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 i
Reason for writing
Intellectual Property Rights (IPRs) are vital for businesses, requiring robust protection in today's economy Effective commercial use and enforcement of these rights, particularly in the face of violations, is a key business objective However, enforcing IPRs, especially copyright, presents challenges, particularly for foreign investors navigating unfamiliar legal systems In Vietnam, the rapid growth of the Internet has led to a significant increase in online piracy across platforms like Facebook, TikTok, and YouTube, making IPR infringement a pressing issue The digital environment complicates copyright control due to the ease of creating and sharing digital content As digital consumers engage with user-generated content and mashups, awareness of IPRs and their protection is essential Therefore, any digital transformation strategy must prioritize safeguarding the rights of copyright and related rights holders.
Vietnam currently lacks a comprehensive framework for protecting and enforcing copyright and related rights in the digital environment Nevertheless, the country has made significant strides in updating its copyright regulations to adapt to the challenges posed by digital activities The first draft of the Intellectual Property (IP) Law was introduced in 2020, followed by a third draft in 2021, which addressed various issues related to copyright in the digital landscape.
Vi phạm quyền tác giả và quyền liên quan tại Việt Nam đang trở thành vấn đề nghiêm trọng, ảnh hưởng đến sự phát triển của ngành công nghiệp sáng tạo Các hành vi vi phạm này không chỉ gây thiệt hại cho các tác giả mà còn cản trở sự đổi mới và đầu tư trong lĩnh vực nghệ thuật Cần có những biện pháp mạnh mẽ hơn để bảo vệ quyền lợi của các tác giả và nâng cao nhận thức về tầm quan trọng của việc tuân thủ luật bản quyền.
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
In her bachelor thesis, the author investigates Vietnam's legal system, specifically analyzing the enforcement of online copyright and related rights under current Vietnamese law Additionally, she evaluates the applicability of the Draft IP Law and compares Vietnam's legal regulations with those of other countries Based on this analysis, she provides recommendations for improving Vietnamese copyright law.
Literature review
Since the early 21st century, developed countries and the World Intellectual Property Organization (WIPO) have actively researched copyright issues in the digital environment, leading to a variety of approaches to address these challenges.
The article "Property on the Internet: A Survey of Issues" was published during the early development of the Internet, highlighting the influence of digital technologies on intellectual property (IP) and the global IP framework.
In 2003, the World Intellectual Property Organization study on “Limitations and
The article "Exceptions of Copyright and Related Rights in the Digital Environment" aims to highlight key limitations and exceptions to copyright protections as established by
2 WIPO (2022), “Intellectual Property on the Internet: A Survey of Issues”, https://www.wipo.int/publications/en/details.jsp?id72&plang=EN
The WIPO (2003) study examines the limitations and exceptions of copyright and related rights within the digital environment, highlighting various national approaches to their implementation For more details, visit the WIPO website at https://www.wipo.int/meetings/en/doc_details.jsp?doc_id805.
In 2015, in “Proposal for Analysis of Copyright Related to the Digital
The Group of Latin American and Caribbean Countries (GRULAC) has proposed a discussion on updating copyright issues related to the use of protected intellectual property in the digital environment at the Standing Committee of Copyright and Related Rights of the World Intellectual Property Organization (SCCR/WIPO) This dialogue aims to enhance the digital market for protected intellectual goods, ultimately benefiting copyright holders and the global community.
In 2017, Guilda Rostama conducted a “Scoping Study on the Impact of the
The article examines the evolution of copyright legislation in the digital environment from 2006 to 2016, emphasizing the copyright value chain, limitations, and exceptions that arise with digital technology It analyzes the impact of digital advancements on protected subject matter and copyright management, while addressing the emergence of new digital players The focus is specifically on provisions that directly relate to the digital landscape, excluding national copyright statutes, case law, and bilateral or plurilateral agreements.
Later in 2019, at the WIPO seminar on “National Seminar on Copyright in the
The International Bureau of WIPO's report on the digital environment focuses specifically on copyright-related challenges Speakers Ryszard Frelek and Silke von Lewinski are key figures addressing these important issues.
“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.wipo.int/meetings/en/doc_details.jsp?doc_id22780
5 WIPO (2017), “Scoping Study on the Impact of the Digital Environment on Copyright Legislation Adopted between 2006 and 2016”, https://www.wipo.int/meetings/en/doc_details.jsp?doc_id88918
The 2019 WIPO National Seminar on Copyright in the Digital Environment highlighted critical issues such as intermediaries, online access to legal content, multi-territorial licensing rights, and remuneration for right holders Research in this field often zeroes in on specific copyright challenges, as seen in Kluwer Law International’s "Copyright Enforcement and the Internet," which compiles essays from European and international copyright law experts discussing topics like Internet service provider liability and digital piracy While international organization papers provide useful references, studies by foreign scholars primarily reflect their national legislation and contexts, which may not align with Vietnam's legal landscape.
Currently, there is a lack of extensive research on the enforcement of copyright and related rights in Vietnam's digital landscape, with most existing studies limited to brief articles in specialized journals.
Nguyen Bich Thao's article, "Completing the Draft Law Amending and Supplementing Certain Provisions of the Intellectual Property Law Regarding the Responsibilities of Intermediary Service Providers in Accordance with New-Generation Free Trade Agreements," emphasizes the urgent need to revise regulations concerning the liability of Internet Service Providers (ISPs) for copyright and related rights infringements in the digital landscape The author analyzes the implications of enforcing new-generation free trade agreements and offers recommendations to enhance the proposed amendments to the Intellectual Property Law, ensuring better protection of rights in the evolving digital environment.
“Intellectual property rights enforcement manual for Vietnam” of the British Business Group Vietnam 8 In this report, the authors overview IP enforcement in
Nguyễn Bích Thảo (2021) đã nghiên cứu và đề xuất hoàn thiện Dự thảo Luật sửa đổi, bổ sung một số điều của Luật Sở hữu trí tuệ, nhằm xác định rõ trách nhiệm của các nhà cung cấp dịch vụ trung gian Bài viết được đăng trên Tạp chí Nghiên cứu Lập pháp, số 19 (443), và nhấn mạnh sự cần thiết điều chỉnh pháp lý phù hợp với các hiệp định thương mại tự do thế hệ mới.
8 Rouse Legal (2021), “Intellectual Property Enforcement Guide: Vietnam”, https://rouse.com/media/fbaj4eps/ip-enforcement-manual-vietnam.pdf
Vietnam addresses online IP infringement for trademarks and copyrights through established procedures, though the liability of e-commerce platforms and ISPs remains unclear Instead of depending solely on formal enforcement or legal action, rights holders often utilize the collaborative takedown processes provided by these platforms Vietnamese law requires ISPs to block or restrict access to infringing content upon request from authorized authorities.
“Góp ý quy định về quyền và trách nhiệm của doanh nghiệp cung ứng dịch vụ trung gian” of Nguyen Phuong Thao The article analyzes the provisions of Article
The newly introduced Article 198b of the Draft Intellectual Property (IP) Law outlines the rights and responsibilities of Internet Service Providers (ISPs) This regulation is a significant addition to the IP Law, addressing the practical needs of ISPs in facilitating the transmission of creative works to the public, particularly in the online environment, in accordance with the European Union-Vietnam Free Trade Agreement (EVFTA).
It is worth reviewing the article “Vụ VNG kiện TikTok: kinh nghiệm cho Việt
Nam từ cơ chế “Safe harbour” của Hoa Kỳ, Liên minh Châu Âu và New Zealand” of
This article, authored by Nguyen Luong Sy and Nguyen Thi Lan Anh, examines the legal framework surrounding exemption from liability in the United States, European Union, and New Zealand, while also comparing these regulations to Vietnam's current laws Additionally, it provides insights and commentary on the implications of these legal standards in the context of the VNG and TikTok case.
Given the insights from the literature review, the topic of "Enforcement of copyright and related rights in the digital environment within Vietnam's legal framework" requires urgent and in-depth exploration.
Aims, Object, and range of study
Aims of the study
To enhance the legal framework for enforcing copyright and related rights in the digital realm, it is essential to propose measures that effectively prevent intellectual property rights (IPR) infringements within the evolving information society.
In their 2021 article, Nguyễn Lương Sỹ and Nguyễn Thị Lan Anh analyze the VNG lawsuit against TikTok, drawing valuable lessons for Vietnam from the "Safe Harbour" provisions in the United States, European Union, and New Zealand The authors emphasize the importance of access to diverse media and direct communication channels, outlining three primary objectives to enhance understanding and application of these legal frameworks in Vietnam.
