Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.

Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.Protection of Copyright through the trial practice of the peoples courts in Vietnam nowadays.

VIETNAM ACADEMY

OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

NGUYEN HUY HOANG

Major : Economic Law

Major Code : 93.80.107

ABSTRACT OF DOCTORAL THESIS IN LAW

HA NOI - 2022

The thesis was completed at:

Graduate Academy Of Social Sciences Vietnam Academy Of Social Sciences

Scientific supervisors: 1 Ph.D Pham Kim Anh

2 Assoc Prof Bui Anh Thuy

Xuan, Ha Noi

At , date month year 2022

The thesis can be search at:

- The National Library of Vietnam

- TheLibrary of the Graduate Academy of Social Sciences

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PREAMBLE

1 Urgency of the subject

Copyright, as a part of Intellectual Property rights, has played an important role in the socio-economic development of each country as well

as the process of international integration The rapid and powerful development of digital technology does not bring great benefits in all aspects of social life but creates many obstacles and challenges for rights holders and the authority in controlling and handling violations of civil rights, including Intellectual Property rights In the trend of international integration, since 2007 Vietnam has been a member of the World Trade Organization (WTO) and is currently participating in many bilateral and multilateral International Treaties on the protection of Intellectual Property rights in general and Copyright in particular Whereby the provisions on Copyright protection have been enhanced in comparison with the current popular international standard, which is the Berne Convention for the Copyright protection This is also a challenge posed in perfecting the law as well as in the enforcement mechanism of Copyright in Vietnam in the near future to meet the requirements of compatibility with the Free Trade Agreements that Vietnam has participated recently Also, It has not yet effectively protected Copyright against the increasing infringements both in the traditional environment and in the digital environment

The Court's practice of adjudicating Copyright disputes in Vietnam also reveals many limitations such as complicated, lengthy, time-consuming, laborious and costly litigation procedures; the application of the law to the case settlement by the trial agency in some cases is still inaccurate and controversial In many cases, the Court lacks a legal basis to make reasonable judgments… Especially, to liabilities for compensation, Copyright holders often have difficulties proving actual damages This leads to the situation right holders might be afraid and hesitate to choose the Court to be the authority to protect their legitimate rights and interests

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According to the request of the Politburo's Resolution No NQ/TW on the Judicial Reform Strategy to 2020, the People's Court holds very important position and plays a vital role The Courts are adjudicating agencies, execute judicial rights and are tasked with protecting justice, human rights, citizenship, the socialist regime, the interests of the State, and the legal rights and interests of organizations and individuals Therefore, Researching to propose recommendations to perfect the law and improve the effectiveness of Copyright protection through the Court's adjudication is

49-an urgent issue at present; especially when the draft of the Law amending and supplementing a number of articles of the Intellectual Property Law (hereinafter referred to as the Draft which is being consulted for submission

to the National Assembly for approval in 2022) has many amendments related to Copyright Up to now, there has not been any comprehension and comprehensive research on Copyright protection through trial at the Court

From the above reality, the study of the research "Protection of Copyright through the trial practice of the people's courts in Vietnam nowadays" is

an urgent need of legal science in Vietnam nowadays

2 Purpose of research and tasks of the thesis

2.1 Purpose of research

The research purpose of the thesis is to clarify theoretical issues, legal reality and practice of Copyright protection through trial at Vietnamese Courts, from which propose orientations and solutions to complete the effectiveness of law application in the protection of Copyright at the Court in Viet Nam 2.2 Research tasks

Firstly, author analyzes and builds a theoretical basis for Copyright

protection through the trial method at the Court, which clarifies theoretical contents such as: Definition, characteristics of Copyright, Copyright protection; principles of Copyright protection, the nature of Copyright protection through trial at the Court (it is different from other protection measures), factors affecting the Copyright protection through the trial method at the Court, the basic contents of the law on Copyright protection

