Article 56. General provisions regarding copyright, related right protection

1. Copyright holders and related right holders shall exercise and protect their copyright, related rights in person or by authorizing organizations acting as collective representatives of copyright, related rights or other organizations and individuals as per the law. The authorized party is responsible for disclosing their information to enable other organizations, individuals to contact them in order to negotiate about use.

2. Organizations and individuals using works, performances, audio recordings, video recordings, and broadcasting programs are responsible for contacting copyright holders, related right holders, or the authorized party in order to negotiate about the use of said works, performances, audio recordings, video recordings, and broadcasting programs in accordance with copyright, related right laws.

3. Disputes regarding copyright, related rights shall be settled in accordance with civil proceeding or arbitration laws.

Article 57. Adoption of civil, administrative, criminal measures in protecting copyright, related rights

Organizations and individuals infringing copyright, related rights of other organizations and individuals, depending on the nature and severity of the infringement, shall be met with civil, administrative, or criminal measures specified in accordance with Part Five (Protection of Intellectual Property) of the Law on Intellectual Property and regulations below:

1. Civil measures shall be taken against infringement at request of copyright holders, related right holders or organizations, individuals suffering from damage as a result of the infringement even when the infringement was or is being met with administrative or criminal measures.

Procedures for requesting adoption of civil measures, entitlement, procedures for adopting civil measures shall comply with civil proceeding or arbitration laws.

2. Administrative measures shall be taken against infringement that falls under any of the cases mentioned under Article 211 of the Law on Intellectual Property at request of copyright holders, related right holders, organizations and individuals suffering from damage caused by the infringement, organizations and individuals discovering the infringement, or competent authorities discovering the infringement.

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3. Criminal measures shall be taken against infringement if the infringement constitutes criminal actions as per the Criminal Code.

Entitlement and procedures for adopting criminal measures shall conform to criminal proceeding laws.

Article 58. Exercising of the right to self-protection of copyright, related rights

1. Authors, copyright holders, performances, related right holders, and authorized organizations, individuals shall exercise the right to self-protection in accordance with Article 198 of the Law on Intellectual Property and this Article.

2. Information on management of right management and technology solutions for right protection under Point a Clause 1 Article 198 of the Law on Intellectual Property shall conform to Article 60 and Article 61 hereof.

3. Written notice requesting termination of infringement of copyright, related rights under Point b Clause 1 Article 198 of the Law on Intellectual Property shall be sent to organizations, individuals committing the infringement by authors, copyright holders, performers, related right holders, or authorized organizations, individuals.

The written notice must include:

a) Name of authors, copyright holders, performers, related right holders, and authorized organizations, individuals (if any);

b) The basis of copyright and related rights, Certificate of registered copyright, Certificate of registered related rights (if any);

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d) Request for immediate termination of infringement; time limit for termination of infringement;

dd) Request for royalty payment, damages (if any).

4. Requesting competent authorities to take actions against infringement of copyright, related rights specified under Point c Clause 1 Article 198 of the Law on Intellectual Property shall conform to Articles 75 through 80 hereof.

Article 59. Assumption of copyright and related rights

1. The first fixed copies of performances, audio recordings, video recordings, broadcasting programs under Clause 2 Article 198a of the Law on Intellectual Property means the tangible copies where audio, images of performances, audio recordings, video recordings, broadcasting programs are fixed for the first time.

2. Individuals whose names (or pseudonyms) are listed as author on copies of published works or on original copies of fine arts in a conventional manner are considered the authors of said works until otherwise specified by evidence.

3. If the authors are not named on published works in accordance with Clause 2 of this Article, publishers that are named on copies of the works are considered holders of rights to works.

4. Holders of rights to works mentioned under Clause 2 and Clause 3 of this Article have the right to make request stated under Article 198 of the Law on Intellectual Property. This Clause does not affect existing agreements between relevant parties.

5. If original copies or copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs no longer exist, copyright holders and related right holders under Clause 2 Article 198a of the Law on Intellectual Property must also be credited on original copies or copies of other related works, fixed copies of other related performances, audio recordings, video recordings, broadcasting programs, including name of authors, performers, producers of audio recordings, video recordings, broadcasting organizations to a certain extend to clarify ownership.

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1. Using right management information to prevent infringement of copyright and related rights as stated under Point a Clause 1 Article 198 of the Law on Intellectual Property means to include identifiers of works, performances, audio recordings, video recordings, broadcasting programs, encrypted program-carrying satellite signals, authors, performers, copyright holders, related right holders, use conditions in original copies and copies of works, fixed copies of performances, audio recordings, video recordings, broadcasting programs; code and numbers indicating information above may or may not be protected by technological measures. Right management information does not include information relating to people using the copies such as name, account, address, or other contact information.

Right management information must be associated with copies or established simultaneously with works, performances, audio recordings, video recordings, broadcasting programs when the works, performances, audio recordings, video recordings, and broadcasting programs are communicated to the public.

2. Cases of infringement of copyright and related right relating to right management information are specified under Article 28 and Article 35 of the Law on Intellectual Property.

Article 61. Technological measures for right protection

1. Technological measures for right protection mentioned under Point a Clause 1 Article 198 of the Law on Intellectual Property mean the use of any instrument, technique, technology, or component during regular operation in order to mark, distinguish, recognize, and protect copyright, related rights in accordance with Articles 19, 20, 29, 30, and 31 of the Law on Intellectual Property.

2. Effective technological measures mean technological measures for right protection that allow copyright holders, related right holders to control the use of works, performances, audio recordings, video recordings, broadcasting programs, encrypted program-carrying satellite signals via:

a) Applications that control access: Means applications that employ techniques, technology, equipment, or components to control access to protected copies;

b) Protection procedures: Means solutions that employ techniques, technology, equipment, or components to prevent or minimize any action that constitutes infringement of copyright, related rights against protected copies;

c) Copy control mechanism: Means solutions that employ techniques, technology, equipment, or components to control reproduction from protected copies.