Firstly, giving an overview of the regulations on enforcement of copyright and related rights under the current legal system of Vietnam;
The article evaluates the enforcement of copyright and related rights in Vietnam's digital environment by analyzing current legal provisions and practices It compares Vietnamese law with international treaties that Vietnam has ratified, while also assessing the relevance of the latest Draft IP Law.
The author evaluates the copyright laws of various countries and offers insights and recommendations to enhance Vietnam's legal framework for enforcing copyright and related rights in the digital landscape.
The object of study
This thesis examines specific challenges related to the enforcement of copyright and related rights, with a particular emphasis on issues arising in the digital environment.
Rage of study
On November 29, 2005, the XI National Assembly of Vietnam enacted the Law on Intellectual Property, which came into effect on July 1, 2006 This legislation has led to numerous updates and enhancements in Vietnam's intellectual property regulations Additionally, Vietnam has engaged in Bilateral Agreements that include intellectual property provisions Consequently, this research thesis focuses on the developments in intellectual property rights in Vietnam from 2005 to the present.
This thesis examines the legal challenges of enforcing online copyright and related rights in Vietnam It also analyzes regulatory frameworks from various countries for comparison, aiming to propose diverse legal provisions tailored to Vietnam's unique context while aligning with global trends.
Methodology
This thesis employs a doctrinal methodology, a widely used legal research approach that involves analyzing and comparing appellate opinions to clarify ambiguities, identify inconsistencies, and reconcile legal holdings By focusing on case law, statutes, and other legal sources, this method aids in interpreting the law as it has evolved over time and may develop in the future The thesis aims to critically assess Vietnam's legal framework concerning the enforcement of copyright and related rights in the digital landscape, particularly in light of the latest draft of the IP Law, making the doctrinal methodology essential for understanding the relevant legal issues.
This thesis will utilize a comparative methodology to analyze and compare various aspects of intellectual property (IP) copyright and related rights in Vietnam By examining multiple objects or ideas, this approach will clarify the organizational structure of the subject and identify key differences among them This method is crucial for highlighting the fundamental characteristics of IP copyright categories and the available options for enforcing these rights in Vietnam.
This thesis will utilize a variety of data sources, including WIPO, INTA, and relevant international treaties such as the EVFTA, CPTPP, and TRIPS, along with pertinent Vietnamese laws Additionally, journals, reports, books, and articles related to the topic will play a crucial role in the research process.
Contribution to the knowledge
This thesis enhances understanding of copyright enforcement and related rights in the digital landscape, focusing on the limited existing research in Vietnam By providing critical analysis and insights, it aims to enrich the ongoing discourse regarding the effectiveness of Vietnam's legal framework in addressing these issues.
Thesis chapters
Chapter 1: Enforcement of copyright and related rights in the digital environment - An overview
Chapter 2: Vietnamese legal framework on the enforcement of copyright and related rights in the digital environment
Chapter 3: Several regulations of other countries about the liability of intermediary service provides for online copyright and related rights infringement and recommendations for Vietnam
ENFORCEMENT OF COPYRIGHT AND RELATED RIGHTS
Copyright and related rights
1.1.1 Definition of copyright and related rights
Copyright, also known as authors' rights in some jurisdictions, is a form of intellectual property (IP) that safeguards the creations of the human intellect The term "copyright" is primarily used in common law countries, emphasizing the act of copying original works, while "author's right" is the preferred terminology in civil law countries, focusing on the rights of the creator.
The concept of copyright, referred to as "droit d’auteur" in French, "diritto d’autore" in Italian, and "Urheberrecht" in German, is similarly termed "quyền tác giả" in Vietnamese These variations in terminology may reflect differing philosophical approaches across jurisdictions, with common law countries emphasizing the object of protection, while civil law countries focus on the subject of protection However, in practice, these differences are relatively minor.
“copyright” will be used throughout this thesis for simplicity
Copyright, a form of intellectual property (IP), grants the holder exclusive rights to control and exploit their work for a specified duration This legal framework emerged after the invention of the printing press, as earlier copying methods were labor-intensive and costly The first significant copyright law, the Statute of Anne in 1702, established fixed rights for publishers Today, copyright plays a crucial role in economic development and wealth creation, serving as a vital catalyst for innovation and creativity.
10 WIPO (2022), “Primer on Intellectual Property Online course – Module 3: Copyright”, https://welc.wipo.int/acc/index.jsf?page=courseCatalog.xhtml&lang=en&cc=DL177,
11 Jane C Ginsburg (2018), “Overview of Copyright Law”, Oxford Handbook of Intellectual
Property Law, Rochelle Dreyfuss & Justine Pila (Editors), Oxford University Press, pp 516
12 Jane C Ginsburg (2018), “Overview of Copyright Law”, Oxford Handbook of Intellectual
Property Law, Rochelle Dreyfuss & Justine Pila (Editors), Oxford University Press, pp 516
13 Alan Davidson (2009), The Law of Electronic Commerce, Cambridge University Press, pp 89
Comprehensive copyright legislation, supported by effective enforcement and efficient collective management, significantly impacts Gross Domestic Product (GDP) Additionally, the protection of literary and artistic works is directly linked to the enrichment of a nation's cultural heritage.
Copyright, as defined by WIPO, refers to the rights that creators hold over their literary, artistic, and scientific works This legal concept is established and regulated by legislation, meaning that authors derive their rights solely from statutory provisions The framework governing copyright encompasses both national and international laws; however, neither the Berne Convention nor the WIPO Copyright Treaty provides a specific definition of copyright.
In addition to original creators, there are individuals who play a crucial role in making literary, artistic, and scientific works accessible to the public These intermediaries, including singers, musicians, and actors, utilize specific skills such as vocal quality, instrumental proficiency, and acting talent, along with technical expertise in sound and video recording While they do not hold copyright over the works they help present, their contributions are essential in bridging the gap between creators and audiences To ensure fair recognition, these individuals are granted legal protection under "related rights." For instance, performing singers convey the compositions of musicians to the public, while drama artists bring plays to life on stage, enhancing public engagement with the original works.
15 David Vaver (2002), Principles of Copyright – Case and material, World Intellectual Property
Organization, https://www.wipo.int/edocs/pubdocs/en/copyright/844/wipo_pub_844.pdf
16 WIPO (2004), “WIPO Intellectual Property Handbook”, https://www.wipo.int/publications/en/details.jsp?id'5&plang=EN
17 WIPO, “What is Intellectual Property?”, https://www.wipo.int/copyright/en/
18 Ethan S Drone (1879), A Treatise on the Law of Property in Intellectual Productions, Little,
Brown and Company discusses "related rights" or "neighboring rights," a concept rooted in the continental European legal system, particularly in France, where it is known as "droits voisins," and similarly termed "derechos conexos" in Spanish law These rights, which are intrinsically linked to copyright, protect the interests of three main beneficiaries: performers, producers of sound recordings, and broadcasting organizations The enforcement of copyright and related rights involves establishing rights and prohibiting illegal acts to safeguard the interests of authors and other right-holders Effective enforcement not only upholds these rights but also addresses infringements through appropriate legal sanctions and measures, ensuring the protection of legitimate interests for all right-holders.
Vietnam recognized copyright and related rights as fundamental author rights in its 1980 Constitution Since then, various legal documents have been introduced to govern copyright, including a significant decree issued in 1986.
The Council of Ministers' No 142/HDBT marked a significant milestone in Vietnam's legal framework by being the first document to establish regulations for copyright and related rights protection for literary, artistic, and scientific works Although it laid the groundwork, it was not until the issuance of the IP Law in 2005 that the definitions of "copyright" and "related rights" were formally established Copyright is defined as the rights held by individuals or organizations over their created or owned works, while related rights pertain to the rights of organizations or individuals associated with the use of those works.
19 Trường Đại học Luật thành phố Hồ Chí Minh (2021), Giáo trình Luật sở hữu trí tuệ (Tái bản, có sửa chữa, bổ sung), NXB Hồng Đức, tr 71
20 WIPO (2016), “Understanding Copyright and Related Rights”, https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf
21 Phạm Hồng Hải (2013), Bảo hộ quyền tác giả trong môi trường kỹ thuật số theo pháp luật Việt
Nam, Luận văn thạc sĩ, Đại học Luật Hà Nội, tr 5-6
22 Constitution of the Socialist Republic of Vietnam (1980), Article 72
23 IP Law, Article 4.2 individual to performances, audio, and visual fixation, and broadcasts and satellite signals carrying coded programs” 24
1.1.2 The subject of copyright and related rights
Copyright definitions under IP Law and WIPO differ, particularly regarding the subjects of protection WIPO focuses solely on the creators of works, while IP Law recognizes both creators and owners as subjects of copyright Under IP Law, these subjects are categorized into two groups: authors (or co-authors) and copyright owners This section clarifies their definitions, legal distinctions, and the differences between them.