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through the trial method at the Court Secondly, the thesis is going to study

the provisions of the content law, the procedural law on Copyright and the protection of Copyright by civil measures; practice of application of law in settling disputes about Copyright in Court through typical cases; pointed

out inadequacies in the legal system and obstacles in practice Thirdly: the

study provides orientations and proposes specific solutions to improve the Intellectual Property law and the effectiveness of the implementation of the law on Copyright protection through the trial method at the Court in

3.2 Scope of research

Scope of content: The thesis studies three major contents: (i) theory

of Copyright and Copyright protection; (ii) the law on the protection of Copyright through trial at the Court, including content legislation and the formal legislation; (iii) practical application of Copyright protection law through cases that have been judged by Courts in Vietnam in the past times

Scope of space and time: The thesis focuses on studying current

Vietnamese legal provisions on Copyright protection, including: Law on Intellectual Property 2005 (amended and supplemented in 2009, 2019); Civil Code 2015; Code Of Civil Procedure 2015, Criminal Code 2015 (amended and supplemented in 2017) … and other relevant legal regulations; uses contents and datas through practical trial activities in People's Court system to cases related to the protection of Copyright nationwide The thesis also studies the new provisions on Copyright in Draft No 05 of the Law amending and supplementing a number of articles of the Intellectual Property Law published

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on the National Assembly's website and submitted to the public for comments

of National Assembly in the meeting in October 2021 The study of provisions

of International Treaties of which Vietnam is a member, and Copyright laws

of some countries are only to compare and contrast with Vietnamese laws in the purpose of completing the law, learning from experience in order to improve the effectiveness of Copyright protection in Vietnamese Court

4 Methodology and research methods of the thesis

The thesis is conducted on the basis of applying the dialectical and historical materialism methodology of the Marxist-Leninist philosophy, Ho Chi Minh’s Ideology and the standpoints of the Communist Party and the State of the Socialist Republic of Vietnam of Copyright and Copyright protection through the trial method in the Vietnamese court system nowadays

The thesis uses specific research methods such as: analytical method, synthesis method, comparative law method, statistical method, historical method and so on to clarify theoretical and practical issues implementation

of the provisions on the protection of Copyright through the trial method at the Court according to the law of Vietnam

5 New scientific contribution of the thesis

Firstly, the results of the synthesis, analysis and evaluation of

published works related to the research topic deepen better the theoretical and practical basis for perfecting the law on Copyright protection through trial at the Court

Secondly, the thesis has systematized and highlighted the theoretical

issues of Copyright protection in general and Copyright protection through trial at the Court

Thirdly, through the analysis of the actual law and the practice of

applying the law in the protection of Copyright at the Court, the thesis has identified the inadequacies of the law on Copyright in general and the protection of Copyright by civil remedies in Court in particular At the same time, through the practical study of the adjudication of Copyright disputes at

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the Court, the thesis evaluates and points out the shortcomings, limitations and causes of limitations of the current reality of Copyright protection in the Court

of Vietnam nowadays

Fourth, thanks to the study of international law and the practice of

protecting Copyright through trial at the Court in some countries, the thesis draws reference values that can be applied in the process of formulating and perfecting Vietnam's laws on Copyright protection as well as improving adjudication and dispute resolution activities over Copyright in particular, Intellectual Property rights in general in the Vietnamese court system

Fifth, the thesis analyzes and specifies requirements and orientations

to improve the law as well as reform the judicial system in the protection of Copyright through trial at Vietnamese court nowadays Simultaneously, through the study of theory, legal status and practice of Copyright protection through trial at Vietnamese court, on the basis of reference to experiences of some countries in the world, the thesis proposes the producing groups of solutions to complete the law and solutions to improve the effectiveness of Copyright protection at the Court in order to meet the requirements of practice and the requirements of international commitments

to which Vietnam is a member In particular, the thesis has contributed valuable recommendations to reference to complete the Draft Law amending and supplementing a number of articles of the Intellectual Property Law expected to be aprroved in 2022

