Luận văn the implementation of copyright and related rights of evfta in vietnam

HO CHI MINH UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW -*** VU LE HANH THAO STUDENT ID: 1753801011173 THE IMPLEMENTATION OF COPYRIGHT AND RELATED RIGHTS OF EVFTA IN VIETNAM BACHELOR’S THESIS Academic term: 2017 - 2021 Supervisor: LL.M Ngo Kim Hoang Nguyen Ho Chi Minh City – 2021 STATUTORY DECLARATION I hereby declare that this work has been originally carried out by me under the guidance of LL.M Ngo Kim Hoang Nguyen, lecturer of the Faculty of International Law, Ho Chi Minh University of Law This work has not been submitted either in part, or in whole, for any degree at any University Ho Chi Minh City, July 2021 Vu Le Hanh Thao ACKNOWLEDGEMENT It is with deep gratitude that I want to send to my supervisor, LL.M Ngo Kim Hoang Nguyen, lecturer of the Faculty of International Law, Ho Chi Minh University of Law, for providing me invaluable guidance throughout this research His dynamism, vision and sincerity have motivated me to successfully complete this thesis with the most completeness and satisfaction It is a great honor to have him as a consultant for the last four years studying in Ho Chi Minh University of Law and as a supervisor for this last project before becoming an official LL.B., as well as an alumnus of this beloved school I would also like to express the sincerest gratefulness to my family: Mom, Dad, and my two dear elder sisters Their love, caring, continuous support and sacrifices help me become who I am today Without them, nothing in my life would be possible Vu Le Hanh Thao TABLE OF CONTENTS STATUTORY DECLARATION ACKNOWLEDGEMENT INDEX OF ABBREVIATION PREFACE Thesis rationale Literature review Objectives of the study 10 Scope and delimitation 11 Methodologies of the study 11 Structure of the thesis 11 CHAPTER I AN OVERVIEW OF COPYRIGHT AND RELATED RIGHTS UNDER THE EVFTA 12 1.1 Terms and definitions 12 1.1.1 Copyright 12 1.1.2 Related rights 17 1.2 Copyright and related rights under the EVFTA 23 1.2.1 Copyrights 23 1.2.2 Related rights 30 1.3 The enforcement of copyright and related rights in the EVFTA 37 1.3.1 Civil remedies and procedures 38 1.3.2 Administrative remedies and procedure 40 1.3.3 Criminal measures and procedure 43 CONCLUSION TO CHAPTER I 45 CHAPTER II SOME CHALLENGES FOR VIETNAM IN THE IMPLEMENTATION OF COPYRIGHT AND RELATED RIGHTS UNDER THE EVFTA AND RECOMMENDATIONS 46 2.1 Challenge in implementing the protection of reproduction rights from digital temporary copies from the EVFTA in Vietnam 46 2.1.1 The protection of reproduction rights from temporary digital copies in the EVFTA and challenge in the current law of Vietnam 46 2.1.2 Recommendations 51 2.2 Challenge in implementing rental rights in Vietnam 57 2.2.1 The protection of rental right in the EVFTA and the current challenge in Vietnamese law and Vietnamese companies’ management 57 2.2.2 Recommendations 63 2.3 Challenge to the cooperation between Vietnamese and European collective management organizations 69 2.3.1 Collective management organizations in Vietnam and challenge to the international cooperation 69 2.3.2 Recommendations 76 CONCLUSION TO CHAPTER II 81 CONCLUSION TO THE THESIS 82 BIBLIOGRAPHY 83 ANNEX 91 INDEX OF ABBREVIATION Berne Convention The Berne Convention for the Protection of Literary and Artistic Works Directive 2006/115/EC Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property Directive 2001/29/EC Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001on the harmonisation of certain aspects of copyright and related rights in the information society ECJ European Court of Justice European EU Union EVFTA EU–Vietnam Free Trade Agreement Intellectual Property Law Law on Intellectual Property No 50/2005/QH11 dated November 29, 2005 (amended and supplemented by Law No 36/2009/QH12 and Law No 42/2019/QH14) Law amending and supplementing a Intellectual Property Law Bill number of articles of the Intellectual Property Law Bill Rome Convention Rome Convention for the Protection of Performers TRIPS WTO Agreement on Trade-Related Aspects of Intellectual Property Rights WCT WIPO Copyright Treaty WIPO World Intellectual Property Organization WPPT WIPO Performances and Phonograms Treaty WTO World Trade Organization PREFACE Thesis rationale The EVFTA, after ten years of negotiating, finally took effect in August 2020 This is an ambitious agreement that has a major impact on the economy of Vietnam by eliminating 99% of the custom duties between Vietnam and EU According to the Ministry of Planning and