Under intellectual property law, an author is defined as an individual who directly contributes to the creation of a literary, artistic, or scientific work To be recognized as a legitimate author, two key criteria must be met: the individual's status and their direct involvement in the creation of the work.
To be recognized as an author and create a work, one must be a natural person, as moral rights are exclusive to individuals National laws vary significantly on this matter; civil law systems, including Vietnamese law, acknowledge only natural persons as authors, while common law systems recognize legal entities, such as film producers and broadcasting organizations, as authors or original rights holders This disparity contributes to the absence of a clear definition of "author" in the Berne Convention.
27 David Vaver (2002), Principles of Copyright – Case and material, World Intellectual Property
Organization, pp 106, https://www.wipo.int/edocs/pubdocs/en/copyright/844/wipo_pub_844.pdf
The second criterion focuses on the act of directly creating a work, raising two key issues: what constitutes "creating" and how direct an act of creation must be to qualify Understanding these aspects is crucial for defining the boundaries of creative actions.
Intellectual property law does not explicitly address the definition of "creating," which can be understood as the process of employing one's intellectual effort to produce a work.
An individual is considered an author only if they actively contribute to the expression of ideas in their work Conversely, those who merely support, comment, or supply documents for others to create works do not qualify as authors.
A brief history of the digital environment and the digital revolution in the
1.2.1 What is the digital environment?
Digital means recording or storing information as a series of the numbers 1 and
The digital environment, often referred to as a context or "place," is facilitated by technology and digital devices, typically transmitted via the Internet or mobile networks An individual's interactions within this digital realm create their digital footprint, which includes records of activities across various platforms This environment encompasses a range of computer technologies, including websites, mobile applications, social media, and multimedia content, all of which enable social interaction and engagement.
The rise of online platforms in the past decade has posed significant challenges to the enforcement of Intellectual Property Rights (IPRs) in the digital landscape These platforms, which typically function through web portals or mobile applications, facilitate connections and transactions between users seeking services and providers offering them Unlike traditional two-party relationships between sellers and consumers, online platforms establish a three-party dynamic involving the platform operator, the provider, and the user This new structure necessitates a re-evaluation of liability frameworks and the protection of copyright and related rights.
71 Cambridge Dictionary, https://dictionary.cambridge.org/vi/dictionary/english/digital
72 European Commission, “The Digital Competence Framework 2.0”, https://joint-research-centre.ec.europa.eu/digcomp/digital-competence-framework-
20_en#:~:text=Digital%20environment,environment%20constitute%20their%20digital%20footprin t
73 IGI Global Publisher of Timely Knowledge, “What is Digital Environment”, https://www.igi- global.com/dictionary/models-of-competences-for-the-real-and-digital-world/7610
74 Larry A DiMatteo, Michel Cannarsa and Cristina Poncibò (Editors) (2020), The Cambridge Handbook of Smart contracts, blockchain technology and digital platforms, Cambridge University
The Digital Revolution started between the last part of the 1950s and the 1970s
The transition from simple mechanical innovations to advanced technology marked a significant evolution, with digital computers and electronic record-keeping becoming the norm This advancement transformed communication, as individuals began utilizing computers, smartphones, and the Internet Ultimately, this technological revolution paved the way for the Information Age.
The invention of the advanced semiconductor in 1947 laid the groundwork for future computer technology, leading to the widespread use of computers by governments, military, and organizations in the 1950s and 1960s By the 1970s, personal computers became common in households, coinciding with the rise of video games in homes and arcades, which also created jobs in data entry as businesses transitioned to digital record-keeping The 1980s saw computers in films, industrial robots, and the introduction of ATMs, with 15% of U.S households owning a computer by 1989 The advent of mobile phones in 1991 paved the way for smartphones, coinciding with the public availability of the Internet, which became ubiquitous by the end of the decade, with many businesses establishing online presences As the 21st century began, cell phones became commonplace, and quality television replaced analog broadcasting By 2015, approximately half of the global population had reliable Internet access, and smartphone ownership surpassed that of traditional home computers The capacity for data storage has significantly increased, making terabyte storage accessible, while the Digital Revolution rendered many technologies obsolete, including analog radios, fax machines, VHS tapes, typewriters, and traditional landline phones.
Vietnam has made significant strides in improving computerized innovation since the 1960s, with North Vietnam developing data applications from Eastern nations, particularly the Soviet Union and East Germany, while South Vietnam focused on IBM 360 series PCs Following the end of the Vietnam War in 1975, the government initiated various programs to enhance data technology, establishing the Executive Board on Electronics and Information Technology and the Institute of National Information Technology Despite the launch of numerous public projects aimed at promoting math, informatics, and software engineering, the use of computers remained limited until the "Doi Moi" reforms, which led to a gradual increase in computer usage, although internet adoption was still not widespread By the 2000s, the number of PCs in Vietnam was modest compared to other Southeast Asian countries.
As of mid-2021, Vietnam boasts 68.72 million Internet users, accounting for 70.3% of its population, according to the Vietnam Internet Center The importance of the Internet continues to grow in daily life, particularly during periods of social distancing and the ongoing trend of digital transformation.
75 WorldAtlas (2017), What Was The Digital Revolution?, https://www.worldatlas.com/articles/what-was-the-digital-revolution.html
76 VNExpress (2021), Internet Việt Nam đang ở đâu so với thế giới, https://vnexpress.net/Internet- viet-nam-dang-o-dau-so-voi-the-gioi-4405005.html
Internet and digital influences on copyright and related rights
The Internet significantly enhances the economy and society by fostering direct connections between creators and consumers, eliminating the need for intermediaries It provides users with easy access to a diverse range of literary, musical, and film works in multiple languages, facilitating both legal uploads and collections for research and entertainment Therefore, the Internet serves as a valuable tool for promoting literary and artistic property.
While the Internet and digital technologies offer positive benefits for copyright and related rights, they also pose significant challenges Three primary consequences of this dual impact can be identified.
Digital technology has enabled unlimited copying of copyrighted works, leading to significant challenges for authors The uncontrolled online dissemination of creative content allows users to freely circulate these works, undermining the original creators' rights Historically, copyright has relied on the physical form of works to establish authorship and protect creative efforts, as outlined in Article 2.2 of the Berne Convention and Article 6.1.
In the past, consumers cherished physical media like textured paper books and CDs, believing they were purchasing the tangible works within However, today's younger generation is increasingly accustomed to storing music and literature digitally on their personal computers This shift to a digital and virtual environment has made copying content easier, faster, and seemingly limitless, raising important considerations regarding intellectual property law.
77 Nguyễn Thị Hồng Nhung (2013), Quyền tác giả trong không gian ảo, NXB Đại học Quốc gia
Thành phố Hồ Chí Minh, tr.16-18
- Not original In addition to allowing authentic reproduction of the original
Digital technology enhances creativity by allowing for seamless editing, mixing, and adaptation of original works, which may otherwise go unnoticed This freedom enables both original and modified creations to circulate widely across the Internet, fostering a vibrant exchange of ideas and artistic expression.
Original creativity is a key component of copyright, reflecting the author's intellectual effort in creating their work This grants authors the right to maintain the integrity of their creations, as outlined in Article 6bis of the Berne Convention, which protects authors from alterations that could harm their honor and reputation Similar protections are found in Articles 19.4 and 28.5 of IP Law However, the rise of digital technologies—such as copiers, computers, and scanners—poses challenges to copyright integrity, enabling modifications that can be subtle and difficult to detect Examples include sampling digital music for new songs, altering film colors, or merging text from different works Consequently, the integrity of creative works is increasingly at risk in the digital age.
The integration of the Internet and digital technology has revolutionized information access, allowing users to obtain data effortlessly and at a minimal cost Information is no longer confined to a single location; it can reside on host computers, travel through transmission cables, and ultimately display on users' screens Furthermore, individuals can now not only consult information online but also download and store it directly on their PCs, enhancing their ownership and accessibility to data.
This article addresses key questions regarding the protection of copyright and related rights in the digital realm, particularly when the geographical location of works in cyberspace is ambiguous It explores the challenges of identifying infringers and the complexities of enforcing rights when violations occur Additionally, the article will outline the responsibilities of various entities in managing these copyright infringements.
Concluding remarks
Copyright and related rights protect human creativity and innovation by vesting exclusive rights in the right-holders so that they can benefit from the protected works
As technology rapidly evolves, copyright and related rights laws must adapt to new methods of creation, use, and distribution of works The Internet has significantly transformed copyright protection, offering right-holders a global market while presenting challenges in controlling the use of their creations In the digital realm, copyright infringements manifest differently than in the physical world, leading to unique issues that need to be addressed regarding the protection of intellectual property online.
