HO CHI MINH NATIONAL UNIVERSITY UNIVERSITY OF ECONOMICS AND LAW FACULTY OF ECONOMIC LAW BACHELOR OF LAW THESIS ENFORCEMENT OF COPYRIGHT AND RELATED RIGHTS IN THE DIGITAL ENVIRONMENT UNDER VIETNAM’S LEGAL SYSTEM SUPERVISOR: LLM. NGUYEN THI LAM NGHI AUTHOR: LE THI HONG DAO STUDENT ID: K185021643 HO CHI MINH CITY, MAY 2022 HO CHI MINH NATIONAL UNIVERSITY UNIVERSITY OF ECONOMICS AND LAW FACULTY OF ECONOMIC LAW BACHELOR OF LAW THESIS ENFORCEMENT OF COPYRIGHT AND RELATED RIGHTS IN THE DIGITAL ENVIRONMENT UNDER VIETNAM’S LEGAL SYSTEM SUPERVISOR: LLM. NGUYEN THI LAM NGHI AUTHOR: LE THI HONG DAO STUDENT ID: K185021643 HO CHI MINH CITY, MAY 2022 i DECLARATION The author herewith formally declares that she has written this thesis independently. The literature and other sources that the author employed when writing this thesis, either literally or in content, are marked and separately listed.
Except for such citations, this thesis is entirely the author’s work. ii ABBREVIATION ABEI Authority of Broadcasting and Electronic Information Criminal Code Criminal Code No. 100/2015/QH13 2015 dated November 27th, 2015 of the National Assembly, amended by Law No. 12/2017/QH14 dated June 20 th 2017 of the National Assembly on amendments to the Criminal Code No.
100/2015/QH13 CPTPP The Comprehensive and Progressive Agreement for Trans-Pacific Partnership DMCA The Digital Millennium Copyright Act of the United States was signed into law by President Clinton on October 28th, 1998. Decree 22/2018/ND- Decree No. 22/2018/ND-CP dated February 23rd, 2018 of CP the Government on guidelines for a certain number of articles of the Intellectual Property Law and Law on amendments to the Intellectual Property Law 2009 in terms of the copyright and related rights Decree 131/2013/ND- Decree No. 131/2013/ND-CP dated October 16th, 2013 of CP the Government on sanctioning administrative violations of copyright and related rights Directive 2000/31/EC Directive No.
2000/31/EC of the European Parliament and of the Council of June 8th, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market Draft IP Law The 3rd Law amending some articles of Intellectual iii Property Law was submitted to the National Assembly at the Second Session of the XVth National Assembly opened on October 20th, 2021/ Draft No.0 of the Law amending some articles of Intellectual Property Law EU European Union EVFTA The EU–Vietnam Free Trade Agreement IP Intellectual property IP Law Law No. 50/2005/QH11 dated November 29 th, 2005 of the National Assembly on Intellectual Property of Vietnam, amended by Law No. 36/2009/QH12 dated June 19th, 2009 and Law No. 42/2019/QH14 dated June 14th, 2019 IPR Intellectual Property Right ISPs Intermediary service providers Joint Circular 07 Joint Circular No.
07/2012/TTLT-BTTTT-BVHTTDL dated June 19th, 2012 of the Ministry of Information and Communication, the Ministry of Culture, Sports and Tourism stipulating duty of enterprises providing intermediary service in protection of copyright and related rights in the Internet and telecommunication TPM Technical protection measure US United States WIPO World Intellectual Property Organization iv TABLE OF CONTENTS INTRODUCTION. Reason for writing. Aims, Object, and range of study. Aims of the study.
The object of study. Rage of study. Contribution to the knowledge. 8 CHAPTER 1: ENFORCEMENT OF COPYRIGHT AND RELATED RIGHTS ENFORCEMENT IN THE DIGITAL ENVIRONMENT - AN OVERVIEW.
Copyright and related rights. Definition of copyright and related rights. The subject of copyright and related rights. The subject of copyright.