6 Theoretical and practical significance of the thesis

6.1 Theoretical significance

The research results of the thesis contribute to supplement the theoretical issues of Copyright protection and enforcement in general, Copyright protection at the Court in particular The thesis is the scientific recognition and assessment of the advantages, limitations and inadequacies

of the law on Copyright protection and Copyright protection through trial 6.2 Practical significance

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The research results can be used as a reference for individuals, organizations and agencies in charge of enforcing Copyright in particular, Intellectual Property rights in general The recommendations in the thesis are valuable for reference in providing comments to complete the Draft Law amending and supplementing a number of articles of the Intellectual Property Law expected to be approved by the National Assembly in 2022

7 Structure of the thesis

Besides the introduction, conclusion and list of references, the main content of the thesis consists of 4 chapters:

Chapter 1: Overview of the research situation and research theoretical basis

Chapter 2: Theoretical issues of Copyright protection through trial of the court

Chapter 3: Legal status and practice of Copyright protection through trial

at the People's Court of Vietnam

Chapter 4: Orientation, solutions to complete law and effectively protection

of Copyright through trial at the People's Court of Vietnam

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Chapter 1 OVERVIEW OF THE RESEARCH SITUATION AND RESEARCH

THEORETICAL BASIS

1.1 Research overview

1.1.1 The research group on theoretical issues of Copyright

1.1.2 The research group on the theoretical issues of Copyright protection measures in general and Copyright protection through the Court in particular

1.1.3 The research group on the study the legal reality of Copyright protection

1.1.4 The research group on the study the practical issues of Copyright protection in general, protection by civil measures in particular and solutions to improve the effectiveness of Copyright protection through trial

1.2.1 The thesis research achievements need to be inherited

Firstly, regarding theoretical issues about Copyright

Second, the theoretical issues of Copyright protection

Third, research on the legal reality of Copyright protection

through the Court

Fourth, research on the practice of Copyright protection in court Fifth, research on solutions to complete the law

1.2.2 The thesis issues need further research

Theoretically, the thesis will study to clarify issues such as: (i)

Theories as the theoretical basis for Copyright protection; Principles of

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Copyright protection; (ii) Build up definition and identifying features of Copyright protection in general; characteristics of the method of Copyright protection in Court; (iii) Legal issues are set for the protection of Copyright

at the Court in the context of international economic integration and the 4.0

industrial revolution

Regarding the legal reality, the thesis will not only approach and study

the law of Intellectual Property in a comprehensive and systematic way but also research civil law and civil procedures, in order to discover the inadequacies and limitations within the provisions of the law on the protection

of Copyright by civil measures at the Court and to consider the practical application of these regulations to assess the feasibility and suitability The provisions of the current Vietnamese law will be compared with the provisions

of the Draft Law amending and supplementing a number of articles of the Intellectual Property Law1, the provisions of International Treaties (especially the provisions the Free Trade Agreements) of which Vietnam is a member and the laws of some countries in the world

Regarding the practice of law enforcement, the thesis will analyze

and comprehensively evaluate the practice of Copyright protection at the Court; analyze and evaluate inadequacies and problems in the practical application of law to settle disputes and handle acts of Copyright infringement through cases that have been judged in Court; discover and point out the causes leading to the limitation in the protection of Copyright

through the court in Vietnam

1.3 Research theoretical basis

1.3.1 Research theoretical

 Foundational theories of IPR protection in general

The natural law thesis; The reward thesis; The incentive thesis; The disclosure; Theory of balance of interests; Principles of ensuring fair competition

 Specific theories of Copyright protection

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Publishers' ownership theory, spiritual property theory, moral rights theory, immaterial property rights theory (dualism), monism, authorship theory.1

 Principles of adjudication

1.3.2 Research question and research hypothesis

Research question: What are the fundamental theoretical issues of

Copyright protection? What are the characteristics of Copyright protection and the law to Copyright protection through the trial method at the Court? What is the reality of law and practice on Copyright protection through court proceedings in Vietnam? What is obtacles and shortcomings? What is the current orientation to improve the law on Copyright protection? Which

groups of solutions should be focused on?