The establishment and operation of websites raise questions about the exemption of temporary digital copies from reproduction rights Additionally, new activities like hyperlinking resemble traditional rights to exploit a work, prompting discussions on whether these modern methods fall under existing exclusive exploitation rights.
The rise of online copyright infringements has prompted the implementation of new measures to combat online piracy, including technical protection measures and accompanying "anti-circumvention" provisions designed to safeguard these technologies The regulation of these "anti-circumvention" provisions is a critical issue that warrants thorough discussion.
In the digital landscape, Internet Service Providers (ISPs) play a significant role in facilitating online copyright infringements, raising important questions about their liability for such violations The extent of their responsibility and the circumstances under which they may be immune from liability are topics that warrant further discussion.
To address the challenges posed by the digital environment on copyright, legal adjustments are necessary to establish a balanced framework that ensures robust and effective rights while incorporating reasonable limits and fair exceptions.
VIETNAMESE LEGAL FRAMEWORK ON THE
Conducts constituting copyright and related rights infringement in the
Copyright infringement occurs when individuals exercise moral or property rights of a work without the right-holder's permission, unless legally permitted Current IP Law identifies 16 specific actions that infringe copyright and 10 actions that infringe related rights However, the Draft IP Law adopts a broader approach by categorizing copyright infringement into four groups: (i) violations of moral rights, (ii) violations of property rights, (iii) unauthorized exploitation and use of works against copyright limitations and exceptions, and (iv) other infringements Additionally, it outlines five categories for related rights infringements.
Article 1.11 of the Draft IP Law outlines various forms of infringement, including violations of performers' rights, producers' rights for phonograms or video recordings, broadcasting organizations' rights, and unauthorized exploitation of related rights contrary to established limitations and exceptions Additionally, it emphasizes that even if certain actions do not explicitly fall within the defined list of copyright infringements, they may still be considered violations if they harm the exclusive rights of right-holders This provision aims to provide comprehensive protection for copyright and related rights in the evolving landscape of intellectual property.
Online infringements under IP Law involve duplicating, distributing, or displaying copyrighted works without the copyright holder's permission These actions violate several rights, including reproduction, distribution, and public communication rights Typically, online piracy exemplifies this issue, as it entails the unlawful reproduction and distribution of copyrighted materials In the digital realm, every digital copy, whether temporary or permanent, infringes upon the reproduction right, indicating that online piracy simultaneously violates both reproduction and distribution rights.
Unauthorized uploads of copyrighted content on websites allow anyone browsing those sites to access the material This act of uploading is deemed as communicating works to the public, meaning that copyrighted works are made available for public access at their convenience Additionally, the process of uploading necessitates data transmission, which can lead to temporary reproduction of the content.
According to Article 21.4 of Decree 22/2018/ND-CP, uploading work to the Internet without the copyright owner's permission constitutes a violation of both the reproduction rights and the rights of public communication, as stipulated by current regulations.
In the context of the Draft IP Law, the mere act of reproducing a work does not equate to the conduct of uploading it Notably, the proposed adjustments to the scope of reproduction rights exclude making copies for the exercise of other lawful rights Additionally, temporary copies are exempted from being classified as actionable copies, provided that these reproductions are integral and essential to a technological process.
(ii) takes place within the devices’ operation in order to either
(a) transmit the copy within a network between third parties through an intermediary, or
(iii) does not serve any independent economic purpose;
The Draft IP Law introduces a provision that allows for temporary copies to be made without infringing on reproduction rights, as these copies automatically disappear and cannot be recovered This aligns with the exception outlined in Article 5(1) of the EU’s IS Directive, which permits transient and incidental reproductions that are essential for technological processes and facilitate transmission between third parties The new provision is designed to be clearer and more straightforward in its application, moving away from complex descriptive language.
Copies must be created during the normal operation of a device rather than incidentally, and they should be permanently deleted instead of being transient.
The recent exception to reproduction rights concerning temporary copies simplifies the process of identifying copyright infringement online Temporary copies are essential for common online activities like browsing and streaming Browsing involves using a web browser to view information, making it the most prevalent online activity, while streaming refers to the immediate playback of digital content, such as music, without creating a permanent copy This distinction clarifies the legal landscape surrounding these ubiquitous internet practices.
Browsing and streaming generate data transmissions that create temporary copies of works, which could infringe reproduction rights without specific exemptions This would be unfair compared to traditional contexts, as users are merely engaging with the content without materially infringing on the rights of the copyright holder Liability should rest with those who upload works without authorization, not with users who browse or stream Thus, the Draft IP Law's stance on temporary reproduction is crucial for balancing the rights of creators with the public's interest in accessing and utilizing creative content.
Other copyright and related rights infringements in the digital environment listed in the current IP Law are:
- Deliberately destroying or de-activating the technical solutions applied by the copyright holder to protect copyright in his or her work 88
86 Techopedia, Browsing, https://www.techopedia.com/definition/797/browsing
87 David Hayes (2020), “Advanced Copyright Issues on the Internet”, https://assets.fenwick.com/documents/Internet-Copyright-Treatise-0920.pdf
Manufacturing, assembling, transforming, distributing, importing, exporting, selling, or leasing equipment with knowledge or reasonable grounds to believe that it may disable the copyright protection measures implemented by the copyright holder is prohibited.
- Deliberately deleting or modifying electronic information in a work regarding the management of the rights to such work 90
- Deliberately deleting or modifying electronic information regarding the management of rights without permission from the related right holder 91
- Deliberately destroying or de-activating the technical solutions applied by the related right holder to protect his or her rights 92
Publishing, distributing, or importing performances or copies of fixed performances, including audio and visual recordings, is prohibited if one is aware or has reasonable grounds to suspect that the electronic information related to rights management has been deleted or altered without the consent of the rights holder.
Measures were undertaken by competent authorities
Administrative measures in Vietnam refer to legal actions within the administrative legal system that address violations of state management regulations These measures encompass regulations on administrative violations, sanctions, procedures for handling such violations, and remedial actions In the context of intellectual property (IP), applicable administrative measures may involve various methods for addressing infringing acts and enforcing compliance.
The enforcement and protection of intellectual property rights in Vietnam is primarily conducted through administrative measures, as outlined in the 94 Bross Newsletter (2020) These measures include administrative sanctions for infringing acts and remedial actions for handling infringing goods, as specified in Article 214 of the Intellectual Property Law.
Administrative measures are currently the most effective approach employed by authorities to combat piracy, offering simpler procedures and reduced costs compared to civil remedies This strategy allows copyright and related rights holders to swiftly address minor and medium-scale infringements, effectively curbing ongoing violations While administrative processes are commonly utilized for basic copyright infringements, such as book and software piracy, the rapid pace of internet violations poses challenges, as existing procedures and evidential standards struggle to keep up with issues like camcording and online piracy.
Decree No 131/2013/ND-CP outlines administrative measures to combat copyright infringement, particularly in the digital realm It identifies 34 specific violations, including the transportation and storage of pirated goods, infringement on the right to attribution, protection of work integrity, publication rights, creation of derivative works, public performance permissions, and the leasing of original or copied cinematographic works or computer programs.
Bài viết của Bộ Khoa học và Công nghệ (2022) tập trung vào việc bảo vệ quyền sở hữu trí tuệ thông qua các biện pháp hành chính Nội dung nhấn mạnh tầm quan trọng của việc thực thi quyền sở hữu trí tuệ để bảo vệ sáng tạo và đổi mới Các biện pháp hành chính được đề xuất nhằm ngăn chặn hành vi xâm phạm quyền sở hữu trí tuệ, tạo môi trường thuận lợi cho sự phát triển kinh tế Thông tin chi tiết có thể được tìm thấy tại trang web của Thanh tra Bộ Khoa học và Công nghệ.
The enforcement of intellectual property rights in Vietnam addresses various violations, including the infringement of technological measures for copyright protection Key related rights violations encompass the protection of the integrity of representations, the shaping of a performer's live performance, and the unauthorized broadcasting or transmission of unfixed performances Additionally, it includes the illegal copying of phonograms or video recordings, the commercial use of published sound or video recordings, and violations of broadcasting and rebroadcasting rights.
Infringements of intellectual property rights (IPR) fall under the jurisdiction of various administrative authorities as outlined in the IP Law Each enforcement body specializes in different types of infringements, possessing unique powers and expertise Consequently, right holders must carefully consider whether to file a complaint with the relevant authority, depending on the nature and extent of the infringement Below is a list of the appropriate authorities responsible for handling administrative processes related to IPR infringements.