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4. Clause 3 of this Article does not apply to cases of legitimate access and use of works, performances, audio recordings, video recordings, broadcasting programs in accordance with Clause 3 Article 20, Clause 5 Article 29, Clause 3 Article 30, Clause 3 Article 31, Article 25, Article 25a, and Article 32 of the Law on Intellectual Property.

Section 2. DISPUTES ABOUT COPYRIGHT, RELATED RIGHTS, AND DETERMINING OF INFRINGEMENT OF COPYRIGHT, RELATED RIGHTS

Article 62. Disputes about copyright

1. Disputes between individuals about copyright of works of literature, art, science, derivative works.

2. Disputes between co-authors about separation of joint authorship.

3. Disputes between copyright co-owners about separation of rights of co-owners in use and transfer of one or some or all copyright.

4. Disputes between individuals and organizations about copyright of works.

5. Disputes between copyright holders and authors about royalties paid to creative authors on the basis of creative tasks or creative works.

6. Disputes about exercising of moral rights or property rights of authors, copyright holders, co-authors, copyright co-owners.

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8. Disputes between individuals making financial and facility-technical investment in production of works of motion picture, theater and individuals engaging in creative work, individuals producing works of motion picture, theater about copyright of works of motion picture, theater or royalties and other tangible benefits.

9. Disputes between copyright holders and individuals using published works that do not require permission and royalty payment about the use conflicting with conventional use of works and causing unreasonable damage to legitimate benefits of authors, copyright holders.

10. Disputes between copyright holders and individuals using published works that do not require permission but do require royalty payment about failure to pay royalties or the use conflicting with conventional use of works and causing unreasonable damage to legitimate benefits of authors, copyright holders.

11. Disputes about contracts for transfer of copyright, contracts for licensing of use right of copyright or disputes about contracts for counsel, services regarding copyright.

12. Disputes that arise as a result of copyright infringement.

13. Disputes about inheritance of property rights under Article 20 and moral rights under Clause 3 Article 19 of the Law on Intellectual Property.

14. Other disputes about copyright as per the law.

Article 63. Disputes about related rights

1. Disputes about right holders of performances, audio recordings, video recordings, broadcasting programs.

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3. Disputes between producers of audio recordings, video recordings and individuals using property rights of audio recordings, video recordings.

4. Disputes between broadcasting organizations and individuals using property rights of broadcasting programs.

5. Disputes about the use conflicting with conventional use of performances, audio recordings, video recordings and causing unreasonable damage to legitimate benefits of performers, producers of audio recordings, video recordings, or broadcasting organizations between performers, producers of audio recordings, video recordings, broadcasting organizations and individuals using related rights that are not required to acquire permission and pay royalties.

6. Disputes about failure to pay royalties or the use conflicting with conventional use of performances, audio recordings, video recordings and causing unreasonable damage to legitimate benefits of performers, producers of audio recordings, video recordings, or broadcasting organizations between performers, producers of audio recordings, video recordings, broadcasting organizations and individuals using related rights that are not required to acquire permission but are required to pay royalties.

7. Disputes about contracts for licensing of related rights, contracts for transfer of use rights of related rights or disputes about contracts for counsel, services regarding related rights.

8. Disputes that arise as a result of related right infringement.

9. Disputes about inheritance of related rights.

10. Other disputes about related rights as per the law.

Article 64. Basis for determining infringement of copyright, related rights

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1. Examined subjects fall within the scope of subjects under copyright, related right protection: Works having copyright protected according to Article 14 of the Law on Intellectual Property; subjects having related right protected according to Article 17 of the Law on Intellectual Property.

2. There are elements infringing copyright, related rights in examined subjects.

3. Persons committing the examined act are not copyright holders or related right holders except for cases where co-authors, copyright co-owners, related right co-owners commit infringement against remaining co-authors, copyright co-owners, related right co-owners and are not individuals permitted by the law or competent authorities in accordance with Clause 3 Article 20, Clause 5 Article 29, Clause 3 Article 30, Clause 3 Article 31, Article 25, Article 25a, Article 26, Article 32, and Article 33 of the Law on Intellectual Property.

4. The examined act occurs in Vietnam. The examined act is also considered to occur in Vietnam if it occurs on telecommunication network or the internet whose users are located in Vietnam.

Article 65. Basis for determining subjects under copyright, related right protection

1. Whether a subject is under protection or not shall be determined by reviewing documents and proof in accordance with Clause 1 and Clause 2 Article 6 of the Law on Intellectual Property and identifying whether the subject falls under copyright projection according to Article 15 of the Law on Intellectual Property.

2. With respect to copyright and related rights registered to competent authorities, subject of protection shall be determined by Certificate of registered copyright, Certificate of registered related rights and attachments of these certificates.

3. With respect to copyright and related rights not registered to competent authorities, these rights shall be determined depending on assumption of copyright and related rights under Article 198a of the Law on Intellectual Property and Article 59 hereof.

Article 66. Determining copyright infringing elements

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a) Infringing the right to name works: Changing name of works without permission of authors or co-authors, unless otherwise specified by the law;

b) Infringing the right to be named on the works or credited: Impersonating authors, imitating name or signatures of authors, failing to accurately specify name of authors and origin of works during use;

c) Infringing the right to publish works: Publishing works without permission of copyright holders, copyright co-owners; appropriating copyright;

d) Infringing the right to protect integrity of works thereby harming reputation or credibility of authors: Distorting works; editing, or otherwise altering works thereby harming reputation or credibility of authors;

dd) Infringing the right to produce derivative works: Using existing works to create derivative works without permission of copyright holders, copyright co-owners as per the law.

e) Infringing the right to deliver public performance of the works: Performing, reading, displaying, exhibiting, screening, showing works in public places or charging entrance fees without permission of copyright holders, copyright co-owners as per the law, except for cases under Article 25 and Article 25a of the Law on Intellectual Property;

g) Infringing the right to reproduce works: Duplicating, creating copies of works without permission of copyright holders, copyright co-owners as per the law; reproducing a part of works, excerpting, editing without permission of copyright holders, copyright co-owners as per the law, except for cases under Point a Clause 3 Article 20, Article 25, and Article 25a of the Law on Intellectual Property;

h) Infringing the right to distribute, import for public distribution: Distributing, importing in order to distribute tangible original copies and tangible copies of works to the public without permission of copyright holders, copyright co-owners as per the law, except for cases under Point b Clause 3 Article 20 and Article 25 a of the Law on Intellectual Property;

i) Infringing the right to broadcast, communicate to the public: Broadcasting, communicating works to the public via telecommunication network or the internet without permission of copyright holders, copyright co-owners as per the law, except for cases under Article 25 and Article 25a of the Law on Intellectual Property;

