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May 9, 2023

New Decree Guides Vietnam’s IP Law in Relation to Copyright and Related Rights

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On April 26, 2023, the Vietnamese government issued Decree No. 17/2023/ND-CP detailing some articles and enforcement measures of the 2022 Intellectual Property Law with respect to copyright and related rights (Decree 17). Decree 17 took immediate effect upon issuance, and provides long-awaited, necessary guidance for implementation of the IP Law, which took effect on January 1, 2023.

The official regulations set out significantly new requirements on copyright and related rights in comparison to the draft version of the decree circulated in 2022. Some of the most critical provisions include the following:

Detailed Definitions of Terms

Decree 17 provides detailed definitions of copyrightable subject-matters, including “literary and scientific works, textbooks, curricula, and other written works”; “lectures, speeches, and other talks”; “journalistic works”; “musical works”; “cinematographic works”; and others.

Exceptions to Copyright Infringement

Section 1 of Chapter III sets out the exceptions to copyright infringement, including, among others:

  • Reasonable reproduction of part of a work using a copying device for scientific research, personal study, or non-commercial purposes.
  • Using a work in official activities of state agencies.
  • Using reasonable extracts/excerpts of a work.
  • Using a work in library activities for non-commercial purposes
  • Reasonable reproduction of part of a performance, audio recording, video recording, or broadcast.

Enforcement Against Infringements

The entire Chapter VI covers the protection of copyright and related rights to a very detailed extent, including:

  • Presumption of copyright and related rights;
  • Technological measures to protect rights; and
  • The basis for determination of subjects entitled to copyright and related rights protection.

The mechanisms to determine infringements and damages are clearly provided, including:

  • Grounds for determining the nature and extent of infringement;
  • Principles for the determination of damages; and
  • The definition and calculation of mental loss, property damage, decline in income and profit, and loss of business opportunities.

Decree 17 also adds a separate section on the assessment of copyright and related rights (definitions, procedures, objects, etc.).

The clarifications of copyright and related rights infringement may provide additional legal protection and effective legal remedies against the circumvention of effective technological measures or rights management information used in connection with the protection of copyright and related rights.

ISP Responsibility

Section 8 of Chapter VI provides a list of organizations that can be regarded as intermediary service providers (ISPs) and sets forth the responsibilities of ISPs, including:

  • Providing contact information;
  • Temporarily disconnecting the internet connection or site blocking in the knowledge that a customer has committed infringing acts; and
  • The obligation to ask authors or copyright owners for permission and to pay royalties if they operate for commercial purposes.

Decree 17 makes it clear that ISPs are only liable for direct compensation if there is an infringement when they are acting as a secondary source of distributing digital information obtained by copyright infringement, which has been determined by a judgment or a decision in force of a court or a competent state agency or the IP holder. Particularly, the decree provides a process/steps to work with ISPs to take down infringing content per each entity’s request.

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