(i) Economic Police (“EP”) under the Ministry of Public Security
The Enforcement Police (EP) serves as the most powerful authority in the country, equipped to investigate and initiate criminal proceedings against intellectual property rights (IPR) violations They focus primarily on significant infringement cases, such as counterfeiting, large quantities of counterfeit goods, and networks of infringers that pose risks to consumers However, due to a lack of specialized knowledge in intellectual property, the EP is often reluctant to pursue cases involving less obvious infringements In matters of copyright piracy, the EP collaborates with the Ministry of Culture, Sports and Tourism (MoCST) and its Inspectorates to enhance enforcement efforts.
97 Decree 131/2013/ND-CP, Article 4 - Article 35
98 Rouse Legal (2021), “IP Guide: Enforcement Actions Against Infringing and Counterfeit Products Distributed in Vietnam”, pp 15
The Department of Sports and Tourism (DoCST) is empowered to take action against suspected infringers Upon accepting a case, the Enforcement Program (EP) may conduct further investigations or interrogations The EP will determine whether to handle the case administratively or escalate it to a criminal court based on the findings The duration of EP enforcement varies by case type, with administrative sanctions typically lasting under a year, while criminal sanctions can extend from one to three years.
(ii) Market Management Bureau (“MMB”) under the Ministry of Industry and Trade
The MMB is in charge of keeping an eye on the Vietnamese market in general
The MMB actively combats simple intellectual property rights (IPR) infringements and the sale of counterfeit goods, although it faces resource limitations for thorough investigations and prosecutions In cases of large-scale infringements, the MMB may escalate matters to the EP for further investigation and potential criminal prosecution Typically, the MMB conducts raids on the premises of identified infringing traders and imposes sanctions accordingly For straightforward cases, the MMB aims to take action and issue sanctions within approximately 2-4 weeks.
(iii) The Inspectorates of the Ministry of Science and Technology and Department of Science and Technology
In Vietnam, the Ministry of Science and Technology (MoST) Inspectorates possess extensive experience in addressing intellectual property (IP) infringement issues, including look-alike products, patent and design violations, and unfair competition To assess potential infringement, IP rights holders are encouraged to submit a petition to the Vietnam Intellectual Property Research Institute (VIPRI) The favorable judgments issued by VIPRI serve as valuable references for the Inspectorates, potentially enhancing the likelihood of a successful outcome The Department of Science and Technology (DoST) Inspectorates operate at the city and provincial levels, providing administrative oversight and guidance to the MoST Inspectorate.
The MoST Inspectorate typically forwards cases to the relevant DoST Inspectorates in the province where the violations occur The level of intellectual property (IP) expertise within DoST Inspectorates varies by city or province, reflecting their experience with IP infringement cases To effectively pursue their rights, right holders may benefit from seeking professional guidance from VIPRI or MoST Inspectorates.
(iv) Inspectorate of Ministry of Culture, Sports and Tourism (“MoCST”) and Department of Culture, Sports and Tourism (“DoCST”)
In Vietnam, the Ministry of Culture, Sports and Tourism (MoCST) Inspectorate and the Department of Culture, Sports and Tourism (DoCST) oversee the administrative enforcement of copyright and related rights They work in conjunction with the Economic Police (EP) and the Market Management Board (MMB) to conduct raids and investigations against copyright infringers Their enforcement capabilities are on par with those of the Ministry of Science and Technology (MoST) and the Department of Science and Technology (DoST) Inspectorates at the provincial level.
(v) People’s Committee (local Government at various levels in Vietnam – from individual villages and communes to cities like Ho Chi Minh City and provinces)
IP violations are seldom directly addressed by local and provincial People's Committees When the anticipated sanctions exceed the enforcement authority's jurisdiction, the People's Committee can issue the sanction decision upon request from the enforcement authority.
(vi) Customs under the Ministry of Finance
Vietnam Customs is responsible for managing the nation's borders, with a key focus on preventing the entry of counterfeit products They have the authority to stop any shipment arriving in Vietnam that shows signs of infringing on intellectual property rights (IPRs).
One of the following primary penalties is imposed on the IP infringer: 99
• Warning: A warning is given for inadvertent infringement, minor infringement, first-time infringement, or infringement with extenuating
99 IP Law, Article 214 circumstances Because this is the least severe administrative sentence, it has only a little deterrence impact
Technical Protection Measure – the self-protection measure that needs its
Right-holders have four primary measures to protect their legitimate rights: (i) implementing technological protection measures (TPMs) to deter infringement; (ii) demanding that the infringer cease their actions, issue a public apology or correction, and compensate for damages; (iii) seeking intervention from the appropriate state authority to address the infringement; and (iv) pursuing legal action through court or arbitration.
If the grounds required by law are successfully proven in the latter two cases, the self-protection measures will lead to the corresponding civil, administrative, or
Circular No 13/2022/TT-BTC introduces updated border control measures in Vietnam to combat intellectual property rights (IPR) infringement This regulation enhances the procedures for customs authorities in monitoring and addressing counterfeit goods, ensuring more effective enforcement of IPR protections Key changes include streamlined processes for IPR holders to register their rights and improved cooperation between customs and IPR owners Overall, these measures aim to strengthen Vietnam's commitment to safeguarding intellectual property and promoting fair trade practices.
According to Article 198.1 of the 111 IP Law, competent authorities can pursue criminal remedies against online piracy However, the challenge lies in the infringers' efforts to conceal their identities and the complexities of cross-border copyright violations, making it difficult for rights holders to identify and contact them.
The Draft IP Law defines Technological Protection Measures (TPM) as tools that utilize various techniques, technologies, or electronic components primarily designed to safeguard copyright by preventing unauthorized access or copying of works These measures play a crucial role in managing the accessibility of copyrighted materials and must be legally protected against technologies that enable circumvention.
In Vietnam, sending a Cease & Desist (C&D) letter is often the initial step in enforcing intellectual property rights (IPR), particularly due to the generally low awareness of IPR among the public This approach can effectively address minor or unintentional infringements and is considered a cost-effective solution for IP law firms It is advisable to utilize this measure when facing such issues.
(i) the infringement is not severe, or
(ii) the infringement appears to be inadvertent, or
(iii) the IPR holders seek to save time and money, or
(iv) the IPR holders do not want to take forceful action against the infringement for whatever reason 113
In Vietnam, addressing trademark infringement on e-commerce websites involves several key considerations First, it's essential to identify the infringing goods and gather evidence of the violation Next, trademark owners should notify the e-commerce platform to facilitate the removal of the infringing listings Additionally, pursuing legal action may be necessary to protect brand rights and seek compensation for damages Understanding local laws and regulations surrounding intellectual property is crucial for effective enforcement Finally, proactive measures, such as registering trademarks and monitoring online marketplaces, can help prevent future infringements.
Liability of intermediary service providers for copyright infringements in
infringements in the digital environment
2.4.1 Definition of intermediary service providers
An Internet Service Provider (ISP) serves as a platform facilitating the exchange of information and content among users in the digital space Acting as intermediaries, ISPs do not create information but provide essential services such as servers, transmission lines, and storage for end-users to generate digital content In relation to copyright, end-users are viewed as third parties, provided they are not the original authors of the digital content they produce ISPs are generally categorized into four main types: access providers, portals and search engines, social media platforms, and hosting facilities.
An access provider is an entity that connects users to the Internet through various transmission systems, such as satellites, broadcast towers, and telecommunications lines, with examples including Viettel, VNPT, and FPT Telecom Often referred to as a “virtual post office,” these Internet Service Providers (ISPs) facilitate the transmission of electronic information between individuals and organizations Importantly, access providers focus solely on transmitting information without storing it permanently, and they do not access or evaluate the content being transmitted.
A portal is a platform that directly offers information from third-party sources to users, often referred to as general electronic information sites like Yahoo News and Baomoi.com Additionally, email services such as Gmail and Outlook are also classified as types of portals In contrast, search engines like Google, Bing, and Baidu assist users in finding information across various sources by utilizing keywords.
(3) A social media is a website or application that allows users to create and share content while participating in a common network on the Internet (e.g
Bài viết của Nguyễn Thị Lan Anh (2021) với tiêu đề “Vụ VNG kiện TikTok: kinh nghiệm cho Việt Nam từ cơ chế ‘Safe harbour’ của Hoa Kỳ, Liên minh Châu Âu và New Zealand” đăng trên Tạp chí Nghiên cứu Lập pháp, số 03+04 (427+428), phân tích những bài học mà Việt Nam có thể rút ra từ các quy định về trách nhiệm pháp lý trong môi trường kỹ thuật số của các nước như Hoa Kỳ, EU và New Zealand Nội dung bài viết nhấn mạnh tầm quan trọng của việc áp dụng cơ chế ‘Safe harbour’ nhằm bảo vệ các nền tảng trực tuyến khỏi những tranh chấp pháp lý, đồng thời khuyến nghị các chính sách phù hợp cho Việt Nam trong bối cảnh phát triển công nghệ số.
