Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.

Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN HUY HOANG Major : Economic Law Major Code : 93.80.107 ABSTRACT OF DOCTORAL THESIS IN LAW HA NOI - 2022 The thesis was completed at: Graduate Academy Of Social Sciences Vietnam Academy Of Social Sciences Scientific supervisors: Ph.D Pham Kim Anh Assoc Prof Bui Anh Thuy Reviewer 1: Reviewer 2: Reviewer 3: The Thesis is defended at the Doctoral Examination Board at the Academy level at Graduate Academy of Social Sciences, belongs to Vietnam Academy of Social Sciences, 477 Nguyen Trai Street, Thanh Xuan, Ha Noi At , date month year 2022 The thesis can be search at: - The National Library of Vietnam - The Library of the Graduate Academy of Social Sciences PREAMBLE Urgency of the subject Copyright, as a part of Intellectual Property rights, has played an important role in the socio-economic development of each country as well as the process of international integration The rapid and powerful development of digital technology does not bring great benefits in all aspects of social life but creates many obstacles and challenges for rights holders and the authority in controlling and handling violations of civil rights, including Intellectual Property rights In the trend of international integration, since 2007 Vietnam has been a member of the World Trade Organization (WTO) and is currently participating in many bilateral and multilateral International Treaties on the protection of Intellectual Property rights in general and Copyright in particular Whereby the provisions on Copyright protection have been enhanced in comparison with the current popular international standard, which is the Berne Convention for the Copyright protection This is also a challenge posed in perfecting the law as well as in the enforcement mechanism of Copyright in Vietnam in the near future to meet the requirements of compatibility with the Free Trade Agreements that Vietnam has participated recently Also, It has not yet effectively protected Copyright against the increasing infringements both in the traditional environment and in the digital environment The Court's practice of adjudicating Copyright disputes in Vietnam also reveals many limitations such as complicated, lengthy, timeconsuming, laborious and costly litigation procedures; the application of the law to the case settlement by the trial agency in some cases is still inaccurate and controversial In many cases, the Court lacks a legal basis to make reasonable judgments… Especially, to liabilities for compensation, Copyright holders often have difficulties proving actual damages This leads to the situation right holders might be afraid and hesitate to choose the Court to be the authority to protect their legitimate rights and interests According to the request of the Politburo's Resolution No 49NQ/TW on the Judicial Reform Strategy to 2020, the People's Court holds very important position and plays a vital role The Courts are adjudicating agencies, execute judicial rights and are tasked with protecting justice, human rights, citizenship, the socialist regime, the interests of the State, and the legal rights and interests of organizations and individuals Therefore, Researching to propose recommendations to perfect the law and improve the effectiveness of Copyright protection through the Court's adjudication is an urgent issue at present; especially when the draft of the Law amending and supplementing a number of articles of the Intellectual Property Law (hereinafter referred to as the Draft which is being consulted for submission to the National Assembly for approval in 2022) has many amendments related to Copyright Up to now, there has not been any comprehension and comprehensive research on Copyright protection through trial at the Court From the above reality, the study of the research "Protection of Copyright through the trial practice of the people's courts in Vietnam nowadays" is an urgent need of legal science in Vietnam nowadays Purpose of research and tasks of the thesis 2.1 Purpose of research The research purpose of the thesis is to clarify theoretical issues, legal reality and practice of Copyright protection through trial at Vietnamese Courts, from which propose orientations and solutions to complete the effectiveness of law application in the protection of Copyright at the Court in Viet Nam 2.2 Research tasks Firstly, author analyzes and builds a theoretical basis for Copyright protection through the trial method at the Court, which clarifies theoretical contents such as: Definition, characteristics of Copyright, Copyright protection; principles of Copyright protection, the nature of Copyright protection through trial at the Court (it is different from other protection measures), factors affecting the Copyright protection through the trial method at the Court, the basic contents of the law on Copyright protection through the trial method at the Court Secondly, the thesis is going to study the provisions of the content law, the procedural law on Copyright and the protection of Copyright by civil measures; practice of application of law in settling disputes about Copyright in Court through typical cases; pointed out inadequacies in the legal system and obstacles in practice Thirdly: the study provides orientations and proposes specific solutions to improve the Intellectual Property law and