31 of the Law on Intellectual Property depending on time, location, and scope of use.

Article 22. Use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents copyright ownership and related right ownership

1. Organizations and individuals using works, performances, audio recordings, video recordings, or broadcasting programs where the Government represents copyright ownership and related right ownership specified under Clause 1 Article 42 of the Law on Intellectual Property must respect moral rights specified under Clauses 1, 2, and 4 Article 19 and Clause 2 Article 29 of the Law on Intellectual Property and perform obligations of economic rights as follows:

a) Use permission and royalties are required for cases under Clause 3 Article 19, Clause 1 Article 20, Clause 3 Article 29, Clause 1 Article 30, and Clause 1 Article 31 of the Law on Intellectual Property;

b) Use permission is not required but royalties are required for cases under Clause 1 Article 26 and Clause 1 Article 33 of the Law on Intellectual Property;

c) Use permission and royalties are not required for cases under Clause 3 Article 20, Clause 1 Article 25, Article 25a, Clause 5 Article 29, Clause 3 Article 30, Clause 3 Article 31, and Clause 1 Article 32 of the Law on Intellectual Property.

2. Organizations and individuals shall fulfill obligations under Clause 1 of this Article towards:

a) Agencies using state budget to place order, assign tasks, and bid for creation of works, performances, audio recordings, video recordings, and broadcasting programs for cases under Point a Clause 1 Article 42 of the Law on Intellectual Property;

b) State authorities governing copyright and related rights of Ministry of Culture, Sports and Tourism for cases under Point b and Point c Clause 1 Article 42 of the Law on Intellectual Property.

3. Organizations and individuals shall apply for use permission of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents copyright ownership and related right ownership for cases under Point a Clause 1 of this Article as follows:

a) Submit application in person or via post service to agencies under Clause 2 of this Article;

b) Composition of application:

Written application for approval for the use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents copyright ownership and related right ownership (Form No. 1 under Appendix III attached hereto);

Use plans;

Copies of document proof of payment for approval for the use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents copyright ownership and related right ownership (if payment is made via post service or directly to account);

Power of attorney (notarized, certified, or consular legalized) if the application is submitted via authorization.

c) Within 30 days from the date on which adequate application is received,, agencies under Clause 2 of this Article shall send notice on royalty payment and royalty estimates to the applicants;

d) The applicants, upon receiving the notice, must pay royalties in accordance with royalty estimates within 5 working days (including proof of royalty payment);

dd) Within 5 working days from the date on which royalties are received, agencies under Clause 2 of this Article shall promulgate documents approving the use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents copyright ownership and related right ownership;

e) Applicants, upon having the use permission approved, shall remain under inspection and examination of competent authorities regarding the use of works, performances, audio recordings, video recordings, and broadcasting programs in accordance with the approved applications;

g) Application shall be rejected when:

The application is inadequate in accordance with Point b of this Clause;

The applicants fail to pay royalties before the deadline under Point d of this Clause.

4. State authorities governing copyrights and related rights of the Ministry of Culture, Sports and Tourism shall be responsible for receiving copyrights and related rights licensed by organizations and individuals under Point b and Point c Clause 1 Article 42 of the Law on Intellectual Property as per the law.

5. State authorities, organizations, and individuals upon discovering infringement of copyrights or related rights under Clause 1 of this Article have the right to request competent authorities to take actions as per the law.

Article 23. Use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents the right to management of copyright, related right

1. Works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents the right to management of copyright sand related rights specified under Clause 2 Article 42 of the Law on Intellectual Property include:

a) Works, performances, audio recordings, video recordings, and broadcasting programs where copyright holders, related right holders, copyright co-owners, related right co-owners cannot be identified: Mean works, performances, audio recordings, video recordings, and broadcasting programs which have been published without any information on authors, performers, copyright holders, related right holders or with information on authors, performers, copyright holders, related right holders which are Vietnamese organizations and individuals which cannot be reached;

b) Anonymous works: Mean works which have unknown or undisclosed authors (real name or pseudonym) when the works are published.

Authors, performers, copyright holders, related right holders, copyright co-owners, related right co-owners specified under Point a and Point b of this Clause shall be hereinafter referred to as “right holders”.

2. Organizations and individuals wishing to use works, performances, audio recordings, video recordings, or broadcasting programs under Clause 1 of this Article shall apply to state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism in person or via post service after failing to search for or contact the right holders.

3. Application for approval for use of works, performances, audio recordings, video recordings, broadcasting programs where the Government represents the right to management of copyright and related rights consists of:

a) Written application for approval for the use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents the right to management of copyright and related rights (Form No. 2 under Appendix III attached hereto);

b) Use plans;

c) Documents proving search effort mentioned under Clause 2 of this Article include:

Documents proving search effort for right holders in the Registration catalog on copyrights and related rights on websites of copyrights and related rights;

Documents on the search for right holders sent to organizations acting as collective representatives of copyright or related rights in the same field as the works, performances, audio recordings, video recordings, and broadcasting programs in question which are not replied or are replied without information on right holders after 30 days from the date of submission.

If organizations acting as collective representatives of copyright or related rights in the same field are absent, the documents must be sent to at least 2 organizations and individuals who have used or are using the works, performances, audio recordings, video recordings, and broadcasting programs in question (if any);

Documents proving the use of electronic devices for the purpose of looking up information on right holders on telecommunication network and the internet.

d) Copies of document proof of payment for approval for the use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents the right to management of copyright and related right (if payment is made via post service or directly to account);

dd) Power of attorney (notarized, certified, or consular legalized) if the application is submitted via authorization.

4. Within 20 days from the date on which adequate application is received, authorities under Clause 2 of this Article shall:

a) Upload the request publicly on websites on copyright and related right in order to search and receive information on right holders;

b) If right holders or authorized persons (if any) object to the request, they shall submit documents on objection and documents proving their position as right holders to authorities under Clause 2 of this Article. Document proof includes:

Documents under Clause 1 and Claus 2 Article 77 of this document;

Original copies or notarized, certified, or consular legalized copies of contracts for creative works, licensing, gifting, trading, capital contribution, transfer of use right of copyright and related rights; documents on task assignment, inheritance or similar documents in case right holders receive transferred copyright and related rights or inherit copyright and related rights as per the law.

Letter of attorney (notarized, certified, or consular legalized) in case persons making the objection is the authorized persons.

c) If right holders or authorized persons (if any) within 30 days from the date of upload under Point a of this Clause, they are considered to have waived the chance to object.

5. At the end of the time limit under Point c Clause 4 of this Article, authorities under Clause 2 of this Article shall review the application and notify the results as follows:

a) If documents on objection are received and right holders have been identified in accordance with assumption of copyright and related rights and other relevant law provisions, authorities under Clause 2 of this Article shall send notice on the results within 30 days to right holders and applicants to allow the parties to negotiate about the use in a law-compliant manner;

b) If documents on objection are not received or right holders cannot be identified in accordance with assumption of copyright and related rights and other relevant law provisions and the application is not rejected in accordance with Point a and Point c Clause 7 of this Article, authorities under Clause 2 of this Article shall send notice on royalty payment and royalty estimates within 30 days to the applicants.

The applicants, upon receiving the notice, must pay royalties in accordance with the royalty estimates within 5 working days (including proof of royalty payment);

c) Within 5 working days from the date on which royalties under Point b of this Clause are received, authorities under Clause 2 of this Article shall promulgate documents approving the use of works, performances, audio recordings, video recordings, and broadcasting programs where the Government represents the right to management of copyright and related rights and publicize the results on websites on copyright and related rights.

The approved use shall be available a definite amount of time and considered for extension if the applicants submit applications.

6. Applicants having their applications approved must pay royalties and stay under examination and inspection of competent authorities regarding the use of works, performances, audio recordings, video recordings, and broadcasting programs in accordance with their approved applications.

7. Application for approval for use is rejected when:

a) The application is inadequate in accordance with Clause 3 of this Article;

b) The right holders have been identified in accordance with Point b Clause 4 of this Article;

c) The right holders prohibited the use of their works, performances, audio recordings, video recordings, or broadcasting programs prior to being unable to be found or contacted;

d) The applicants fail to pay royalties before the deadline under Point b of this Clause.

8. Responsibilities for managing royalties:

a) Authorities under Clause 2 of this Article are responsible for collecting royalties in accordance with Point b Clause 5 of this Article and opening a royalty account for all right holders who cannot be found or contacted.

b) If right holders of works, performances, audio recordings, video recordings, or broadcasting programs which have been approved for use as per the law are found and/or contacted, authorities under Clause 2 of this Article shall request immediate suspension of the use and transfer collected royalties to the right holders after subtracting costs for administration and search as per the law;

c) If right holders cannot be found or contacted within 5 years from the date on which the request is uploaded on websites on copyright and related rights, royalties shall be used to encourage creative works, publicize and promote copyright, related right protection as per the law after subtracting costs for administration and search as per the law.

9. State authorities, organizations, and individuals upon discovering infringement of copyrights or related rights under this Article have the right to request competent authorities to take actions as per the law.

Article 24. Use of works, performances, audio recordings, video recordings, and broadcasting programs in the public domain

1. Organizations and individuals using works, performances, audio recordings, video recordings, and broadcasting programs in the public domain as specified under Article 43 of the Law on Intellectual Property must respect moral rights under Clauses 1, 2, and 4 Article 19 and Clause 2 Article 29 of the Law on Intellectual Property.

2. Regulatory authorities, organizations and individuals holding related rights and obligations, upon discovering infringement of moral rights under Clauses 1, 2, and 4 Article 19 and Clause 2 Article 29 of the Law on Intellectual Property of works, performances, audio recordings, video recordings, or broadcasting programs whose copyright term has ended have the right to request persons committing the infringement to cease the infringement, publish public apology and rectification, file complaints or request complete authorities to take actions as per the law.

3. Political organizations, socio-political organizations, professional-social political organizations, social organizations, professional-social organizations, organizations acting as collective representatives of copyright and related rights have the right to request competent authorities to protect moral rights of works, performances, audio recordings, video recordings, or broadcasting programs of their members that have ended protection term.

Chapter III

LIMITS AND EXCEPTIONS OF COPYRIGHTS, RELATED RIGHTS

Section 1. COPYRIGHT EXCEPTIONS, RELATED RIGHT EXCEPTIONS

Article 25. Reasonable partial reproduction of works by copying devices

1. Reasonable partial reproduction of works by copying devices for individual scientific research, studying purposes and not for commercial purposes according to Points b and e Clause 1 Article 25 of the Law on Intellectual Property means to reasonably reproduce no more than one copy containing a part of the works.

2. Copying devices mentioned under Points a, b, and e Clause 1 Article 25 of the Law on Intellectual Property mean devices that can perform copying function and have all or part of relevant components automated with or without payments made by persons not affiliated to organizations possessing, owning, or using the devices for commercial purposes.

3. With respect to works expressed in form of handwriting, reasonable reproduction under Clause 1 of this Article means to reproduce in form of photocopy, photography, or other means no more than 10% of total page count, storage unit (bytes), word count of publication, or general length of publication in case of works provided in form of unpaginated electronic publications.

Reasonable reproduction using copying devices stated under this Clause must be separate between organizations and individuals. If any repetition occurs within the same works, it must be unrelated occurrence.

4. Organizations and individuals reproducing works expressed in form of handwriting more than what is allowed under Clause 3 of this Article must acquire permission from copyright holders, pay royalties, and offer other tangible benefits (if any) to copyright holders.

Article 26. Reasonable use of works

1. Reasonable use of works as illustrations in lectures, unfixed performances for lecture purposes specified under Point c Clause 1 Article 25 of the Law on Intellectual Property must satisfy requirements below:

a) The use of works as illustrations in lectures, unfixed performances must ensure that the works are used only within the class of education institutions and accessed only by learners and lecturers in the class.

If the works are used in knowledge or skill tests and exams in formal education system, the works can be used to a necessary degree;

b) The use of works does not unreasonably damage legal benefits of the authors and copyright holders.

2. Reasonable use of works as illustrations in works, fixed performances, audio recordings, video recordings, broadcasting programs for the purpose of lecturing specified under Point c Clause 1 Article 25 of the Law on Intellectual Property must be contained within education institutions and satisfy other requirements under Article 28 hereof.

Article 27. Use of works in public affairs of regulatory authorities

The use of works in public affairs of regulatory authorities mentioned under Point d Clause 1 Article 25 of the Law on Intellectual Property means the situation where public officials and officials reproduce, adapt, exhibit, or display works for the purpose of performing public affairs of regulatory authorities in accordance with the Law on Officials and Public Officials.

Article 28. Reasonable citation of works

Reasonable citation of works as specified under Point dd Clause 1 Article 25 of the Law on Intellectual Property must satisfy all requirements below:

1. The cited sections only serve to introduce, comment on, or explain issues mentioned in the works.

2. The cited sections must not unreasonably damage legal benefits of authors and copyright holders of the cited works; fit the nature and characteristics of the type of cited works.

3. Citation must include direction to origin of the source materials and name of authors if the authors are named on the works that are being cited.

Article 29. Use of works in libraries for non-commercial purposes

1. Reproducing works for storage in libraries as specified under Point e Clause 1 Article 25 of the Law on Intellectual Property means to reproduce no more than 3 copies for archive purposes as long as these copies must be marked as archival copies and placed under restricted access in accordance with library and archival laws.

2. Reasonably reproducing part of works by copying devices for research and study purposes as specified under Point e Clause 1 Article 25 of the Law on Intellectual Property shall conform to Article 25 hereof and must include information copyrights on the works from which copies are reproduced as per the law or detail notes about copyright protection of the works if no other information on copyrights is found on the works from which copies are reproduced.

3. Reproducing or transmitting archived works for use between libraries via computer network as specified under Point e Clause 1 Article 25 of the Law on Intellectual Property must be protected by measures for preventing infringement of copyrights and measures for preventing the works in digital form from being accessed by the public outside of the libraries that legally use the copies.

4. Copying devices located in libraries must be accompanied by notice requiring compliance with copyright laws when producing copies.

Article 30. Copyright exceptions applied to persons with disabilities

1. Persons with disabilities specified under Point m Clause 1 Article 25 and Article 25a of the Law on Intellectual Property and this Article include:

a) Persons having visual impairment;

b) Persons with disabilities that render him/her unable to read printed materials or otherwise read the works in a conventional manner are construed as: Persons suffering from reduction or loss of awareness or the ability to read which cannot be improved thereby causing them to be unable to read printed works like a regular person or persons with disabilities who are unable to hold or use books or similar printed works or move their eyes to read at a regular level.

2. Accessible copies mentioned under Article 25a of the Law on Intellectual Property mean copies of works expressed in form of raised dots, audio recording, digital transformation, text-to-speech, sign language, or other format or methods that allow persons with disabilities to access the works conveniently.

3. Organizations satisfying requirements under Clauses 2, 3, 4, and 5 Article 25a of the Law on Intellectual Property are non-profit organizations, regulatory authorities whose operation or functions and tasks involve providing services for persons with disabilities in the field of education, training, information access, and reading in appropriate format and methods, including:

a) Assistance Fund for Persons with Disabilities specified under the Law on Persons with Disabilities;

b) Integrative education development support centers specified under the Law on Persons with Disabilities;

c) Care centers for persons with disabilities include service centers for persons with disabilities, center for independent living of persons with disabilities, and other care centers for persons with disabilities specified under the Law on Persons with Disabilities;

d) Organizations of persons with disabilities, organizations for persons with disabilities specified under the Law on Persons with Disabilities;

dd) Schools for persons with disabilities according to the Law on Education;

e) Libraries serving persons with disabilities according to the Law on Library;

g) Other organizations meeting requirements above and acquiring approval of regulatory authorities.

4. Organizations under Point g Clause 3 of this Article shall apply for approval as follows:

a) Organizations other than those mentioned under Points a, b, c, dd, and e Clause 3 of this Article that wish to reproduce, distribute, perform, or communicate works in a form of accessible copies according to Clauses 2, 3, 4, and 5 of Article 25a of the Law on Intellectual Property shall submit application to state authorities governing copyrights and related rights affiliated to the Ministry of Culture, Sports and Tourism together with relevant documents.