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l) Failing to adequately fulfill legal liabilities specified under Article 25, Article 25a, and Article 26 of the Law on Intellectual Property;

m) Intentionally removing or deactivating effective technological measures implemented by authors, copyright holders on original copies, copies of work to protect copyright of their works as per the law, except for cases under Clause 3 Article 20, Article 25, and Article 25a of the Law on Intellectual Property;

n) Producing, distributing, importing, offering, selling, advertising, marketing, leasing, or storing equipment, products, or components of commercial nature, introducing or providing services with full knowledge or grounds suggesting that the equipment, products, components, or services are produced, used to deactivate effective technological measures protecting copyright as per the law;

o) Intentionally removing, deleting, or otherwise altering right management information without permission of authors, copyright holders with full knowledge or grounds suggesting that such action will incite, enable, facilitate, or conceal copyright infringement as per the law;

p) Intentionally distributing, importing to distribute, broadcasting, communicate, or provide copies of works to the public with full knowledge or grounds suggesting that right management information has been removed, deleted, or otherwise altered without permission of copyright holders; with full knowledge or grounds suggesting that such action will incite, enable, facilitate, or conceal copyright infringement as per the law;

q) Failing to adequately comply with the law in order to be exempt from legal liability regarding copyright of intermediary service providers regarding works under Clause 3 Article 198b of the Law on Intellectual Property, Article 113, Article 114 hereof, and other relevant law provisions.

2. The basis for determining elements infringing copyright is the scope of copyright protection identified by medium of original copies; characters, symbols, characterization, symbols, facts of original works in case of derivative works.

Determining of copyright infringing elements must take into account the originality of work creation and expression of ideas that is not the ideas themselves.

3. In order to determine whether a copy or a work is an infringing element or not, it is necessary to compare the copy or the work with the original copy of the work or the original work, originality of work creation, expression of creative ideas in the work; date of completion of the work; access and time thereof of the author to existing work.

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a) The copy is a partial or total reproduction of a work of other people that is being protected;

b) The work (or part thereof) is a part or the entirety of a work of other people that is being protected;

c) The work (or part thereof) contains characters, symbols, characterization, symbols, facts of a work of other people that is being protected.

4. Products, goods, services created as a result of copyright infringement under Clause 1 of this Article are considered products, goods, services that infringe copyright.

5. Products created as a result of copyright infringement under Point g Clause 1 of this Article are considered pirated goods in accordance with Article 213 of the Law on Intellectual Property.

Article 67. Determining related right infringing elements

1. Infringement of related rights of performances can be:

a) Infringing the right to be introduced of performers: Failing to introduce or intentionally and incorrectly introducing name of performers when delivering performances, publishing audio recordings, video recordings, broadcasting performances, except for cases where full name of performers cannot be introduced due to objective reasons, nature, scale, form of performance;

b) Infringing the right to protect imagery of the performance thereby harming reputation and credibility of performers: Distorting performance imagery; editing or otherwise altering performances thereby harming reputation and credibility of performers;

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d) Infringing the right to reproduce performances fixed on audio recordings, video recordings: Duplicating, reproducing, excerpting, cutting a part or the entirety of fixed copies of performances without permission of performers as per the law, except for cases under Point a Clause 5 Article 29 and Article 32 of the Law on Intellectual Property;

dd) Infringing the right to broadcast, communicate unfixed performances to the public: Broadcasting, communicating unfixed performances to the public without permission of performers as per the law, except for cases where the performances are broadcasted and cases under Article 32 of the Law on Intellectual Property;

e) Infringing the right to distribute, import to distribute tangible original copies, copies of fixed performances to the public: Distributing, importing to distribute tangible original copies, copies of fixed performances to the public without permission of performers as per the law, except for cases under Point b Clause 5 Article 29 of the Law on Intellectual Property;

g) Infringing the right to lease original copies, copies of performances fixed in audio recordings, video recordings to the public for commercial purposes: Leasing original copies, copies of performances fixed in audio recordings, video recordings to the public for commercial purposes without permission of performers as per the law;

h) Infringing the right to broadcast, communicate fixed performances to the public: Broadcasting, communicating fixed performances to the public without permission of performers as per the law, except for cases under Article 32 of the Law on Intellectual Property;

i) Cases under Clause 4 of this Article.

2. Infringement of related rights of audio recordings, video recordings can be:

a) Infringing the right to reproduce audio recordings, video recordings partially or entirely: Duplicating, reproducing, excerpting, editing a part or the entirety of audio recordings, video recordings without permission of right holders as per the law, except for cases under Point a Clause 3 Article 30 and Article 32 of the Law on Intellectual Property;

b) Infringing the right to distribute, import to distribute tangible original copies, copies of audio recordings, video recordings to the public: Distributing, importing to distribute tangible original copies, copies of audio recordings, video recordings without permission of right holders for audio recordings, video recordings as per the law, except for cases under Point b Clause 3 Article 30 and Article 32 of the Law on Intellectual Property;

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d) Infringing the right to broadcast, communicate audio recordings, video recordings to the public: Broadcasting, communicating audio recordings, video recordings to the public without permission of right holders as per the law, except for cases under Article 32 of the Law on Intellectual Property;

dd) Cases under Clause 4 of this Article.