The subject of related rights. Subject matter and conditions of protection. Enforcement of copyright and related rights. A brief history of the digital environment and the digital revolution in the world as well as Vietnam.
What is the digital environment?. The digital revolution. Internet and digital influences on copyright and related rights. 28 CHAPTER 2: VIETNAMESE LEGAL FRAMEWORK ON THE ENFORCEMENT OF COPYRIGHT AND RELATED RIGHTS IN THE DIGITAL ENVIRONMENT.
Conducts constituting copyright and related rights infringement in the digital environment. Measures were undertaken by competent authorities. Available penalties and remedies. Custom border enforcement.
Technical Protection Measure – the self-protection measure that needs its protection regime. Liability of intermediary service providers for copyright infringements in the digital environment. Definition of intermediary service providers. Under current Vietnamese law and Free Trade Agreements.
Under the Draft IP Law. The lawsuit between Tran Lap and VNG Corporation. 59 CHAPTER 3: SEVERAL REGULATIONS OF OTHER COUNTRIES ABOUT LIABILITY OF INTERMEDIARY SERVICE PROVIDERS FOR ONLINE COPYRIGHT AND RELATED RIGHTS INFRINGEMENT AND RECOMMENDATIONS FOR VIETNAM. Several regulations of other countries about the liability of intermediary service providers for online copyright and related rights infringement.
The notice and takedown regime. Sanctions for intermediary service providers’ violation. Recommendations for Vietnam. 80 Resources from the Internet.
Reason for writing IPRs are essential means for all businesses. It’s pivotal to ensure these rights are adequately protected in a modern economy. It’s also a crucial business goal to be suitable for effective use of them commercially and apply those rights against violation when necessary. However, to enforce IPRs, especially copyright and related rights, the right holders must use a complex and practically challenging system.
It can be difficult for businesses, especially foreign investors, to understand a strange legal system and its IP protection and enforcement. Significantly, given the rapid-fire development of the Internet in Vietnam, online piracy has been rising vastly across online websites and platforms in recent times like Facebook, Tiktok, and Youtube. Internet users’ infringement of IPRs in the digital environment is rampant and alarming.1 Copyright in the digital environment is much more delicate to control because of the ease of creating, revising, and distributing digital clones over the network. As digital consumers, we are faced with the marvels of stoner-created content online, mashups, and access to digital culture.
Mindfulness of IPRs and how to cover and manipulate them has come essentially in the moment’s digital environment. Thus, any digital metamorphosis design needs to consider protecting the copyright holder's rights or related rights holder. However, Vietnam does not have a complete or straightforward framework for protecting and enforcing copyright and related rights in the digital environment. However, until now, Vietnam has made many efforts to adjust its regulation on copyright to cope with the new digital environment situation and accommodate the actual practice of online activities.
The first draft of IP Law was initiated in 2020 and the third draft of IP Law was initiated in 2021, and many issues regarding copyright in the digital environment have been addressed in these drafts. 1 VOV (2018), Vi phạm quyền tác giả, quyền liên quan ở Việt Nam khá nghiêm trọng, https://vov.vn/cong-nghe/vi-pham-quyen-tac-gia-quyen-lien-quan-o-viet-nam-kha-nghiem-trong- 814803.vov 2 Seeing that there is a need to reform the Vietnamese legal framework on copyright protection in the digital environment, the author chose the topic “Enforcement of copyright and related rights in the digital environment under Vietnam's legal system” to research in her bachelor thesis. Within the scope of this thesis, the author not only focuses on analyzing the current Vietnamese law and practices on online copyright and related rights enforcement but also evaluates the applicability of the Draft IP Law. At the same time, the author compares the legal regulations of other countries, thereby making some recommendations for Vietnamese law.
Literature review On an international level Developed countries and the WIPO have studied the matter of copyright in the digital environment since the beginning of the 21st century. Accordingly, there have been various approaches taken in researching this matter. In 2002, “Intellectual Property on the Internet: A Survey of Issues”2 was issued when the Internet was in its early stages of evolution. It addresses the impact digital technologies - the Internet - have had on IP and the international IP system.