Within 30 days from the date on which adequate application is received, state authorities governing copyrights and related rights affiliated to the Ministry of Culture, Sports and Tourism shall promulgate decisions allowing or not allowing the applicants to apply copyright exceptions applied to persons with disabilities;

b) Applications shall be submitted in person or via post services to state authorities governing copyrights and related rights affiliated to the Ministry of Culture, Sports and Tourism;

c) Applications consist of:

Form No. 3 under Appendix III attached hereto;

Use plans;

Certified true copies of business registration certificate or certificate of operation registration or decision on establishment of the applicants and other document proof meeting requirements under Clause 3 of this Article;

d) Applicants that have acquired approval are not allowed to transfer the approved rights to other organizations or individuals.

5. Organizations mentioned under Clause 3 and Clause 4 of this Article must:

a) ensure that their accessible copies satisfy requirements under Clause 1 Article 25a of the Law on Intellectual Property;

b) send list of copies of works in accessible format to state authorities governing copyrights and related rights affiliated to the Ministry of Culture, Sports and Tourism and publish this list on their websites if they have their own websites;

c) respect right to privacy of persons with disabilities similar to right to privacy of other people;

d) produce annual reports to state authorities governing copyrights and related rights affiliated to the Ministry of Culture, Sports and Tourism on implementation of activities according to Article 25a of the Law on Intellectual Property; stay under examination and inspection of competent authorities.

6. Counterparts under international agreements to which the Socialist Republic of Vietnam is a signatory specified under Clause 3 and Clause 5 Article 25a of the Law on Intellectual Property refer to organizations permitted by other member states of the agreements.

Article 31. Reasonable reproduction of a part of performances, audio recordings, video recordings, broadcasting programs

Reasonable reproduction of a part of performances, audio recordings, video recordings, or broadcasting programs for direct teaching by individuals and for non-commercial purposes specified under Point c Clause 1 Article 32 of the Law on Intellectual Property must satisfy requirements below:

1. The reproduced part of performances, audio recordings, video recordings, and broadcasting programs must only serve the teaching periods in education institutions and only be accessed by learners, teachers in said teaching periods.

If the works are used in knowledge or skill tests and exams in formal education system, the works can be reproduced to a necessary degree.

2. The reproduction must not unreasonably damage legal benefits of related right holders.

3. This regulation does not apply to published performances, audio recordings, audio recordings, broadcasting programs used in teaching.

Article 32. Reasonable citation of performances, audio recordings, video recordings, broadcasting programs

1. Reasonable citation for the purpose of news production under Point d Clause 32 of the Law on Intellectual Property refers to the use of excerpts purely for reporting news.

2. Reasonable citation under Clause 1 of this Article must meet requirements below:

a) The citation serves only to introduce, comment on, or elaborate on issues in news production;

b) Cited sections of performances, audio recordings, video recordings, and broadcasting programs must not unreasonably damage legal benefits of performers, related right holders of the performances, audio recordings, video recordings, and broadcasting programs that are being cited; suit the nature and characteristics of performances, audio recordings, video recordings, and broadcasting programs that are being cited.

Article 33. Temporary copies

Temporary copies specified under Point dd Clause 1 Article 32 of the Law on Intellectual Property mean a limited-term fixed copies implemented by broadcasting organizations via their equipment and devices to serve next their broadcast sessions. In special cases, these copies shall be stored in official archive centers.

Section 2. LIMITATIONS OF COPYRIGHTS AND RELATED RIGHTS

Article 34. Use of works, audio recordings, video recordings in case of limited copyrights, related rights

1. Using works that have been permitted by copyright holders to be fixed on audio recordings, video recordings published for commercial use in business and commercial operations as specified under Point b Clause 1 Article 26 of the Law on Intellectual Property; audio recordings and video recordings published for commercial use in business and commercial operations as specified under Point b Clause 1 Article 33 of the Law on Intellectual Property means the situation where organizations and individuals using works, audio recordings, video recordings published for commercial use in restaurants, cafes, hotels, stores, supermarkets, playgrounds, recreation areas, shopping malls, sports clubs, health care – beauty centers, karaoke venues, bars, discotheques, during operation of aviation sector, public transportation, similar business and commercial operations.

2. Organizations and individuals using works, audio recordings, and video recordings under Clause 1 Article 26 and Clause 1 Article 33 of the Law on Intellectual Property are required to directly communicate with copyright holders, performers, and related right holders of audio recordings, video recordings or organizations acting as collective representatives of copyright or related rights regarding the use, list containing name and duration of works, audio recordings, and video recordings used, and pay royalties as per the law.

If copyright holders, performers, or related right holders of audio recordings or video recordings cannot be found or reached, organizations and individuals using the works, audio recordings, and video recordings shall fulfill obligations to competent authorities according to Clause 6 Article 23 hereof while competent authorities continue to search and manage according to Clause 8 Article 23 hereof.

3. Royalties percentage for cases where audio recordings and video recordings are used in accordance with Clause 1 Article 26 and Clause 1 Article 33 of the Law on Intellectual Property shall conform to agreements of copyright holders, performers, related right holders regarding said audio recordings and video recordings. If agreement cannot be reached, royalties shall be split as follows: 50% for copyright holders, 25% for performers, 25% for related right holders.

Article 35. Royalty payment in case of limited copyrights, related rights

1. Organizations and individuals using works, audio recordings, video recordings published for commercial purposes in broadcasting with sponsorships, advertisements, or any form of charges as specified under Point a Clause 1 Article 26 and Point a Clause 1 Article 33 of the Law on Intellectual Property are not required to acquire permission but are required to pay royalties for copyright holders, performers, related right holders for audio recordings, video recordings as per agreement from the date of use; if agreement cannot be reached, royalties must be paid in accordance with Appendix I hereof or lawsuits must be filed at court as per the law.

2. Organizations and individuals using works, audio recordings, video recordings published for commercial purposes in broadcasting without sponsorships, advertisements, and any form of charges specified under Point a Clause 1 Article 26 and Point a Clause 1 Article 33 of the Law on Intellectual Property are not required to acquire permission but are required to pay royalties for copyright holders, performers, and related right holders for audio recordings and video recordings in accordance with Appendix I hereof.

3. Broadcasting organizations using works, audio recordings, and video recordings in according with Clause 1 and Clause 2 of this Article shall pay royalties on the basis of one calendar year. If broadcasting organizations fail to pay royalties within 90 days from the end of a financial year in accordance with Clause 1 and Clause 2 of this Article, the organizations must stop using the works, audio recordings, and video recordings.

This Clause does not apply in case the parties have other agreements.

4. Organizations and individuals using audio recordings and video recordings published for commercial purposes in their business and commercial operations according to Point b Clause 1 Article 26, Point b Clause 1 Article 33 of the Law on Intellectual Property and Clause 1 Article 34 hereof are not required to acquire permission but are required to pay royalties for copyright holders, performers, related right holders for the audio recordings and video recordings as per agreement; if no agreement is reached, royalties must be paid in accordance with Appendix II hereof or lawsuits must be filed at court as per the law Failure to pay royalties within 90 days from the date of use requires immediate suspension of use.

Article 36. Use of the right to translate works in foreign languages to Vietnamese for teaching and research of non-commercial nature

1. Vietnamese organizations and individuals that wish to translate works that have been distributed or expressed to the public legally for teaching and research of non-commercial nature shall submit application for approval of translation from foreign language to Vietnamese for teaching and research of non-commercial nature to state authorities governing copyright and related right affiliated to the Ministry of Culture, Sports and Tourism in person together with proof indicating that the applicants have previously requested copyright holders to grant them permission to translate the works into Vietnamese and have been rejected or failed to reach an agreement or have failed to find copyright holders as long as any of the requirements below are met:

a) Copyright holders have not translated or allowed any organization, individual to translate their works into Vietnamese within 3 years from the initial publication of the works;

b) Copyright holders have previously published Vietnamese translations of their works and there are no translated copies left on the market 3 years after the last publication.

2. Procedures for application:

a) Applicants shall submit application to state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism in person or via post service;

b) Within 20 days from the date on which adequate application is received, authorities under Point a of this Clause shall send notice on the applicant’s application for approval of translating works from foreign languages to Vietnamese for teaching and research of non-commercial nature to copyright holders and websites on copyright and related rights;

c) Within at least 6 months from the date on which notice is uploaded in accordance with Point b of this Clause, authorities under Point a of this Clause shall send notice on royalty payment and royalty estimates to the applicants;

d) The applicants, upon receiving the notice, must pay royalties in accordance with royalty estimates within 5 working days (including proof of royalty payment);

dd) Upon receiving royalty payment, authorities under Point a of this Clause shall promulgate documents approving the translation of works from foreign languages to Vietnamese for teaching, research of non-commercial nature within 5 working days;

e) Authorities under Point a of this Clause are responsible for transferring royalty payment to copyright holders in accordance with regulations on foreign exchange management and other relevant law provisions. If copyright holders cannot be found, comply with Clause 8 Article 23 hereof.

3. Application consists of:

a) Form No. 4 under Appendix III attached hereto;

b) Use plans;

c) Documents proving failed effort to request permission from copyright holders to translate their works to Vietnamese or failed effort to search for copyright holders;

d) Documents proving fulfillment of conditions under Point a or Point b Clause 1 of this Article;

dd) Copies of payment orders for fees for approval of translating works from foreign languages to Vietnamese for teaching and research of non-commercial nature (if fees are paid via post service or directly to accounts);

e) Power of attorney (notarized, certified, or consular legalized) if the application is submitted via authorization.

4. Organizations and individuals that have acquired approval are only allowed to translate and publish translation of approved works and are not allowed to transfer the right to translate to other organizations and individuals.

Authorities under Point a Clause 2 of this Article must not allow any other organizations and individuals to translate works approved for translation to Vietnamese if documents granting approval have not expired or have expired for less than 6 months.

5. If copyright holders have published Vietnamese translation of their works which are similar to printed materials that are the subject of approval documents under this Article and have distributed printed materials at a reasonable price in Vietnam, authorities under Point a Clause 2 of this Article shall issue decision revoking the approval documents. Remaining copies of printed materials implemented or published before decisions on revocation of competent authorities are promulgated are allowed to be distributed.

6. Organizations and individuals that have acquired approval are not allowed export copies of materials or publications approved for Vietnamese translations, except for cases where:

a) The recipients in foreign countries are Vietnamese nationals;

b) The printed materials serve teaching or research purposes;

c) The distribution of the printed materials is not of commercial nature;

d) Countries in which the printed materials is distributed allow distribution of printed materials from Vietnam or from within the countries.

Article 37. Use of the right to reproduce in teaching and research of non-commercial nature

1. Vietnamese organizations and individuals wishing to reproduce works that have been distributed or expressed to the public legitimately for teaching and research of non-commercial nature must submit application for works reproduction for teaching and research of non-commercial nature to authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism together with proof indicating that the applicants have previously requested copyright holders to grant them permission to reproduce the works have been rejected or failed to reach an agreement as long as any of the requirements below are met:

a) Copyright holders have not distributed their works to the general public in Vietnam within 5 years from the first publication or 3 years from the first publication in case of works in the field of natural sciences, physics, mathematics, technology or 7 years from the first publication in case of novels, poems, stage plays, musical works, artistic works;

b) Copyright holders have distributed copies and there are no more copies available on the market past the time limits under Point a of this Clause.

2. The application of Clause 1 of this Article must comply with requirements below:

a) The applicants have requested permission to reproduce and publish the works from copyright holders and have been rejected or have failed to find copyright holders by all means necessary;

b) If the applicants fail to find copyright holders, the applicants have then submitted a copy of their request for authorization to publishers that are named on the works via post at least 3 months prior to the application;

c) The applicants have sufficient capability to reproduce and publish an accurate copy of the works and adequate technical instruments to pay royalties to copyright holders;

d) Name of the authors and specific name of publication of the works are printed on all copies of the works;

dd) The authors have not withdrawn from existing copies of the works.

3. Procedures for application:

a) Vietnamese organizations and individuals that wish to reproduce works that have been distributed or expressed to the general public legitimately for teaching and research of non-commercial nature shall submit application to state authorities governing copyrights and related rights affiliated to the Ministry of Culture, Sports and Tourism in person or via post service;

b) Within 20 days from the date on which adequate application is received, authorities under Point a of this Clause shall send notice on applicant’s application for approval of reproducing works that have been distributed or expressed to the public legitimately for teaching and research of non-commercial nature to copyright holders and websites on copyright and related rights;

c) Authorities under Point a of this Clause shall send notice on royalty payment and royalty estimates to the applicants after at least 6 months for works in the field of natural sciences, physics, mathematics, technology or 3 months for other works from the date on which the notice is sent in accordance with Point b of this Clause;

d) The applicants, upon receiving the notice, must pay royalties in accordance with royalty estimates within 5 working days (including proof of royalty payment);

dd) Upon receiving royalty payment, authorities under Point a of this Clause shall promulgate documents approving the reproduction of works for teaching, research of non-commercial nature within 5 working days;

e) Authorities under Point a of this Clause are responsible for transferring royalty payment to copyright holders in accordance with regulations on foreign exchange management and other relevant law provisions. If copyright holders cannot be found, comply with Clause 8 Article 23 hereof.

4. Application consists of:

a) Form No. 5 under Appendix III attached hereto;

b) Use plans;

c) Documents proving failed effort to request permission from copyright holders to reproduce their works or failed effort to search for copyright holders;

d) Documents proving fulfillment of conditions under Point a and Point b Clause 1 of this Article;

dd) Copies of payment orders for fees for approval of reproducing works for teaching and research of non-commercial nature (if fees are paid via post service or directly to accounts);

e) Power of attorney (notarized, certified, or consular legalized) if the application is submitted via authorization.

5. Organizations and individuals that have acquired approval are only allowed to reproduce and publish copies of approved works and are not allowed to transfer the right to reproduce to other organizations and individuals.

Chapter IV

COPYRIGHT AND RELATED RIGHT REGISTRATION

Article 38. Application for registration of copyright and related rights

1. Authors, copyright holders, related right holders that are Vietnamese individuals and organizations, foreign individuals residing in Vietnam, foreign organizations placing head offices, representative offices, or branches in Vietnam shall submit application for registration of copyright and related rights in person or via legal representatives in Vietnam.

2. Authors, copyright holders, related right holders that are foreign individuals not residing in Vietnam on a regular basis or foreign organizations without head offices, representative offices, or branches in Vietnam shall submit application for registration of copyright and related rights on level 4 online public service portal or by authorizing counseling organizations and service providers regarding copyright and related rights in Vietnam.

3. Legal representatives under Clause 1 of this Article include:

a) In case of individual applicant: Authorized legal representatives, counseling organizations, service providers regarding copyright and related rights;

b) In case of organization applicant: Legal representatives of the applicants or individuals affiliated to organizations authorized by legal representatives of the applicants; counseling organizations, service providers regarding copyright and related rights authorized by the applicants; heads of head offices, representative offices, or branches in Vietnam in case of foreign applicant organizations.

4. Eligibility for issuance, re-issuance, and revision of Certificate of registered copyright or a Certificate of registered related rights:

a) Authors, co-authors, copyright holders, copyright co-owners of works, performers, related right holders, related right co-owners of performances, audio recordings, video recordings satisfy requirements under Article 12a, Article 13, and Article 16 of the Law on Intellectual Property;

b) Works, performances, audio recordings, video recordings, broadcasting programs fall under formats or categories specified under Article 14 and Article 17 of the Law on Intellectual Property;

c) Composition of application conforms to Article 39, Article 40, and Article 41 hereof.

5. Procedures for issuance, re-issuance, and revision of Certificate of registered copyright or Certificate of registered related rights:

a) Applicants shall submit application in accordance with Clauses 1, 2, 3, and 8 of this Article, Clause 1 Article 39, Clause 2 Article 40, and Clause 2 Article 41 hereof and pay fees, charges as per the law;

b) Competent authorities shall review, classify, and consider legitimacy of the application within 1 month from the date on which they receive the application;

c) In case of inadequate application, competent authorities shall request the applicants to make adjustments to the application.

The applicants must adjust their application within 1 month from the date on which they receive notice requesting adjustment to their application except for force majeure or other objective hindrance as per the law. If the applicants fail to make adequate adjustment or any adjustment at all, competent authorities shall return their application;

d) Competent authorities shall keep 1 copy of the works of which copyright is registered or 1 fixed copy of the subject of which related rights are registered; return 1 copy of the works of which copyright is registered or 1 fixed copy of the subject of which related rights are registered that have been sealed and specified with number of certificate of registered copyright, certificate of registered related right to the applicants as an inseparable component of the certificate of registered copyright, certificate of registered related right.