3. Infringement of related rights of broadcasting programs can be:

a) Infringing the right to broadcast, re-broadcast broadcasting programs: Broadcasting, re-broadcasting programs without permission of right holders for broadcasting programs as per the law, except for cases under Article 32 of the Law on Intellectual Property;

b) Infringing the right to reproduce fixed broadcasting programs: Receiving, decrypting, duplicating, reproducing, copying a part or the entirety of fixed broadcasting programs without permission of right holders for broadcasting programs as per the law, except for cases under Point a Clause 3 Article 31 and Article 32 of the Law on Intellectual Property;

c) Infringing the right to fix broadcasting programs: Fixing broadcasting programs without permission of right holders for broadcasting programs as per the law;

d) Infringing the right to distribute, import to distribute fixed broadcasting programs in tangible form to the public: Distributing, importing to distribute fixed broadcasting programs in tangible form to the public without permission of right holders for broadcasting programs as per the law, except for cases under Point b Clause 3 Article 31 and Article 32 of the Law on Intellectual Property;

dd) Cases under Clause 4 of this Article.

4. Infringement of related rights can also be:

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b) Intentionally eliminating or deactivating effective technological measures implemented by related right holders for original copies, copies of fixed performances, audio recordings, video recordings, broadcasting programs to protect their rights as per the law, except for cases under Clause 5 Article 29, Clause 3 Article 30, Clause 3 Article 31, and Article 32 of the Law on Intellectual Property;

c) Producing, distributing, importing, offering, selling, advertising, marketing, leasing, or storing equipment, products, or components of commercial nature, introducing or providing services with full knowledge or grounds suggesting that the equipment, products, components, or services are produced, used to deactivate effective technological measures protecting related rights as per the law;

d) Intentionally removing, deleting, or otherwise altering right management information without permission of related right holders with full knowledge or grounds suggesting that such action will incite, enable, facilitate, or conceal related right infringement as per the law;

dd) Intentionally distributing, importing to distribute, broadcasting, communicating, or otherwise providing performances, copies of fixed performances, audio recordings, video recordings, broadcasting programs to the public with full knowledge or grounds suggesting that right management information has been deleted, removed, or otherwise altered without permission of related right holders; with full knowledge or grounds suggesting that such action will incite, enable, facilitate, or conceal related right infringement as per the law;

e) Producing, assembling, altering, distributing, importing, exporting, offering, selling, or leasing equipment or system with grounds suggesting that these equipment or system illegally decrypt or assist illegal decryption of encrypted program-carrying satellite signals as per the law;

g) Intentionally receiving or continuing to distribute encrypted program-carrying satellite signals that have been decrypted without permission of legitimate distributors as per the law;

h) Failing to adequately implement regulations in order to be exempt from legal liability regarding related rights of intermediary service providers of performances, audio recordings, video recordings, broadcasting programs under Clause 3 Article 198b of the Law on Intellectual Property, Article 113 and Article 114 hereof and other relevant law provisions.

5. The basis for determining related right infringing elements is the scope of related right protection identified by medium of the first fixed copies of performances, audio recordings, video recordings, and broadcasting programs.

6. In order to determine whether a copy or a fixed performance, audio recording, video recording, broadcasting program is an infringing element of related rights, it is necessary to compare the copy or performance, audio recording, video recording, broadcasting program with original copy of the fixed performance, audio recording, video recording, broadcasting program; date of completion and fixing of the performance, audio recording, video recording; access and time thereof of author to the existing fixed performance, audio recording, video recording, broadcasting program.

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a) The copy duplicates a part or the entirety of the first fixed copy of performance, audio recording, video recording, broadcasting program of other people that is under protection;

b) The work (or part thereof) is a part or the entirety of the first fixed copy of the performance, audio recording, video recording, broadcasting program of other people that are under protection.

7. Products, goods, services created as a result of infringement of related rights under Clauses 1 through 4 of this Article are considered to have violated related rights.

8. Products created as a result of infringement of related rights under Point d Clause 1, Point a Clause 2 and Point b Clause 3 of this Article are considered pirated goods according to Article 213 of the Law on Intellectual Property.

Article 68. The basis for determining infringement nature and severity

1. The infringement nature mentioned under Clause 1 Article 199 of the Law on Intellectual Property is determined on the basis of:

a) Context, motive of infringement: Innocent infringement, deliberate infringement, infringement due to suppression or dependency, first-time infringement, repeated infringement;

b) Method of infringement: Separate infringement, organized infringement, infringement of one’s own volition, via bribery, deception, or coercion.

2. The infringement severity mentioned under Clause 1 Article 199 of the Law on Intellectual Property is determined on the basis of:

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b) Effect and consequences of the infringement.

Section 3. DETERMINING DAMAGED CAUSED BY INFRINGEMENT OF COPYRIGHT, RELATED RIGHTS

Article 69. Rules for determining damage caused by infringement of copyright, related rights

1. Damage caused by infringement of copyright, related rights under Article 204 of the Law on Intellectual Property means actual physical and mental damage caused by the infringement to copyright holders, related right holders.

2. Actual damage is deemed to exist if:

a) Physical or mental benefits are real and belong to the infringed persons: Physical and/or mental benefits are results (products) of copyright, related rights which the infringed persons are entitled to gain; and

b) The infringed persons are capable of gaining benefits under Point a of this Clause: The infringed persons would gain (receive) the physical or mental benefits under certain conditions if copyright, related right infringement did not occur; and

c) The infringed persons gain less benefits following copyright, related right infringement or none at all compared to what they would have gained without the infringement as a direct result of the copyright, related right infringement: Prior to the infringement, the infringed persons have gained physical or mental benefits, after the infringement, the infringed persons gain less benefits or none at all compared to what they previously received prior to the infringement and there must be a causation relationship between the infringement and the loss, reduction of benefits gained.

3. The level of damage shall be determined depending on the infringing elements of copyright, related rights.

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Article 70. Mental damage

Mental damage means damage to reputation, dignity, credibility, and other mental damage done to authors, performers, copyright holders, related right holders as a result of copyright, related rights being infringed which leads to damaged reputation, dignity, reduced or lost credibility, reputation, trust due to misunderstanding, duration of suffering, level of grief, sorrow, emotional loss to the point where infringing organizations, individuals are required to make public apology, remediate, and provide compensation for mental damage.

Article 71. Property damage

1. Property damage is determined by the level of reduction or loss in monetary value of a subject under copyright, related right protection.