Social networks and platforms like Facebook, Instagram, YouTube, and TikTok primarily generate their revenue through advertising rather than direct user payments.
A hosting facility serves as a crucial infrastructure that offers server services for software development on the Internet, catering to end users Notable examples include Oracle Cloud and Amazon Web Services, which empower Internet Service Providers (ISPs) to register domain names, utilize cloud storage, and establish websites or online payment gateways.
ISPs play a crucial role in the communication and distribution of creative works, significantly influencing their value They are the primary entities capable of preventing copyright infringement or enabling it to occur This highlights their importance in both the dissemination of works and the protection of copyright While ISPs serve as tools for transmitting content to the public, they also operate under specific regulations As businesses, their service provision is driven by profit motives, which entails certain rights and responsibilities associated with their commercial activities.
2.4.2.1 Under current Vietnamese law and Free Trade Agreements
Vietnam's legal framework regarding Internet Service Providers' (ISPs) liability for intellectual property rights (IPR) infringement remains inadequate and misaligned with international standards The current IP Law fails to address ISP liability for online copyright violations, leading to challenges in enforcing IPR in the digital landscape Instead, intermediary liability is governed by the Law on Information Technology and Joint Circular 07, highlighting the need for a more comprehensive approach to IPR enforcement in the online environment.
The Law on IT adopts a "horizontal approach," applying uniform regulations to various online infringements, including intellectual property violations, defamation, and privacy concerns Articles 16 to 19 outline the specifics of intermediaries' liability, clarifying their responsibilities in these matters.
The law on IT establishes four distinct liability regimes tailored to different intermediary activities: transmission of digital information (Article 16), caching (Article 17), hosting (Article 18), and search engine provision (Article 19) According to Article 20, intermediaries are not required to monitor or supervise the digital information of end-users, nor must they investigate illegal activities related to the transmission or storage of such information, unless directed by competent authorities.
The regulation of Intellectual Property Rights (IPRs) within the broader framework of the Law on Information Technology presents challenges due to its diverse scope To address this, Joint Circular 07 was introduced, establishing a "vertical approach" to intermediary liability concerning copyright issues This circular is currently the sole legal document detailing the responsibilities of Internet Service Providers (ISPs) in enforcing IPRs online Specifically, Article 5.3 mandates that ISPs must remove digital content that infringes on copyright and related rights, as well as suspend an individual's Internet or telecommunication services upon directives from the Ministry of Information and Communications (MoIC) and the Ministry of Culture, Sports, and Tourism (MoCST).
Caching is the automatic and temporary storage of frequently accessed data, which streamlines future requests for the same information This process involves identifying high-demand data on remote servers and storing copies on local servers By implementing caching, intermediaries can reduce the overload on their servers, enhance efficiency, and accelerate Internet speeds.
Master thesis, University of Zagreb, pp 19
116 Law No 67/2006/QH11 dated June 29th 2006 of the National Assembly on information technology, Article 20.2
In the article by Nguyễn Thị Lan Anh (2021), titled “The VNG Lawsuit Against TikTok: Lessons for Vietnam from the 'Safe Harbour' Mechanism of the United States, European Union, and New Zealand,” it is highlighted that Internet Service Providers (ISPs) bear direct responsibility for compensating damages related to copyright and related rights infringements under specific conditions outlined in the Joint Circular.
- ISP acts as the source for the start of the uploading, transmission, or provision of digital content via telecommunications and Internet networks without right holders’ consent;
- ISP edits, modifies, copies digital content without right holders’ consent;
- ISP intentionally ruins or disables technical measures for the protection of copyright and related rights;
- ISP operates as a source of secondary distribution of digital content obtained through copyright and related right infringement
Article 5 of Joint Circular 07 outlines the obligations of intermediaries to protect copyrights and related rights, specifying instances where they must be liable for damages due to infringement, but it lacks provisions for safe harbors This approach conflicts with the EVFTA regulations, particularly Article 12.55, which states that intermediaries are generally liable for copyright infringement on their platforms unless they qualify for certain limitations and exemptions These exemptions apply when the intermediary merely transmits user-provided content (mere conduit), temporarily stores it (caching), or hosts it without knowledge of infringing content, provided they act swiftly to remove or prevent access to such content once aware.
The CPTPP outlines comprehensive responsibilities for ISPs regarding online copyright infringement, paralleling the EVFTA but with greater detail Article 18.82 mandates member countries to provide legal remedies for right holders and establish safe harbors for ISPs Although currently suspended, this article sets a high standard for intellectual property rights (IPR) enforcement in the digital realm, which Vietnam's IP law must align with to compete globally Key provisions include legal incentives for ISPs to collaborate with copyright holders to prevent unauthorized storage and transmission of copyrighted content, as well as limitations on ISP liability for copyright infringements Furthermore, the article emphasizes the need for ISPs to restore access to removed documents upon receiving a proper notice, unless legal action has been initiated by the complainant It also imposes penalties on individuals who submit false statements that mislead ISPs into taking detrimental actions.
Concluding remarks
The evolving digital landscape presents significant challenges to Vietnamese copyright legislation, particularly in identifying and addressing infringement activities and establishing the responsibilities of emerging entities.
The detection of infringing conduct related to digital works has been complicated by the issue of temporary copies created during online transmissions Common illegal activities like online piracy and unauthorized uploads raise questions about their impact on reproduction rights Additionally, popular online activities such as browsing and streaming also involve data transmissions that create temporary copies, leading to uncertainty about potential infringements However, the recent redefinition of reproduction rights in the Draft IP Law, which excludes temporary reproductions, has effectively addressed these concerns.
Addressing online copyright infringements poses unique challenges for traditional civil and administrative remedies, prompting a need to restructure enforcement agencies and establish specific damage calculation methods As authorities strive to protect digital copyrights, intermediaries play a crucial role by adhering to self-regulatory practices that facilitate the removal of infringing content However, integrating the notice and takedown concept into Vietnam's legal framework is essential to balance the rights of copyright holders with the freedom of expression for Internet users.
To effectively prevent copyright infringements in the digital environment, it is essential to recognize the borderless and anonymous nature of the virtual world where immaterial goods are shared Consequently, technical enforcement measures emerge as the most practical and legally prescribed self-protection strategy.
The Law on IT and Joint Circular 07 address the responsibilities of intermediaries in protecting copyright in the digital environment, but both have notable limitations The Draft IP Law aims to resolve these shortcomings by adopting a more comprehensive approach to intermediary liability for copyright infringements.
IP Law’s provision on intermediaries’ liability needs specific procedures of notice and takedown to become practically applicable.
SEVERAL REGULATIONS OF OTHER COUNTRIES ABOUT
Several regulations of other countries about the liability of intermediary
The United States pioneered the regulation of Internet Service Providers' (ISPs) liability for online copyright infringement through Article 512 of the DMCA In 2000, the European Union followed suit with Directive 2000/31/EC, adopting a similar framework Recently, other nations have also acknowledged the significance of ISP liability, with China enacting four articles in its Civil Code to delineate ISP responsibilities.
1194 -1197) In this Chapter, the author will analyze the provisions of foreign law on the liability of ISPs and make recommendations for Vietnamese law on the following issues:
3.1.1 The notice and takedown regime
Vietnam's existing "notice and takedown" system significantly impedes enforcement efforts to efficiently address and combat online piracy Consequently, various reports from EUROCHAM and AUSCHAM have strongly criticized the country's approach to managing this issue.
“notice and takedown” policy 131 Therefore, Vietnam needs to consult the regulations of many countries worldwide to perfect the legal framework on this issue
128 Digital Millennium Copyright Act, https://www.congress.gov/105/plaws/publ304/PLAW-105publ304.pdf
129 Directive 2000/31/EC, https://www.wipo.int/edocs/lexdocs/laws/en/eu/eu107en.pdf
130 Civil Code of the People’s Republic of China, http://www.npc.gov.cn/englishnpc/c23934/202012/f627aa3a4651475db936899d69419d1e/files/47c 16489e186437eab3244495cb47d66.pdf
131 Notice and takedown regime against online IPR infrigement in Vietnam, https://kenfoxlaw.com/notice-and-takedown-regime-against-online-ipr-infringement-in-vietnam
Many countries have implemented a progressive "notice and takedown" system In China, the Civil Code mandates that upon receiving a notice, Internet Service Providers (ISPs) must promptly notify the relevant network user and take necessary actions—such as deletion, blocking, or disconnection—based on preliminary evidence of the alleged infringement, without needing a written request from a state agency If an ISP fails to act swiftly, it may be held jointly liable with the network user for any additional harm caused Furthermore, unless legally permitted, a rights holder who issues a wrongful notice may be held liable for damages to the network user or service provider.