Investment of Vietnam, this agreement is expected to increase Vietnam’s GDP by 42.7% by 2025 Whereas in Europe, GDP is anticipated to increase by $29.5 billion by 2035 Among the benefits that the EVFTA promises to bring to the parties, higher protection levels for intellectual property, specifically copyright and related rights is one of the mostly awaited since intellectual property infringement in Vietnam has been an ongoing phenomenon with yet a thorough solution Along with this opportunity, however, Vietnam will face difficult challenges in order to implement important provisions of the EVFTA regarding copyright and related rights This stems from many reasons, from the gap between the legislation of each party to the difference between the culture and economy of the member states Recognizing this, in 2019, the Ministry of Science and Technology, upon performing the Government's and the Prime Minister's working program, had proposed a project on the draft of Law amending and supplementing a number of articles of the Intellectual Property Law This is expected to be submitted to the National Assembly for consideration and comments at the October 2021 session and for approval at the May 2022 session During this time, with the hope to bring a worthy and possibly fruitful dedication to Vietnam’s current situation by closely studying the EVFTA, the author decided to carry out the research: “The implementation of copyright and related rights of EVFTA in Vietnam.” Literature review Shira, D (2020, August 3) Vietnam-EU Trade: EVFTA Comes Into Effect Vietnam Briefing https://www.vietnam-briefing.com/news/vietnam-eu-trade-evfta-comes-into-effect.html/ 2.1 Foreign materials Since EVFTA is a new agreement, most of the research is under the form of journal articles, newspaper articles and reports made by the government, which are extremely limited Therefore, the author had to combine them with works that write about copyright and related rights in Europe for a more in-depth knowledge since the EVFTA, composed by Vietnam and the EU, more or less, will be relevant to European copyright and related rights “EU Copyright Law: A Commentary” by Irini Stamatoudi and Paul Torremans was the book that the author commenced with This unique book presents a comprehensive and new analysis of all EU law and case law in the field of copyright, as well as the underlying basic concepts and principles In addition, the book provides readers with most recent amendments and initiatives by EU in the digital area Upcoming challenges for copyright and related rights are also discussed in the book by a team of leading experts in the field, which makes the book extremely valuable Another book that has an immense influence on this thesis is “Copyright and Fundamental Rights in the Digital Age” by Oreste Pollicino, Giovanni Maria Riccio and Marco Bassini.3 This well-timed book analyzes the needed change in the protection of copyright in the digital age in Europe in order to balance with other fundamental rights and freedom of the human Recognizing the development in digital technologies as well as the internet, it specifically focuses on the effects of recent reforms to the legal framework for EU’s copyright Following this, “Propertizing European Copyright” by Caterina Sganga is also a worth-mentioning book since it provides an insight analysis of the cause and effect of propertization of copyright throughout the history of EU, comparing them to other national law and concluding experiences for EU, which Vietnam may gain 2Stamtoudi, I., & Torremans P (Eds.) (2014) EU Copyright Law: A Commentary Edward Elgar Pollicino, O., Riccio, G., & Bassini, M (Eds.) (2020) Copyright and Fundamental Rights in the Digital Age Edward Elgar Sganga, C (2018) Propertizing European Copyright Edward Elgar some lessons from this Researchers in copyright will find this book very valuable since is rich both in theory and practice “Guide to the EU-Vietnam trade and investment agreements” made by Delegation of the European Union to Vietnam is totally indispensable since this dogmatic guide is a great contribution to a better and more insight understanding of the new generation agreements between the EU and Vietnam Although not focusing on copyright and related rights aspect, this guide, written in the most simple and clear language, helped the author in understanding the basics of the EVFTA and acknowledging the importance of this agreement to Vietnam’s economy From this, the author was able to determine the challenge to Vietnam’s current copyright and