2. Monetary value of a subject of copyright, related rights under Clause 1 of this Article shall be determined by any of the following basis:

a) Ownership licensing costs or use right transfer costs for copyright, related rights;

b) Value of capital contribution in form of copyright, related rights;

c) Value of copyright, related rights within total assets of enterprises;

d) Investment in study, creation, and development in order to create works, subjects of copyright, related rights, including costs for investment, study, provision of technical equipment, facilities, marketing, advertising, labor, tax, and other costs.

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Article 72. Reduction of income, profits

1. Income, profits under Point a Clause 1 Article 204 of the Law on Intellectual Property include:

a) Income, profits gained directly or indirectly by using subjects of copyright, related rights;

b) Income, profits gained by leasing subjects of copyright, related rights that are original copies, copies of works of motion pictures, computer programs;

c) Income, profits gained by transfer of use right of copyright, related rights;

d) Income, profits gained by licensing of copyright ownership, related right ownership.

2. Reduction of income, profits shall be determined by any of the following basis:

a) Regular use of works, performances, audio recordings, video recordings, broadcasting programs is affected: Compare the quantity of actual copies sold or provided before and after the infringement occurs; frequency of use, screening, broadcast, transmission, access to works, performances, audio recordings, video recordings, broadcasting programs before and after the infringement occurs; number of users, subscribers before and after the infringement occurs;

b) Compare sale price on the market of copies before and after the infringement occurs;

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Article 73. Loss of business opportunity

1. Business opportunity mentioned under Point a Clause 1 Article 204 of the Law on Intellectual Property includes:

a) Potential profits, increase in brand value via direct use of subjects of copyright, related rights in business; increase in number of users;

b) Potential profits, increase in brand value via advertisement and marketing that involves the use of subjects of copyright, related rights;

c) Potential profits, increase in brand value via leasing of subjects of copyright, related rights in form of original copies or copies of works of motion pictures, computer programs, audio recordings, video recordings;

d) Potential profits, increase in brand value via licensing of use right of copyright, related rights, transfer of subjects of copyright, related rights to other people;

dd) Other business opportunities lost as a direct result of copyright, related right infringement.

2. Loss of business opportunity means damage to monetary value of income that the infringed persons would gain otherwise via actions under Clause 1 of this Article if the infringement did not occur.

Article 74. Reasonable costs for preventing, remediating damage

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Section 4. REQUEST AND SETTLEMENT OF REQUEST FOR ACTIONS AGAINST COPYRIGHT, RELATED RIGHT INFRINGEMENT

Article 75. Request for actions against copyright, related right infringement

1. Written request for actions against copyright, related right infringement must contain:

a) Date of request;

b) Name, address of organization, individual requesting actions against the infringement; full name of representative if the request is made via the representative;

c) Name of agency receiving the request;

d) Name, address of infringing organization(s), individual(s); name, address of suspected infringing organization(s), individual(s) when requesting suspension of customs procedures in case of suspected infringing imports, exports;

dd) Name, address of organization(s), individual(s) with relevant rights and benefits (if any);

e) Name, address of witness (if any);

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h) Summary of the infringement: Date and location of infringement, brief description of subject of copyright, related rights being infringed, the infringement; web address, link if copyright, related right infringement takes place on telecommunication network, the internet, and other information (if any).

i) Detailed request for actions against infringement;

k) List of documents and proof attached to the request;

l) Signature and seal of filing individual (if any).

2. The request for actions against copyright, related right infringement must be accompanied by documents and proof under Article 76 hereof.

Article 76. Documents and proof attached to written request for actions against copyright, related right infringement

1. Individuals requesting actions against infringement must attach documents, proof below to their written request:

a) Proof of copyright, related right ownership if requesting individual is the author, performer, copyright holder, related right holder, person receiving licensed, inheriting copyright, related rights;

b) Proof of occurrence of copyright, related right infringement; proof suggesting that imports, exports infringe copyright, related rights;

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2. If the request is made via authorized representative, notarized or certified power of attorney is required; if the request is made via legal representative, document proving legal representative status is required.

Article 77. Proof of copyright, related right holders

1. Regarding copyright, related rights that have been registered, the proof can be:

a) Copies of Certificate of registered copyright, Certificate of registered related rights either accompanied by the original copies for comparison or certified;

b) Excerpts of National register of copyright, related rights or proof of copyright certification issued by competent authorities.

2. Regarding copyright, related rights that have not been registered, the proof shall be documents, exhibits, information on the basis of copyright, related rights in accordance with Clause 1 and Clause 2 Article 6 of the Law on Intellectual Property and documents below:

a) Original copies or copies of works, fixed performances, audio recordings, video recordings, broadcasting programs, encrypted program-carrying satellite signals carrying name of right holders in accordance with Article 198a of the Law on Intellectual Property and Article 59 hereof;

b) Other documents proving the creation, publication, performance, distribution, broadcasting, transmission of subjects mentioned above and attached documents, proof (if any).

3. In case requesting individual previously received or inherited the copyright, related rights as per the law, they are also required to present original copies or certified, notarized, consular legalized copies of contracts for licensing, gift, trading, capital contribution, transfer of use right of copyright, related rights, or documents verifying inheritance in addition to documents under Clause 1 and Clause 2 of this Article.

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1. Documents, exhibits below are considered proof of infringement:

a) Original copies or legitimate copies of works, performances, audio recordings, video recordings, broadcasting programs (subjects of copyright, related rights);

b) Related documents, exhibits, photos, audio recordings, video recordings of the examined subjects;

c) Written presentation, comparison between the examined subjects and subjects of copyright, related rights;

d) Transcriptions, testimonies, bailiff’s reports, other documents proving the infringement.

2. Documents, exhibits under Clause 1 of this Article must be compiled into lists which must be signed by requesting individual.

Article 79. Responsibilities of individuals requesting actions against copyright, related right infringement

Individuals requesting actions against copyright, related right infringement must guarantee and be responsible for accuracy of information, documents, proof that they provide.

