Along with the development of the intellectual property market in Vietnam, the copyright protection enforcement system in e-commerce is continuously updated and renewed in association with the turning points of the socio-economic situation. The important amendments of the copyright regime in the Intellectual Property Law 2022 also lie largely in the provisions on copyright protection.
The right to self-protection (Article 198 of the Intellectual Property Law) was amended to clearly affirm the authorizing right of the copyright holder to other organizations and individuals shall apply instead. The adoption of more specialized and knowledgeable organizations and individuals will protect the interests of rights holders in the best way.
In addition, the newly updated copyright protection regulations include the assumption of copyright (Article 198a), intellectual property assessment to serve to determine copyright infringement (Article 201), infringement of intellectual property rights shall be penalized (Article 212), regulations on sanctioning forms of administrative violations in Article 214 to be consistent with the law on handling of administrative violations, regulations on control measures. goods control, customs suspension (Articles 216, 218).
Regarding the judicial assessment of copyright, the new regulations on the assessment period are guided in Article 1 of the Circular No. 03/2021/TT-BVHTTDL dated June 1, 2021on supplementation to circulars on process of judicial expertise in culture sector, amending and supplementing Article 6 of Circular No. 02/2019/TT-BVHTTDL has overcome the lengthy procedure and better ensure the interests of the subjects .
The provision in Article 203 that allows plaintiffs in civil proceedings to require the Court to compel the defendant to hand over infringing evidence is an appropriate provision for the difficulty to collect of Internet infringement evidence. Updates in the legal system have shown the increasing compatibility of Vietnam’s copyright protection law with the world.
Regarding criminal measures, in the basic criminal composition of the crime of infringing upon copyright and related rights (Article 225 of the Penal Code 2015), there are quantitative signs such as illegal profit value of infringing goods, damage to the right holder. Compared with the previous regulation, the quantification of qualitative signs is considered a progressive point towards unity in perception and application.
One of the most important advancements of the Intellectual Property Law 2022 is to establish a new responsibility for the Internet intermediaries of copyright infringement in e-commerce, which in the past usually only joint responsibility. The scope of regulation of safe harbor in Vietnam is relatively wide, including Internet Service Providers (ISPs) that provide intermediate technical means to bring content of digital information on the Internet, as an intermediary for the public to access and use such digital information (Article 198b.1 of the Law on Intellectual Property 2005, as amended and supplemented in 2022) .
It is admitted that the ISP is now acting as a new enforcement agency for intellectual property rights in the Internet environment. Takedown – notice regime is considered an effective tool for copyright holders to protect their legitimate interests through the mandatory conditions for ISP if they want to enjoy the privilege of disclaimer. In the light of important role of the ISP, the implementation of Article 198b of Intellectual Property Law in the coming time will create a big change in the copyright protection system on e-commerce websites in Vietnam.
The copyright infringing elements specified in Article 7.1 of Decree 105/2006/ND-CP are in the form of a limited list. Therefore, it is difficult for this regulation to timely update the new amendments of the law.
Related to the territorial scope, the act is considered as an infringement of copyright when it occurs in Vietnam, the provisions of Clause 4, Article 5 of Decree No. 105/2006/ND-CP further explain: “The act under consideration is also considered to have occurred in Vietnam if the act occurs on the internet but is aimed at consumers. users or users believe in Vietnam”. E-commerce activities take place on a borderless Internet platform, so it is not reasonable to limit copyright infringement on this platform to the territory of Vietnam. In addition, the concept of “in Vietnam”, an important factor to identify first for an act of copyright infringement on the Internet, has not been specifically guided and agreed upon.
The copyright exception can be abused to narrow down copyright and justify infringements. However, the current Vietnamese intellectual property law does not provide criteria for determining the commercial purpose of an act with signs of copyright infringement in e-commerce in the context of easy Internet evidence. scattered, difficult to collect. For example, a person downloads a video on Youtube, then uploads a copy to his personal blog for storage, but leaving open access leads to many other people viewing it, leading to an increase in views of this person’s blog channel and more advertising invitation. In this case, it is difficult to determine whether this behavior is considered to be used for personal or commercial purposes or not
Regarding this issue, the French Intellectual Property Law explains that personal use means that any shared act will constitute an infringement. However, it can be seen that Article 25 Vietnam Intellectual Property Law is providing an exception as the number of copies and understand what personal purpose means not for commercial purposes, so it is difficult to determine when applying these regulations in practice. The non-infringement exception does not limit the scope, which may lead to the omission of the infringement, affecting the legitimate rights and interests of the legitimate copyright holder.
Among the remedies, applying the liability clause to the intermediary service provider will actually reveal some of the following shortcomings:
The concept of “intermediary service provider” only focuses on the beginning and ending points in the transmission of digital information, but has not yet directly included cases where ISPs provide digital information search services. as in Article 3 of the Joint Circular No. 07/2012/TTLT-BTTTT-BVHTTDL earlier, that is, the “intermediate” services of the transmission. Thus, the provisions of the general law do not cover the provisions of the guiding documents, causing inconsistencies in their application.
The provisions of Article 198b have an open approach, that is, when the ISP knows about the infringement, it is not exempt from responsibility if it does not actively prevent it. Then, in the proceedings, the right holder will be obligated to prove that the ISP must have known about the user’s infringement in order to create a liability for the ISP. Meanwhile, the conditions set out in Article 198b are quite general, easily leading to the expand of this exemption and not ensuring the purpose of protecting the copyright owner of the infringing depository.
Article 198b does not provide for the obligation to prevent recidivism, leading to consequences that have not eliminated the possibility of recidivism. At the same time, the failure to specify the elements of a notice as in other legal systems in the world may lead to a third party abusing the right of notice to cause damage to genuine copyright owners. Meanwhile, the law has not yet set forth the ISP’s remedy in case of inaccurate notification, or even damage to the reputation, sales and sales ability of copyright owners whose products are taken down unreasonablely.
This leads to the determination of the scope of responsibility, as the basis for determining the compensation, which may not be compatible with the nature of the infringement.
It can be said that the new points of the Vietnam Intellectual Property Law 2022 on copyright are bringing positive signals in integration with the vibrant copyright market in the world. However, the reality is that intellectual property law related to copyright in Vietnam still needs improvement and requires more feasible measures to deal with the current complicated situation of infringement.
If you need advice on intellectual property law, copyright or related rights registration, please contact Viet An Law for the most effective support.
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