the effectiveness of the implementation of the law on Copyright protection through the trial method at the Court in Vietnam Subjects and Scope of research 3.1 Subjects of research The research subject of the thesis the theories of Copyright protection, the provisions of Vietnam's Intellectual Property law and the International Treaties of which Vietnam is a member in term of Copyright protection and practice of Copyright protection through civil trial at the Court in Vietnam nowadays 3.2 Scope of research Scope of content: The thesis studies three major contents: (i) theory of Copyright and Copyright protection; (ii) the law on the protection of Copyright through trial at the Court, including content legislation and the formal legislation; (iii) practical application of Copyright protection law through cases that have been judged by Courts in Vietnam in the past times Scope of space and time: The thesis focuses on studying current Vietnamese legal provisions on Copyright protection, including: Law on Intellectual Property 2005 (amended and supplemented in 2009, 2019); Civil Code 2015; Code Of Civil Procedure 2015, Criminal Code 2015 (amended and supplemented in 2017) … and other relevant legal regulations; uses contents and datas through practical trial activities in People's Court system to cases related to the protection of Copyright nationwide The thesis also studies the new provisions on Copyright in Draft No 05 of the Law amending and supplementing a number of articles of the Intellectual Property Law published on the National Assembly's website and submitted to the public for comments of National Assembly in the meeting in October 2021 The study of provisions of International Treaties of which Vietnam is a member, and Copyright laws of some countries are only to compare and contrast with Vietnamese laws in the purpose of completing the law, learning from experience in order to improve the effectiveness of Copyright protection in Vietnamese Court Methodology and research methods of the thesis The thesis is conducted on the basis of applying the dialectical and historical materialism methodology of the Marxist-Leninist philosophy, Ho Chi Minh’s Ideology and the standpoints of the Communist Party and the State of the Socialist Republic of Vietnam of Copyright and Copyright protection through the trial method in the Vietnamese court system nowadays The thesis uses specific research methods such as: analytical method, synthesis method, comparative law method, statistical method, historical method and so on to clarify theoretical and practical issues implementation of the provisions on the protection of Copyright through the trial method at the Court according to the law of Vietnam New scientific contribution of the thesis Firstly, the results of the synthesis, analysis and evaluation of published works related to the research topic deepen better the theoretical and practical basis for perfecting the law on Copyright protection through trial at the Court Secondly, the thesis has systematized and highlighted the theoretical issues of Copyright protection in general and Copyright protection through trial at the Court Thirdly, through the analysis of the actual law and the practice of applying the law in the protection of Copyright at the Court, the thesis has identified the inadequacies of the law on Copyright in general and the protection of Copyright by civil remedies in Court in particular At the same time, through the practical study of the adjudication of Copyright disputes at the Court, the thesis evaluates and points out the shortcomings, limitations and causes of limitations of the current reality of Copyright protection in the Court of Vietnam nowadays Fourth, thanks to the study of international law and the practice of protecting Copyright through trial at the Court in some countries, the thesis draws reference values that can be applied in the process of formulating and perfecting Vietnam's laws on Copyright protection as well as improving adjudication and dispute resolution activities over Copyright in particular, Intellectual Property rights in general in the Vietnamese court system Fifth, the thesis analyzes and specifies requirements and orientations to improve the law as well as reform the judicial system in the protection of Copyright through trial at Vietnamese court nowadays Simultaneously, through the study of theory, legal status and practice of Copyright protection through trial at Vietnamese court, on the basis of reference to experiences of some countries in the world, the thesis proposes the producing groups of solutions to complete the law and solutions to improve the effectiveness of Copyright protection at the Court in order to meet the requirements of practice and the requirements of international commitments to which Vietnam is a member In particular, the thesis has contributed valuable recommendations to reference to complete the Draft Law amending and supplementing a number of articles of the Intellectual Property Law expected to be aprroved in 2022 Theoretical and practical significance of the thesis 6.1 Theoretical significance The research results of the thesis contribute to supplement the theoretical issues of Copyright protection and enforcement in general, Copyright protection at the Court in particular The thesis is the scientific recognition and assessment of the advantages, limitations and