tiểu luận luật sở hữu trí tuệ topic analyze and comment on an intellectual property case or an actual intellectual property dispute

On June 9, 2015, the two parties signed 02 contracts including "Copyright transfer contract" and "Script production contract".• According to the content of these two contracts, Ms.. Ther

Ministry of Education and Training Chi Minh City University of Economics and Finance

Faculty: international trade law

Essay topic

Topic: Analyze and comment on an intellectual property

case or an actual intellectual property dispute.

Instructor: Nguyen Thi Lam Nghi

Students perform : 1 Trinh Mai Thuong

2 Nguyen Thao Ngoc

3 Cao Tan Phong

4 Ngo Ngoc Phuong Khanh

5 Truong Dang Quang Minh

6 Nguyen Nhat Hoang

Class: 20D1LK-TM01

MỤC LỤC

INTRODUCTION 2

I: SUMMARY OF JUDGMENT 2

1 Summary of case content 2

2 Appellate appeal 3

3 Court's opinion 3

4 Legal provisions that the court applies in the judgment 4

II:GROUP PERSPECTIVE 4

1.The subject of intellectual property rights in dispute in the case 4

2 Behavior of trespass intellectual property rights on the project 5

3.Does the court decision determine whether this behavior is right or wrong? Is there a basis or not? .6 4 Legal aspects and limitations regarding civil remedies to protect intellectual propertry rights: 7

III: CONCLUSION OF THE JUDGMENT 8

IV:REFERENCES 10

1 Intellectual property law 2005, amended in 2009, 2019, 2022 10

2 Intellectual property law textbook 10

3 Current commercial law amended in 2017 and 2019 10

The Criminal Code, Civil Law, Land Law, were created to regulate relationships and bring society into public security In addition, cases related to intellectual property, especially copyright, are outstanding issues, causing frustration in public opinion, affecting the development of the economy, but they will also be adjusted

by the Intellectual Property Law Representatives of state agencies managing intellectual property have made efforts to promote the enforcement of intellectual property rights to contribute to protecting the legal interests of intellectual property rights holders, users and society helps promote creative activities as well as economic and social development

Being aware of that issue and in order to better understand copyright, developments

as well as court decisions, we have decided to choose the topic "Copyright disputes

in the field of intellectual property" to proceed To research and better understand the issue and give the most general view of the current copyright dispute situation in Vietnam, we would like to bring to teachers a detailed commentary on the incident that occurred hold Plaintiff: Ms Nguyen Thi Minh D and Defendant: V Film Joint Stock Company

The basic content of the thesis commentary includes: Summary of judgment; Group perspective; experience lesson; References Argumentative Essay This judgment may still contain errors; I hope the teachers will give our group feedback so that the lesson can be more complete

I: SUMMARY OF JUDGMENT

1 Summary of case content

• On October 17, 2013, the work "T" written by author Nguyen Thi Minh D was granted Copyright Registration Certificate No /2013/QTG by the Copyright Office

- Ministry of Culture, Sports and Tourism

• In March 2015, Ms D was introduced by a friend to meet Mr Le Hong S - General Director of V Film Joint Stock Company to negotiate the transfer of this work Mr S agreed and requested to edit 39 episodes to preview, and also contacted television stations in advance to sell the film after production After the stations agreed to buy, he officially signed a contract with Ms D

• On June 9, 2015, V Film Joint Stock Company invited Ms D to sign the Copyright Transfer Contract and Script Production Contract And the two parties agreed to agree on the contract implementation period from June 20, 2015 to August 20, 2015 After signing the two contracts, Ms D asked to receive the money from the transfer contract of 195,000,000 VND, but Mr Le Hong S arranged to

come pick up the money tomorrow because that day was a bad day In the following days, when Mrs D came, she could not get the money to transfer the copyright

• In August 2015, Mr S directed to change the script, reducing it to 35 episodes, then directed it to reduce it to 30 episodes but did not pay

