News
| Title | [Vietnam] Law and policy update |
|---|---|
| Date | 2010-06-25 |
[Vietnam] Law and policy update
The National Assembly of Vietnam enacted two laws on the same date June 19, 2009, one amending and supplementing a number of articles in the Intellectual Property Law (the “Amended IP Law”), and the other amending some provisions of the Criminal Law (the Amended Criminal Law). Both Amended Laws came into effect on January 1, 2010, important changes of the Amended IP Law was introduced in previous report and therefore, this report only focuses on the most salient amendments of the Amended Criminal Law concerning copyright.
The Amended criminal law also includes some changes concerning copyright. These changes aim at bringing copyright-related criminal provisions in line with the international conventions to which Vietnam is a party. Article 131 of criminal law enacted in 1999 (the old criminal law) was replaced by Article 170a of the Amended criminal law.
Violation subjected to criminal charge and criminal remedies under Article 131 include “passing off”, “appropriation”, “illegally modification”, “wrongfully assuming authors’ names on copyright works”… This Article has some loop-holes because (i) it only focuses on violation of moral rights but does not include serious infringement of economic rights, (ii) the violations mentioned in this article are vague and therefore, needs further clarification in subordinate legal documents for implementation purposes, and (iii) the content of which is not in line with international customs and commitment under international conventions to which Vietnam is a party, especially TRIPs and VN-US bilateral trade agreement.
For the above reasons, the Amended criminal law replaced "vague violation of moral rights" under article 131 of the old law by clear infringing acts which are subjected to criminal sanctions. Criminal acts under Article 170 of the Amended law regulate serious infringement of economic rights instead of violation of moral rights. Granting that copyright and related right are mostly regulated by civil and administrative regulations, the Amended criminal law only focuses on the following acts:
1. unauthorized reproduction of works, audio and video recordings
2. unauthorized distribution of copies of works, audio and video recordings
Money fine against this crime is sharply increased, from a maximum fine of VND 200 millions to VND 1 billion (equivalent to US$ 52,000)
Initially, various drafts of the Amended law stipulate that, to be subjected to criminal sanctions, the offenders who commit one of the above acts (i) for commercial benefit, or (ii) not for commercial benefit but seriously prejudice the exploitation of the work by the right holder. However, this provision will need further interpretation of “commercial benefit” and “serious prejudice the exploitation of the work by the right holder” in sub-ordinate legal documents for implementation purposes.
In order to bring this provision in line with the international conventions, especially TRIPs The Amended criminal law uses the term “on a commercial scale” which can be interpreted to cover both (i) infringing acts for commercial benefit, regardless of the value of the infringement and (ii) infringing acts not for commercial benefit but seriously prejudice the normal exploitation of the work by the right holder.
korea copyright commission
Vietnam correspondent
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