Cross-border Copyright Protection

Vietnam is in the age of digitalization. Social media is strongly growing in the country. However, the media and information regulations’ enforcement has yet been active enough for such growth. This leads to an uncontrollable internet environment in which copyright infringement, bad-mouthing information, or defamation become popular and used as unethical tactics to attract an audience and earn credit for the authors, even to damage the reputation of innocent people.

The intellectual property law of Vietnam allows to copy and use of contents in some exceptional circumstances like teaching, researching, and internal discussion. Still, the users or collectors must indicate the authors’ information and sources where they got the contents. Even in some special considerations, the copiers must ask the authors’ permission to use their contents free or payable. The criminal law of Vietnam does also provides various crimes of defamation and copyright infringement.

Many copyright violations, wrong information, and defamation in Vietnam recently made a red alert to the Government. However, one of the key reasons the Police cannot take fast action is that there are very few complaints or denunciations by the victims or interested parties.

There are various ways of complaining. However, filing a commercial lawsuit at court seems too long and costly, and in the end, the court judgment could not be enforced in reality. Making complaints to the State administrative agencies (such as the business licensing authority, the communication and information agency, the press agency, etc.) seems less effective because they do not have enough investigation resources such as human resources, technology resources to navigate violations. Furthermore, they do not also have the power of the Police to request the relevant parties in producing evidence and relevant documents, cross-examination to verify the factual abuses. Hence, the most effective way is to file a criminal complaint or denunciation to a competent Police.

This insight is a brief guideline for the readers on the main points of how to file a criminal denunciation to the Police in case of a copyright violation or defamation in Vietnam.

Copyright Protection in Vietnam

Step 1: Trace and collect evidence of copyright violation

You should find an information technology professional to help you trace and collect the source of the violated information, the owner and relevant people of the source (website), the content that they did illegal copy from you without your permission, or the wrong information about you.

Find a bailiff service near you to record the collected evidence and information as prima facie evidence. The bailiff is a legal independent witness service licensed by the law to help the courts, private organizations, and individuals record factual violations, on-site status quo, and information on the internet as evidence. The courts can recognize their records as valid evidence to prove the violations. The bailiff service is not expensive; it may be around from VND1million to VND6million for recording this type of copyright violation or defamation.

Step 2: A lawyer will issue a cease and desist letter to the copyright violator

When the evidence is fully recorded and documented, you should provide them to a lawyer who can help you draft a cease and desist letter to the violator to request the removal of the illegal content they used or the defamation they made. If you want, you may also ask your lawyer to add the request for compensation. For the copyright infringement, you may also suggest the violator enter into a commercial/civil agreement with you if they want to continue using the content in exchange for a royalty.

After the deadline set in the letter for rectifying the violation, if the violater still keeps silent or does not show any intent to stop their offense, you should file a criminal case at the Police.

Step 3: Filing the criminal denunciation for Vietnam copyright violation

The criminal denunciation will often include the letter of denunciation and the supporting evidence proving the violation.

The letter of denunciation should have:

• The information of the person who wants to denounce (the plaintiff): full name, personal or business registration information (information on the passport or identity card, business registration certificate, etc.)
• The information of the person or party who committed the violation (the defendant/violator): full name, personal or business registration information (you can also check on the State public information portals).
• The description of the violation (what, how, when, where the violator did commit the offense, etc.)
• The damage or loss incurred to you due to the violation (such as your reputation, potential incomes, loss of market, expenses for building the contents and marketing channels, lawyer costs, bailiff cost, and other costs that you consider as your losses to handle the violations, etc.)
• The legal ground supporting your complaint (if you know), in case you have no experience or awareness of the legal basis to the violation, you may refer to either of the below regulations:
  • Article 156, the 2015 Criminal Code (as amended in 2017) on slander, prohibits the acts of fabricating information or spreading false information to harm another person’s reputation or infringes upon another person’s lawful rights and interests; accusing a person of a fabricated crime report it to the authorities.
  • Article 225, the 2015 Criminal Code (as amended in 2017) on infringement of copyrights and relevant rights, prohibits a person or corporate legal entity who, without the consent of the holders of copyrights and appropriate rights, deliberately commits any of the following acts which infringe upon copyrights and applicable rights protected in Vietnam and earns an illegal profit.
  • Article 288, the 2015 Criminal Code (as amended in 2017) of Vietnam on the illegal provision or use of information on computer networks or telecommunications networks, prohibits the acts of uploading data on a computer or telecommunications network against regulations of law; trading, exchanging, giving, changing, or publishing lawfully private information of an organization or individual on the computer or telecommunications network without the consent of the information owner; and other acts that involve illegal use of data on the computer or telecommunications network.
• The evidence is enclosed in the denunciation letter (the proof you have collected in Step 1 above).

When the dossier is well prepared, you can ask a courier to submit the denunciation to the Police. You should use the courier to have the return receipt service.

The Police may take around 02-04 months to handle the matter and invite you for a cross-examination session to examine your submitted facts and evidence.

Then, the Police will contact and summon the violator and other relevant parties (if any) for cross-examination and verify the facts and evidence you submitted with the violator. Based on the statements and counter-evidence (if any) of the violator, the Police will consider if they should go for any further investigation by themself or conclude whether there is a crime under the Criminal Code of Vietnam or not.

The most crucial ground to conclude a crime is the evidence that you submit to the Police. There are the following principles of evidence that you should note:

• Evidence is de facto and collected per the law’s sequence and formalities (the 2015 Criminal Procedure Code). Evidence is grounds for the determination of a crime, perpetrators of such offense, and other valuable facts for the settlement of the case.
• Evidence is collected and determined from these sources: exhibits; statements, presentations; electronic data; findings of expert examination and valuation; records of legal proceedings, investigation, prosecution, adjudication, sentence enforcement, results of judicial delegation, and other international cooperations; other documents and items.
• Each evidence must be inspected and evaluated to verify its validity, authenticity, and connection with the case. The verification of proofs acquired must be adequate to settle criminal cases.
• The Police, to collect evidence, is entitled to perform activities of evidence collection under the law and request other authorities and entities to provide proofs, documents, items, electronic data, and facts that solve the case. Other participants in legal proceedings, authorities, and commodities can provide evidence, documents, items, electronic data, and related matters of the case. When receiving proof, documents, items, and electronic data related to the case, the Police shall make written submission records, verify and assess under the law. Within their powers and duties, the Police must inspect and evaluate all evidence of the case in full, unbiased, and thorough manners.

Furthermore, you should pay attention to the investigation process of the Police to ensure they have appropriately done it under the law. The Police, when investing, prosecuting, and hearing criminal lawsuits, must attest:

• The existence of the crime, time, space, and facts of the crime;
• The perpetrator of the crime; the presence of guilt, intentional or unintentional acts; the existence of criminal capacity; purposes and motive of the crime;
• Facts aggravating and mitigating criminal liabilities of suspects, defendants, and identity traits of suspects and defendants;
• Nature and severity of damages caused by the crime;
• Reasons and conditions leading to the crime; and
• Other facts in connection with the exclusion or exemption of criminal liabilities and impunity.

We hope our sharing is of help to you. Should you have any questions, please contact our Le & Tran criminal lawyers at info@letranlaw.com for further clarification or advice.