Criminal Enforcement of Copyright in Vietnam
This article will provide a brief guide on the Criminal Enforcement of Copyright in Vietnam.
Infringing copyright laws within Vietnam has come with severe penalties. Therefore, criminal enforcement of copyright laws should arguably have been employed as an important remedy against the infringement of copyright rights. This would likely have made a significant contribution to the development of the creative industries within Vietnam.
There has been only a very small amount of criminal cases regarding copyright infringement in Vietnam. In fact, only one case on copyright infringement has been handled under the criminal law in Vietnam. One of the reasons for this fact is that copyright and criminal law along with procedural aspects of the law, are highly delicate and complex.
Why is criminal enforcement of copyright in need?
Copyright infringement significantly harms the interests of the right holder, and it should be sanctioned by effective measures. However, in practice, the level of administrative penalties for copyright infringement is still low and not severe enough as a deterrence measure. Also, it often takes a long time to handle a copyright case under the civil measure. It is recommended that criminal measures should be applied more by the copyright holders as a more effective legal basis to protect and enforce their right.
Under Vietnamese law, copyright is composed of moral and economic rights. However, only the reproduction and the distribution rights are protected under the criminal law. In other words, only acts of infringing the reproduction and distribution rights are subject to criminal sanctions. Acts infringing other economic rights such as the right of communication to the public (hyperlink; streaming; etc.), rental rights, etc. do not constitute a crime of infringing copyright laws.
An individual will be criminally charged with the offense of infringing upon copyright and related rights in circumstances where they intentionally commit an act of reproducing or distributing copyrighted work without right holder’s permission, and:
- on a commercial scale; or
- earns an illegal profit from VND50,000,000 (~USD2,100); or
- causes loss from VND100,000,000 (~USD4,200) to the right holder[s]; or
- counterfeit goods worth from VND100,000,000 (~USD4,200).
Does a legal entity incur criminal liability for IP offenses?
Yes. Legal entities are recognized as subject to crime of infringing copyright and related rights by the Criminal Code 2015.
For a legal entity to be held criminally liable for infringing copyright and related rights, it must intentionally commit an act of infringing the reproduction or distribution rights subsisted in a copyrighted work, without right holder’s permission, and:
- on a commercial scale; or
- gains illicit profit of from VND200,000,000 (~USD8,400); or
- causes loss of from VND300,000,000 (~USD12,600) to the right holders; or
- piracy goods worth from VND300,000,000 (~USD12,600); or
- gains illicit profit from VND100,000,000 (~USD4,200) to VND200,000,000 (~USD8,400) and has been administratively sanctioned for infringing the above-mentioned rights, or criminally convicted of this offense and has not had such conviction expunged; or
- causes loss of from VND100,000,000 (~USD4,200) to VND300,000,000 (~USD12,600) to the right holders and has been administratively sanctioned for infringing the above-mentioned rights, or criminally convicted of this offense and has not had such conviction expunged; or
- piracy goods worth from VND100,000,000 (~USD4,200) to under VND300,000,000 (~USD12,600) and has been administratively sanctioned for infringing the above-mentioned rights, or criminally convicted of this offense and has not had such conviction expunged.
How should commercial scale be interpreted?
“Commercial scale” has not been clearly defined in a specific judicial guidance in Vietnam. In practice, the court has never interpreted “commercial scale” for this crime, however this could be interpreted by the Supreme Court in the near future.
How to calculate loss caused by the infringing act?
To calculate loss as basis to prosecute a person for copyright infringement is a difficult task for both copyright holders and authorities as there has not been a judicial guidance on this threshold. However, the loss could be determined on the basis of: (i) the total material damages; (ii) the licensing price of the IP asset (with the assumption that the defendant was licensed by the plaintiff to use that object under a license contract within a scope corresponding to the committed act of infringement); (iii) material damages calculated by other methods provided by the right holders in accordance with the provisions of law.
How to calculate illegal profits earned from the infringing act?
The illegal profits are the entire amount of money that the infringer already obtained from the infringing act. This is calculated on the basis of the quantity of piracy goods that are transferred, sold, or dispersed to the market and the market price.
How to calculate the value of piracy goods?
The value of piracy goods shall be determined by a specific Asset Valuation Council on the basis of the actual selling price or market price of the infringed goods at the time of infringing copyright and related rights.
What are the penalties for criminal copyright infringement?
An individual infringer of copyright could be criminally sanctioned with a fine of up to VND1 billion (~USD42,000) or an imprisonment of up to 3 years with an additional fine of up to VND200,000,000 (~USD8,400) or a prohibition from holding certain positions or practicing in certain industries or doing certain works for up to 5 years.
A legal entity infringer could be criminally sanctioned with a fine of up to VND3 billion (~USD126,000) for infringing copyright for up to 2 years’ suspension of operation.
The legal entity infringer may also be sanctioned with an additional fine of up to VND300,000,000 (~USD12,600) for infringing copyright or related rights or a ban from doing business or operations in certain fields or raising fund for business within up to 3 years.
Is a copyright registration certificate required to initiate a criminal case?
Clearly, it’s not required to have a copyright registration certificate for a copyrighted work to be protected in Vietnam. However, it is recommended that the right holder submit a copyright registration certificate when requesting the police to commence a criminal case as solid evidence, to prove copyright ownership and facilitate the investigation and court proceeding.
Infringement of copyright and related rights could happen in any medium. Accordingly, acts of infringing copyright and related rights in the digital environment are prosecuted under the same conditions and penalties with acts happening in the physical environment.
What is the procedure for criminal copyright enforcement in Vietnam?
Criminal proceedings against the infringement of copyright or related rights may be commenced upon the ascertainment of the crime[s] from any source of criminal information. Accordingly, a criminal denunciation from the victim is not required to initiate a criminal case regarding the infringement of copyright or related rights. However, for an effective enforcement of copyright or related rights by criminal measure, it is recommended that the right holders file a denunciation to the police and/or procuracy agency by themselves or via an authorized person for duly execution.
Is there any specialized investigation and adjudication procedure for copyright crimes?
In Vietnam, there is currently no specialized police department or court for investigation and adjudication of crimes infringing upon copyright and related rights. Hence, there is no specialized procedure for investigating and adjudicating copyright crimes.
Could the copyright holders request for confiscation and forfeiture of infringing goods and other properties of the person found guilty of copyright infringement?
Pursuant to the provisions of Article 47 of the Criminal Code 2015, the copyright owners may request for confiscation and forfeiture of infringing goods and other properties that directly relate to the crime, such as information, documents, vehicles, technical equipment, funds/money, etc. used for or gained by committing the crime.
What is the criminal statute of limitations for copyright infringement?
The statute of limitations for prosecuting a person for copyright infringement and related rights is 05 years from the infringement date.
What is the average time to handle a criminal copyright case in Vietnam?
In practice, the time period for handling a criminal copyright case in Vietnam shall generally range from 6 to 30 months depending on the scale and complexity of the case or infringing act. In special cases, this could be longer.
Do the right holders need assistance from lawyers to make a criminal denunciation against the copyright infringers?
It is possible that copyright holders file a criminal denunciation for copyright infringement to the police and/or the procuracy agency by themselves or via an authorized person. It is always recommended that the right holders contact an IP lawyer focusing on both copyright and litigation to make a denunciation against the copyright infringers and follow-up with the case due to the complexity of copyright infringement and legal proceedings to handle the case.
If you have any questions or concerns about Criminal Enforcement of Copyright, please contact us at info@letranlaw.com
SUBSCRIBE 