CONCLUSION OF CHAPTER 1

Copyright protection through trial at the Court is one of the most popular and effective methods of Copyright protection in the world In the context of deepening economic, cultural, social development and international integration, the issue of Copyright protection by civil remedies

is drawing more and more attention from legislators, the practitioners as well as the whole society

Copyright protection through the courts is a complex legal issue and is directly related to many different majors of law Therefore, the research contents of the thesis are classified into groups of problems: general theoretical research on authority, theoretical research on measures

to protect Copyright in general and Copyright protection through the Court

in particular, research on the legal reality of Copyright protection and the practice of Copyright protection through trial in Vietnam, research solutions

to improve the effectiveness of Copyright protection through the trial at the Court

1 Book “Copyright - The road of integration is not lined with roses”, Nguyen Van Nam, Young Publishing House,

2017, pg 36-43.

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Based on an overview assessment of the situation of scientific research works related to the thesis topic, the thesis identifies the research results that need to be inherited and the thesis issues that need further research and clarification

Chapter 2 THEORETICAL ISSUES OF COPYRIGHT PROTECTION

THROUGH TRIAL OF THE COURT

2.1 Theory of Copyright protection

2.1.1 Definition and characteristics of Copyright

2.1.1.1 The definition of Copyright

2.1.1.2 The characteristics of Copyright

Regarding the subject: Copyright is the ownership towards immaterial subjects – works Regarding the scope of rights: Copyright,

besides protecting the property rights of authors and Copyright holder, the

law also recognizes moral rights for creative subjects Regarding the content of rights: Copyright only focuses on the exclusive right to use and

exploit the work (including the right to permit or prevent others from using the work) About the basis for establishing ownership: Copyright belongs to the group of "claimed rights" which is the group of rights arising

automatically with the birth of the work Regarding the limitation of rights:

Copyright is a type of "limited" protected right in order to harmonize the interests of the subject of the Copyright with the common interests of society, the legitimate rights and interests of other subjects Besides the general characteristics of Intellectual Property rights, Copyright has specific characteristics that distinguish it from other parts of Intellectual Property rights such as industrial property rights or rights to plant varieties The specific characteristics of Copyright are expressed through the following

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aspects: about the subject, about the protection conditions, on the protection base, on the form of establishment of rights

2.1.2 Definition and characteristics of Copyright protection

2.1.2.1 The definition of Copyright protection

Copyright protection is an activity of state agencies, Copyright holder and related subjects using legally recognized measures to detect, prevent and handle Copyright infringingment acts

2.1.2.2 The characteristics of Copyright protection

Firstly, regarding the subject, Copyright protection is the protection of

ownership rights to an intangible property - the result of intellectual creation in

the fields of literature, art, and science Second, regarding the principle, the

Copyright protection is mainly carried out through the systematic recognition

of exclusive rights for authors and owners of works Third, regarding the

terms of scope, Copyright protection is only available within the territory of the

country where the work is protected and when the work is within the term of

protection Fourth, regarding the implementing subject, Copyright protection

is carried out by many different subjects: the subject of Copyright, including: the author, the Copyright holder, the person who has the right to use the work through a contract…; law enforcement agencies such as: Court, Public Security, Customs, Market Management, Specialized Inspector, People's Committee; Organizations Collective Management of Copyright; social

public… Fifth, regarding the protection measure, Copyright protection measures are very diverse Sixth, regarding the purpose, Copyright protection

not only protects the legitimate rights and interests of creators and invests in works, but also protects the interests of the public and the whole society economic, cultural and social development

2.1.3 Measure to protect Copyright

Copyright protection measures are the ones applied to prevent and deal with Copyright infringement Should we base on the executing entity, the measures to protect Copyright are divided into: (i) Protective measures taken

by the right holder himself; and (ii) Protective measures taken by competent

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State agencies Depending on the nature and extent of infringement, the measures to protect Copyright implemented by the State agencies can be civil measures, criminal measures or administrative measures