6. If application is submitted via authorization, the application must contain power of attorney. The power of attorney must include specific contact information of the authorizing party, the authorized party; name of works, performances, audio recordings, video recordings, broadcasting programs, scope of authorization, and duration of authorization.

If authorizing party are individuals, the power of attorney must be certified as per the law.

7. Documents in application for registration of copyright, related rights must be presented in Vietnamese; or translated from other languages to Vietnamese (certified or consular legalized); typed out or printed using permanent, clear, clean ink, not erased or edited. If any insignificant typographical error is found in the submitted documents, the applicants are allowed to correct the error as long as they append their countersignature (and seal, if any) to the correction.

8. Application for registration of copyright and related right shall be submitted to state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism in person or via post service or via online public service portal.

Article 39. Issuance of Certificate of registered copyright, Certificate of registered related rights

1. Application for issuance of Certificate of registered copyright, Certificate of registered related rights under Clause 2 Article 50 of the Law on Intellectual Property consists of:

a) Application for registration of copyright, related rights (using specified form) attached with signature or fingerprints of authors, copyright holders, related right holders unless they are physically incapable of appending their signatures and fingerprints;

b) 2 copies of the works (including electronic copies) or 2 fixed copies of performances, audio recordings, video recordings, broadcasting programs;

c) Power of attorney if the applicants are authorized by authors, copyright holders, related right holders in accordance with Clause 6 Article 38 hereof;

d) Proof of copyright ownership:

Identification documents for individuals: 1 copy of Identity Card or Citizen ID Card or Passport;

Legal status documents for organizations: 1 copy of business registration certificate or business establishment license or decision on establishment;

Documents proving right ownership due to assignment of creative works mean documents assigning tasks or confirmation of tasks assigned to affiliated individuals;

Documents proving right ownership due to creative contracts mean contracts, regulations, rules of competition;

Documents proving right ownership due to inheritance mean documents indicating inheritance notarized and certified as per the law;

Documents proving right ownership due to transfer of rights mean contracts for transfer, gift, trading, capital contribution in writing and notarized, certified as per the law;

If authors are not right holders, the authors must present commitment on creative freedom and creativity under decisions on confirmation of assignment; contracts; competition participation, and be responsible for the commitment.

Documents proving right ownership due to assignment of creative tasks, creative contracts under this Clause must be the original copy or notarized, certified true copies;

dd) Written consent of co-authors, if there are multiple authors;

e) Written consent of co-owners if copyright, related rights are under joint ownership;

g) If the works contain images of other individuals, written consent produced by these individuals is required as per the law.

2. Competent authorities shall reject the application for issuance of Certificate of registered copyright, Certificate of registered related right, return the application, and notify the applicants in writing when:

a) Requirements under Clause 4 Article 38 hereof are not met;

b) The works, performances, audio recordings, video recordings, broadcasting programs are found to have format or contents that: Violate the Constitution, regulations and law; plot against the Communist Party or the Government of the Socialist Republic of Vietnam; contradict fine traditions, customs, morals of the people; engage in superstition and details of other nature as per the law;

c) The works, performances, audio recordings, video recordings, broadcasting programs are currently under disputes, complaints, denunciation and not resolved by legitimate effective decisions of competent authorities, courts, or arbitration;

d) Competent authorities do not receive adequate application or adequate adjusted application after the time limit under Point c Clause 5 Article 38 hereof.

3. In case of adequate application, competent authorities are responsible for issuing Certificate of registered copyright, Certificate of registered related right within 15 working days.

Article 40. Re-issuance of Certificate of registered copyright, Certificate of registered related rights

1. Certificate of registered copyright, Certificate of registered related right shall be re-issued if the previous copy is lost or damaged.

2. Application for re-issuance of Certificate of registered copyright, Certificate of registered related right consists of:

a) Application for registration of copyright, related rights (using specified form) attached with signature or fingerprints of authors, copyright holders, related right holders unless they are physically incapable of appending their signatures and fingerprints;

b) 2 copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs;

c) Power of attorney if the applicants are authorized by authors, copyright holders, related right holders in accordance with Clause 6 Article 38 hereof;

d) Original copies of Certificate of registered copyright, Certificate of registered related right that have been damaged together with copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs that bear the seal and number of Certificate of registered copyright, Certificate of registered related right.

3. Competent authorities shall reject re-issuance request, return the application, and notify the applicants in writing when:

a) Certificate of registered copyright, Certificate of registered related right is not damaged enough to warrant re-issuance of the certificates;

b) The works, performances, audio recordings, video recordings, broadcasting programs for which Certificate of registered copyright, Certificate of registered related right have been changed.

c) Cases under Points b, c, and d Clause 2 Article 39 hereof occur.

4. In case of adequate application, competent authorities are responsible for re-issuing Certificate of registered copyright, Certificate of registered related right within 7 working days.

Article 41. Revision of Certificate of registered copyright, Certificate of registered related rights

1. Certificate of registered copyright and Certificate of registered related rights shall be revised due to changes to copyright holders, related right holders, or changes to information on authors, copyright holders, related right holders, works, performances, audio recordings, video recordings, or broadcasting programs.

2. Application for revision of Certificate of registered copyright, Certificate of registered related right consists of:

a) Application for registration of copyright, related rights (using specified form) attached with signature or fingerprints of authors, copyright holders, related right holders unless they are physically incapable of appending their signatures and fingerprints;

b) 2 copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs;

c) Power of attorney if the applicants are authorized by authors, copyright holders, related right holders in accordance with Clause 6 Article 38 hereof;

d) Original copies of Certificate of registered copyright, Certificate of registered related right together with copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs that bear the seal and number of Certificate of registered copyright, Certificate of registered related right.

3. Competent authorities shall reject revision request, return the application, and notify the applicants in writing when:

a) The works, performances, audio recordings, video recordings, broadcasting programs for which Certificate of registered copyright, Certificate of registered related right have been changed;

b) Cases under Points b, c, and d Clause 2 Article 39 hereof occur.

4. In case of adequate application, competent authorities are responsible for issuing revised Certificate of registered copyright, Certificate of registered related right within 12 working days.

Article 42. Annulment of Certificate of registered copyright, Certificate of registered related rights

1. State authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism are allowed to annul Certificate of registered copyright, Certificate of registered related right for cases under Clause 2 and Clause 3 Article 55 of the Law on Intellectual Property.

2. Organizations and individuals holding Certificate of registered copyright, Certificate of registered related right shall apply for annulment of Certificate of registered copyright, Certificate of registered related right as follows:

a) The applicants shall submit application for annulment of Certificate of registered copyright, Certificate of registered related right and pay fees as per the law;

b) Application for annulment of Certificate of registered copyright, Certificate of registered related right consists of:

Form No. 6 under Appendix III attached hereto;

Power of attorney if the applicants are authorized by authors, copyright holders, related right holders in accordance with Clause 6 Article 38 hereof;

Proof (if any);

Original copies of Certificate of registered copyright, Certificate of registered related right together with copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs that bear the seal and number of Certificate of registered copyright, Certificate of registered related right;

c) Competent authorities shall review, classify, and consider legitimacy of the application within 1 month from the date on which they receive the application;

d) In case of inadequate application, competent authorities shall request the applicants to make adjustments to the application.

The applicants must adjust their application within 1 month from the date on which they receive notice requesting adjustment to their application except for force majeure or other objective hindrance as per the law. If the applicants fail to make adequate adjustment or any adjustment at all, competent authorities shall return their application;

dd) In case of adequate application, competent authorities are responsible for issuing revised Certificate of registered copyright, Certificate of registered related right within 15 working days.

Article 43. Requirements of works, performances, audio recordings, video recordings, broadcasting programs in application for registration of copyright and related rights

1. Name of works, performances, audio recordings, video recordings, and broadcasting programs must fit contents and format of the works, performances, audio recordings, video recordings, and broadcasting programs.

2. Works, performances, audio recordings, video recordings, and broadcasting programs which are entirely or partially expressed in languages other than Vietnamese must be accompanied by transcriptions in Vietnamese.

3. Works expressed in shorthand or other similar format must be accompanied by transcriptions in Vietnamese which are verified by competent authorities as per the law.

4. Woks of motion pictures must include screenplays which are written creative works of screenwriters which depict the entire development of the plot; shooting scripts which are written creative works of directors which depict professional techniques and methods of shooting a motion picture based on the screenplays.

5. With respect to works of fine arts: Copies of the works mean photos taken from any angle that accurately depict the composition, contours, color, and shapes of the works.

6. Works of applied art must meet requirements below:

a) Copies of the works must be depicted on A4 paper with accurate composition, contours, color, and shapes;

b) If the works contain letters or words that are not Vietnamese, these letters and words must be accompanied by Vietnamese pronunciation and translated to Vietnamese (if possible). If the works contain numbers other than Arabic or Roman numbers, the numbers must be translated to Arabic numbers;

c) Works containing information relating to medical, education, or other field require confirmation and assessment documents issued by competent authorities.

7. Works of architecture must include technical drawings depicting architectural components (including floor plan, elevation from different angles, first-angle projection) and 3D visualization. The works must be paginated in order.

8. Textbooks: The works must accurately and adequately depict contents of subject programs or education activities and contain the following basic components: Part, chapter or theme, lesson.

9. Computer programs: Copies of computer programs include CDs containing the computer programs (with a piece of paper containing the name of the computer program stick to one side of the CD) and photocopies on A4 paper containing the entire interface and code of the computer programs. If printed copies of code of computer programs are at least 100 pages in length, applicants are only required to print the first 25 pages, the middle 25 pages, and the last 25 pages.

10. Copies of works for copyright registration are replaced by photos depicting distinctive works such as paintings, statues, monuments, relief, murals; works that are large in size, clunky, or unique prints in three dimensions.

Article 44. Effective period of Certificate of registered copyright, Certificate of registered related rights

All types of Certificate of registered copyright and Certificate of registered related rights issued by the Copyright Protection Firm of Vietnam, the Copyright Protection Agency of Vietnam, Literature – Art Copyright Office or the Copyright Office of Vietnam still remain valid.

Chapter V

ORGANIZATIONS ACTING AS COLLECTIVE REPRESENTATIVES, AND COUNSELING ORGANIZATIONS, SERVICE PROVIDERS REGARDING COPYRIGHT, RELATED RIGHTS

Article 45. Organizations acting as collective representatives of copyright and related rights

Organizations acting as collective representatives of copyright, related rights in accordance with Clause 1 Article 56 of the Law on Intellectual Property shall adhere to their scope of operation, functions, and authorizing contracts between copyright holders, related right holders, and organizations acting as collective representatives of copyright, related rights pertaining to management of one or several specific property rights.

Article 46. Royalty rate

1. Organizations acting as collective representatives of copyright and related rights shall develop royalty rate and payment methods depending on use methods and principles under Clause 3 Article 44a of the Law on Intellectual Property to serve as the basis for negotiation and payment of royalties specified under Clause 2 Article 20, Clause 1 Article 26, Clause 4 Article 29, Clause 2 Article 30, Clause 2 Article 31, and Clause 1 Article 33 of the Law on Intellectual Property.

Organizations acting collective representatives of copyright and related rights shall submit application for approval of royalty rate and payment methods to the Minister of Culture, Sports and Tourism prior to implementation.

2. Application for approval of royalty rate and payment methods consists of:

a) Form No. 7 under Appendix III attached hereto;

b) Solutions for developing royalty rate include:

Analysis of the proposed royalties: Properties (format, type, quality, quantity, structure, scale, use frequency, and other basis); factors constituting royalties; local socio-economic conditions; time and location of use (accompanied by classification and assessment); analysis of impact of royalty rate/amount on creating, using, and benefiting from results of creative works; and fulfillment of obligations with the state budget;

Issues that have not been settled with users (if any);

Proposed royalty rate and payment methods, other recommendations (if any).

3. Organizations and individuals using works, performances, audio recordings, video recordings, broadcasting programs, and organizations acting as collective representatives of copyright and related rights are responsible for reaching an agreement on royalty amount and payment methods.

4. Costs for reviewing and approving royalty rate, payment methods shall be incurred by the applicants as per the law.

Article 47. Approval of royalty rate and payment methods

1. The Minister of Culture, Sports and Tourism shall review and promulgate documents on approval within 90 days from the date on which they receive adequate application for approval of royalty rate and payment method sent by organizations acting as collective representatives of copyright, related rights in accordance with Clause 1 Article 46 hereof.

2. If necessary, the Minister of Culture, Sports and Tourism shall establish Advisory council for copyright and related rights to review royalty rate and payment methods under Clause 1 of this Article and promulgate Regulations on operation of the Advisory council for copyright and related rights.

3. Royalty rate and payment methods upon being approved must be applied for at least 3 years.

The Minister of Culture, Sports and Tourism shall consider revision to royalty rate in case of changes to consumer price index and national economic growth relevant to the basis for determining royalty rate. Organizations requesting revision to royalty rate include: Organizations acting as collective representatives of copyright, related rights, Vietnam Chamber of Commerce and Industry; state authorities governing copyright, related rights affiliated to the Ministry of Culture, Sports and Tourism.

Article 48. Collection and distribution of royalties

1. Organizations acting as collective representatives of copyright, related rights must develop supervising regulations to ensure that collected royalties are contained in accounts separate from other assets, accounts, revenues, and expenditure of the organizations, even when royalties cannot be distributed due to failure to find or contact authorizing authors, co-authors, copyright holders, copyright co-owners, related right holder, related right co-owners in accordance with Clause 5 Article 56 of the Law on Intellectual Property.

2. Organizations acting as collective representatives of copyright, related rights shall distribute royalties in accordance with Point d and e Clause 3 Article 56 of the Law on Intellectual Property on the basis of agreement with authorizing authors, copyright holders, related right holders within a specific period of time but not exceeding 6 months from the date on which they receive the royalties unless otherwise agreed.

3. Organizations acting as collective representatives of copyright, related rights are allowed to retain a part of royalties collected to cover their task implementation in accordance with Point dd Clause 3 Article 56 of the Law on Intellectual Property.

Costs for task implementation mean the sum of expenditure on activities conducted by organizations acting as collective representatives of copyright, related rights as authorized by authors, copyright holders, related right holders and other administrative expense without exceeding reasonable costs for managing copyright and related rights in each development phase of the organizations. Costs must be recorded in financial statements of organizations acting as collective representatives of copyright, related rights after receiving confirmation of independent auditing companies.

4. The retained amount must be based on agreement with authorizing authors, copyright holders, related right holders, can be adjusted to fit specific development phase, and must:

a) Not exceed 40% of total royalties collected for the first 5 years following the establishment of the organizations;

b) Not exceed 30% of total royalties collected for the next 5 years;

c) Not exceed 25% of total royalties collected if the organizations have been established for at least 10 years.

5. If organizations that collect and distribute royalties as authorized by authors, copyright holders, related holders are not organizations acting as collective representatives of copyright and related rights, the organizations must comply with Point c Clause 2 Article 57 of the Law on Intellectual Property and Article 55 hereof while fulfilling obligations of organizations acting as collective representatives of copyright, related rights under Clause 2 of this Article, Article 53 and Article 54 hereof.

Article 49. Failure to find or contact authorizing authors, copyright holders, related right holders

1. If organizations acting as collective representatives of copyright, related rights fail to find or contact authorizing authors, co-authors, copyright holders, related right holders, copyright co-owners, and related right co-owners in accordance with Clause 5 Article 56 of the Law on Intellectual Property, the organizations must publicly upload search information their websites.

After 6 months from the date of upload, the organizations acting as collective representatives of copyright, related rights must transfer the royalties to a general bank account for all authorizing authors, co-authors, copyright holders, related right holders, copyright co-owners, related right co-owners but cannot be found or contacted.

If authorizing authors, co-authors, copyright holders, related right holders, copyright co-owners, related right co-owners are found, organizations acting as collective representatives of copyright and related rights shall distribute royalties as per agreement.