inadequacies of the law on Copyright protection and Copyright protection through trial 6.2 Practical significance The research results can be used as a reference for individuals, organizations and agencies in charge of enforcing Copyright in particular, Intellectual Property rights in general The recommendations in the thesis are valuable for reference in providing comments to complete the Draft Law amending and supplementing a number of articles of the Intellectual Property Law expected to be approved by the National Assembly in 2022 Structure of the thesis Besides the introduction, conclusion and list of references, the main content of the thesis consists of chapters: Chapter 1: Overview of the research situation and research theoretical basis Chapter 2: Theoretical issues of Copyright protection through trial of the court Chapter 3: Legal status and practice of Copyright protection through trial at the People's Court of Vietnam Chapter 4: Orientation, solutions to complete law and effectively protection of Copyright through trial at the People's Court of Vietnam Chapter OVERVIEW OF THE RESEARCH SITUATION AND RESEARCH THEORETICAL BASIS 1.1 Research overview 1.1.1 The research group on theoretical issues of Copyright 1.1.2 The research group on the theoretical issues of Copyright protection measures in general and Copyright protection through the Court in particular 1.1.3 The research group on the study the legal reality of Copyright protection 1.1.4 The research group on the study the practical issues of Copyright protection in general, protection by civil measures in particular and solutions to improve the effectiveness of Copyright protection through trial in Vietnamese courts 1.1.4.1 The research on international experience in Copyright protection 1.1.4.2 The research on the practice of Copyright protection in Vietnam 1.2 The thesis research achievements need to be inherited and the thesis issues need further research 1.2.1 The thesis research achievements need to be inherited Firstly, regarding theoretical issues about Copyright Second, the theoretical issues of Copyright protection Third, research on the legal reality of Copyright protection through the Court Fourth, research on the practice of Copyright protection in court Fifth, research on solutions to complete the law 1.2.2 The thesis issues need further research Theoretically, the thesis will study to clarify issues such as: (i) Theories as the theoretical basis for Copyright protection; Principles of Copyright protection; (ii) Build up definition and identifying features of Copyright protection in general; characteristics of the method of Copyright protection in Court; (iii) Legal issues are set for the protection of Copyright at the Court in the context of international economic integration and the 4.0 industrial revolution Regarding the legal reality, the thesis will not only approach and study the law of Intellectual Property in a comprehensive and systematic way but also research civil law and civil procedures, in order to discover the inadequacies and limitations within the provisions of the law on the protection of Copyright by civil measures at the Court and to consider the practical application of these regulations to assess the feasibility and suitability The provisions of the current Vietnamese law will be compared with the provisions of the Draft Law amending and supplementing a number of articles of the Intellectual Property Law1, the provisions of International Treaties (especially the provisions the Free Trade Agreements) of which Vietnam is a member and the laws of some countries in the world Regarding the practice of law enforcement, the thesis will analyze and comprehensively evaluate the practice of Copyright protection at the Court; analyze and evaluate inadequacies and problems in the practical application of law to settle disputes and handle acts of Copyright infringement through cases that have been judged in Court; discover and point out the causes leading to the limitation in the protection of Copyright through the court in Vietnam 1.3 Research theoretical basis 1.3.1 Research theoretical  Foundational theories of IPR protection in general The natural law thesis; The reward thesis; The incentive thesis; The disclosure; Theory of balance of interests; Principles of ensuring fair competition  Specific theories of Copyright protection Intellectual Property Law and the Code Of Civil Procedure, whereby the security for the application of the emergency measure should be equivalent to the loss or damage that may arise as a result of the application incorrectly 4.2.2 Solutions to improve the effectiveness of Copyright protection through trial at the Court 4.2.2.1 Focus on improving the professional capacity of Courts and Judges to solve disputes over Intellectual Property Right 4.2.2.2 Raise public awareness of Copyright protection 4.2.2.3 Building a coordination mechanism between administrative agencies and Courts on Copyright protection in Vietnam 4.2.2.4 Research on building a specialized Court to adjudicate Intellectual Property dispute CONCLUSION OF CHAPTER Solutions to perfecting the law on Copyright protection through trial at the Court (including a group of solutions to perfect the content law and a group of solutions to perfect the procedural law) In those groups, the proposes focus on perfecting the provisions of the Intellectual Property Law as