The EU's Directive 2019/790 emphasizes the importance of ISP liability in reducing the risk of unjustly removing non-infringing content It mandates that ISPs implement procedural safeguards to facilitate swift and effective measures for users to contest content blockages or removals Furthermore, complaints must be addressed promptly, and any decisions regarding content removal or access restrictions are required to undergo human review, ensuring a fair process for users.
The DMCA outlines the practical process of notice and takedown by defining specific procedural steps, detailing the information needed for a valid takedown notice, and listing the required materials and statements This framework demonstrates that the notice and takedown system operates as a self-regulatory mechanism.
132 The Civil Code of the People’s Republic of China, Article 1195
133 Directive 2019/790, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uriEX:32019L0790&from=EN
135 Directive 2019/790, Article 512.9.(c).(3) upon each intermediary in Vietnam, it is an administrative measure prescribed by law in the US
South Korea's legal system, like Vietnam's, is based on civil law, but it features a more advanced regulation for Internet Service Providers (ISPs) regarding the notice and takedown regime Article 103 of the South Korean Copyright Act outlines a system similar to the DMCA, allowing copyright holders to demand that ISPs immediately suspend the reproduction or transmission of infringing works Unlike the DMCA, South Korean law mandates that ISPs must comply with takedown requests without the option to deviate from the procedure, highlighting a crucial difference that Vietnam could benefit from adopting.
The above “takedown notice” regime provides valuable experience to Vietnam and other developing countries in dealing with online copyright infringement/piracy, which is still increasing at an alarming rate
The "safe harbor" provision exempts Internet Service Providers (ISPs) from liability for copyright infringements committed by third parties, a concept first established in the Digital Millennium Copyright Act (DMCA) and adopted by various developed countries, including those in the EU, Australia, and New Zealand This mechanism safeguards ISPs from legal repercussions related to user-generated content on their platforms, while also serving as a vital tool for copyright owners to protect their rights under specific mandatory conditions.
136 Copyright Act, last amended by Act No 12137, https://wilmap.stanford.edu/entries/copyright- act-last-amended-act-no-12137 for ISPs if they want to exempt liability The application of the above liability waiver mechanism is essential in the digital environment, where a vast amount of information is exchanged almost instantaneously Meanwhile, ISP is considered the center of circulation and operation of digital content, so controlling the legality of all content is virtually impossible and quickly leads to the collapse of the free information system 137
Under Article 512 of the DMCA, Internet Service Providers (ISPs) can benefit from a liability waiver when engaging in specific activities, including transitory digital network communications, system caching, user-directed information storage, and information location tools These functions allow most ISPs to avoid liability for third-party copyright infringement, thereby providing them with a significant legal safeguard.
To benefit from the liability exemption under Article 512 of the DMCA, Internet Service Providers (ISPs) must engage in the automatic transmission, routing, or connection of digital content without selecting the material themselves Any intermediate copies created during this process should only be accessible to intended recipients and must not be retained longer than necessary Additionally, ISPs must not interfere with the content or influence the selection of recipients for the transmitted digital material.
When ISI processes information on systems or networks at the request of users, ISPs must ensure they are unaware of any facts or circumstances indicating that the system or network is infringing on rights or regulations.
On the other hand, the ISPs must also demonstrate that they do not receive a financial
Vụ kiện giữa VNG và TikTok mang lại bài học quan trọng cho Việt Nam về cơ chế "Safe harbour" từ Hoa Kỳ, Liên minh Châu Âu và New Zealand, như đã được phân tích bởi Nguyễn Lương Sỹ và Nguyễn Thị Lan Anh trong bài viết của họ trên Tạp chí Nghiên cứu Lập pháp (số 03+04) Những kinh nghiệm này có thể giúp Việt Nam xây dựng khung pháp lý hiệu quả hơn trong việc quản lý các nền tảng trực tuyến và bảo vệ quyền lợi của người dùng.
Under the DMCA, specifically Article 512(a), internet service providers (ISPs) are mandated to promptly act on notifications from copyright owners regarding infringing material This regulation establishes a "notice and takedown" system, which shifts the responsibility for identifying copyright violations onto the rights holders rather than the ISPs.
In the notable lawsuit between Viacom and YouTube, the court found that YouTube was not willfully blind and lacked the ability to control copyright infringements, thus protecting it under DMCA's liability waiver provisions This case parallels the controversy surrounding Napster, which allowed users to share music files, leading many musicians to claim copyright violations since it enabled free access to their work without purchase Napster countered that sharing physical media has always been permissible, arguing that the digital sharing of music does not fundamentally differ from lending a CD Ultimately, both cases highlight the ongoing debate over copyright in the digital age and the challenges of balancing user rights with intellectual property protection.
140 The lawsuit between Viacom (Plaintiff) and Youtube (Defendant), https://jenner.com/system/assets/assets/1713/original/Viacom_v_YouTubeGoogle_Complaint.pdf?
141 The lawsuit between VIACOM INTERNATIONAL INC LLC and YOUTUBE INC LL, https://caselaw.findlaw.com/us-2nd-circuit/1597925.html
142 Napster Case Study, https://www.123helpme.com/essay/Napster-Case-Study-549929 songs on the radio without paying for them Moreover, by allowing individuals to hear new songs, Napster may increase the artist’s financial rewards by inducing fans to buy CDs by that particular artist However, the court rejected this argument, holding that it made a big difference that Napster was enabling users to obtain copies of music without paying for them The essence of copyright is the right to control the reproduction of the work — to prevent others from copying the work without the owner's consent The possible effect on the market for a work of allowing it to be duplicated without limit over the Internet is obvious Because every copy of a copyrighted work constitutes an infringement, and most of the works available on Napster were copyrighted, it was liable for contributory infringement In addition, the court concluded that, even if Napster users were “sampling” the music to determine whether they wanted to buy the CD, this still infringed on the copyright in the music because it would adversely affect the record companies’ ability to enter the on-line music market and thus deprive publishers of royalties for individual songs 143
Recommendations for Vietnam
The Vietnamese legal framework governing Internet Service Providers (ISPs) is primarily defined by Joint Circular 07/2012/TTLT-BTTTT-BVHTTDL, along with the Law on Information Technology and the Intellectual Property Law However, as discussed in Chapter 2, these legal documents have certain limitations in effectively addressing all legal issues pertaining to ISPs.
149 Copyright Act, last amended by Act No 12137, https://wilmap.stanford.edu/entries/copyright- act-last-amended-act-no-12137 ineffective and cause many disagreements with international treaties Article 198b of Draft IP Law includes a definition of the term intermediary, categorization of intermediaries, liability exemptions concerning copyright infringements – i.e., “safe harbor” provisions, and liabilities of specific intermediaries Compared to Law on IT’s conditions, Article 198b has made many changes to the exemptions of intermediaries’ clear liability for online copyright infringements about their services The Draft IP Law has fixed the existing problems of Joint Circular 07 and taken an appropriate approach toward one of the main issues of copyright protection in the digital environment – the liabilities of intermediaries And as the ecosystem of these intermediaries will keep changing, our legislation may have to be constantly updated to cope with such instant developments Article 198b in Draft IP Law is compatible with new-generation FTAs, especially with the EVFTA However, the Draft IP Law still has some shortcomings Therefore, the author proposes:
(i) Revise the Draft IP Law on regulations for ISPs more effectively
(ii) Joint Circular 07/2012/TTLT-BTTTT-BVHTTDL will cease to be effective from the effective date of the Draft IP Law
In this section, the author will give specific recommendations for amending the Draft IP Law as follows:
The definition of "intermediary service provider" should be relocated to Article 4 on Interpretation of Terms for clarity Additionally, the "notice and takedown" process should be recognized as a legally mandated administrative measure within IP Law Under this regime, copyright holders can issue takedown notices to ISPs hosting infringing content, which must be removed immediately without state approval Complaints should be addressed promptly, and individuals must have the opportunity to review decisions regarding content removal ISPs are also required to inform alleged infringers of content removal and provide an explanation, allowing them the chance to file a counter-notice If the infringer does not respond or submits an invalid counter-notice, the copyright holder is not obligated to take further action Moreover, ISPs may face liability, including damages, if they cannot prove exemption under Article 198b.
The Draft IP Law fails to address the responsibilities of Internet Service Providers (ISPs) in managing complaints from right holders regarding unauthorized uploads or sales of scientific works Article 198b highlights the issue of secondary infringement by ISPs, including various service types like information transmission, hosting, caching, and social networking However, the stipulation in the first paragraph of Article 198b, which states that ISPs are not required to monitor their services or actively seek out infringement evidence, undermines the obligation of ISPs to address and process infringement complaints during the notice-and-takedown procedure.