2. If authorizing authors, co-authors, copyright holders, related right holders, copyright co-owners, related right co-owners are not found within 5 years for the purpose of royalty distribution, the royalties, interest thereof, and documents relating to authorization and collection of royalty shall be transferred to competent authorities after incurring all administrative and search expenses as per the law.

3. Upon receiving the transfer, competent authorities shall upload search notice on website on copyright and related rights for 5 years and manage royalties in accordance with Clause 8 Article 23 hereof.

4. If legitimate and effective Judgments or Decisions of competent Courts are issued determining that authors, co-authors, copyright holders, related right holders, copyright co-owners, related right co-owners have deceased or missing (in case of individuals) or dissolved or gone bankrupt (in case of organizations) within the time limits under Clause 2 and Clause 3 of this Article, royalties and interests thereof (if any) minus administrative and search expenses shall be sent to beneficiaries as per relevant law provisions.

Article 50. Use of audio recordings, video recordings licensed by organizations acting as collective representatives of copyright, related rights

1. If works, audio recordings, video recordings used in accordance with Clause 1 Article 26 and Clause 1 Article 33 of the Law on Intellectual Property have been authorized to organizations acting as collective representatives of copyright, related rights by copyright holders, performers, and related right holders, these organizations are allowed to negotiate, unify, and authorize negotiation, collection of royalties as per the law. Royalty distribution percentage shall be agreed upon by these organizations. If an agreement cannot be reached, comply with Clause 3 Article 34 hereof.

2. Authorizing organizations acting as collective representatives of copyright and related rights are responsible for developing list of members, works, audio recordings, video recordings, broadcasting programs of their members and accountable when signing contracts authorizing organizations acting as collective representative of copyright and related rights to negotiate and collect royalties.

3. Organizations acting as collective representatives of copyright and related rights are responsible for negotiating royalties in accordance with the list of members, works, performances, audio recordings, video recordings, and broadcasting programs under authorizing contracts.

Article 51. Composition of organizations acting as collective representatives of copyright and related rights

1. Organizations acting as collective representative of copyright and related rights must hold meetings and annual conferences.

2. Meetings shall cover:

a) Change to name of organizations; amendments to their charters (if any);

b) Change to persons holding leading, managerial, control positions of the organizations;

c) Other information in accordance with relevant law provisions and charters of the organizations.

3. Annual conferences shall cover:

a) Revision to operating regulations of the organizations if the regulations are not revised by charters;

b) Reports on fulfillment of obligations of members, approval of salaries and other benefits of members holding leading, managerial, and control positions of the organizations;

c) Reports on operation and financial statement of the organizations;

d) Decision on percentage of royalties retained in accordance with Clause 4 Article 48 hereof;

dd) Approval of Regulations on royalty collection and distribution;

e) Other information in accordance with relevant law provisions and charters of the organizations.

4. Members holding leading, managerial, control positions of organizations must include authorizing members.

Article 52. Members of organizations acting as collective representatives of copyright and related rights

1. Members of organizations acting as collective representatives of copyright and related rights include:

a) Authorizing members that are organizations or individuals owning one or many property rights mentioned under Clause 1 Article 20, Clause 3 Article 29, Clause 1 Article 30, or Clause 1 Article 31 of the Law on Intellectual Property that authorize organizations acting as collective representative of copyright and related rights in writing to manage their property rights for the purpose of conducting activities according to Clause 2 Article 56 of the Law on Intellectual Property;

b) Other members as per the law.

2. Authorizing members have the right to participate and cast votes in meetings and annual conferences, or authorize other organizations and individuals to participate and cast votes as per the law.

3. Votes in meetings and annual conferences of authorizing members shall be counted depending on percentage of works, fixed performances, audio recordings, video recordings, fixed broadcasting programs, and royalties authorized to organizations acting as collective representatives of copyright and related rights by the members.

Article 53. Transparency and openness in management, administration of organizations acting as collective representatives of copyright and related rights

1. Organizations acting as collective representatives of copyright and related rights must disclose annual reports and audited annual financial statements, which contain revenues generated by licensing, amounts payable, amounts paid, amounts collected but not paid due to failure to find or contact authorizing authors, co-authors, copyright holders, copyright co-owners, related right holders, related right co-owners in accordance with Clause 5 Article 56 of the Law on Intellectual Property, amounts retained, tax amounts, fees, charges, and interests of undistributed royalties (if any) at annual conferences and on their website.

2. Organizations acting as collective representatives of copyright and related rights shall disclose the following information on their websites:

a) Name of authors, copyright holders, related right holders;

b) In case of individuals: Date of birth; year of death (if any). In case of organizations: Date of establishment; year of dissolution (if any);

c) Name of works, name of subjects of related rights (performances, audio recordings, video recordings; broadcasting programs);

d) Contents of the works, performances, audio recordings, video recordings, broadcasting programs;

dd) Scope of authorization; effect of authorizing contracts;

e) Licensing, collecting, and distributing of royalties;

g) Operation of organizations acting as collective representative of copyright, related rights;

h) Other relevant information.

3. When distributing royalties to authorizing authors, copyright holders, related right holders in accordance with Clause 2 Article 48 hereof, organizations acting as collective representatives of copyright and related rights must also include:

a) Amounts payable for each work, performance, audio recording, video recording, broadcasting program licensed for use, rights for licensing, and purpose of use;

b) Duration of use serving as the basis for collecting and distributing royalties.

Article 54. Reporting

1. Organizations acting as collective representatives of copyright and related rights shall submit reports on amendments to charters, operating regulations; financial management regulations; changes to managerial positions; participation to international organizations; other diplomatic activities; royalty rate and payment methods; long-term and annual plans and programs; operation situations, signing of contracts for authorizing, licensing use right; situation of authorizing members, quantity of works, performances, audio recordings, video recordings, broadcasting programs to be authorized; royalties and collection, amount collected, distribution method, distribution implementation, collection and distribution regulations thereof; annual reports, audited annual financial statements; other relevant activities to the Ministry of Culture, Sports and Tourism, Ministry of Home Affairs, Ministry of Finance, and presiding authorities.

Amendments to the charters must be reported to competent authorities for approval prior to implementation.

2. Organizations acting as collective representatives of copyright, related rights shall develop their website to connect to state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism and other organizations acting as collective representatives of copyright, related rights.

3. Organizations acting as collective representatives of copyright, related rights must have database on their copyright and related rights which is connected to national database on copyright and related rights.

Article 55. Counseling organizations and service providers regarding copyright, related rights

1. Counseling organizations and service providers regarding copyright, related rights under Clause 1 Article 57 of the Law on Intellectual Property include:

a) Enterprises established and operating in accordance with enterprise laws;

b) Cooperatives and cooperative unions established and operating in accordance with cooperative laws;

c) Public service providers;

d) Law-practicing organizations established and operating in accordance with lawyer laws, except for branches of foreign law-practicing organizations, limited liability law firms that are wholly foreign-invested, limited liability law firms operating as joint venture between Vietnamese law-practicing organizations and foreign law-practicing organizations.

2. Counseling organizations and service providers regarding copyright, related rights shall be established in accordance with Clause 1 Article 57 of the Law on Intellectual Property if heads of the organizations and persons providing counsel, services regarding copyright and related rights:

a) are Vietnamese nationals, have full legal capacity;

b) reside in Vietnam;

c) have undergraduate law degree.

3. Acknowledgement of counseling organizations and service providers regarding copyright, related rights:

a) Organizations satisfying conditions under Clause 1 Article 57 of the Law on Intellectual Property and Clause 2 of this Article acknowledged by state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism as counseling organizations and service providers regarding copyright and related rights in the National register of copyright, related right counsel and services and publicized on websites on copyright and related rights at request of the organizations if their application is approved.

Branches and other affiliated entities of organizations satisfying conditions under Clause 1 Article 57 of the Law on Intellectual Property are only allowed to provide counsel and services regarding copyright and related rights using name of organizations to which they are affiliated.

b) Application shall be submitted in person or via post services to state authorities governing copyrights and related rights affiliated to the Ministry of Culture, Sports and Tourism.

a) Application for acknowledgement of counseling organizations, service providers regarding copyright and related rights in the National register of copyright, related right counsel and services must be filed under the name of organizations satisfying conditions under Clause 1 Article 57 of the Law on Intellectual Property and consist of:

Form No. 8 under Appendix III attached hereto;

List of affiliated individuals providing counsel and services regarding copyright, related rights and copies of ID Cards or Citizen ID Cards;

Personal information sheets of heads of organizations verified by regulatory authorities;

Certified true copies of undergraduate law degrees of heads of organization and individuals providing counsel and services regarding copyright, related rights;

Copies of business registration certificate or certificate of operation registration of the organizations.

d) Within 30 days from the date on which adequate application is received, state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism shall review the application and respond to the applicants whether their application is approved or rejected.

4. Removal of counseling organizations and service providers regarding copyright, related rights from National register of copyright, related right counsel and services:

a) State authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism shall remove counseling organizations and service providers regarding copyright, related rights from the National register of copyright, related right counsel and services and the removal shall be published on websites on copyright and related rights when:

Organizations providing counsel and services regarding copyright and related rights cease to provide counsel or services regarding copyright and related rights;

Organizations providing counsel and services regarding copyright and related rights fail to continue to satisfy conditions under Clause 1 Article 57 of the Law on Intellectual Property and Clause 2 of this Article;

b) Organizations and individuals have the right to request state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism to remove counseling organizations and service providers regarding copyright, related rights if is sufficient ground to determine that the counseling organizations or service providers are no longer eligible for providing counsel or services regarding copyright and related rights;

c) Counseling organizations and service providers regarding copyright and related rights must application requesting state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism to remove their name from the National register of copyright, related right counsel and services for cases under Point a of this Clause;

d) Application shall be submitted in person or via post services to state authorities governing copyrights and related rights affiliated to the Ministry of Culture, Sports and Tourism;

dd) Application for removal of counseling organizations and service providers regarding copyright and related rights from the National register consists of: Form No. 8 under Appendix III attached hereto or settlement results of complaints, denunciations, or decisions of competent authorities relating to the application for removal;

e) The application for removal of counseling organizations and service providers regarding copyright and related rights shall be processed by regulatory authorities affiliated to the Ministry of Culture, Sports and Tourism within 30 days from the date on which they receive the application in the same manner as the application for acknowledgement of counseling organizations and service providers regarding copyright and related rights.

5. In case of any change to information of counseling organizations and service providers regarding copyright and related rights, these organizations must submit written notice regarding the changes to state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism.

6. State authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism shall produce list of counseling organizations and service providers regarding copyright and related rights and upload this list on their websites on copyright and related rights.

7. Counseling organizations and service providers regarding copyright and related rights shall report and communicate with state authorities governing copyright and related rights affiliated to the Ministry of Culture, Sports and Tourism on an annual or irregular basis regarding copyright, related right counseling and services.

Chapter VI

COPYRIGHT PROTECTION, RELATED RIGHT PROTECTION

Section 1. SELF-PROTECTION OF COPYRIGHT AND RELATED RIGHTS

Article 56. General provisions regarding copyright, related right protection

1. Copyright holders and related right holders shall exercise and protect their copyright, related rights in person or by authorizing organizations acting as collective representatives of copyright, related rights or other organizations and individuals as per the law. The authorized party is responsible for disclosing their information to enable other organizations, individuals to contact them in order to negotiate about use.

2. Organizations and individuals using works, performances, audio recordings, video recordings, and broadcasting programs are responsible for contacting copyright holders, related right holders, or the authorized party in order to negotiate about the use of said works, performances, audio recordings, video recordings, and broadcasting programs in accordance with copyright, related right laws.

3. Disputes regarding copyright, related rights shall be settled in accordance with civil proceeding or arbitration laws.

Article 57. Adoption of civil, administrative, criminal measures in protecting copyright, related rights

Organizations and individuals infringing copyright, related rights of other organizations and individuals, depending on the nature and severity of the infringement, shall be met with civil, administrative, or criminal measures specified in accordance with Part Five (Protection of Intellectual Property) of the Law on Intellectual Property and regulations below:

1. Civil measures shall be taken against infringement at request of copyright holders, related right holders or organizations, individuals suffering from damage as a result of the infringement even when the infringement was or is being met with administrative or criminal measures.

Procedures for requesting adoption of civil measures, entitlement, procedures for adopting civil measures shall comply with civil proceeding or arbitration laws.

2. Administrative measures shall be taken against infringement that falls under any of the cases mentioned under Article 211 of the Law on Intellectual Property at request of copyright holders, related right holders, organizations and individuals suffering from damage caused by the infringement, organizations and individuals discovering the infringement, or competent authorities discovering the infringement.

Administrative penalty forms, fine amount, procedures, and remedial measures shall conform to the Law on Intellectual Property and regulations on administrative penalties in copyright and related rights.

3. Criminal measures shall be taken against infringement if the infringement constitutes criminal actions as per the Criminal Code.

Entitlement and procedures for adopting criminal measures shall conform to criminal proceeding laws.

Article 58. Exercising of the right to self-protection of copyright, related rights

1. Authors, copyright holders, performances, related right holders, and authorized organizations, individuals shall exercise the right to self-protection in accordance with Article 198 of the Law on Intellectual Property and this Article.

2. Information on management of right management and technology solutions for right protection under Point a Clause 1 Article 198 of the Law on Intellectual Property shall conform to Article 60 and Article 61 hereof.

3. Written notice requesting termination of infringement of copyright, related rights under Point b Clause 1 Article 198 of the Law on Intellectual Property shall be sent to organizations, individuals committing the infringement by authors, copyright holders, performers, related right holders, or authorized organizations, individuals.

The written notice must include:

a) Name of authors, copyright holders, performers, related right holders, and authorized organizations, individuals (if any);

b) The basis of copyright and related rights, Certificate of registered copyright, Certificate of registered related rights (if any);

c) Scope and term of copyright, related right protection; infringement of copyright, related rights;

d) Request for immediate termination of infringement; time limit for termination of infringement;

dd) Request for royalty payment, damages (if any).

4. Requesting competent authorities to take actions against infringement of copyright, related rights specified under Point c Clause 1 Article 198 of the Law on Intellectual Property shall conform to Articles 75 through 80 hereof.

Article 59. Assumption of copyright and related rights

1. The first fixed copies of performances, audio recordings, video recordings, broadcasting programs under Clause 2 Article 198a of the Law on Intellectual Property means the tangible copies where audio, images of performances, audio recordings, video recordings, broadcasting programs are fixed for the first time.

2. Individuals whose names (or pseudonyms) are listed as author on copies of published works or on original copies of fine arts in a conventional manner are considered the authors of said works until otherwise specified by evidence.

3. If the authors are not named on published works in accordance with Clause 2 of this Article, publishers that are named on copies of the works are considered holders of rights to works.

4. Holders of rights to works mentioned under Clause 2 and Clause 3 of this Article have the right to make request stated under Article 198 of the Law on Intellectual Property. This Clause does not affect existing agreements between relevant parties.

5. If original copies or copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs no longer exist, copyright holders and related right holders under Clause 2 Article 198a of the Law on Intellectual Property must also be credited on original copies or copies of other related works, fixed copies of other related performances, audio recordings, video recordings, broadcasting programs, including name of authors, performers, producers of audio recordings, video recordings, broadcasting organizations to a certain extend to clarify ownership.

Article 60. Right management information

1. Using right management information to prevent infringement of copyright and related rights as stated under Point a Clause 1 Article 198 of the Law on Intellectual Property means to include identifiers of works, performances, audio recordings, video recordings, broadcasting programs, encrypted program-carrying satellite signals, authors, performers, copyright holders, related right holders, use conditions in original copies and copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs; code and numbers indicating information above may or may not be protected by technological measures. Right management information does not include information relating to people using the copies such as name, account, address, or other contact information.

Right management information must be associated with copies or established simultaneously with works, performances, audio recordings, video recordings, broadcasting programs when the works, performances, audio recordings, video recordings, and broadcasting programs are communicated to the public.

2. Cases of infringement of copyright and related right relating to right management information are specified under Article 28 and Article 35 of the Law on Intellectual Property.

Article 61. Technological measures for right protection

1. Technological measures for right protection mentioned under Point a Clause 1 Article 198 of the Law on Intellectual Property mean the use of any instrument, technique, technology, or component during regular operation in order to mark, distinguish, recognize, and protect copyright, related rights in accordance with Articles 19, 20, 29, 30, and 31 of the Law on Intellectual Property.

