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November 14, 2022

Assessment Process Remains an Obstacle in Copyright Enforcement in Vietnam

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Managing Intellectual Property

In copyright disputes in many countries around the world, experts who can provide professional opinions based on their deep expertise in specific fields play a very important role. It is the same in Vietnam when copyright disputes are brought to court. The judges and court staff may have almost no knowledge in specific areas of settlement such as fine arts, music, or computer programs. For this reason, they focus only on the legal aspect of the cases; however, the legal aspect can only be considered on the basis of analysis from experts, commonly known in Vietnam as “assessment” (or expert opinion).

Assessment Has Become Essential

For copyright disputes that are resolved in court, except in cases where the behavior is very clear, a court order only occurs when there are assessment conclusions. The legal basis for considering assessment conclusions as an important source of evidence can be found in the 2005 Law on Intellectual Property, as amended in June 2022, and its subordinate legal documents. However, the particular importance of assessment is not shown in legislation but rather in practice, through the fact that the courts and procuracies attach great importance to these assessment conclusions and treat them as necessary—sometimes even compulsory—documents from which they make their judgments and rulings.

It is rare for a court to express any opinion on the contents of an assessment conclusion, and rarer still for a court to make a judgment or ruling that is contrary to the conclusion. Thus, it seems that assessment conclusions, though originally intended as reference points only, are becoming decisive documents in many cases. In other words, the party that wins the assessment conclusion is much more likely to win the case.

An Obstacle to Be Resolved

For better or worse, assessment has become very important in the process of settling a case. However, the problem is that not all objects can be assessed, and there are not sufficient experts to provide reliable assessment conclusions for every case. In addition, the procedures of assessment are very complicated and can be time-consuming. Often the courts are powerless to resolve cases because they depend on the assessment agency.

In an ongoing copyright dispute with regard to a musical work, for example, though the case was first accepted by the Ho Chi Minh City People’s Court in July 2018, it still had not been heard by the court four years later. One of the reasons for the delay is that the court had to wait for an assessment conclusion, which was not issued until June 2022.

In another case heard by the Binh Duong People’s Court in August 2022 with regard to a dispute over a computer program, the most nettlesome issue was the valuation of the infringed software. In this case, although the original amount claimed was nearly USD 1.5 million, the final amount of compensation accepted by the court was only around USD 200,000, because the court and the related parties could not find a common language—or a capable expert to provide an assessment conclusion—with regard to the valuation of the infringed object.

In practice, when it comes to cases related to assessing the amount of damages—something holders of infringed copyrights are always keen to have assessed by experts, to give the courts a basis for making judgments and rulings—experts in general are often very confused in reaching their conclusions. This is due to many different reasons; for example, it may be partly because the damages caused by an IP object tend to be relatively vague, or because the expert does not have much experience or training in assessing damages. Sometimes, even when there is clear enough evidence to enable the expert to reach an assessment conclusion (for example, there is a price quote on the licensing value of a work publicly displayed on the internet or in an offer for sale by the copyright holder), the expert still feels uncomfortable shouldering this responsibility in making their assessment.

It is clear that there are too many issues regarding assessment in copyright disputes that need to be resolved. Suggestions for improvement have come from many directions: the courts need to be more independent in making their judgments; more assessment centers should be established rather than just one under the Copyright Office of Vietnam; or independent experts should be accepted in legal proceedings. These are all options Vietnam should explore in the near future.

This article first appeared in Managing Intellectual Property.

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