related rights 2.2 Vietnamese materials In Vietnam, although there are many research papers on copyright and related rights when Vietnam joins the EVFTA, they are mostly carried out under the form of short journal articles, magazine articles or online newspaper articles with less insight recommendations They mainly discuss the obvious chance to a higher level of protection for copyright and related rights in Vietnam and the already seen challenge de jure and de facto in Vietnam but leave practical and clear recommendations something to be desired about In the article “Giải thách thức sở hữu trí tuệ Việt Nam gia nhập EVFTA” [Solving intellectual property challenges when Vietnam joins EVFTA] by Nguyen Thi Huyen in Review of Finance, the author discusses chances and challenges that the EVFTA will bring to Vietnam’s intellectual property in general However, the author has no intention of focusing on copyright and related rights, which is why they are mentioned only by one challenge with no specific solution Delegation of the European Union to Vietnam (2019) Guide to the EU-Vietnam trade and investment agreements https://trade.ec.europa.eu/doclib/docs/2016/june/tradoc_154622.pdf Nguyen Thi Huyen (2017) Giải thách thức sở hữu trí tuệ Việt Nam gia nhập EVFTA [Solving intellectual property challenges when Vietnam joins EVFTA] Review of Finance, 653, 27-28 80 organizations must establish welfare and assistance schemes for this international promotion If the organization uses the deductions from rights revenue to fund this, it must provide such financing of cultural promotion and of the services of the welfare and assistance schemes on the basis of fixed rules based on fair criteria The cooperation with other foreign collective management organizations shall accede to this law, relevant law, the agreement between the parties and relevant international norms 81 CONCLUSION TO CHAPTER II In Chapter II, the author has identified three challenges to the implementation of copyright and related rights in the EVFTA to Vietnam which have the most damaging effects to only authors/related subjects but also the economy of a nation The challenges are (1) reproduction right and exceptions in Vietnamese law; (2) rental right de jure and de facto in Vietnam; and (3) the role of collective management organizations in Vietnam These challenges were approached from both historic and legislative view with the former explaining for the formation of these rules and the latter indicating the limitations in Vietnam Along with this thorough analysis, the author has also recommended some solutions to these challenges The recommendations are results of the painstaking research of the author, compiling and influenced by European statutory law as well as case law, hoping to bring a worthy and possibly fruitful development in Vietnamese copyright and related rights, especially when Vietnam is in the process of amending laws in order to be compatible with the EVFTA 82 CONCLUSION TO THE THESIS In conclusion, the thesis is divided into two chapters The first one deals with theoretical issues arising from the EVFTA In this part, the author has clarified the concept of “copyright” and “related rights”, giving them unified definitions compiled from scholar works all over the work Furthermore, it is important to stress that the role of these rights is equal to each other, they are only separated by the subjects that they adjust and therefore, it is impossible to say which rights are more important that the others In addition, the author, in this part, has also analyzed basic rights of authors and related subjects as regulated in the EVFTA A highlight in this part is by comparing them to previous intellectual property agreements, it is easy to notice that rights of related subjects are acknowledged as their own exclusive rights and there are almost no distinction from them and authors, which make the EVFTA an advanced and improved intellectual agreement, assuring the equality for all of the subjects Lastly, the thesis ends with the analysis of the enforcement of copyright and related rights in the EVFTA, which is ensured by civil method, administrative method and criminal method The last two parts of this chapter also work as a reflection of the current Vietnamese law on copyright and related rights, giving readers a glimpse of what is still missing in Vietnam’s domestic law In the second chapter, by leaning on the basic theoretical knowledge from the first chapter, the author is able to conclude the three challenges that have the most