2. Effective technological measures mean technological measures for right protection that allow copyright holders, related right holders to control the use of works, performances, audio recordings, video recordings, broadcasting programs, encrypted program-carrying satellite signals via:

a) Applications that control access: Means applications that employ techniques, technology, equipment, or components to control access to protected copies;

b) Protection procedures: Means solutions that employ techniques, technology, equipment, or components to prevent or minimize any action that constitutes infringement of copyright, related rights against protected copies;

c) Copy control mechanism: Means solutions that employ techniques, technology, equipment, or components to control reproduction from protected copies.

3. Organizations and individuals are not allowed to intentionally remove or otherwise deactivate existing technological measures implemented by authors, copyright holders, related right holders to protect their copyright and related rights in accordance with Clause 4 Article 28, Clause 5 Article 35 and Clause 1 Article 198 of the Law on Intellectual Property to use works, performances, audio recordings, video recordings, broadcasting programs, or encrypted program-carrying satellite signals in a manner that violates the Law on Intellectual Property and this Decree. Deactivation of existing technological measures includes avoiding, circumventing, overriding, preventing from activation, or otherwise lowering effectiveness of existing technological measures in order to use works, performances, audio recordings, video recordings, broadcasting programs, or encrypted program-carrying satellite signals.

4. Clause 3 of this Article does not apply to cases of legitimate access and use of works, performances, audio recordings, video recordings, broadcasting programs in accordance with Clause 3 Article 20, Clause 5 Article 29, Clause 3 Article 30, Clause 3 Article 31, Article 25, Article 25a, and Article 32 of the Law on Intellectual Property.

Section 2. DISPUTES ABOUT COPYRIGHT, RELATED RIGHTS, AND DETERMINING OF INFRINGEMENT OF COPYRIGHT, RELATED RIGHTS

Article 62. Disputes about copyright

1. Disputes between individuals about copyright of works of literature, art, science, derivative works.

2. Disputes between co-authors about separation of joint authorship.

3. Disputes between copyright co-owners about separation of rights of co-owners in use and transfer of one or some or all copyright.

4. Disputes between individuals and organizations about copyright of works.

5. Disputes between copyright holders and authors about royalties paid to creative authors on the basis of creative tasks or creative works.

6. Disputes about exercising of moral rights or property rights of authors, copyright holders, co-authors, copyright co-owners.

7. Disputes about copyright of computer programs, data collection between individuals providing financial support and material goods that are vital for development of computer programs, data collection and individuals designing, developing computer programs, data collection.

8. Disputes between individuals making financial and facility-technical investment in production of works of motion picture, theater and individuals engaging in creative work, individuals producing works of motion picture, theater about copyright of works of motion picture, theater or royalties and other tangible benefits.

9. Disputes between copyright holders and individuals using published works that do not require permission and royalty payment about the use conflicting with conventional use of works and causing unreasonable damage to legitimate benefits of authors, copyright holders.

10. Disputes between copyright holders and individuals using published works that do not require permission but do require royalty payment about failure to pay royalties or the use conflicting with conventional use of works and causing unreasonable damage to legitimate benefits of authors, copyright holders.

11. Disputes about contracts for transfer of copyright, contracts for licensing of use right of copyright or disputes about contracts for counsel, services regarding copyright.

12. Disputes that arise as a result of copyright infringement.

13. Disputes about inheritance of property rights under Article 20 and moral rights under Clause 3 Article 19 of the Law on Intellectual Property.

14. Other disputes about copyright as per the law.

Article 63. Disputes about related rights

1. Disputes about right holders of performances, audio recordings, video recordings, broadcasting programs.

2. Disputes between performers and individuals using moral rights and property rights of performances.

3. Disputes between producers of audio recordings, video recordings and individuals using property rights of audio recordings, video recordings.

4. Disputes between broadcasting organizations and individuals using property rights of broadcasting programs.

5. Disputes about the use conflicting with conventional use of performances, audio recordings, video recordings and causing unreasonable damage to legitimate benefits of performers, producers of audio recordings, video recordings, or broadcasting organizations between performers, producers of audio recordings, video recordings, broadcasting organizations and individuals using related rights that are not required to acquire permission and pay royalties.

6. Disputes about failure to pay royalties or the use conflicting with conventional use of performances, audio recordings, video recordings and causing unreasonable damage to legitimate benefits of performers, producers of audio recordings, video recordings, or broadcasting organizations between performers, producers of audio recordings, video recordings, broadcasting organizations and individuals using related rights that are not required to acquire permission but are required to pay royalties.

7. Disputes about contracts for licensing of related rights, contracts for transfer of use rights of related rights or disputes about contracts for counsel, services regarding related rights.

8. Disputes that arise as a result of related right infringement.

9. Disputes about inheritance of related rights.

10. Other disputes about related rights as per the law.

Article 64. Basis for determining infringement of copyright, related rights

The basis for determining whether an act infringes copyright and related rights under Article 28 and Article 35 of the Law on Intellectual Property includes:

1. Examined subjects fall within the scope of subjects under copyright, related right protection: Works having copyright protected according to Article 14 of the Law on Intellectual Property; subjects having related right protected according to Article 17 of the Law on Intellectual Property.

2. There are elements infringing copyright, related rights in examined subjects.

3. Persons committing the examined act are not copyright holders or related right holders except for cases where co-authors, copyright co-owners, related right co-owners commit infringement against remaining co-authors, copyright co-owners, related right co-owners and are not individuals permitted by the law or competent authorities in accordance with Clause 3 Article 20, Clause 5 Article 29, Clause 3 Article 30, Clause 3 Article 31, Article 25, Article 25a, Article 26, Article 32, and Article 33 of the Law on Intellectual Property.

4. The examined act occurs in Vietnam. The examined act is also considered to occur in Vietnam if it occurs on telecommunication network or the internet whose users are located in Vietnam.

Article 65. Basis for determining subjects under copyright, related right protection

1. Whether a subject is under protection or not shall be determined by reviewing documents and proof in accordance with Clause 1 and Clause 2 Article 6 of the Law on Intellectual Property and identifying whether the subject falls under copyright projection according to Article 15 of the Law on Intellectual Property.

2. With respect to copyright and related rights registered to competent authorities, subject of protection shall be determined by Certificate of registered copyright, Certificate of registered related rights and attachments of these certificates.

3. With respect to copyright and related rights not registered to competent authorities, these rights shall be determined depending on assumption of copyright and related rights under Article 198a of the Law on Intellectual Property and Article 59 hereof.

Article 66. Determining copyright infringing elements

1. Infringement of copyright can be:

a) Infringing the right to name works: Changing name of works without permission of authors or co-authors, unless otherwise specified by the law;

b) Infringing the right to be named on the works or credited: Impersonating authors, imitating name or signatures of authors, failing to accurately specify name of authors and origin of works during use;

c) Infringing the right to publish works: Publishing works without permission of copyright holders, copyright co-owners; appropriating copyright;

d) Infringing the right to protect integrity of works thereby harming reputation or credibility of authors: Distorting works; editing, or otherwise altering works thereby harming reputation or credibility of authors;

dd) Infringing the right to produce derivative works: Using existing works to create derivative works without permission of copyright holders, copyright co-owners as per the law.

e) Infringing the right to deliver public performance of the works: Performing, reading, displaying, exhibiting, screening, showing works in public places or charging entrance fees without permission of copyright holders, copyright co-owners as per the law, except for cases under Article 25 and Article 25a of the Law on Intellectual Property;

g) Infringing the right to reproduce works: Duplicating, creating copies of works without permission of copyright holders, copyright co-owners as per the law; reproducing a part of works, excerpting, editing without permission of copyright holders, copyright co-owners as per the law, except for cases under Point a Clause 3 Article 20, Article 25, and Article 25a of the Law on Intellectual Property;

h) Infringing the right to distribute, import for public distribution: Distributing, importing in order to distribute tangible original copies and tangible copies of works to the public without permission of copyright holders, copyright co-owners as per the law, except for cases under Point b Clause 3 Article 20 and Article 25 a of the Law on Intellectual Property;

i) Infringing the right to broadcast, communicate to the public: Broadcasting, communicating works to the public via telecommunication network or the internet without permission of copyright holders, copyright co-owners as per the law, except for cases under Article 25 and Article 25a of the Law on Intellectual Property;

k) Infringing the right to lease original copies or copies of works of motion picture, computer programs: Leasing original copies or copies of works of motion picture, computer programs without permission of copyright holders, copyright co-owners as per the law;

l) Failing to adequately fulfill legal liabilities specified under Article 25, Article 25a, and Article 26 of the Law on Intellectual Property;

m) Intentionally removing or deactivating effective technological measures implemented by authors, copyright holders on original copies, copies of work to protect copyright of their works as per the law, except for cases under Clause 3 Article 20, Article 25, and Article 25a of the Law on Intellectual Property;

n) Producing, distributing, importing, offering, selling, advertising, marketing, leasing, or storing equipment, products, or components of commercial nature, introducing or providing services with full knowledge or grounds suggesting that the equipment, products, components, or services are produced, used to deactivate effective technological measures protecting copyright as per the law;

o) Intentionally removing, deleting, or otherwise altering right management information without permission of authors, copyright holders with full knowledge or grounds suggesting that such action will incite, enable, facilitate, or conceal copyright infringement as per the law;

p) Intentionally distributing, importing to distribute, broadcasting, communicate, or provide copies of works to the public with full knowledge or grounds suggesting that right management information has been removed, deleted, or otherwise altered without permission of copyright holders; with full knowledge or grounds suggesting that such action will incite, enable, facilitate, or conceal copyright infringement as per the law;

q) Failing to adequately comply with the law in order to be exempt from legal liability regarding copyright of intermediary service providers regarding works under Clause 3 Article 198b of the Law on Intellectual Property, Article 113, Article 114 hereof, and other relevant law provisions.

2. The basis for determining elements infringing copyright is the scope of copyright protection identified by medium of original copies; characters, symbols, characterization, symbols, facts of original works in case of derivative works.

Determining of copyright infringing elements must take into account the originality of work creation and expression of ideas that is not the ideas themselves.

3. In order to determine whether a copy or a work is an infringing element or not, it is necessary to compare the copy or the work with the original copy of the work or the original work, originality of work creation, expression of creative ideas in the work; date of completion of the work; access and time thereof of the author to existing work.

A copy of the work is considered an infringing element when:

a) The copy is a partial or total reproduction of a work of other people that is being protected;

b) The work (or part thereof) is a part or the entirety of a work of other people that is being protected;

c) The work (or part thereof) contains characters, symbols, characterization, symbols, facts of a work of other people that is being protected.

4. Products, goods, services created as a result of copyright infringement under Clause 1 of this Article are considered products, goods, services that infringe copyright.

5. Products created as a result of copyright infringement under Point g Clause 1 of this Article are considered pirated goods in accordance with Article 213 of the Law on Intellectual Property.

Article 67. Determining related right infringing elements

1. Infringement of related rights of performances can be:

a) Infringing the right to be introduced of performers: Failing to introduce or intentionally and incorrectly introducing name of performers when delivering performances, publishing audio recordings, video recordings, broadcasting performances, except for cases where full name of performers cannot be introduced due to objective reasons, nature, scale, form of performance;

b) Infringing the right to protect imagery of the performance thereby harming reputation and credibility of performers: Distorting performance imagery; editing or otherwise altering performances thereby harming reputation and credibility of performers;

c) Infringing the right to directly fix the performance: Directly fixing performances without permission of performers as per the law;

d) Infringing the right to reproduce performances fixed on audio recordings, video recordings: Duplicating, reproducing, excerpting, cutting a part or the entirety of fixed copies of performances without permission of performers as per the law, except for cases under Point a Clause 5 Article 29 and Article 32 of the Law on Intellectual Property;

dd) Infringing the right to broadcast, communicate unfixed performances to the public: Broadcasting, communicating unfixed performances to the public without permission of performers as per the law, except for cases where the performances are broadcasted and cases under Article 32 of the Law on Intellectual Property;

e) Infringing the right to distribute, import to distribute tangible original copies, copies of fixed performances to the public: Distributing, importing to distribute tangible original copies, copies of fixed performances to the public without permission of performers as per the law, except for cases under Point b Clause 5 Article 29 of the Law on Intellectual Property;

g) Infringing the right to lease original copies, copies of performances fixed in audio recordings, video recordings to the public for commercial purposes: Leasing original copies, copies of performances fixed in audio recordings, video recordings to the public for commercial purposes without permission of performers as per the law;

h) Infringing the right to broadcast, communicate fixed performances to the public: Broadcasting, communicating fixed performances to the public without permission of performers as per the law, except for cases under Article 32 of the Law on Intellectual Property;

i) Cases under Clause 4 of this Article.

2. Infringement of related rights of audio recordings, video recordings can be:

a) Infringing the right to reproduce audio recordings, video recordings partially or entirely: Duplicating, reproducing, excerpting, editing a part or the entirety of audio recordings, video recordings without permission of right holders as per the law, except for cases under Point a Clause 3 Article 30 and Article 32 of the Law on Intellectual Property;

b) Infringing the right to distribute, import to distribute tangible original copies, copies of audio recordings, video recordings to the public: Distributing, importing to distribute tangible original copies, copies of audio recordings, video recordings without permission of right holders for audio recordings, video recordings as per the law, except for cases under Point b Clause 3 Article 30 and Article 32 of the Law on Intellectual Property;

c) Infringing the right to lease original copies, copies of audio recordings, video recordings to the public for commercial purposes: Leasing original copies, copies of audio recordings, video recordings to the public for commercial purposes without permission of right holders for audio recordings, video recordings as per the law;

d) Infringing the right to broadcast, communicate audio recordings, video recordings to the public: Broadcasting, communicating audio recordings, video recordings to the public without permission of right holders as per the law, except for cases under Article 32 of the Law on Intellectual Property;

dd) Cases under Clause 4 of this Article.

3. Infringement of related rights of broadcasting programs can be:

a) Infringing the right to broadcast, re-broadcast broadcasting programs: Broadcasting, re-broadcasting programs without permission of right holders for broadcasting programs as per the law, except for cases under Article 32 of the Law on Intellectual Property;

b) Infringing the right to reproduce fixed broadcasting programs: Receiving, decrypting, duplicating, reproducing, copying a part or the entirety of fixed broadcasting programs without permission of right holders for broadcasting programs as per the law, except for cases under Point a Clause 3 Article 31 and Article 32 of the Law on Intellectual Property;

c) Infringing the right to fix broadcasting programs: Fixing broadcasting programs without permission of right holders for broadcasting programs as per the law;

d) Infringing the right to distribute, import to distribute fixed broadcasting programs in tangible form to the public: Distributing, importing to distribute fixed broadcasting programs in tangible form to the public without permission of right holders for broadcasting programs as per the law, except for cases under Point b Clause 3 Article 31 and Article 32 of the Law on Intellectual Property;

dd) Cases under Clause 4 of this Article.

4. Infringement of related rights can also be:

a) Failing to adequately fulfill legal liabilities under Article 32 and Article 33 of the Law on Intellectual Property;

b) Intentionally eliminating or deactivating effective technological measures implemented by related right holders for original copies, copies of fixed performances, audio recordings, video recordings, broadcasting programs to protect their rights as per the law, except for cases under Clause 5 Article 29, Clause 3 Article 30, Clause 3 Article 31, and Article 32 of the Law on Intellectual Property;

c) Producing, distributing, importing, offering, selling, advertising, marketing, leasing, or storing equipment, products, or components of commercial nature, introducing or providing services with full knowledge or grounds suggesting that the equipment, products, components, or services are produced, used to deactivate effective technological measures protecting related rights as per the law;

d) Intentionally removing, deleting, or otherwise altering right management information without permission of related right holders with full knowledge or grounds suggesting that such action will incite, enable, facilitate, or conceal related right infringement as per the law;

dd) Intentionally distributing, importing to distribute, broadcasting, communicating, or otherwise providing performances, copies of fixed performances, audio recordings, video recordings, broadcasting programs to the public with full knowledge or grounds suggesting that right management information has been deleted, removed, or otherwise altered without permission of related right holders; with full knowledge or grounds suggesting that such action will incite, enable, facilitate, or conceal related right infringement as per the law;

e) Producing, assembling, altering, distributing, importing, exporting, offering, selling, or leasing equipment or system with grounds suggesting that these equipment or system illegally decrypt or assist illegal decryption of encrypted program-carrying satellite signals as per the law;

g) Intentionally receiving or continuing to distribute encrypted program-carrying satellite signals that have been decrypted without permission of legitimate distributors as per the law;

h) Failing to adequately implement regulations in order to be exempt from legal liability regarding related rights of intermediary service providers of performances, audio recordings, video recordings, broadcasting programs under Clause 3 Article 198b of the Law on Intellectual Property, Article 113 and Article 114 hereof and other relevant law provisions.