In 2003, the World Intellectual Property Organization study on “Limitations and Exceptions of Copyright and Related Rights in the Digital Environment”3 which is intended to outline the main limitations and exceptions to copyright and related rights protection that exists under the following international conventions: The Berne Convention for the Protection of Literary and Artistic Works 1886, The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1961; The Agreement on Trade-Related Aspects of Intellectual Property Rights; The WIPO Copyright Treaty 1996; The WIPO Performances and Phonograms Treaty 1996 (the “WPPT”). Besides, some attention 2 WIPO (2022), “Intellectual Property on the Internet: A Survey of Issues”, https://www.int/publications/en/details.jsp?id=372&plang=EN 3 WIPO (2003), “WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment”, https://www.int/meetings/en/doc_details.jsp?doc_id=16805 3 will also be paid to different national approaches to their application, particularly in the digital environment. In 2015, in “Proposal for Analysis of Copyright Related to the Digital Environment”4, the Group of Latin American and Caribbean Countries (“GRULAC”) presented a proposal of discussion on questions regarding the update of copyrights related to ongoing uses of protected intellectual goods in the digital environment in the works of the Standing Committee of Copyright and Related Rights of the World Intellectual Property Organization (SCCR/WIPO). This debate will favor the digital market development of protected intellectual goods, which will benefit holders of copyright and related rights and the international community.
In 2017, Guilda Rostama conducted a “Scoping Study on the Impact of the Digital Environment on Copyright Legislation Adopted between 2006 and 2016”5. The study covered the copyright value chain, the limitations, and exceptions in the digital environment, the impact of digital technology on the protected subject matter and the management of copyright, and the question of new digital players. To focus on the provisions that explicitly and directly refer to the digital environment and focus only on national copyright statutes, case-law or bilateral and plurilateral agreements and copyright-related laws have not been included. Later in 2019, at the WIPO seminar on “National Seminar on Copyright in the Digital Environment”6, the International Bureau of WIPO’s report took a more particular approach to copyright-related issues in the digital environment.
Speakers Ryszard Frelek and Silke von Lewinski, who took responsibility for the topic “Enforcement and management of rights in the digital environment” in this seminar, illustrated the notions of territoriality on the Internet, the liability of new types of 4 WIPO (2015), “Proposal for Analysis of Copyright Related to the Digital Environment”, https://www.int/meetings/en/doc_details.jsp?doc_id=322780 5 WIPO (2017), “Scoping Study on the Impact of the Digital Environment on Copyright Legislation Adopted between 2006 and 2016”, https://www.int/meetings/en/doc_details.jsp?doc_id=388918 6 WIPO (2019), “National Seminar on Copyright in the Digital Environment”, https://www.int/meetings/en/details.jsp?meeting_id=51347 4 intermediaries, and online access to legal content, licensing rights for online uses on a multi-territorial basis and right holders’ remuneration. In addition to this, research focuses on one or some particular copyright issues in the digital environment. For example, Kluwer Law International’s “Copyright Enforcement and the Internet” is a collection of essays by European and international authorities in the field of copyright law that presents a variety of valuable perspectives on issues arising in respect of copyright enforcement on the Internet, including liability of Internet service providers, combating piracy in the digital environment, etc. In general, while papers of international organizations only serve as available references, studies of foreign scholars focus mainly on their countries’ legislation and context, which cannot be the same as those of Vietnam.
In Vietnam Until now, there are not many studies related to the enforcement of copyright and related rights in the digital environment in Vietnam. Mainly short articles in specialized journals. Specifically as: Nguyen Bich Thao in “Hoàn thiện Dự thảo Luật sửa đổi, bổ sung một số điều của Luật Sở hữu trí tuệ về trách nhiệm của các nhà cung cấp dịch vụ trung gian phù hợp với các hiệp định thương mại tự do thế hệ mới”7.