damaging consequences to economic aspect, which are (1) reproduction right and exceptions in Vietnamese law; (2) rental right de jure and de facto in Vietnam; and (3) the role of collective management organizations in Vietnam Each of the challenge is thoroughly analyzed as well as solved from the viewpoint of the author, mostly influenced by European statutory law and case law This is reasonable since EVFTA is the agreement that was concluded between Vietnam and European Union, if legislation between the parties has so many major differences, the implementation of the agreement will become extremely hard to perform 83 BIBLIOGRAPHY A VIETNAM REFERENCES I Legislations Law on Intellectual Property No 50/2005/QH11 dated November 29, 2005 (amended and supplemented by Law No 36/2009/QH12 and Law No.42/2019/QH14) Law amending and supplementing a number of articles of the Intellectual Property Law Bill dated 17/11/2020 Decree No 45/2010/ND-CP of April 21, 2010, on the organization, operation and management of associations II Published papers and other articles Nguyen Thai Cuong (2020) Bình luận án quyền tác giả - Góc nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản, Hàn Quốc [Comments on copyright judgments - Legal perspective of the US, France, Japan, Korea] Hong Duc Nguyen Thi Huyen (2017) Giải thách thức sở hữu trí tuệ Việt Nam gia nhập EVFTA [Solving intellectual property challenges when Vietnam joins EVFTA] Review of Finance, 653, 27-28 Pham Thi Kem Len & Nguyen Minh Hien (2020) Cam kết sở hữu trí tuệ EVFTA hội thách thức [Commitment to intellectual property in EVFTA opportunities and challenges] Journal of Finance and Accounting Research, 3(200), 41-44 The Phuong (2013, May 21) Thu phí nhạc số: Khơng thành cơng thành nhân [Digital music fee collection: Failure is also successful] Báo Đầu tư Online https://baodautu.vn/thu-phi-nhac-so-khong-thanh-cong-cung-thanh-nhan- d12567.html Do Huynh Yen Vy (2020) Hành vi xâm phạm quyền tác giả môi trường kỹ thuật số theo pháp luật Hoa Kỳ, Pháp kinh nghiệm Việt Nam [Acts of copyright infringement in the digital environment according to the laws of 84 the United States, France and experience for Vietnam] (master’s thesis, Ho Chi Minh University of Law) Ho Chi Minh University of Law Library Vu Thi Hong Yen (2019) Quyền tác giả tác phẩm môi trường công nghiệp 4.0 sở giáo dục đại học [Copyright for works in the industrial 4.0 environment at higher education institutions] Journal of Legislative Studies, 21(397), 11-17, 36 B FOREIGN REFERENCES I International treaties 10 Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886 11 European Union–Vietnam Free Trade Agreement, June 30, 2019 12 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, October 26, 1961 13 Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994 II Legislations 14 China Copyright Law 2001 15 Council Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (1993) Official Journal L 248, p 15-21 16 Directive 2006/115/EC on rental, lending and certain other rights related to copyright in the field of intellectual property (2006) Official Journal L 376, p 2835 17 Directive 2001/29/EC Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (2001) Official Journal L 167, p 10-19 18 Germany Act on Copyright and Related Rights 2018 19 Italy Law for the Protection of Copyright and Neighbouring Rights 2003 85 20 Korea Copyright Act 2011 21 Sweden Act on Copyright in Literary and Artistic Works 2011 22 The Netherlands Neighbouring Rights Act 1993 23 The United Kingdom Copyright Designs and Patents Act 1988 24 The United States Copyright Act 1976 III Books 25 Bennet, A., Shank, B., & Toynbee, J (eds) (2005) The Popular Music Studies Reader Routledge 26 Eminescu, Y (1997) Dreptul de autor [Copyright], Lumina Lex Edition Bucharest 27 Gierke, O (1889) Die soziale Aufgabe des Privatrechts [The social task of private law] Springer 28 Goldstein, P (2003) Copyright's Highway: From Gutenberg to the Celestial Jukebox Stanford Law and Politics 29 Kohler, J (2010) Das Autorrecht: Eine Zivilistische Abhandlung [The Right of Authors: A Civilist Treatise] Kessinger Publishing 30 Marshall, L., & Frith, S (eds) (2004) Music and copyright Routledge 31 Masouyé, C (1978) Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) WIPO 32 Pollicino, O., Riccio, G., & Bassini, M (eds.) 