5. The basis for determining related right infringing elements is the scope of related right protection identified by medium of the first fixed copies of performances, audio recordings, video recordings, and broadcasting programs.

6. In order to determine whether a copy or a fixed performance, audio recording, video recording, broadcasting program is an infringing element of related rights, it is necessary to compare the copy or performance, audio recording, video recording, broadcasting program with original copy of the fixed performance, audio recording, video recording, broadcasting program; date of completion and fixing of the performance, audio recording, video recording; access and time thereof of author to the existing fixed performance, audio recording, video recording, broadcasting program.

A copy of a fixed performance, audio recording, video recording, broadcasting program is considered to be an infringing element when:

a) The copy duplicates a part or the entirety of the first fixed copy of performance, audio recording, video recording, broadcasting program of other people that is under protection;

b) The work (or part thereof) is a part or the entirety of the first fixed copy of the performance, audio recording, video recording, broadcasting program of other people that are under protection.

7. Products, goods, services created as a result of infringement of related rights under Clauses 1 through 4 of this Article are considered to have violated related rights.

8. Products created as a result of infringement of related rights under Point d Clause 1, Point a Clause 2 and Point b Clause 3 of this Article are considered pirated goods according to Article 213 of the Law on Intellectual Property.

Article 68. The basis for determining infringement nature and severity

1. The infringement nature mentioned under Clause 1 Article 199 of the Law on Intellectual Property is determined on the basis of:

a) Context, motive of infringement: Innocent infringement, deliberate infringement, infringement due to suppression or dependency, first-time infringement, repeated infringement;

b) Method of infringement: Separate infringement, organized infringement, infringement of one’s own volition, via bribery, deception, or coercion.

2. The infringement severity mentioned under Clause 1 Article 199 of the Law on Intellectual Property is determined on the basis of:

a) Territory, time, quantity, scale of infringement;

b) Effect and consequences of the infringement.

Section 3. DETERMINING DAMAGED CAUSED BY INFRINGEMENT OF COPYRIGHT, RELATED RIGHTS

Article 69. Rules for determining damage caused by infringement of copyright, related rights

1. Damage caused by infringement of copyright, related rights under Article 204 of the Law on Intellectual Property means actual physical and mental damage caused by the infringement to copyright holders, related right holders.

2. Actual damage is deemed to exist if:

a) Physical or mental benefits are real and belong to the infringed persons: Physical and/or mental benefits are results (products) of copyright, related rights which the infringed persons are entitled to gain; and

b) The infringed persons are capable of gaining benefits under Point a of this Clause: The infringed persons would gain (receive) the physical or mental benefits under certain conditions if copyright, related right infringement did not occur; and

c) The infringed persons gain less benefits following copyright, related right infringement or none at all compared to what they would have gained without the infringement as a direct result of the copyright, related right infringement: Prior to the infringement, the infringed persons have gained physical or mental benefits, after the infringement, the infringed persons gain less benefits or none at all compared to what they previously received prior to the infringement and there must be a causation relationship between the infringement and the loss, reduction of benefits gained.

3. The level of damage shall be determined depending on the infringing elements of copyright, related rights.

The level of damage shall be determined by proof of damage provided by the parties, including assessment results and list of damage, which clarify basis for determining and calculating damage.

Article 70. Mental damage

Mental damage means damage to reputation, dignity, credibility, and other mental damage done to authors, performers, copyright holders, related right holders as a result of copyright, related rights being infringed which leads to damaged reputation, dignity, reduced or lost credibility, reputation, trust due to misunderstanding, duration of suffering, level of grief, sorrow, emotional loss to the point where infringing organizations, individuals are required to make public apology, remediate, and provide compensation for mental damage.

Article 71. Property damage

1. Property damage is determined by the level of reduction or loss in monetary value of a subject under copyright, related right protection.

2. Monetary value of a subject of copyright, related rights under Clause 1 of this Article shall be determined by any of the following basis:

a) Ownership licensing costs or use right transfer costs for copyright, related rights;

b) Value of capital contribution in form of copyright, related rights;

c) Value of copyright, related rights within total assets of enterprises;

d) Investment in study, creation, and development in order to create works, subjects of copyright, related rights, including costs for investment, study, provision of technical equipment, facilities, marketing, advertising, labor, tax, and other costs.

3. Determining of monetary value of subjects of copyright, related rights under Clause 1 of this Article shall be carried out by evaluating enterprises in accordance with evaluation laws. Evaluation results produced by evaluating enterprises shall serve as one of the basis to allow competent organizations, individuals to consider, decide, or approve value of the evaluated assets.

Article 72. Reduction of income, profits

1. Income, profits under Point a Clause 1 Article 204 of the Law on Intellectual Property include:

a) Income, profits gained directly or indirectly by using subjects of copyright, related rights;

b) Income, profits gained by leasing subjects of copyright, related rights that are original copies, copies of works of motion pictures, computer programs;

c) Income, profits gained by transfer of use right of copyright, related rights;

d) Income, profits gained by licensing of copyright ownership, related right ownership.

2. Reduction of income, profits shall be determined by any of the following basis:

a) Regular use of works, performances, audio recordings, video recordings, broadcasting programs is affected: Compare the quantity of actual copies sold or provided before and after the infringement occurs; frequency of use, screening, broadcast, transmission, access to works, performances, audio recordings, video recordings, broadcasting programs before and after the infringement occurs; number of users, subscribers before and after the infringement occurs;

b) Compare sale price on the market of copies before and after the infringement occurs;

c) Damage to legitimate benefits of right holders is done unreasonably: Compare revenues generated by the use of subjects of copyright, related rights before and after the infringement occurs for each types of income under Clause 1 of this Article.

Article 73. Loss of business opportunity

1. Business opportunity mentioned under Point a Clause 1 Article 204 of the Law on Intellectual Property includes:

a) Potential profits, increase in brand value via direct use of subjects of copyright, related rights in business; increase in number of users;

b) Potential profits, increase in brand value via advertisement and marketing that involves the use of subjects of copyright, related rights;

c) Potential profits, increase in brand value via leasing of subjects of copyright, related rights in form of original copies or copies of works of motion pictures, computer programs, audio recordings, video recordings;

d) Potential profits, increase in brand value via licensing of use right of copyright, related rights, transfer of subjects of copyright, related rights to other people;

dd) Other business opportunities lost as a direct result of copyright, related right infringement.

2. Loss of business opportunity means damage to monetary value of income that the infringed persons would gain otherwise via actions under Clause 1 of this Article if the infringement did not occur.

Article 74. Reasonable costs for preventing, remediating damage

Reasonable costs for preventing, remediating damage mentioned under Point a Clause 1 Article 204 of the Law on Intellectual Property include costs for impounding, storing, archiving infringing goods, costs for implementing temporary emergency measures, reasonable costs for hiring lawyers, reasonable costs for hiring assessment services, preventing, remediating the infringement, and costs for notifying, making corrections on mass media relating to copyright, related right infringement.

Section 4. REQUEST AND SETTLEMENT OF REQUEST FOR ACTIONS AGAINST COPYRIGHT, RELATED RIGHT INFRINGEMENT

Article 75. Request for actions against copyright, related right infringement

1. Written request for actions against copyright, related right infringement must contain:

a) Date of request;

b) Name, address of organization, individual requesting actions against the infringement; full name of representative if the request is made via the representative;

c) Name of agency receiving the request;

d) Name, address of infringing organization(s), individual(s); name, address of suspected infringing organization(s), individual(s) when requesting suspension of customs procedures in case of suspected infringing imports, exports;

dd) Name, address of organization(s), individual(s) with relevant rights and benefits (if any);

e) Name, address of witness (if any);

g) Summary of infringed copyright, related rights: Type of right, basis of the right, summary of subject of the right;

h) Summary of the infringement: Date and location of infringement, brief description of subject of copyright, related rights being infringed, the infringement; web address, link if copyright, related right infringement takes place on telecommunication network, the internet, and other information (if any).

i) Detailed request for actions against infringement;

k) List of documents and proof attached to the request;

l) Signature and seal of filing individual (if any).

2. The request for actions against copyright, related right infringement must be accompanied by documents and proof under Article 76 hereof.

Article 76. Documents and proof attached to written request for actions against copyright, related right infringement

1. Individuals requesting actions against infringement must attach documents, proof below to their written request:

a) Proof of copyright, related right ownership if requesting individual is the author, performer, copyright holder, related right holder, person receiving licensed, inheriting copyright, related rights;

b) Proof of occurrence of copyright, related right infringement; proof suggesting that imports, exports infringe copyright, related rights;

c) Other documents, proof to verify their request.

2. If the request is made via authorized representative, notarized or certified power of attorney is required; if the request is made via legal representative, document proving legal representative status is required.

Article 77. Proof of copyright, related right holders

1. Regarding copyright, related rights that have been registered, the proof can be:

a) Copies of Certificate of registered copyright, Certificate of registered related rights either accompanied by the original copies for comparison or certified;

b) Excerpts of National register of copyright, related rights or proof of copyright certification issued by competent authorities.

2. Regarding copyright, related rights that have not been registered, the proof shall be documents, exhibits, information on the basis of copyright, related rights in accordance with Clause 1 and Clause 2 Article 6 of the Law on Intellectual Property and documents below:

a) Original copies or copies of works, fixed performances, audio recordings, video recordings, broadcasting programs, encrypted program-carrying satellite signals carrying name of right holders in accordance with Article 198a of the Law on Intellectual Property and Article 59 hereof;

b) Other documents proving the creation, publication, performance, distribution, broadcasting, transmission of subjects mentioned above and attached documents, proof (if any).

3. In case requesting individual previously received or inherited the copyright, related rights as per the law, they are also required to present original copies or certified, notarized, consular legalized copies of contracts for licensing, gift, trading, capital contribution, transfer of use right of copyright, related rights, or documents verifying inheritance in addition to documents under Clause 1 and Clause 2 of this Article.

Article 78. Proof of copyright, related right infringement

1. Documents, exhibits below are considered proof of infringement:

a) Original copies or legitimate copies of works, performances, audio recordings, video recordings, broadcasting programs (subjects of copyright, related rights);

b) Related documents, exhibits, photos, audio recordings, video recordings of the examined subjects;

c) Written presentation, comparison between the examined subjects and subjects of copyright, related rights;

d) Transcriptions, testimonies, bailiff’s reports, other documents proving the infringement.

2. Documents, exhibits under Clause 1 of this Article must be compiled into lists which must be signed by requesting individual.

Article 79. Responsibilities of individuals requesting actions against copyright, related right infringement

Individuals requesting actions against copyright, related right infringement must guarantee and be responsible for accuracy of information, documents, proof that they provide.

Article 80. Submission and settlement of request for actions against copyright, related right infringement

1. Request for actions against copyright, related right infringement shall be submitted to competent authorities mentioned under Article 200 of the Law on Intellectual Property (hereinafter referred to as “sanctioning authorities”).

2. Upon receiving the request for actions against infringement, if the request is within the power of other authorities, the receiving authorities shall guide the applicants to submit to competent authorities or transfer the request to competent authorities within 10 days from the date on which they receive the request.

3. If the request lacks essential documents, evidence, or exhibits, sanctioning authorities shall request the applicants to submit additional documents, evidence, and exhibits within a reasonable time limit no more than 30 days.

4. Sanctioning authorities shall reject the request and state reason for rejection when:

a) The time limit under Clause 3 of this Article expires before the applicants submit additional documents, evidence, exhibits at request of sanctioning authorities;

b) Prescriptive period of copyright, related right infringement expires as per the law;

c) Verification results issued by sanctioning authorities or police authorities show no infringement as described in the request;

d) Competent authorities issue documents on insufficient grounds for taking actions against the infringement.

5. In case of disputes or complaints regarding right holders, subjects under protection, scope of protection, copyright, related right protection term, authorities that have received the request shall guide applicants to adopt procedures for dispute, complaint settlement at competent authorities within 10 days from the date on which disputes or complaints arise.

Section 5. ACTIONS AGAINST COPYRIGHT, RELATED RIGHT INFRINGEMENT

Article 81. Determining value of goods infringing copyright, related rights

1. Regarding goods infringing copyright, related rights:

a) Infringing goods mean components, details (hereinafter referred to as “parts”) of products that contain infringing elements and can be sold as an independent product;

b) If infringing elements cannot be separated into a part of product that be sold independently in accordance with Point a of this Clause, infringing goods shall be the entire product that contains infringing elements.

2. Value of goods infringing copyright, related rights shall be determined by sanctioning authorities at the time of infringement and based on grounds listed below in order of priority:

a) Listed price of infringing goods;

b) Sold price of infringing goods;

c) Final cost of infringing goods if the goods are not sold yet;

d) Import cost of infringing goods.

3. Value of goods infringing copyright, related rights shall be calculated depending on infringing parts of the products according to Point a Clause 1 of this Article or depending on value of the entire infringing products according to Point b Clause 1 of this Article.

4. If the application of grounds under Clause 2 of this Article is inconsistent or met with disagreement between sanctioning authorities and financial authorities of the same level, the Evaluating council shall decide on the value.

The establishment, composition, and working principles of the Evaluating council shall conform to civil proceeding, criminal proceeding, and administrative penalty laws.

Article 82. Handling of goods infringing copyright, related rights

1. Regarding pirated goods and ingredients, materials, instruments primarily used for the production thereof, sanctioning authorities shall:

a) Distribute or introduce into use for non-commercial purposes in accordance with Article 83 hereof; or

b) Dispose in accordance with Article 84 hereof; or

c) Mandate elimination of infringing elements and adopt appropriate measures under Clause 4 of this Article on a case-by-case basis.

2. If infringing goods are not pirated goods or ingredients, materials, instruments primarily used for the production thereof, sanctioning authorities shall request individuals owning, transporting, and storing these goods to eliminate infringing elements and adopt appropriate measures under Clause 4 of this Article.

3. Ingredients, materials, or instruments whose only function is to create or facilitate the use of pirated goods or infringing goods, or only practical use is to create or facilitate the use of pirated goods or infringing goods shall be considered ingredients, materials, and instruments primarily used for the production of pirated goods, infringing goods.

4. Sanctioning authorities shall adopt solutions under Point a and Point b Clause 1 of this Article or, when requested by right holders, request organizations and individuals that produce infringing goods to recall all infringing goods introduced to the offenders’ distribution channels in order to adopt solutions under Point a and Point b Clause 1 of this Article or other solutions if necessary on a case-by-case basis. Sanctioning authorities are allow to take request of relevant parties into account during promulgation of decisions on actions against infringement.

Article 83. Mandated distribution or introduction into use for non-commercial purpose

1. Mandating distribution or introduction into use for non-commercial purposes of pirated goods, infringing goods must meet conditions below:

a) The goods have use value, do not harm humans, domestic animals, plants, and the environment, and are not cultural products containing harmful contents; and

b) Infringing elements in the goods have been eliminated; and

c) The distribution and use are not for profit and must not unreasonably affect normal exercising of rights of copyright holders, related right holders, prioritizing humanitarian purpose, charity, or social interests;

d) Individuals who receive the goods are not potential customers of copyright holders, related right holders.

2. Clause 1 of this Article also applies to ingredients, materials, instruments primarily used for the production or sale of pirated goods, infringing goods.

Article 84. Mandated disposal

Mandated disposal of pirated goods, infringing goods or ingredients, materials, instruments primarily used for the production thereof shall be applied if conditions for mandated distribution or introduction into use for non-commercial purposes under Article 83 hereof are not met.

Article 85. Confiscation

Confiscation of pirated goods or ingredients, materials, instruments primarily used for production, sale thereof shall conform to administrative penalty laws.