Fourthly, points a, b, c, Clause 3 of Article 198b Draft IP Law can be kept However, point d (other cases prescribed by the Government) in Article 198b of Draft
IP law creates uncertainty for ISPs and rights holders, leaving them in a state of insecurity as they await government guidance on this crucial regulation It is essential for "disclaimer" or "safe harbor" provisions to be clearly defined by law Consequently, the author advocates for the removal of point d, Clause 3, Article 198b to enhance clarity and stability in the legal framework.
Article 198b of the Draft IP Law should establish a clear obligation for Internet Service Providers (ISPs) to implement effective measures to filter out unlawful content, similar to Article 104 of Korea's Copyright Act These measures should include: (i) technical solutions for identifying works by comparing titles and characteristics, primarily using filtering based on titles and hash values; (ii) restrictions on searches or transmissions to prevent the illegal forwarding of works, utilizing keyword-based measures to block searches and uploads related to specific keywords; and (iii) issuing warning notices to identifiable illegal forwarders, requesting them to cease copyright infringement.
In summary, the author amends Article 198b of Draft IP Law as follows:
“Article 198b Liability for copyright and related rights for intermediary service providers
1 Enterprises providing intermediary services are exempt from legal liability for acts of infringing upon copyright and related rights in the telecommunications network environment and public Internet in connection with the provision or use of services in the following cases: a) Only transmit digital information content or provide access to digital information content b) When performing the function of buffer storage in the process of information transmission, the intermediary service provider must perform it automatically and temporarily to transfer information and make the transmission of data more efficiently, under the following conditions: transform information only for technological reasons; comply with the requirements of access and use of digital information content; comply with specified rules for updating digital information content in a manner that is widely recognized and used by the industry; does not prevent the lawful use of widely recognized technology in the industry to obtain data on the use of digital information content, and remove digital information content or deny access to digital information content knowing that such digital information content has been removed at the source or the originating source has canceled access to the information content such number as prescribed by the Government; c) The storage of digital information content of service users at the request of service users with the following conditions: not knowing that such digital information content violates copyright and related rights and taking prompt action to remove or prevent access to such digital information content when it is known that such digital information content infringes upon copyright and related rights in accordance with the Government’s regulations;
2 Enterprises providing intermediary services are responsible for removing infringing content immediately upon request from the copyright and related copyright holders The holders of copyright and related rights, in this case, need to provide the necessary documents to prove the alleged violation In addition, the intermediary service provider must notify the alleged infringer that their content has been removed and explain why The alleged infringer has the option of submitting a counter- notification at this time a) If the alleged infringer fails to submit such counter-notice, or if the counter- notice is deemed invalid, the copyright holder is not required to take any other action b) If the alleged violator submits a valid counter-notice, the intermediary service providers will send a notice to both parties requesting conciliation or dispute resolution at a competent state agency Meanwhile, the alleged content remains temporarily removed from the intermediary service provider
3 Enterprises providing intermediary services are responsible for implementing technical measures and coordinating with competent state agencies and rights holders to implement measures to protect copyright and related rights in the environment of telecommunications networks and the public Internet
4 Although intermediary service providers are not required to monitor their services or actively seek evidence of infringement, intermediaries have to take the responsibility and efforts of the intermediary service providers to receive and handle the complaint of the right holder serving the user of uploading/scientific artworks and subjects of related rights without the permission of the right holders The intermediary service provider is obligated to take the necessary measures to filter out illegal material The required steps are:
Technical measures can effectively identify and filter works by comparing their titles and features, primarily utilizing the work's label and hash for accurate identification.
To combat the illegal transfer of work, it is essential to implement search and transmission restrictions that effectively limit access to specific keywords This keyword-based approach prevents users from searching for or uploading files that contain these keywords, thereby curtailing unauthorized content sharing.
(iii) Where the illegal forwarder of the relevant work, etc
5 If the intermediary service provider does not take the necessary actions when there is a request for a takedown from the copyright or related right holders, the intermediary service provider will be jointly and severally liable to the network user for the more severe part of the harm Except as permitted by law, the right holder causing damage to network users or network service providers due to false notification shall be liable
6 The provisions of this Article do not exclude other liabilities for enterprises providing intermediary services in accordance with the provisions of this Law and other relevant laws
7 Contents of digital information specified in this Article are works, and related rights objects protected under this Law expressed in the form of digital.”
Concluding remarks
The current regulations governing copyright infringement by Internet Service Providers (ISPs) under Intellectual Property Law are fraught with limitations, creating a significant legal void for authors Some ISPs exploit this gap, knowingly infringing on copyrights due to the substantial economic benefits derived from piracy The enforcement of legal measures is hampered by outdated and incomplete legal documents, primarily consisting of Circulars and Decrees that have been in place for an extended period This situation complicates the ability to effectively address and resolve copyright violations.
The management of piracy by Internet Service Providers (ISPs) is complex due to varying regulations and subjective interpretations To address this challenge, it is essential to incorporate specific guidelines regarding the responsibilities of intermediary service providers in copyright matters into intellectual property law.
Because this is the fundamental law on copyright and related rights issues when the
The IP Law aims to curb piracy by holding ISPs accountable, thereby reducing copyright violations and fostering a legal environment that promotes creativity while safeguarding the rights of authors Additionally, a well-structured legal framework is essential to protect the interests of ISPs in the digital landscape Consequently, the Draft IP Law should include enhanced regulations on the notice and takedown process, safe harbor provisions, and measures addressing ISP violations, drawing insights from the regulatory practices of the US, EU, Korea, and China.
Online copyright infringement in Vietnam remains a complex issue, particularly in the digital landscape where goods such as books, toys, and apparel featuring unauthorized images are commonly found Additionally, copyrighted entertainment, music, and films continue to circulate widely on various websites and social media platforms Although Vietnam's existing legislation addresses key copyright concerns in digital activities, the Draft IP Law reflects an effort by authorities to update regulations in line with international copyright law trends Nonetheless, several new challenges still require clarification and specification.
Firstly, the regulations on the responsibilities of ISPs under Joint Circular 07 are not consistent with Vietnam’s commitments under the EVFTA
Under Joint Circular 07, ISPs are only required to remove infringing content upon request from the Inspectorate of MIC, the Inspectorate of MCST, or other authorized state agencies This limitation hinders rights holders from directly addressing infringing content with intermediaries, resulting in significant time, effort, and costs for IPR holders to safeguard their intellectual property rights.
Intermediaries' liability under the Draft IP Law should be accompanied by clear regulations outlining the requirements for adequate notice and the specific actions intermediaries must take It is essential to establish a system that allows users to file complaints regarding the blocking or removal of their content, ensuring these complaints are addressed promptly Furthermore, any decisions to disable access to or remove uploaded content should undergo a human review process to ensure fairness and accountability.
The author believes that revising the intermediary’s responsibilities in Vietnamese regulations to comply with Article 12.55 of the EVFTA will help resolve online copyright and related rights infringement more effectively
Legal regulations
1 Constitution of the Socialist Republic of Vietnam (1980)
2 Law No 50/2005/QH11 dated November 29 th , 2005 on Intellectual Property of the Vietnam Government, amended by Law No 36/2009/QH12 dated June 19 th
3 2009 and Law No 42/2019/QH14 dated June 14 th, 2019
4 Law No 67/2006/QH11 dated June 29 th, 2006, of the Vietnam National Assembly on information technology
5 Decree No 105/2006/ND-CP dated September 22 nd ,2006, of the Vietnam Government detailing and guiding the implementation of several articles of the Law on Intellectual Property on the protection of intellectual property rights and on state management of intellectual property, amended by Decree No 119/2010/ND-CP dated December 30 th , 2010 of the Vietnam Government
6 Decree No 131/2013/ND-CP, dated September 16 th , 2013, of the Vietnam Government, sanctions administrative violations of copyright and related rights
7 Decree No 22/2018/ND-CP dated February 23 rd , 2018, of the Vietnam 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
8 Joint Circular No 07/2012/TTLT-BTTTT-BVHTTDL dated June 19 th , 2012, of the Ministry of Information and Communication, the Ministry of Culture, Sports and Tourism stipulates the duty of enterprises providing intermediary service in the protection of copyright and related rights on the Internet and telecommunication
9 Berne Convention for the Protection of Literary and Artistic Works dated July
10 The World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property rights
12 Directive 2000/31/EC of the European Parliament and Council dated June 8 th ,
2000, on certain legal aspects of information society services, particularly electronic commerce, in the Internal Market
13 Directive 2001/29/EC of the European Parliament and the Council dated May
22 nd , 2001, on harmonizing certain aspects of copyright and related rights in the information society
14 Directive 2019/790 of the European Parliament and of the Council of 17 th , April
2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC
15 Digital Millennium Copyright Act of 1998.
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