Unveiling Copyright Infringement: Understanding, Consequences, and Prevention
What is copyright infringement?
Copyright infringement is when someone unlawfully uses another person’s copyrighted work, which is protected by intellectual property laws. This includes copying, distributing, displaying, or performing the work without proper authorization.
According to Article 5 of Decree No. 105/2006/NĐ-CP, infringement occurs when the following conditions are met:
- The work in question is covered by protected intellectual property rights.
- There is a clear indication of infringement in the work being examined.
- The person responsible for the act is not the rightful owner of the intellectual property rights and has not been granted legal permission or authorization by the relevant authorities as specified in the Intellectual Property Law.
- The infringement takes place within Vietnam’s territory.
In summary, to determine copyright infringement of a specific work, all these factors must be carefully considered. Only works falling within the scope of copyright protection are subject to examination to establish whether infringement has taken place. Evidence and documentation play a crucial role in establishing the rights and confirming the presence of infringement.
What is copyright?
Copyright is a legal concept that grants exclusive rights to creators and authors of original works to control how their work is used and distributed. It is a form of intellectual property protection that ensures that creators have the right to profit from their creations and have control over how their work is reproduced, distributed, performed, displayed, or adapted by others.
The types of works that can be protected by copyright include, but are not limited to:
- Literary works: Books, articles, poems, and other written materials
- Artistic works: Paintings, drawings, photographs, sculptures, and other visual art forms
- Musical works: Compositions, song lyrics, and musical recordings
- Dramatic works: Plays, scripts, and screenplays
- Films and videos: Motion pictures and other audiovisual works
- Software: Computer programs and applications
Protection of intellectual property
Copyright protection is automatic upon the creation of an original work; it does not require registration or the use of the © symbol. However, registering the copyright with the relevant copyright office can provide additional legal benefits and evidence of ownership.
The duration of copyright protection varies depending on the country, but it typically lasts for the life of the creator plus a certain number of years after their death (e.g., 50, 70, or more years). During this period, the copyright holder has the exclusive right to reproduce, distribute, perform, display, and adapt the work. Others must seek permission (license) from the copyright owner to use the work in ways that fall under these exclusive rights.
Copyright does have limitations and exceptions to balance the rights of creators with the public interest. For example, “fair use” allows limited use of copyrighted material without permission for purposes like criticism, commentary, news reporting, education, or research, depending on the circumstances and applicable laws in each jurisdiction.
Protect your intellectual property with these common copyright trademarks
Elements of copyright infringement
To gain a clearer understanding of what falls under copyright infringement, it is essential to familiarize yourself with the fundamental elements that can violate an author’s rights. According to the provision stated in Article 7(1) of Decree No. 105/2006/NĐ-CP:
An infringing element of copyright may take one of the following forms:
- An illegally made copy of a work
- An illegally made derivative work
- Work with the forged name and signature of the author, impersonation of the author, or appropriation of copyright
- An illegally recited, duplicated, or incorporated part of a work
- Product with an illegally deactivated technical device used for copyright protection
- Products containing an infringing element defined in this Clause shall be regarded as copyright-infringing products.
To ascertain whether a copy or work (including fixed performances, recordings, audiovisual recordings, and broadcasting programs) constitutes an infringement, a comparison with the original work is necessary.
Different forms of copyright infringement, with examples
Reproduction: Making copies of copyrighted material without permission. For example, scanning and distributing pages from a book without the author’s consent.
Distribution: Sharing or selling copyrighted content without proper authorization. For instance, uploading and sharing a copyrighted movie on a file-sharing platform.
Plagiarism and academic copyright infringement
Plagiarism: Presenting someone else’s work, such as text, ideas, or images, as one’s own without giving proper credit. This can occur in academic papers, articles, and creative writing.
Academic copyright infringement: Using copyrighted material in academic works, like presentations or research papers, without permission or proper attribution.
Online piracy and illegal downloads
Torrenting: Downloading or distributing copyrighted movies, software, music, or other media through peer-to-peer (P2P) file-sharing networks without authorization from the copyright holders.
Streaming: Watching or broadcasting copyrighted content without permission on unauthorized streaming platforms or websites.
Counterfeit goods and trademark infringement
Counterfeit goods: Producing and selling goods that bear a trademark or logo identical or confusingly similar to a registered trademark without authorization. For example, selling fake designer handbags with a well-known brand’s logo.