Article 80. Submission and settlement of request for actions against copyright, related right infringement

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2. Upon receiving the request for actions against infringement, if the request is within the power of other authorities, the receiving authorities shall guide the applicants to submit to competent authorities or transfer the request to competent authorities within 10 days from the date on which they receive the request.

3. If the request lacks essential documents, evidence, or exhibits, sanctioning authorities shall request the applicants to submit additional documents, evidence, and exhibits within a reasonable time limit no more than 30 days.

4. Sanctioning authorities shall reject the request and state reason for rejection when:

a) The time limit under Clause 3 of this Article expires before the applicants submit additional documents, evidence, exhibits at request of sanctioning authorities;

b) Prescriptive period of copyright, related right infringement expires as per the law;

c) Verification results issued by sanctioning authorities or police authorities show no infringement as described in the request;

d) Competent authorities issue documents on insufficient grounds for taking actions against the infringement.

5. In case of disputes or complaints regarding right holders, subjects under protection, scope of protection, copyright, related right protection term, authorities that have received the request shall guide applicants to adopt procedures for dispute, complaint settlement at competent authorities within 10 days from the date on which disputes or complaints arise.

Section 5. ACTIONS AGAINST COPYRIGHT, RELATED RIGHT INFRINGEMENT

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1. Regarding goods infringing copyright, related rights:

a) Infringing goods mean components, details (hereinafter referred to as “parts”) of products that contain infringing elements and can be sold as an independent product;

b) If infringing elements cannot be separated into a part of product that be sold independently in accordance with Point a of this Clause, infringing goods shall be the entire product that contains infringing elements.

2. Value of goods infringing copyright, related rights shall be determined by sanctioning authorities at the time of infringement and based on grounds listed below in order of priority:

a) Listed price of infringing goods;

b) Sold price of infringing goods;

c) Final cost of infringing goods if the goods are not sold yet;

d) Import cost of infringing goods.

3. Value of goods infringing copyright, related rights shall be calculated depending on infringing parts of the products according to Point a Clause 1 of this Article or depending on value of the entire infringing products according to Point b Clause 1 of this Article.

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The establishment, composition, and working principles of the Evaluating council shall conform to civil proceeding, criminal proceeding, and administrative penalty laws.

Article 82. Handling of goods infringing copyright, related rights

1. Regarding pirated goods and ingredients, materials, instruments primarily used for the production thereof, sanctioning authorities shall:

a) Distribute or introduce into use for non-commercial purposes in accordance with Article 83 hereof; or

b) Dispose in accordance with Article 84 hereof; or

c) Mandate elimination of infringing elements and adopt appropriate measures under Clause 4 of this Article on a case-by-case basis.

2. If infringing goods are not pirated goods or ingredients, materials, instruments primarily used for the production thereof, sanctioning authorities shall request individuals owning, transporting, and storing these goods to eliminate infringing elements and adopt appropriate measures under Clause 4 of this Article.

3. Ingredients, materials, or instruments whose only function is to create or facilitate the use of pirated goods or infringing goods, or only practical use is to create or facilitate the use of pirated goods or infringing goods shall be considered ingredients, materials, and instruments primarily used for the production of pirated goods, infringing goods.

4. Sanctioning authorities shall adopt solutions under Point a and Point b Clause 1 of this Article or, when requested by right holders, request organizations and individuals that produce infringing goods to recall all infringing goods introduced to the offenders’ distribution channels in order to adopt solutions under Point a and Point b Clause 1 of this Article or other solutions if necessary on a case-by-case basis. Sanctioning authorities are allow to take request of relevant parties into account during promulgation of decisions on actions against infringement.

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1. Mandating distribution or introduction into use for non-commercial purposes of pirated goods, infringing goods must meet conditions below:

a) The goods have use value, do not harm humans, domestic animals, plants, and the environment, and are not cultural products containing harmful contents; and

b) Infringing elements in the goods have been eliminated; and

c) The distribution and use are not for profit and must not unreasonably affect normal exercising of rights of copyright holders, related right holders, prioritizing humanitarian purpose, charity, or social interests;

d) Individuals who receive the goods are not potential customers of copyright holders, related right holders.

2. Clause 1 of this Article also applies to ingredients, materials, instruments primarily used for the production or sale of pirated goods, infringing goods.

Article 84. Mandated disposal

Mandated disposal of pirated goods, infringing goods or ingredients, materials, instruments primarily used for the production thereof shall be applied if conditions for mandated distribution or introduction into use for non-commercial purposes under Article 83 hereof are not met.

Article 85. Confiscation

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Section 6. CONTROL OF IMPORTS, EXPORTS RELATING TO COPYRIGHT, RELATED RIGHTS

Article 86. The right to request control of exports, imports relating to copyright, related rights

Copyright holders and related right holders have the right to submit request for inspection and supervision of exports, imports showing signs of copyright, related right infringement or request for suspension of customs procedures of exports, imports suspected of copyright, related right infringement.

Article 87. Competent customs authority to receive written request

Competent customs authority that receive written request for inspection, supervision, or suspension of customs procedures shall conform to Clause 1 Article 75 of the Law on Customs.

Article 88. Request processing

1. Within 20 days from the date on which the request for inspection, supervision of exports, imports and adequate documents under Clause 2 Article 74 of the Law on Customs are received or within 2 working hours from the date on which the request for suspension of customs procedures and adequate documents under Clause 3 Article 74 of the Law on Customs are received, customs authority are responsible for reviewing, issuing notice on request reception if the applicants have fulfilled obligations under Points a, b, and c Clause 1 and Clause 2 Article 271 of the Law on Intellectual Property. In case of rejection, customs authority must respond to the applicants in writing and state reason.

2. On the basis of notice issued by the General Department of Customs approving the request for inspection, supervision of imports and exports, Customs Departments of provinces and cities and Anti-smuggling and Investigation Department shall look up system data in order to implement inspection and supervision within their jurisdiction.

3. Customs Sub-departments are responsible for conducting inspection, supervision in order to detect goods showing signs of copyright, related right infringement or issuing decisions on suspension of customs procedures on the basis of request for suspension of customs procedures or suspending customs procedures in accordance with Article 89 hereof.

