Infringement Resolution and Litigation

 

Per Article 28 of the 2005 IP Law, as revised in 2009, an author or owner of a copyrighted work is entitled to enforce against copyright infringement if any of the following acts is conducted in respect of that work without his/her consent:

  • Seizing copyrights of a literary, artistic, scientific work;
  • Assuming the author’s name of a work;
  • Publishing, disseminating a work without permission of author;
  • Publishing, disseminating a co-author work without permission of other co-author(s);
  • Modifying, mutilating or distorting a work in any forms which is prejudicial to the author’s honor and prestige;
  • Copying a work without permission of the author or the copyright owner;
  • Making derivative works without permission of the author or the copyright owner of the work used to make such derivative work;
  • Exploiting a work without permission of copyright owner, without paying royalties and remuneration and other material benefits under the law;
  • Renting a work without any payment of royalties, remuneration and other material benefits to its author and copyright owner;
  • Photocopying, producing, disseminating, publishing, displaying or communicating a work to the public by broadcasting network or digital devices without permission of the copyright owner;
  • Publishing a work without permission of the copyright owner;
  • Intentionally canceling or invalidating technical methods applied by the copyright owner to protect copyrights of his/her work;
  • Intentionally erasing or amending electronic information on copyrights management of a work;
  • Producing, assembling, altering, distributing, importing, exporting, selling or leasing an item of equipment when knowing or having basis to know that such equipment is used for invalidating the technical measures taken by the copyright owner to protect the copyright to his/her work;
  • Making and selling a work of which the author’s signature is being forged;
  • Exporting, importing, disseminating copies of a work without permission of the copyright owner.

Where his/her copyrights are infringed, the author or owner of the work shall be entitled to apply the following measures for protecting their copyrights:

(i)   Taking technological measures to prevent infringement of copyrights;

(ii)  Requesting the infringer to cease the infringement, apologize publicly, issue a public rectification, and/or compensate for damage suffered;

(iii) Requesting the competent authorities to handle the infringement;

(iv) Initiating a lawsuit at a competent court or an arbitrator to protect their legitimate rights and interests.

The authors and copyright holders shall be entitled: (i) to take technological measures to prevent acts of infringement of copyrights; (ii) to request the accused infringers to terminate the infringing acts, publicly apologize for and rectify the infringement, and pay compensation for damages; (iii) to request the State competent authorities to handle the copyright infringement; and (iv) to initiate a lawsuit before a competent court or arbitration proceedings to protect their legitimate rights and interests.

In general, administrative, civil, and criminal remedies are available to enforce copyrights in the event of infringement.

As regards administrative remedies, the principal administrative sanctioning form being imposed on a copyright infringer is the monetary fine.  Apart from the principal sanctioning form, one or more of the following remedies may be imposed on copyright infringers: (i) forcible bringing out of the territory of Vietnam or forcible re-export of goods, articles or means; (ii) forcible destruction of goods or articles harmful to human health, domestic animals, plants and environment, or cultural products with harmful contents; (iii) forcible correction of untruthful or misleading information; (iv) forcible removal of infringing elements from goods, goods packages, business means or articles; (v) forcible correction of author’s name, name of the work, name of performers; (vi) forcible withdrawal of certificate of copyright registration, certificate of related-right registration; (vii) forcibly removing copies of works, performances, phonograms, video recordings, or broadcasts which are infringed in electronic form, on internet and digital environment; (viii) forcible refund of royalties, remuneration, or material benefits obtained from committing violation, to copyright or related right holders.

As regards civil remedies, Vietnamese courts shall apply the following civil remedies in handling organizations and individuals that have committed acts of infringing upon copy rights: (i) compelling the termination of infringing acts; (ii) compelling the public apology and rectification; (iii) compelling the performance of civil obligations; (iv) compelling the payment of damages; (v) compelling destruction, distribution or use for non-commercial purposes of goods, raw materials, materials and means used largely for the production or trading of infringing goods, provided that such destruction, distribution or use does not affect the exploitation of rights by copy right holders.

As regards criminal remedies, it is duly noted that the criminal liability imposed on copyright and related right violations limit only to the deliberate acts of: (i) reproducing works, phonograms or video recordings; and (ii) distributing to the public copies of works, phonograms or video recordings.

For the infringer who is an individual, one of the following main criminal penalties may be imposed on a copyright infringer: (i) a fine of from VND 50 to 300 million or a penalty of up to 03 years' community sentence in cases of infringement upon copyrights and related rights protected in Vietnam on commercial scale or earning an illegal profit of from VND 50 to under 300 million or causing a loss of from VND 100 to 500 million to the holders of such copyrights and related rights or the violating goods assessed at from VND 100 to under 500 million; (ii) a fine of from VND 300 million to 1 billion or a penalty of 6 – 36 months' imprisonment if the offence committed in any of the following cases: a) the offence is committed by an organized group; b) the offence has been committed more than once; c) the illegal profit reaped is VND 300 million or over; d) the loss incurred by the holders of copyrights and related rights is VND 500 million or over; e) the illegal goods are assessed at VND 500 million or over. Apart from the main criminal penalties, the individual offender may be additionally subjected to a fine of from VND 20 to 200 million in case the monetary fine is not applied in the main criminal penalties, be prohibited from holding certain positions or doing certain works for 1 - 5 years.

For the infringer who is a legal entity, criminal remedies are as follows: (i) a fine of from VND 300 million to 1 billion if such entity infringes copyrights and related rights on commercial scale or earns an illegal profit of from VND 200 to under 300 million or causes a loss of from VND 300 to under 500 million to the holders of such copyrights and related rights, or the violating goods assessed at from VND 300 to under 500 million; earns an illegal profit of from VND 100 to under 200 million or causes a loss of from VND 100 to under 300 million to the holders of such copyrights and related rights, or the violating goods assessed at from VND 100 to under 300 million while having incurred an administrative penalty for any of the offences or having an unspent conviction for the same offence; (ii) a fine from VND 1 to 3 billion or suspension of operation for 6 - 24 months if the offense committed in any of the following cases: a) the offence is committed by an organized group; b) the offence has been committed more than once; c) the illegal profit reaped is VND 300 million or over; d) the loss incurred by the holders of copyrights and related rights is VND 500 million or over; e) the illegal goods are assessed at VND 500 million or over. Apart from the main criminal penalties, the infringing legal entity might also be liable to a fine of from VND 100 to 300 million in case the monetary fine is not applied in the main criminal penalties, be prohibited from operating in certain fields or raising capital for 1 - 3 years

 

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