2.2 Theoretical on Copyright protection through trial at the Court 2.2.1 Definition and characteristics of Copyright protection through trial at the Court

2.2.1.1 Definition of Copyright protection through trial at the Court

In a broad sense, Copyright protection through trial at the Court is

an activity of the Court to apply the sequence, procedures and sanctions to settle disputes, handle Copyright infringement and violate the law on Copyright The thesis approaches "Copyright protection through trial at the

Court" under the narrow angle of dispute resolution activities, Copyright

infringement by civil measures Copyright protection through civil trial at the Court is the activity of resolving disputes and handling acts of Copyright infringement at the request of the right holder or of the organization or individual suffering damage caused by the infringement caused, whereby the Court applies civil measures to protect Copyright 2.2.1.2 Characteristics of Copyright protection through civil trial in Court

Copyright protection through civil trial at the Court has common

features of trial activities in the Court Firstly, it is a complicated process which

may include many stages and activities of different agencies and subjects

according to procedural order and procedures Second, the Court can apply

different sanctions depending on the nature and seriousness of the infringement In addition to the general characteristics, the protection of Copyright at the Court by civil remedies has specific characteristics that are different from criminal or administrative measures First: Protection of Copyright through civil trial only arises based on the request of the Copyright holder Second: The collection and provision of evidence is both a right and an obligation of the involved parties Third, protection measures are based on the principle of respecting the right to decide and dispose of involved parties and

2.2.2 The law on Copyright protection through trial at the Court

Content legislation: This is a group of regulations of great

significance as a basis for the Court to settle disputes and infringement of Copyright

Formal legislation: Group of regulations on civil measures,

sequence and procedures for application of civil measures

CONCLUSION OF CHAPTER 2

Regardless of the approach, countries all over the globe agree on one thing in common That is to say Copyright is the range of rights (including moral rights and property rights) of the subject (including the author and Copyright holder) for their work is recognized and protected by law Copyright has both the general characteristics of Intellectual Property rights; besides, it has its own characteristics in terms of object of protection, protection conditions, grounds for establishing rights, protection mechanism Copyright protection is an activity of state agencies, Copyright holders and related subjects using measures recognized by law to detect, prevent and settle acts of Copyright infringingment Copyright protection has distinct characteristics from conventional property protection

Copyright protection mechanisms at the Court, especially civil remedies, have the following basic characteristics: (i) arise only at the request

of the Copyright holder; (ii) is a protective measure based on the principle of respecting the right to decide and dispose of the involved parties and the principle of conciliation; (iii) must comply with the civil procedure sequences and procedures; (iv) the responsibility of providing evidence to prove the infringement of Copyright and proving the damage caused by the

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infringement rests with the right holder; (v) is the only protection measure that is meant to restore and remedy damage caused by Copyright infringement; (vi) may be applied concurrently with administrative or criminal measures; (vii) diversified sanctions

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Chapter 3 LEGAL STATUS AND PRACTICE OF COPYRIGHT

PROTECTION THROUGH TRIAL AT THE PEOPLE'S COURT OF

VIETNAM

3.1 Current reality of the law on Copyright protection through adjudication of civil disputes in Court

3.1.1 Intellectual Property provisions on Copyright

3.1.1.1 Entities protected by Copyright

3.1.1.2 Copyright holder

3.1.1.3 Content and limitation of protection of Copyright

3.1.1.4 Conduct constituting infringement of Copyright

3.1.1.5 Regulations on Copyright protection in the digital environment

3.1.1.6 Regulations on compensation for damage caused by Copyright infringement

3.1.2 Provisions of procedural law on Copyright protection through trial at the Court

3.1.2.1 Competence to settle disputes on Copyright

3.1.2.2 Conditions for initiating civil lawsuits for Copyright protection

3.1.2.3 Materials and evidences proving and Copyright assessment 3.1.2.4 Application of temporary emergency measure

3.1.2.5 Application of civil measure

3.2 Practice of Copyright protection through trial at the Court in Vietnam

3.2.1 Practice of acceptance and settling Copyright cases in Court

Through the data of Copyright disputes and infringement cases resolved by the Court, it can be seen that the number of civil disputes on Copyright is adjudicated by the Court at a higher rate However, compared with the number of Copyright infringement cases handled by administrative