Trademark infringement: Using a registered trademark without permission in a way that could lead to consumer confusion. For instance, using a famous logo to promote a different product or service.
Consequences of copyright infringement
The consequences of copyright infringement under Vietnamese law are generally similar to those in other jurisdictions. Here are the potential consequences of copyright infringement in Vietnam.
Legal ramifications
Under Vietnamese law, copyright holders have the right to take legal action against infringers to protect their works. The copyright holder or their representative may issue warning letters or notices to the infringer, demanding them cease the infringing activities. If the willful infringement continues, the copyright holder can file a lawsuit in a Vietnamese court to seek remedies.
Civil penalties and damages
In civil cases, the copyright holder may be entitled to claim monetary damages from the infringer. The amount of damages may be based on actual losses suffered by the copyright holder or the profits gained by the infringer through the infringement. In some cases, statutory damages may be available, providing predetermined amounts of compensation as stipulated by copyright law.
Criminal penalties
In Vietnam, certain cases of copyright infringement can be subject to criminal prosecution. Criminal penalties may include fines and imprisonment. Criminal prosecution is more likely in cases of large-scale and organized piracy or counterfeiting.
Reputation and financial impact
Copyright infringement can lead to a negative impact on the reputation of the infringer, particularly if the infringement is publicized or affects the original creator’s image. Financial losses may result from damages awarded in civil cases or the costs associated with legal proceedings.
Legal Remedies for Copyright Infringement
Under Vietnamese law, copyright holders have several legal remedies available to address copyright infringement. Here are some common legal remedies for copyright infringement in Vietnam.
Cease and desist letters
Copyright holders or their representatives may send cease and desist letters to infringers, requesting them to stop the infringing activities immediately. The letter serves as a formal warning, putting the infringer on notice of potential legal consequences if they continue the infringement.
Digital Millennium Copyright Act (DMCA) takedown notices
While the DMCA is specific to the United States, the concept of takedown notices is also applicable in Vietnam. Copyright holders can send takedown notices to internet service providers or website operators hosting infringing content, requesting them to remove or disable access to the infringing material.
Civil litigation and damages
Copyright holders can file a civil lawsuit against the infringing party in court to seek remedies for copyright infringement. This may involve claiming damages, which can be based on actual losses suffered or the profits made by the infringer through the infringement.
Injunctions and restraining orders
Copyright holders can request the court to issue injunctions or restraining orders to prevent the infringer from continuing their unlawful activities during the legal proceedings. These orders can be crucial to halt ongoing infringement and protect the copyright holder’s interests.
Prevention Strategies for Copyright Infringement
Preventing copyright infringement is essential for protecting creative works and ensuring that intellectual property rights are respected. Here are some prevention strategies for copyright infringement under Vietnamese provisions.
Understanding and respecting copyright laws
Individuals and businesses should familiarize themselves with Vietnamese copyright laws and regulations to ensure they are aware of their rights and responsibilities as creators, copyright holders, or users of copyrighted material.
Obtaining proper licenses and permissions
Before using copyrighted material owned by others, individuals and organizations should obtain the necessary licenses or permissions from the copyright holders. This applies to using music, images, software, and other copyrighted works.
Educating employees and stakeholders
Companies and institutions should provide education and training to their employees, contractors, and other stakeholders regarding copyright laws and the importance of respecting intellectual property rights.
Monitoring and enforcing copyrights
Copyright holders should actively monitor the use of their works to identify potential infringements. If infringement is detected, prompt action should be taken, such as sending cease and desist letters or filing legal actions if necessary.
If you are facing copyright infringement issues or need assistance with navigating copyright law in Vietnam, it is indeed advisable to seek legal counsel from a reputable law firm with expertise in intellectual property matters. Le&Tran Law Corporation is a well-known law firm in Vietnam that offers legal services related to copyright and other intellectual property areas.
By choosing an experienced law firm like Le&Tran Law Corporation, you can benefit from their legal expertise and guidance in navigating the complexities of copyright infringement issues in Vietnam. Remember that each case is unique, and it is essential to have personalized legal advice tailored to your specific circumstances.
Please don’t hesitate to follow and access more useful information on our website. If needed, feel free to contact us for further guidance at letran@corporatecounsels.vn.
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