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1. During customs inspection, supervision, and control, if there are clear grounds to suspect that imports or exports are pirated goods, Customs Sub-departments shall suspend customs procedures of said goods.

2. Customs Sub-departments must issue decisions on suspension of customs procedures and notify copyright holders, related right holders if possible and importers, exporters about the suspension.

3. Duration of customs procedure suspension shall be 10 working days from the date on which Customs Sub-departments issue decisions on suspension of customs procedure.

4. During the suspension of customs procedures, Customs Sub-departments that issue decision on suspension of customs procedures are responsible for:

a) requesting importers or exporters or copyright holders or related right holders (if possible) to provide documents relevant to the goods (such as catalogs, assessment conclusions, foreign documents, similar case studies);

b) sampling or allowing organizations, individuals to sample to conduct assessment, additional assessment, re-assessment at professional customs organizations or other assessment bodies as per the law (if necessary);

c) cooperating and communicating with state authorities governing copyright, related rights affiliated with the Ministry of Culture, Sports and Tourism regarding right holders, protection capability, scope of protection, and entitlement to take actions against copyright, related right infringement (if necessary);

d) reporting to Customs Sub-departments of provinces and cities and General Department of Customs in order to promptly deal with complicated cases.

5. At the end of suspension duration of customs procedures:

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b) If applicants initiate a civil proceeding, customs authority shall comply with remarks of the court;

c) If copyright, related right infringement contains signs of criminal intentions according to the Criminal Code, customs authority shall transfer the cases to competent authorities for investigation and prosecution as per the law;

d) If customs authority deem suspended goods to be not pirated goods, customs authority shall proceed with customs procedures of the shipment and notify relevant parties.

6. If customs authority incorrectly suspends customs procedures thereby causing damage to goods owners, Customs Sub-departments must pay damages and other costs to the goods owners as per the law.

Article 90. Handling of goods showing signs if copyright, related right infringement

1. Customs authority shall issue decisions on suspension of customs procedures, notify copyright holders, related right holders and goods owners about suspension of customs procedures in case of goods showing sign of infringement or at request of copyright holders, related right holders or for the purpose of imposing administrative penalties. The notice must include name, address, fax, phone number of the parties, reason and duration of suspension.

2. Customs authority shall proceed with customs procedures of shipments that were previously suspended in accordance with Clause 3 Article 218 of the Law on Intellectual Property and cases below:

a) The Decision on suspension of customs procedures is suspended or revoked in accordance with decisions on resolution of complaints, accusations;

b) Individuals requesting suspension of customs procedures withdraw their request.

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Procedures for control of imports, exports relating to copyright, related rights shall conform to this Decree and other relevant customs laws.

Section 7. ASSESSMENT REGARDING COPYRIGHT, RELATED RIGHTS

Article 92. Assessment regarding copyright and related rights

1. Assessment regarding copyright and related rights means when competent organizations and individuals utilize their knowledge and professional operations in order to assess and conclude issues relating to copyright, related rights at request of requesting organizations, individuals.

2. Assessment regarding copyright and related rights includes:

a) Determining of grounds for copyright, related rights in accordance with Article 65 hereof;

b) Determining of whether examined subjects qualify as infringing elements of copyright, related rights in accordance with Clause 2 Article 64, Article 66, and Article 67 hereof;

c) Determining of whether overlap, similarity, equivalence, confusion, difficulty in distinguishing, or reproduction occurs between examined subjects and subjects under copyright, related right protection;

d) Determining of value of copyright, related rights, damages in accordance with price laws.

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Article 93. Copyright, related right assessor

1. Copyright, related right assessors are individuals who have sufficient knowledge and professional skills in assessing, concluding issues relating to assessment contents, satisfy conditions under Clause 3 Article 201 of the Law on Intellectual Property, and are acknowledged by competent authorities and issued with copyright, related right assessor's card (hereinafter referred to as “assessor’s card”).

2. Copyright, related right assessors have the right to:

a) Refuse to conduct assessment in case of insufficient relevant documents or insufficient value;

b) Refuse to receive assessment samples due to potential health harm or clunkiness of the samples and/or insufficient storage infrastructures;

c) Use appraisal results or professional conclusion, expertise remarks to serve the assessment;

d) request organizations and individuals to provide information, documents relating to subject of assessment in order to conduct assessment in case of independent copyright, related right assessors unless otherwise regulated by the laws;

dd) exercise other rights as per the law.

3. Copyright, related right assessors have the obligation to:

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b) produce assessment dossiers; provide explanation for assessment conclusion when requested;

c) preserve and store documents, samples relevant to the case as per the law;

d) independently produce assessment results and be responsible for their assessment results; compensate for damage done to relevant individuals, organizations as a result of incorrect assessment results produced by the assessors;

dd) refuse to conduct assessment if the assessors have rights and benefits relevant to subjects of assessment, assessment cases or other reasons affect fairness of assessment results or other regulations require the assessors to reject;

e) maintain confidentiality of information and documents at request of applicants and compensate for damage done to relevant individuals, organizations as a result of disclosing information;

g) assume legal responsibilities for taking advantage of assessment expertise and assessment operation for personal gain or intentionally producing incorrect assessment results;

h) comply with regulations on assessment procedures;

i) communicate and submit reports on 6-monthly and yearly assessment operation to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism;

k) perform other obligations as per the law.

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1. Copyright, related right assessors operate within copyright, related right assessing bodies in the name of the assessing bodies or as independent assessors.

2. Methods of operation of assessors are recorded under Decisions on issuance, re-issuance of assessor’s card and the list of copyright, related right assessors under Clause 6 Article 98 hereof.

3. If assessors operate under the name of copyright, related right assessing bodies, information on assessors must be recorded under Decision on issuance, re-issuance of Certificate of copyright, related right assessing bodies and the list of assessors affiliated with assessing bodies under Clause 6 Article 99 hereof.

Article 95. Copyright, related right assessing bodies

1. Copyright, related right assessing bodies are organizations fulfilling regulations under Clause 2 and Clause 2a Article 201 of the Law on Intellectual Property, relevant law provisions and being issued with the Certificate of copyright, related right assessing bodies (hereinafter referred to as “Certificate of assessing bodies”).