• In December 2015, Ms D was asked to send all the finished episodes but Ms D did not agree and asked to pay the contract, then V Film Joint Stock Company asked Ms H - the person assigned by Mr worked directly with Ms D to edit the script and said she would not buy the script anymore Ms D sent a document asking the company for an official response, but the company avoided it

• Therefore, Ms D requested the Court to force V Film Joint Stock Company to pay

Ms D a total amount of 365,000,000 VND, including the following amounts:

o Fee for transferring copyright of the work is 195,000,000 VND (In which the Company must pay personal income tax to Ms D in the amount of 19,500,000 VND and the company has full rights to use this work)

o The fees for hiring a lawyer, gasoline, physical and mental damage during the process of pursuing the lawsuit until today are 170,000,000 VND

o In addition, request the defendant to return the original Copyright Registration Certificate During the process of the First Instance Court resolving the case, Mr

• In the first instance commercial and business judgment No 950/2016/KDTM-ST dated September 13, 2016, the People's Court of Ho Chi Minh City decided:

o V Film Joint Stock Company must pay Ms Nguyen Thi Minh D the amount of 175,500,000 VND, arising from the Copyright Transfer Contract signed on June 9,

2015, and pay personal income tax for Ms Nguyen Thi Minh D as agreed in Article

4 of the contract is 19,500,000 VND and has the right to exploit and use the transferred rights agreed in the contract and the provisions of the Intellectual Property Law

o Reject other requests of the litigants In addition, the judgment also declares court fees and the litigants' right to appeal

2 Appellate appeal

• On November 28, 2016, Mr Le Hong S, representative of V Film Joint Stock Company, filed an appeal against the entire first instance verdict, stating that: the two sides agreed that Ms Nguyen Thi Minh D must write a complete play signed

to V Film Joint Stock Company, the two parties signed these two contracts, so these two contracts are one And the amount V Film Joint Stock Company must pay to

Ms D for 02 contracts is only 195,000,000 VND Because Ms D did not complete the script for 39 television episodes It is also considered that Ms D has not fulfilled her obligations under the contract, so V Film Joint Stock Company is not

responsible for paying under the contract or compensating Ms D

• On October 7, 2016, plaintiff Ms Nguyen Thi Minh D filed an overdue appeal against part of the first instance judgment Before hearing the case, the Trial Council opened a meeting to consider the overdue appeal and did not accept Ms D's overdue appeal

3 Court's opinion

• Evidence documents show that the work "T " was granted a Copyright Certificate

by the Copyright Office to Ms Nguyen Thi Minh D on October 17, 2013 Ms D printed it out and Mr Le Hong S, the legal representative of V Film Joint Stock

Company, admitted that he had seen this copy After that, both sides agreed to change the name of the work to "Ah " On June 9, 2015, the two parties signed 02 contracts including "Copyright transfer contract" and "Script production contract"

• According to the content of these two contracts, Ms D's obligations are different and the value of each contract is clearly stated as 195,000,000 VND including personal income tax payment V Film Joint Stock Company could not provide evidence to prove that these two contracts are one and the same Thus, for the Copyright Transfer Contract, Ms D has fulfilled her obligations, while V Film Joint Stock Company has not yet fulfilled its obligation to pay Ms D Therefore, the Court of First Instance forced V Film Joint Stock Company to pay Ms D the amount of 175,500,000 VND, pay personal income tax to Ms D of 19,500,000 VND and deny Ms D's request for compensation forced V Film Joint Stock Company to pay compensation of 246,000,000 VND

4 Legal provisions that the court applies in the judgment

• Article 30; Article 293; Clause 2, Clause 3, Article 308 of the 2015 Civil Procedure Code

• Articles 4, 18, 19, 20, 41, 45, 46 of the Intellectual Property Law

• Ordinance on Court Fees and Charges

II:GROUP PERSPECTIVE

1.The subject of intellectual property rights in dispute in the case

Plaintiff - Ms Nguyen Thi Minh D

Defendant - V Film Studio Joint Stock Company

June 9, 2015 Mr S and Mrs D signed a contract to transfer the copyright of the work "T' and a contract to produce the script for a television series called "A" After signing 2 contracts Ms D asked to pay for the transfer contract worth 195,00,000, but Mr S did not pay Therefore, the two people had a dispute and Ms D filed a lawsuit in court