Section 6. CONTROL OF IMPORTS, EXPORTS RELATING TO COPYRIGHT, RELATED RIGHTS

Article 86. The right to request control of exports, imports relating to copyright, related rights

Copyright holders and related right holders have the right to submit request for inspection and supervision of exports, imports showing signs of copyright, related right infringement or request for suspension of customs procedures of exports, imports suspected of copyright, related right infringement.

Article 87. Competent customs authority to receive written request

Competent customs authority that receive written request for inspection, supervision, or suspension of customs procedures shall conform to Clause 1 Article 75 of the Law on Customs.

Article 88. Request processing

1. Within 20 days from the date on which the request for inspection, supervision of exports, imports and adequate documents under Clause 2 Article 74 of the Law on Customs are received or within 2 working hours from the date on which the request for suspension of customs procedures and adequate documents under Clause 3 Article 74 of the Law on Customs are received, customs authority are responsible for reviewing, issuing notice on request reception if the applicants have fulfilled obligations under Points a, b, and c Clause 1 and Clause 2 Article 271 of the Law on Intellectual Property. In case of rejection, customs authority must respond to the applicants in writing and state reason.

2. On the basis of notice issued by the General Department of Customs approving the request for inspection, supervision of imports and exports, Customs Departments of provinces and cities and Anti-smuggling and Investigation Department shall look up system data in order to implement inspection and supervision within their jurisdiction.

3. Customs Sub-departments are responsible for conducting inspection, supervision in order to detect goods showing signs of copyright, related right infringement or issuing decisions on suspension of customs procedures on the basis of request for suspension of customs procedures or suspending customs procedures in accordance with Article 89 hereof.

Article 89. Entitlement and procedures for suspending customs procedures

1. During customs inspection, supervision, and control, if there are clear grounds to suspect that imports or exports are pirated goods, Customs Sub-departments shall suspend customs procedures of said goods.

2. Customs Sub-departments must issue decisions on suspension of customs procedures and notify copyright holders, related right holders if possible and importers, exporters about the suspension.

3. Duration of customs procedure suspension shall be 10 working days from the date on which Customs Sub-departments issue decisions on suspension of customs procedure.

4. During the suspension of customs procedures, Customs Sub-departments that issue decision on suspension of customs procedures are responsible for:

a) requesting importers or exporters or copyright holders or related right holders (if possible) to provide documents relevant to the goods (such as catalogs, assessment conclusions, foreign documents, similar case studies);

b) sampling or allowing organizations, individuals to sample to conduct assessment, additional assessment, re-assessment at professional customs organizations or other assessment bodies as per the law (if necessary);

c) cooperating and communicating with state authorities governing copyright, related rights affiliated with the Ministry of Culture, Sports and Tourism regarding right holders, protection capability, scope of protection, and entitlement to take actions against copyright, related right infringement (if necessary);

d) reporting to Customs Sub-departments of provinces and cities and General Department of Customs in order to promptly deal with complicated cases.

5. At the end of suspension duration of customs procedures:

a) If customs authority deems suspended goods to be pirated goods and infringement of copyright, related rights to be within the powers of the customs authority, the customs authority shall impose administrative penalties for copyright, related right infringement, goods infringing copyright, related rights as per the law. If infringement of copyright, related rights are not within the powers of customs authority, the customs authority shall transfer the case to other enforcement authority.

b) If applicants initiate a civil proceeding, customs authority shall comply with remarks of the court;

c) If copyright, related right infringement contains signs of criminal intentions according to the Criminal Code, customs authority shall transfer the cases to competent authorities for investigation and prosecution as per the law;

d) If customs authority deem suspended goods to be not pirated goods, customs authority shall proceed with customs procedures of the shipment and notify relevant parties.

6. If customs authority incorrectly suspends customs procedures thereby causing damage to goods owners, Customs Sub-departments must pay damages and other costs to the goods owners as per the law.

Article 90. Handling of goods showing signs if copyright, related right infringement

1. Customs authority shall issue decisions on suspension of customs procedures, notify copyright holders, related right holders and goods owners about suspension of customs procedures in case of goods showing sign of infringement or at request of copyright holders, related right holders or for the purpose of imposing administrative penalties. The notice must include name, address, fax, phone number of the parties, reason and duration of suspension.

2. Customs authority shall proceed with customs procedures of shipments that were previously suspended in accordance with Clause 3 Article 218 of the Law on Intellectual Property and cases below:

a) The Decision on suspension of customs procedures is suspended or revoked in accordance with decisions on resolution of complaints, accusations;

b) Individuals requesting suspension of customs procedures withdraw their request.

Article 91. Procedures for control of imports, exports relating to copyright, related rights

Procedures for control of imports, exports relating to copyright, related rights shall conform to this Decree and other relevant customs laws.

Section 7. ASSESSMENT REGARDING COPYRIGHT, RELATED RIGHTS

Article 92. Assessment regarding copyright and related rights

1. Assessment regarding copyright and related rights means when competent organizations and individuals utilize their knowledge and professional operations in order to assess and conclude issues relating to copyright, related rights at request of requesting organizations, individuals.

2. Assessment regarding copyright and related rights includes:

a) Determining of grounds for copyright, related rights in accordance with Article 65 hereof;

b) Determining of whether examined subjects qualify as infringing elements of copyright, related rights in accordance with Clause 2 Article 64, Article 66, and Article 67 hereof;

c) Determining of whether overlap, similarity, equivalence, confusion, difficulty in distinguishing, or reproduction occurs between examined subjects and subjects under copyright, related right protection;

d) Determining of value of copyright, related rights, damages in accordance with price laws.

3. Rules for conducting assessment regarding copyright, related rights shall conform to Clause 4 Article 201 of the Law on Intellectual Property.

Article 93. Copyright, related right assessor

1. Copyright, related right assessors are individuals who have sufficient knowledge and professional skills in assessing, concluding issues relating to assessment contents, satisfy conditions under Clause 3 Article 201 of the Law on Intellectual Property, and are acknowledged by competent authorities and issued with copyright, related right assessor’s card (hereinafter referred to as “assessor’s card”).

2. Copyright, related right assessors have the right to:

a) Refuse to conduct assessment in case of insufficient relevant documents or insufficient value;

b) Refuse to receive assessment samples due to potential health harm or clunkiness of the samples and/or insufficient storage infrastructures;

c) Use appraisal results or professional conclusion, expertise remarks to serve the assessment;

d) request organizations and individuals to provide information, documents relating to subject of assessment in order to conduct assessment in case of independent copyright, related right assessors unless otherwise regulated by the laws;

dd) exercise other rights as per the law.

3. Copyright, related right assessors have the obligation to:

a) conduct assessment following rules under Clause 4 Article 201 of the Law on Intellectual Property;

b) produce assessment dossiers; provide explanation for assessment conclusion when requested;

c) preserve and store documents, samples relevant to the case as per the law;

d) independently produce assessment results and be responsible for their assessment results; compensate for damage done to relevant individuals, organizations as a result of incorrect assessment results produced by the assessors;

dd) refuse to conduct assessment if the assessors have rights and benefits relevant to subjects of assessment, assessment cases or other reasons affect fairness of assessment results or other regulations require the assessors to reject;

e) maintain confidentiality of information and documents at request of applicants and compensate for damage done to relevant individuals, organizations as a result of disclosing information;

g) assume legal responsibilities for taking advantage of assessment expertise and assessment operation for personal gain or intentionally producing incorrect assessment results;

h) comply with regulations on assessment procedures;

i) communicate and submit reports on 6-monthly and yearly assessment operation to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism;

k) perform other obligations as per the law.

Article 94. Methods of conducting assessment of copyright, related right assessors

1. Copyright, related right assessors operate within copyright, related right assessing bodies in the name of the assessing bodies or as independent assessors.

2. Methods of operation of assessors are recorded under Decisions on issuance, re-issuance of assessor’s card and the list of copyright, related right assessors under Clause 6 Article 98 hereof.

3. If assessors operate under the name of copyright, related right assessing bodies, information on assessors must be recorded under Decision on issuance, re-issuance of Certificate of copyright, related right assessing bodies and the list of assessors affiliated with assessing bodies under Clause 6 Article 99 hereof.

Article 95. Copyright, related right assessing bodies

1. Copyright, related right assessing bodies are organizations fulfilling regulations under Clause 2 and Clause 2a Article 201 of the Law on Intellectual Property, relevant law provisions and being issued with the Certificate of copyright, related right assessing bodies (hereinafter referred to as “Certificate of assessing bodies”).

2. Copyright, related right assessing bodies have the right to:

a) hire copyright, related right assessors to conduct ad hoc assessment;

b) request organizations and individuals to provide information and documents relating to assessment subject for the purpose of the assessment, unless otherwise prescribed by law;

c) exercise other rights as per the law.

3. Copyright, related right assessing bodies have the obligation to:

a) operate within the field of assessment specified under Certificate of business registration or Certificate of operation registration and Certificate of assessing bodies;

b) conduct assessment following rules under Clause 4 Article 201 of the Law on Intellectual Property;

c) preserve and store documents relating to the case;

d) maintain confidentiality of information and documents at request of applicants and compensate for damage done to relevant individuals, organizations as a result of disclosing information;

dd) refuse to receive the case and conduct assessment if other regulations and law require the assessing bodies to refuse to conduct assessment;

e) communicate and submit reports on 6-monthly and yearly assessment operation to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism;

g) perform other obligations as per the law.

Article 96. Entitlement to issue, re-issue, and revoke assessor’s card, certificate of assessing bodies

State authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism are entitled to issue, re-issue, and revoke assessor’s card, certificate of assessing bodies.

Article 97. Examination of copyright, related right assessment

1. Individuals who apply for assessor’s card without written qualification of assessment examination under Article 98 hereof shall submit application for assessment examination to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism in person or via post service. Application for assessment examination consists of:

a) Form No. 9 under Appendix III attached hereto;

b) Certified true copies or copies extracted from master registers of undergraduate or graduate degrees;

c) Written confirmation issued by employers regarding a minimum period of professional operation relating to the field of assessment of 5 consecutive years or 15 consecutive years of individuals applying for exemption from assessment examination under Clause 5 of this Article;

d) 2 colored head shots in 3 x 4 cm format;

dd) Written request for exemption from assessment examination for individuals exempt from attending assessment examination under Clause 5 of this Article.

2. Within 20 days from the date on which adequate application is received, state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism are responsible for notifying receipt of application and establishing assessment examination council. In case of rejection, the regulatory authorities must respond in writing and state reasons.

3. Assessment examination council

a) The Minister of Culture, Sports and Tourism shall issue decision on establishment of assessment examination councils (hereinafter referred to as “examination councils”) at request of state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism.

b) Examination council consists of chairpersons and members. There must be an odd number of examination council members with a minimum of 5 members. Chairpersons of examination councils shall be heads of state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism; members of examination councils shall include experienced and reputable individuals in the field of copyright and related rights.

4. Contents of assessment examination

Contents of assessment examination include knowledge of the law and knowledge of fields in copyright, related right assessment.

5. Eligibility for exemption from assessment examination

Individuals who compile and provide guidance on implementation of legislative documents on copyright, related rights; conduct inspection, settle disputes, complaints regarding copyright, related rights at state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism for at least 15 consecutive years shall be exempt from assessment examination.

6. Notifying of assessment examination results

Assessment examination results shall be notified on website of state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism. Within 30 days from the date on which assessment examination is conducted, state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall issue written confirmation of examination results to individuals passing the examination.

Article 98. Procedures for issuance, re-issuance, and revocation of copyright, related right assessor’s card

1. Individuals satisfying conditions under Clause 3 Article 201 of the Law on Intellectual Property and applying for copyright, related right assessor’s card shall submit application for issuance of assessor’s card in person or via post service to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism. The application consists of:

a) Form No. 10 under Appendix III attached hereto;

b) Original copies or certified true copies of written qualification of assessment examination or written approval of the examination council for exemption from assessment examination;

c) 2 colored head shots in 3 x 4 cm format.

2. Within 20 days from the date on which adequate application is received, state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall issue decision on issuance of assessor’s card. In case of rejection, the regulatory authorities must respond in writing and state reasons. Samples of copyright, related right asset assessor’s card are under Form No. 11 of Appendix III attached hereto.

3. Effect of assessor’s card starts from the date of issue.

4. Re-issuance of assessor’s card:

a) Assessor’s card shall only be re-issued when previous assessor’s card is lost or damaged or in case of changes to information on assessor’s card;

b) Assessors who wish to apply for re-issuance of assessor’s card shall submit Form No. 10 under Appendix III attached hereto and documents under Point a and Point c Clause 1 of this Article to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism in person or via post service. If old assessor’s card is damaged, the damaged card is also required;

c) Within 20 days from the date on which application for re-issuance of assessor’s card is received, assessor’s card shall be re-issued.

5. Assessor’s card shall be revoked when:

a) Individuals who were previously issued with assessor’s card no longer satisfy conditions under Article 93 hereof;

b) Individuals who were previously issued with assessor’s card violate regulations in assessment operation at which point competent authorities request revocation of the assessor’s card as per the law;

c) There are grounds confirming that assessor’s card has been issued in an illegitimate manner.

6. State authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall produce list of assessors according to the Decision on issuance, re-issuance, revocation of assessor’s card and publish on their websites.

Article 99. Procedures for issuance, re-issuance, revocation of certificate of copyright, related right assessing bodies

1. Organizations satisfying conditions under Clause 2 and Clause 2a Article 201 of the Law on Intellectual Property, relevant law provisions shall submit application for issuance of certificate of assessing bodies to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism in person or via post service. The application consists of:

a) Form No. 12 under Appendix III attached hereto;

b) Certified true copies or copies extracted from master registers of certificate of operation registration or decision on establishment issued by competent authorities;

c) Certified true copies or copies extracted from master registers of decision on recruitment or employment contracts or working contracts between the applicants and affiliated assessors.

2. Within 20 days from the date on which adequate application is received, state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall issue decision on issuance of certificate of assessing bodies. In case of rejection, state authorities shall respond in writing and state reasons. Samples of certificate of copyright, related right assessing bodies are specified under Form No. 13 of Appendix III attached hereto.

3. Effect of certificate of assessing bodies starts from the date of issue.

4. Reissuance of certificate of assessing bodies

a) Certificate of assessing bodies shall only be re-issued if the previous certificate is lost or damaged or in case of changes to information on the previous certificate;

b) Assessing bodies shall submit application for re-issuance of certificate of assessing bodies to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism in person or via post service. The application consists of:

Form No. 12 under Appendix III attached hereto;

Certified true copies or copies extracted from master registers of decision on recruitment or employment contracts or working contracts between the applicants and affiliated assessors (in case of changes to information on certificate of assessing bodies).

In case of damaged certificate of assessing bodies, the applicants must submit the damaged certificate. In case of changes to information, legitimate documents proving the changes and previous certificate must be submitted together with the application;

c) Within 20 days from the date on which adequate application is received, certificate of assessing bodies shall be reissued.

5. Certificate of assessing bodies shall be revoked when:

a) Assessing bodies no longer satisfy conditions under Article 95 hereof;

b) Assessing bodies violate the law on assessment operation at which point competent authorities request revocation of certificate of assessing bodies as per the law;

c) There are grounds confirming that certificate of assessing bodies is issued in an illegitimate manner;

d) Assessing bodies cease to conduct assessment operation.

6. State authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall produce and update list of assessing bodies according to decisions on issuance, re-issuance, revocation of certificate of assessing bodies and publish on their websites.

Article 100. Request for copyright, related right assessment

1. Organizations and individuals that have the right to request copyright, related right assessment include:

a) Copyright, related right holders;

b) Organizations, individuals requested to be met with actions for infringement of copyright, related rights or complaints, denunciations regarding copyright, related rights;

c) Other organizations, individuals related to the disputes, infringement, complaints, denunciations regarding copyright, related rights.

2. Organizations and individuals having the right to request assessment under Clause 1 of this Article have the right to request copyright, related right assessing bodies or assessors to conduct assessment by themselves or by authorizing other organizations, individuals to do so.

3. Organizations and individuals requesting for copyright, related right assessment have the right to:

a) request assessing bodies, assessors to respond with assessment conclusion in an accurate and timely manner;

b) request assessing bodies, assessors to provide explanation for conclusion results;

c) request additional assessment or re-assessment in accordance with Article 106 hereof;

d) negotiate about costs for requesting assessment.