for: work, subject, content, limitation of Copyright; acts of Copyright infringement, recommendations on the protection of Copyright in the digital environment and recommendations related to determining damage caused by Copyright infringement in particular, compensation for damage caused by infringing Intellectual Property rights in general Regulations on completing the procedural law relates to competence, time limit for trial, application of emergency measures in adjudicating disputes over Copyright Suggesting other solutions to improve the effectiveness of Copyright protection through trial at the Court Specifically, the thesis focuses on the proposal to establish a specialized court to adjudicate Intellectual Property cases; besides, the thesis also proposes to develop new suitable regulations such as online adjudication This is one of the current 24 adjudication principles applied in many countries because of its convenience 25 CONCLUSION The thesis is an in-depth research on Copyright protection through trial at People's Court in order to deepen the theoretical and practical basis for perfecting the law on Copyright protection through trial at the Court The thesis has studied theoretical issues as a scientific basis for researching the law on Copyright as well as the practice of Copyright protection at the Court In a broad sense, Copyright protection through trial at the Court is an activity of the Court to apply the sequence, procedures and sanctions to settle disputes, handle Copyright infringement and violate the law on Copyright In this sense, Copyright protection through trial at the Court includes civil, criminal and administrative proceedings related to Copyright The thesis approaches "Copyright protection through trial at the Court" under the narrowangle of dispute resolution activities, Copyright infringement by civil measures Copyright protection through civil trial at the Court is the activity of resolving disputes and handling acts of Copyright infringement at the request of the right holder or of the organization or individual suffering damage caused by the infringement, whereby the Court applies civil measures to protect Copyright The thesis has comprehensively analyzed the provisions of current Vietnamese law on Copyright protection, the sequence and procedures to protect Copyright by civil measures as well as the practical application of the law settle disputes about Copyright in Court through typical cases In addition to analyzing the current state of law and the practice of applying the law in resolving Copyright disputes at the Court, the thesis has compared and contrasted with the provisions on Copyrights in International Treaties of which Vietnam is a member Through a comprehensive study of the reality of Vietnamese law on Copyright protection through trial at the Court, the thesis has analyzed and pointed out the inadequacies and shortcomings in the provisions of the Intellectual Property Law of Vietnam as well as the current provisions of the Procedure Civil Code regarding the 26 protection of Copyright Through the study of statistics and disputes about Copyright that have been jugded by the Court in recent years, the trial practice in recent years has shown that there are very few disputes about Copyright being resolved in Court This does not reflect the current situation of Copyright disputes in the increasingly diverse and complex social life The thesis has analyzed and pointed out the requirements and orientations for perfecting the law as well as reforming the judicial system in the protection of Copyright through trial at Vietnamese Courts today The thesis has proposed groups of solutions to perfect the law and solutions to improve the effectiveness of Copyright protection at the Court in order to meet the requirements of practice and the requirements of international commitments that Vietnam is a member 27 LIST OF WORKS PUBLISHED BY AUTHOR Nguyen Huy Hoang “Protection of Copyright and related rights in the Trans-Pacific Partnership Agreement”, Democracy and Law Journal – No 3/2017 Nguyen Huy Hoang “Acts of Copyright infringement under Vietnamese intellectual property law”, Democracy and Law Journal online, Ministry of Justice, month 3/2017 Nguyen Huy Hoang “Conditions for protection of works according to the provisions of the Intellectual Property Law and practical application”, People's Court Journal – No 19/2020 Nguyen Huy Hoang “The relationship between the right to protect the integrity of the work and the right to make derivative work”, Democracy and Law Journal – No 349/2021 REFERENCE DOCUMENTS Vietnamese Nguyen Hai An (2014), “Comparison of copyright infringement 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Copyright Law of the United States https://www.copyright.gov/title17/title17.pdf 38 ... the law and improving the effectiveness of Copyright protection through trial at the Court in Vietnam 4.1.1 Institutionalizing the guidelines of the Communist Party of Vietnam and the guidelines... law in the protection of Copyright at the Court, the thesis has identified the inadequacies of the law on Copyright in general and the protection of Copyright by civil remedies in Court in particular... limitations of the current reality of Copyright protection in the Court of Vietnam nowadays Fourth, thanks to the study of international law and the practice of protecting Copyright through trial at the