- In particular, the work "T" written by author Nguyen Thi Minh D was granted Copyright Registration Certificate No /2013/QTG by the Copyright Office - Ministry of Culture, Sports and Tourism on December 17 10-2013 and the script for the TV series called "A" was also written based on the work "T" Therefore, based on Article 14 of the Intellectual Property Law, the work "T" and the movie script "A" will be protected by copyright

- According to Clause 2, Article 4 of the 2005 Intellectual Property Law,

"Copyright is the right of organizations and individuals to works they create or own." Pursuant to Article 18 "Copyright rights to works specified in this Law include personal rights and property rights"

- According to Article 19 of the Intellectual Property Law 2005, "Moral rights include the following rights":

• Name the work;

• Put your real name or pseudonym on the work; be given your real name or pseudonym when the work is published or used;

• Publish the work or allow others to publish the work;

• Protect the integrity of the work, do not allow others to edit, mutilate or distort the work in any form that harms the author's honor and reputation

- According to Clause 1, Article 20 of the 2005 Intellectual Property Law

• Property rights include the following rights:

a) Making derivative works;

b) Performing works in public;

c) Copying works;

d) Distributing or importing originals or copies of works;

d) Communicate the work to the public by wire, wireless, electronic information network or any other technical means;

e) Renting originals or copies of cinematographic works and computer programs

=> Therefore, the fact that Mr S, after being transferred the copyright by Ms D, did not pay the amount in the contract, and Mr violates copyright protection rights

2 Behavior of trespass intellectual property rights on the project

From the data of judgment No: 29/2018/KDTM-PT determined as follows: a) determine behavior of copyright infringement

- There are many different causes leading to disputes over transfer contracts, transfer of rights to use copyright or disputes over service contracts related to copyright Regarding the basis for determining elements of copyright infringement, the scope of copyright protection is determined by the form of expression of the original work; determined according to the characters, images, ways of expressing the characters' personalities, images, and details of the original work in case of determining infringing elements in derivative works

- According to Clause 1, Article 7 of Decree 105/2006/ND-CP, elements of false rights infringement can be one of the following:

Unauthorized copies of the work;

Derivative works created illegally;

Works that forge the author's name or signature, impersonate or appropriate copyright;

Part of the work is illegally excerpted, copied, or assembled;

The product has an illegally disabled copyright protection technical device But in the above case, V Film Company was involved in the element of illegally created derivative works

b) There exists an behavior of copyright infringement in the case

- From the data of judgment No: 29/2018/KDTM-PT determined as follows:

Considering the subject matter of the work "T" written by author Nguyen Thi Minh Đ, it has been granted a copyright registration certificate by the Copyright Office - Ministry of Culture, Sports and Tourism, so it can be concluded that Ms Đ is protected copyright

- According to Article 28 of the Intellectual Property Law 2005, it

stipulates "Acts of copyright infringement" Including an update on copyright infringement on this basis, V Film Company's infringement action against Ms Nguyen Thi Minh Đ includes the following signs:

On September 6, 2015, V Film Joint Stock Company signed a commercial contract to transfer copyright and a script production contract with Ms Nguyen Thi Đ:

• For commercial contracts transferring copyright

+6/9/2025 After signing the copyright transfer contract, Mr Le Hong S made an appointment for another date because that day was not a good day Until December

2015, Ms Đ had completed the movie script but had not yet received it receive money for copyright transfer Once the copyright transfer contract has been signed,

it also means that company V has the rights that the author and owner of the work

transferred, including the right to make derivative works (pursuant to Article 41 of the law intellectual property 2005).