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enforcement agencies every year, the number of Copyright disputes resolved at the Court is still very limited

3.2.2 Practice of application of law to settle Copyright cases in Court

Practice of application of the law on subject protected by Copyright

Case 1: Dispute related to the work “Form of expressing folk Tet paintings”2

Case 2: Dispute related to the work "The plan for printing and issuing lottery tickets effectively and saves printing costs for lottery tickets”3

Practice of application of the law on the subject and content of Copyright

Case 3: Dispute related to the comic series "Vietnamese prodigy”4 Case 4: Dispute related to the real scene scenario "Once upon a time" or "At that time the land of Doai”5

Practice of application of the law on Copyright limitation

Case 5: Dispute related to citation and use of the work "Kieu's story written - Research and discussion" 6

Practice on application of the law on the identification of persons with related interests and obligations in Copyright disputes

Practice on application of the law on the jurisdiction of the Court in settling Copyright disputes

2 First-instance judgment No 05/2015/DS-ST dated March 10 th , 2015 of the People's Court of District 3, HCMC; Appellate court judgments No 834/2015/DSPT of the People's Court of HCMC on July 14 th , 2015; First-instance judgment No 213/2014/DSST dated August 14 th , 2014 of the People's Court of Tan Binh District, Ho Chi Minh City

3 First-instance judgment No 43/2019/KDTM – ST dated October 16 th , 2019, Hanoi City People's Court; Civil appellate court judgments No 27/2020/KDTM-PT dated September 21 st , 2020 of the Collegial People’s Courts of Hanoi City;

4 First-instance judgments No :35/2019/DS – ST dated February 18 th , 2019 of the People's Court of District 1, Ho Chi Minh City; Civil appellate court judgments No.: 774/2019/DSPT dated September 3 rd ,

2019 of the People's Court of Ho Chi Minh City

5 Judgments No 08/2019/KDTM-ST dated March 14-20 th , 2019 of the People's Court of Hanoi City and Judgments No 04/2020/KDTM-PT dated January 17 th , 2020 of the Collegial People’s Courts of Hanoi City

6 Judgments No 68/2006/DSST dated December 25 th and 26 th , 2006 of the People's Court of Hanoi City; Appellate court judgments No 127/2007/DSPT dated June 14 th , 2007 of the Court of Appeal of the Supreme People's Court in Hanoi

Firstly: Some provisions of the Intellectual Property law on

Copyright are still lacking in specificity, clarity, and even contradiction, leading to difficulties and obstacles in the process of applying the law

Second: Obstacles in determining damage caused by Copyright

Seventh: In general in Vietnam, related parties are still afraid to "go

to Court", people consider going to court as a nuisance, affecting personal

reputation and honor

CONCLUSION OF CHAPTER 3

Chapter 3 of the thesis has comprehensively analyzed the provisions

of current Vietnamese law on Copyright protection, sequence and procedures for Copyright protection by civil measures as well as practical application of the law in settling disputes about Copyright in Court through typical cases In addition to analyzing the reality of law and the practice of applying the law in resolving Copyright disputes at the Court, the thesis has compared and contrasted with the provisions on Copyright protection in International Treaties to which Vietnam is a member The thesis also researches the law and experience of protecting Copyright through trial activities at the courts of some nations in the region such as Thailand, China

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and Japan Through a comprehensive study of the current state of Vietnamese law on Copyright protection through trial at the Court, the thesis has analyzed and pointed out the inadequacies and shortcomings in the provisions of the Intellectual Property Law of Vietnam as well as the current provisions of the Code Of Civil Procedure relating to Copyright protection; shed the light on the main reasons why the protection of Copyright activities at the Vietnamese courts still has many shortcomings and limitations In doing so, It can be a basis for recommendations and proposals in chapter 4 of the Thesis