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Intellectual property: protection and enforcement World Trade Organization Retrieved April 10, 2021, from https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.html 91 ANNEX Article 20(1)(c) of the Intellectual Property Law will be amended as followed: Economic rights of authors include the following rights: … c) The right to reproduction In the case that the transient reproductions are an integral and essential part of a normal technological process and the sole purpose of which is to enable: (a) a transmission in a network between third parties by an intermediary; or (b) a lawful use, of a work or other subject to be made, automatically deleted with no possibility of recovery, which have no independent economic significance, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author then this right will not be applied Article 29(3)(b), Article 30(1)(a) and Article 31(1)(d) will follow the same direction Article 29(3) of the Intellectual Property Law will be supplemented as followed: Performers shall have the exclusive right to exercise or authorize to exercise the following rights: … d) The rental of the original of fixations of their performances and copies thereof This right shall not be exhausted by the sale or distribution of the fixations of the performances and copies thereof Article 30 will follow the same direction Chapter VI of the Intellectual Property law will be amended and supplemented in the following direction: 92 Article 56 Legal position of collective management organizations In this article, collective management organizations should be regulated as non-for-profit organizations with the establishment and operation acceding to this law, law on associations and relevant law These organizations shall be appointed by the government with responsibility for copyright and related rights to carry out their activities on the national territory A decree shall determine which organization shall be appointed and the conditions for granting such assignment Article 57 Rights and obligations of collective management organizations This article can keep most of the rights and obligations set out in Article 56 of the Intellectual Property Bill However, it should be emphasized on the deduction right of these organizations that the maximum amount that they can deduct from the sums that it collects on behalf of the other society the percentage necessary to cover its effective administration expenses, although made on the basis of agreement between the parties, is 10% This sum is commonly used by every collective management organization in the world as it is the result of CISAC Model Contract Article 58 Revenue of collective management organizations In this article, it should be regulated that the revenue of collective management organizations shall come from the fund of government, members and relevant activities only It is strictly prohibited to invest this revenue in other irrelevant economic activities Article 59 Members’ royalties The principle for determination, collection and distribution of royalties when exploiting copyright and related rights in Article 56a in the Intellectual Property Bill should be moved to this article Article 60 Cooperation with foreign collective organizations In this article, it should be regulated that the missions of collective management organizations are to promote culturally important works and contributions to international environment, encourage the cooperation with foreign collective management organizations and ensure the transfer of royalties between 93 them One of the mandatory obligations in order to pursue this mission is that organizations must establish welfare and assistance schemes for this international promotion If the organization uses the deductions from rights revenue to fund this, it must provide such financing of cultural promotion and of the services of the welfare and assistance schemes on the basis of fixed rules based on fair criteria The cooperation with other foreign collective management organizations shall accede to this law, relevant law, the agreement between the parties and relevant international norms ... clarified theoretical issues of copyright and related rights in the EVFTA which consist of the definition of key terms ? ?copyright? ?? and ? ?related rights? ??, the analysis of rights which belong to the authors... used in this thesis 1.2 Copyright and related rights under the EVFTA 1.2.1 Copyrights Pursuant to Article 12.5 of the EVFTA, since the rights and obligations of each parties have to comply with the. .. interlocutory injunction and precautionary seizure or blocking of the movable and immovable property of the infringer in the case of the infringement is committed on a commercial scale The other