4. Organizations and individuals requesting for copyright, related right assessment have the obligation to:

a) adequately and truthfully provide documents, evidence, information relating to assessment subjects at request of assessing bodies, assessors;

b) clearly and specifically present issues that need to be assessed;

c) incur assessment costs as per agreement; incur advance assessment costs at request of assessing bodies, assessors;

d) receive assessment subjects at request of assessing bodies, assessors.

Article 101. Receipt of request for copyright, related right assessment

1. Organizations and individuals shall submit application for assessment to independent assessors or assessing bodies. The application consists of:

a) Written request for assessment which contains basic information below:

Name and address of individuals, organizations requesting assessment;

Number of ID Card or Citizen ID Card or decision on establishment or certificate of operation registration, date of issue, place of issue of individuals or organizations applying for assessment;

Phone number, email address of individuals or organizations applying for assessment;

Position of applicants (authors; copyright holders; related right holders; individuals having related rights and benefits; others);

Grounds for requesting assessment;

Subjects and contents requested for assessment;

Other relevant details.

b) Attachments:

Samples to be assessed;

Documents proving authorship, copyright ownership, related right ownership, works, subjects of related rights;

Other relevant documents.

2. Independent assessors or assessing bodies shall receive application for assessment, estimate assessment costs, negotiate and sign assessment agreements with the applicants, except for cases where the application is rejected in accordance with Clause 3 of this Article.

3. Independent assessors or assessing bodies shall reject the application when:

a) The assessment details are not specified under Clause 2 Article 92 hereof;

b) Cases under Point a Clause 2 and Point dd Clause 3 Article 93 hereof.

Article 102. Copyright, related right assessment service agreement

1. Application for assessment must be compiled into assessment service agreements between the applicants and assessing bodies or assessors.

2. Assessment agreement consists of:

a) Name, address of applicants; name, address of independent assessors or assessing bodies;

b) Subjects and contents requested for assessment;

c) Location and time of assessment;

d) Assessment costs and payment methods thereof;

dd) Rights and obligations of the parties;

e) Contract take-over and finalization;

g) Responsibilities for incurring damages; solutions for settling disputes;

h) Other conditions as per agreement (if any).

Article 103. Handover, receipt, and return of subjects of copyright, related right assessment

If application for assessment includes subjects of assessment, the handover, receipt, and return of subjects of assessment must be logged in form of written records which contain basic information below:

1. Time and location of handover, receipt, return of subjects of assessment.

2. Name and address of parties handing over and receiving subjects of assessment or representatives.

3. Name of subjects of assessment; relevant documents or items.

4. Conditions and methods of preservation of assessment subjects upon handover, receipt, return.

5. Signatures of parties handing over and receiving subjects of assessment.

Article 104. Sampling for copyright, related right assessment

1. Assessing bodies and assessors shall collect assessment samples by themselves (specific exhibits that are infringing elements and subjects of copyright, related right protection) or by requesting applicants to provide samples. Sampling process must be logged in form of written records which must be witnessed and countersigned by relevant parties.

2. The handover, receipt, and return of assessment samples shall conform to Article 103 hereof.

Article 105. Conducting copyright, related right assessment

1. Copyright, related right assessment shall be conducted by one or multiple copyright, related right assessors. Individual assessment means assessment conducted by one assessor. Group assessment means assessment conducted by at least two assessors.

2. In case of individual assessment, the assessor shall conduct the entirety of assessment tasks and be responsible for assessment conclusion that they produce. In case of group assessment concerning issues of the same specialty, the assessors shall conduct assessment, sign the general conclusion, and be collectively responsible for the general conclusion; if the assessors have different opinions, each assessor must specify their own conclusion in the general conclusion and be responsible for their conclusion. In case of group assessment concerning issues of different specialties, each assessor shall conduct their own task and be responsible for their conclusion.

Article 106. Additional assessment and re-assessment

1. Additional assessment shall be conducted when assessment conclusion is inadequate or unclear regarding issues to be assessed or more details need to be clarified. Application for additional assessment and conducting of additional assessment shall conform to regulations applicable to first-time assessment.

2. Re-assessment shall conducted when applicants disagree with assessment results or assessment conclusions conflict with one another regarding the same issues. Re-assessment can be conducted by assessing bodies, assessors that conducted the previous assessment or other assessing bodies, assessors ate request of the applicants.

3. In case of difference between assessment conclusions or between assessment conclusions and remarks of state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism regarding the same issues, the applicants have the right to request other assessing bodies, assessors to conduct re-assessment.

Article 107. Advisory council for copyright, related right assessment

1. During assessment of copyright and related rights, independent assessors and assessing bodies are allowed to establish advisory council for copyright, related right assessment.

2. Independent assessors and assessing bodies shall select members of the advisory council depending on the assessment specialty and issue decisions on establishment of advisory council for copyright, related right assessment.

Advisory council for copyright, related right assessment consists of chairpersons and members. There must be an odd number of advisory council members with a minimum of 3 members.

3. Advisory council for copyright, related right assessment shall operate in a manner that respects democracy and open ballot system for field-specific matters. Members of advisory council for copyright, related right assessment shall hold collective discussion regarding field-specific matters and have their remarks recorded in meeting minutes of advisory council for copyright, related right assessment.

4. The entire assessment advisory process of advisory council for copyright, related right assessment must be logged in form of written records which must be signed by chairpersons and members of the council. Logs of operation of advisory council for copyright, related right assessment must be recorded in a timely, adequate, truthful manner and stored in assessment dossiers.

Article 108. Conclusion of copyright, related right assessment

1. Assessment conclusion under Clause 5 Article 201 of the Law on Intellectual Property must be presented in written form.

2. Written assessment conclusion must contain:

a) Name and address of assessing bodies, assessors;

b) Name and address of applicants;

c) Subjects, details, and scope of assessment;

d) Assessment methods;

dd) Assessment conclusion;

e) Time and location of assessment.

3. Within the time limit agreed upon in assessment agreement, independent assessors and assessing bodies must produce and send written assessment conclusion to the applicants. Independent assessors and legal representatives of assessing bodies shall append signatures and seal in written conclusion and be responsible for assessment conclusion.

4. If more time for assessment is required, independent assessors and assessing bodies shall inform applicants in writing.

Article 109. Costs for copyright, related right assessment

1. Costs for assessing copyright, related rights depends on service requirements agreed upon by the parties and include costs below in part or in whole:

a) Experiment costs;

b) Machinery and equipment costs;

c) Document study costs;

d) Discussion, commentary, evaluation costs;

dd) Management costs and other necessary costs.

2. Collection, management, and use of assessment costs shall conform to regulations and law.

Section 8. INTERMEDIARY SERVICE PROVIDERS

Article 110. Intermediary service providers

1. Intermediary service providers under Article 198b of the Law on Intellectual Property mean domestic and foreign enterprises that provide any of the services below:

a) “Mere conduit” service means a service that transmits digital information provided by service users via telecommunication network and the internet or a service providing access to telecommunication network and the internet;

b) “Caching” service means a service that transmits digital information provided by service users via telecommunication network and the internet that involves automatic, intermediate, and temporary storage of the digital information. The automatic, intermediate, and temporary storage is implemented for the sole purpose of allowing allocation of the digital information to other users at their request to be more effective;

c) “Hosting” service means a service that allows users to store digital information provided by users at their request.

2. Intermediary service providers include:

a) Telecommunication enterprises providing internet access service, internet connection service;

b) Telecommunication enterprises providing line leasing service in case leased lines are not used to provide services in accordance with Point c and Point d of this Clause;

c) Enterprises leasing server collocation, leasing dedicated server in case servers are not used to provide services in accordance with Point d of this Clause;

d) Enterprises leasing data storage at request;

dd) Enterprises providing online social network services;

e) Enterprises providing digital information search services;

g) Other enterprises providing one, several, or all services similar to those under Clause 1 Article 198b of the Law on Intellectual Property and Clause 1 of this Article.

Article 111. Responsibilities of intermediary service providers in protecting copyright, related rights on telecommunication network and the internet

1. Intermediary service providers under Point c Clause 1 Article 110 hereof must develop tools to receive request for removal or disabling of access to digital information infringing copyright, related rights. Tools that receive request can be:

a) Computer programs that receive request;

b) Website that receive request;

c) Email addresses that receive request;

d) Web portals that receive request;

dd) Other tools with similar functions.

Confirmation of successful request submission via receiving tools means that intermediary service providers have received the request.

2. Intermediary service providers shall notify state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism about their contact points for matters regarding copyright and related rights and publish on their websites. Contact points must include: email address, phone number.

3. Intermediary service providers must warn service users about their legal liabilities if they infringe copyright, related rights, authenticate information when users register digital accounts; maintain security of information, accounts of users; provide user information at written request of competent authorities for the purpose of verifying, taking actions against violations of copyright, related right laws.

4. Intermediary service providers under Point c Clause 1 Article 110 hereof shall remove or disable access to digital information when they know that the digital information infringes copyright, related rights in accordance with Article 113 and Article 114 hereof.

Intermediary service providers that implement Point a and Point b Clause 1 Article 114 hereof are responsible for publishing internal procedures for processing request for removal or disabling of access to digital information infringing copyright, related rights or request for rejection of request for temporary removal or disabling of access to digital information on their service.

5. Intermediary service providers must comply with inspection and investigation of competent authorities in accordance with copyright, related right laws.

6. If intermediary service providers use information under copyright, related right protection uploaded by their users onto telecommunication network and the internet for commercial purposes, the intermediary service providers must apply for permission and pay royalties in accordance with Clause 2 Article 20, Clause 4 Article 29, Clause 2 Article 30, or Clause 2 Article 31 of the Law on Intellectual Property.

Article 112. Legal liabilities of intermediary service providers regarding copyright, related right infringement

1. Intermediary service providers which do not adequately adopt regulations in order to be exempt from legal liabilities in accordance with Clause 3 Article 198b of the Law on Intellectual Property and Article 113, Article 114 hereof must be jointly responsible for incurring damages caused by copyright, related right infringement caused by people using their services.

Intermediary services providers that commit copyright, related right infringement in accordance with Article 28 and Article 35 of the Law on Intellectual Property shall be met with corresponding legal liabilities as per the law.

Article 113. Procedures for removing or disabling access to digital information of intermediary service providers at request of competent authorities

1. In order to be exempt from legal liabilities in accordance with Point c Clause 3 Article 198b of the Law on Intellectual Property, intermediary service providers under Point c Clause 1 Article 110 hereof must remove or disable access to digital information infringing copyright, related rights within 24 hours from the moment in which they receive written request of competent authorities entitled to sanction copyright, related right infringement in accordance with Article 200 of the Law on Intellectual Property or state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism, notify parties owning digital information that is removed or disabled from being accessed, and submit reports on implementation results to requesting authorities and state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism within 24 hours after processing the request.

Notice and reports under this Clause shall be implemented in written form or email or similar forms.

2. If parties owning digital information that is removed or disabled from being accessed or intermediary service providers reject request for removal or disabling of access, they shall adopt procedures for filing complaints, denouncing, filing lawsuits as per the law regarding decisions of competent authorities.

3. Request for removal or disabling of access to digital information infringing copyright, related rights under Clause 1 of this Article serves as proof of intermediary service providers’ knowledge regarding copyright, related right infringement of the digital information.

Article 114. Procedures for removal or disabling of access to digital information of intermediary service providers at request of copyright holders, related right holders

In order to be exempt from legal liabilities in accordance with Point c Clause 3 Article 198b of the Law on Intellectual Property, intermediary service providers under Point c Clause 1 Article 110 hereof must comply with regulations below:

1. Upon receiving request from copyright holders, related right holders (hereinafter referred to as “requesting party”) together with documents and proof in accordance with Clause 4 of this Article via receiving tools under Clause 1 Article 111 hereof:

a) Within 72 hours from the moment in which the request is received, intermediary service providers shall remove or disable access to digital information requested to be removed or disabled from being accessed and notify requesting parties and the parties owning the digital information in question (hereinafter referred to as “requested parties”) regarding temporary removal or disabling of access to the digital information together with documents and proof requested by the requesting parties under Points a, b, c, d, dd, and e Clause 4 of this Article;

b) If intermediary service providers do not receive request for rejection of temporary removal or disabling of access to digital information together with documents and proof provided by the requested party in accordance with Points a, b, c, dd, and e Clause 4 of this Article within 10 working days from the date on which the temporary removal or disabling of access to digital information and the notice under Point a of this Clause are implemented, the intermediary service providers shall permanently remove or disable access to the digital information. If intermediary service providers receive request for rejection of temporary removal or disabling of access to digital information together with documents and proof provided by the requested party in accordance with Points a, b, c, dd, and e Clause 4 of this Article within 10 working days from the date on which the temporary removal or disabling of access to digital information and the notice under Point a of this Clause are implemented, the intermediary service providers shall restore the digital information which has been temporarily removed or disabled within 72 hours from the moment in which they receive the request and forward such request and documents, proof provided by the requested party to the requesting party;

c) If the requesting party and/or the requested party does not file civil lawsuit or request competent authority to take actions against infringement or if the court or competent authority does not accept the lawsuit as per the law after documents and request are forwarded to the requesting party in accordance with Point b of this Clause, intermediary service providers shall restore the digital information which has been removed or disabled.

If the court or competent authority accepts lawsuit of the requesting party or the requested party, intermediary service providers shall conform to decisions of the court or competent authority as per the law.

2. In case of digital information that is broadcasted live in real time, if copyright holders, related right holders pro-actively provide documents and proof according to Points a, b, c, and e Clause 4 of this Article for intermediary service providers at least 24 hours prior to broadcasting live in order to prevent copyright, related right infringement on telecommunication network and the internet, the intermediary service providers shall:

a) temporarily remove or disable access to the digital information upon receiving request for removal or disabling of access to digital information, inform the requesting party, requested party about the temporary removal or disabling of digital information and attach documents, proof provided by the requesting party;

b) comply with Points b and c under Clause 1 of this Article.

3. The notifying, sending, forwarding of documents and proof by intermediary service providers, the requesting party, and the requested party under Clause 1 of this Article shall be implemented via email or other similar means.

4. Documents and proof under Clause 1 of this Article consist of:

a) Information of the requesting party or the requested party: Name; current address; email address; phone number; ID Card, Citizen ID Card, or passport number in case of individuals; enterprise registration, establishment decision, or establishment license number in case of organizations;

b) Proof of right ownership in accordance with Article 77 hereof and commitment to legitimacy of the documents;

c) Digitally signed documents of the requesting party or the requested party assuming all legal liabilities for their request for removal, disabling, or rejection, including the responsibility for damages to relevant parties if damage is done;

d) Proof of copyright, related right infringement in accordance with Article 78 hereof and damage done;

dd) For the requesting party, information on location and link to the digital information that infringes copyright, related rights, and description of infringement. For the requested party, information on location and link to the digital information that is being removed or disabled;

e) Power of attorney as per the law if the requesting party or the requested party is the authorized party.

5. Request for removal or disabling of access to digital information that infringes copyright, related rights under Clauses 1, 2, and 4 of this Article serves as proof of intermediary service providers’ knowledge regarding copyright, related right infringement of the digital information.

6. Any party that provide incorrect documents, proof thereby infringing legitimate rights and benefits of other relevant parties shall be met with corresponding legal liabilities as per the law.

Chapter VII

IMPLEMENTATION

Article 115. Entry into force

1. This Decree comes into force from April 26, 2023.

2. Decree No. 22/2018/ND-CP dated February 23, 2018 of the Government elaborating the Law on Intellectual Property of 2005 and the Law on amendments to the Law on Intellectual Property of 2009 regarding copyright and related rights and Protection of copyright, related right part in the Decree No. 105/2006/ND-CP dated September 22, 2006 of the Government elaborating to the Law on Intellectual Property regarding intellectual property protection and state management of intellectual property, Decree No. 119/2010/ND-CP dated December 30, 2010 of the Government on amendments to Decree No. 105/2006/ND-CP dated September 22, 2006 of the Government expire from the effective date hereof.

Article 116. Responsibilities for implementation

Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairpersons of provincial People’s Committees, agencies, organizations, and individuals with relevant rights and obligations are responsible for the implementation of this Decree.

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