+Meanwhile, according to V Film Company's presentation, because the script did not meet the requirements and the contract period was extended due to Mr Le Hong

S agreement with Ms Nguyen Thi Minh Đ, V Film Company hired the other screenwriter, But meanwhile, Ms Đ has not received the transfer amount agreed upon in the contract of 195,000,000 VND, so V Film Company does not have the right to hire someone else to re-edit it into the movie "Ả " so the company V Film

violated property rights and moral rights (based on point a, clause 1, article 20 and clause 4, article 19 of the 2005 Intellectual Property Law).

• For commercial script production contracts:

+ Ms Đ perform an obligation write the script for a television feature film titled

"Ả " Because Ms Đ did not complete the script on schedule, V Film Company should not violate

3.Does the court decision determine whether this behavior is right or wrong? Is there

a basis or not?

+The court of first-instance:

The court of first-instance was missing points if only agreed that Company V compensated 19.5 million in personal income tax for Ms Đ

It was inconsequential to the decision of the court of first-instance about Ms.Đ asked to get payment 175.500.000vnd from company V (script production contract) which was signed on 09/06/2015 Because Ms Đ asked about copyright transfer contract total 195.000.000vnd It was not the court of first-instance jurisdiction to take over the script production contract, but the court still make decisions for that contact which mean that decision is unacceptable

Moreover, i agree with court to refuse the ask about 246.000.000vnd of Ms Đ (Due and Sue costs ) Because base on art 302 commercial law 2005 Due and Sue costs were not included in choices to be identified

Court fees:

The court decided that company V must bear the first-instance commercial business court fee of 8,775,000 VND and Ms D must bear the commercial business court fee

of 12,300,000 VND, which is completely reasonable (For business disputes) , trade with a quota value in the dispute section of 60,000,000-400,000,000 VND, the collection rate is 5% of the disputed value)

Appellate court

Reject all appeals of company V is consequential Because base on Mr.S’s excuses about the sum value of 2 contracts was 195.000.000 is not authentic While Ms Đ had proof that the value of 2 contacts was 195.000.000 for each

V Company must pay Ms Nguyen Thi Minh D the amount of 175,500,000 VND, arising from the “Copyright transfer contract” signed on June 9, 2015 and must pay personal income tax The compensation for Ms Nguyen Thi Minh D as agreed in Article 4 of the contract is 19,500,000 VND and the right to exploit, use, transfer rights as agreed under the “Copyright Transfer Contract” dated September 9,

2019 6/2015 and according to the law is reasonable

Reasonable court fees for business and commercial appeals

4 Legal aspects and limitations regarding civil remedies to protect intellectual propertry rights:

When determining infringement upon intellectual property rights, the choice of protective measures applied is based on two essential factors:

Firstly, the preference of the author or the affected individual

Secondly, the nature and extent of the infringement

There are various measures that intellectual property rights holders can employ when faced with infringement, as stipulated in the Intellectual Property Law Each measure carries its own advantages, disadvantages, and specific limitations This article will analyze the advantages and limitations of civil remedies.

• Definition: Civil remedies refer to measures addressing infringements upon

intellectual property rights through civil litigation procedures, at the request of the intellectual property rights holder or affected individuals/organizations, even when the infringement is being dealt with administratively or criminally According to Article 12 of the Intellectual Property Law 2005, civil remedies include:

Ceasing the infringement act;

Requiring an apology, public correction;

Enforcing civil obligations;

Demanding compensation for damages;

Ordering destruction, distribution, or non-commercial use of goods, materials, and tools primarily used in producing or trading infringing goods, without affecting the rights exploitation of the intellectual property rights holder

• Advantages:

Firstly, it serves as evidence of the civil nature of relationships concerning intellectual property rights, acting as a thorough solution to infringement, safeguarding evidence and the rights themselves promptly Your assets might

be seized

Secondly, it is a highly practical measure As infringements primarily fall under civil law regulation, remedies through civil law are often more applicable This measure also enables intellectual property rights holders to demand compensation for damages from law enforcement agencies Thirdly, this measure is more widely applicable than other measures As civil infringements of intellectual property rights occur frequently, affected parties

can easily take action by requesting relevant government agencies to prevent infringement or by requesting compensation from the infringing party

• Limitations:

Firstly, the procedures for applying these measures are complex, time-consuming, and costly

Secondly, the affected party must provide evidence of the infringement of their intellectual property rights In some cases, this can be challenging

III: CONCLUSION OF THE JUDGMENT

Conclusion of the judgment

V Film Joint Stock Company must pay Ms Nguyen Thi Minh D the amount of 175,500,000 VND, pay personal income tax for Ms D of 19,500,000 VND and reject Ms D's request to force the Joint Stock Company V Film Company compensated the amount of 246,000,000 VND

Reason

Based on the documentary evidence showing that the work "T " was granted a Copyright Certificate by the Copyright Office to Ms Nguyen Thi Minh D on October 17, 2013 Ms D printed it out and Mr Le Hong S, the legal

representative of V Film Joint Stock Company, admitted that he had seen this copy After that, both sides agreed to change the name of the work to "Ah " On June 9, 2015, the two parties signed 02 contracts including "Copyright transfer contract" and "Script production contract"

According to the content of these two contracts, Ms D's obligations are different and the value of each contract is clearly stated as 195,000,000 VND including personal income tax payment V Film Joint Stock Company could not provide evidence to prove that these two contracts are one and the same

Thus, for the Copyright Transfer Contract, Ms D has fulfilled her obligations, while V Film Joint Stock Company has not yet fulfilled its obligation to pay Ms

D Therefore, the Court of First Instance forced V Film Joint Stock Company to pay Ms D the amount of 175,500,000 VND, pay personal income tax to Ms D

of 19,500,000 VND and deny Ms D's request for compensation forced V Film Joint Stock Company to pay compensation of 246,000,000 VND

My idea

I agree with the verdict's conclusion

V Film Joint Stock Company signed two contracts with Ms Nguyen Thi Minh

D, including one contract on the transfer of copyright of the work "T " and one contract on the production of television scripts

Regarding the copyright transfer contract, Ms D has completed her obligation to transfer the copyright to V Film Joint Stock Company V Film Joint Stock

Company has the obligation to pay her According to the agreement in the contract

For the contract to produce television scripts, V Film Joint Stock Company unilaterally changed the content of the contract, requiring Ms D to edit the script from 39 episodes to 35 episodes and then to 30 episodes Ms D agreed to edit the script, but V Film Joint Stock Company did not pay Ms D and did not perform the contract

Therefore, the Court of First Instance forced V Film Joint Stock Company to pay Ms Nguyen Thi Minh D the amount of 175,500,000 VND and pay personal income tax to Ms D of 19,500,000 VND, which is in accordance with the law the law

From the above judgment we can draw important lessons for

entrepreneurs, here are some lessons:

Manage and protect intellectual property from the beginning:

+ Investing in the process of registering and protecting intellectual property rights from an early stage is important This helps avoid problems related to unnecessary information sharing and increases the likelihood of success in the event of a dispute

Smart dispute resolution strategy:

+ When there is a dispute, it is important to have a smart resolution strategy, which may include reaching a settlement agreement, using different legal means such as court or business environment center

Compliance with ethics and general rules:

+ In the process of protecting intellectual property rights, compliance with ethics and general rules is important Organizations need to maintain reputation and ethics within the business community to avoid negative consequences from a civic and brand image perspective

Personally:

Protect personal ideas and creativity:

+ Learn how to register and protect your intellectual property at an early stage This can apply to the ideas, innovations, and products you develop

Maintaining records and personal legal protection:

+ Make sure you maintain records of your intellectual property, including registrations and other important documents This provides increased up-to-dateness and protection against any disputes

Learn about rules and regulations:

+ Master the rules and regulations related to intellectual property in your field This helps you avoid legal problems and be able to act in the most effective way

Discuss and negotiate intelligently:

+ Discussion and negotiation skills are important when resolving any dispute Learn how to maintain positive relationships and reach agreements that benefit both parties

Personal risk management:

+ Assess the risks that may occur in individual intellectual property and develop

an appropriate risk management strategy This may include identifying and minimizing risk factors that may affect your benefits