2. Copyright, related right assessing bodies have the right to:

a) hire copyright, related right assessors to conduct ad hoc assessment;

b) request organizations and individuals to provide information and documents relating to assessment subject for the purpose of the assessment, unless otherwise prescribed by law;

c) exercise other rights as per the law.

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a) operate within the field of assessment specified under Certificate of business registration or Certificate of operation registration and Certificate of assessing bodies;

b) conduct assessment following rules under Clause 4 Article 201 of the Law on Intellectual Property;

c) preserve and store documents relating to the case;

d) maintain confidentiality of information and documents at request of applicants and compensate for damage done to relevant individuals, organizations as a result of disclosing information;

dd) refuse to receive the case and conduct assessment if other regulations and law require the assessing bodies to refuse to conduct assessment;

e) communicate and submit reports on 6-monthly and yearly assessment operation to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism;

g) perform other obligations as per the law.

Article 96. Entitlement to issue, re-issue, and revoke assessor’s card, certificate of assessing bodies

State authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism are entitled to issue, re-issue, and revoke assessor’s card, certificate of assessing bodies.

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1. Individuals who apply for assessor’s card without written qualification of assessment examination under Article 98 hereof shall submit application for assessment examination to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism in person or via post service. Application for assessment examination consists of:

a) Form No. 9 under Appendix III attached hereto;

b) Certified true copies or copies extracted from master registers of undergraduate or graduate degrees;

c) Written confirmation issued by employers regarding a minimum period of professional operation relating to the field of assessment of 5 consecutive years or 15 consecutive years of individuals applying for exemption from assessment examination under Clause 5 of this Article;

d) 2 colored head shots in 3 x 4 cm format;

dd) Written request for exemption from assessment examination for individuals exempt from attending assessment examination under Clause 5 of this Article.

2. Within 20 days from the date on which adequate application is received, state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism are responsible for notifying receipt of application and establishing assessment examination council. In case of rejection, the regulatory authorities must respond in writing and state reasons.

3. Assessment examination council

a) The Minister of Culture, Sports and Tourism shall issue decision on establishment of assessment examination councils (hereinafter referred to as “examination councils”) at request of state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism.

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4. Contents of assessment examination

Contents of assessment examination include knowledge of the law and knowledge of fields in copyright, related right assessment.

5. Eligibility for exemption from assessment examination

Individuals who compile and provide guidance on implementation of legislative documents on copyright, related rights; conduct inspection, settle disputes, complaints regarding copyright, related rights at state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism for at least 15 consecutive years shall be exempt from assessment examination.

6. Notifying of assessment examination results

Assessment examination results shall be notified on website of state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism. Within 30 days from the date on which assessment examination is conducted, state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall issue written confirmation of examination results to individuals passing the examination.

Article 98. Procedures for issuance, re-issuance, and revocation of copyright, related right assessor’s card

1. Individuals satisfying conditions under Clause 3 Article 201 of the Law on Intellectual Property and applying for copyright, related right assessor's card shall submit application for issuance of assessor's card in person or via post service to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism. The application consists of:

a) Form No. 10 under Appendix III attached hereto;

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c) 2 colored head shots in 3 x 4 cm format.

2. Within 20 days from the date on which adequate application is received, state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall issue decision on issuance of assessor’s card. In case of rejection, the regulatory authorities must respond in writing and state reasons. Samples of copyright, related right asset assessor’s card are under Form No. 11 of Appendix III attached hereto.

3. Effect of assessor’s card starts from the date of issue.

4. Re-issuance of assessor’s card:

a) Assessor’s card shall only be re-issued when previous assessor’s card is lost or damaged or in case of changes to information on assessor’s card;

b) Assessors who wish to apply for re-issuance of assessor’s card shall submit Form No. 10 under Appendix III attached hereto and documents under Point a and Point c Clause 1 of this Article to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism in person or via post service. If old assessor’s card is damaged, the damaged card is also required;

c) Within 20 days from the date on which application for re-issuance of assessor’s card is received, assessor's card shall be re-issued.

5. Assessor’s card shall be revoked when:

a) Individuals who were previously issued with assessor's card no longer satisfy conditions under Article 93 hereof;

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c) There are grounds confirming that assessor’s card has been issued in an illegitimate manner.

6. State authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall produce list of assessors according to the Decision on issuance, re-issuance, revocation of assessor’s card and publish on their websites.

Article 99. Procedures for issuance, re-issuance, revocation of certificate of copyright, related right assessing bodies

1. Organizations satisfying conditions under Clause 2 and Clause 2a Article 201 of the Law on Intellectual Property, relevant law provisions shall submit application for issuance of certificate of assessing bodies to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism in person or via post service. The application consists of:

a) Form No. 12 under Appendix III attached hereto;

b) Certified true copies or copies extracted from master registers of certificate of operation registration or decision on establishment issued by competent authorities;

c) Certified true copies or copies extracted from master registers of decision on recruitment or employment contracts or working contracts between the applicants and affiliated assessors.

2. Within 20 days from the date on which adequate application is received, state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall issue decision on issuance of certificate of assessing bodies. In case of rejection, state authorities shall respond in writing and state reasons. Samples of certificate of copyright, related right assessing bodies are specified under Form No. 13 of Appendix III attached hereto.

3. Effect of certificate of assessing bodies starts from the date of issue.

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a) Certificate of assessing bodies shall only be re-issued if the previous certificate is lost or damaged or in case of changes to information on the previous certificate;

b) Assessing bodies shall submit application for re-issuance of certificate of assessing bodies to state authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism in person or via post service. The application consists of:

Form No. 12 under Appendix III attached hereto;

Certified true copies or copies extracted from master registers of decision on recruitment or employment contracts or working contracts between the applicants and affiliated assessors (in case of changes to information on certificate of assessing bodies).

In case of damaged certificate of assessing bodies, the applicants must submit the damaged certificate. In case of changes to information, legitimate documents proving the changes and previous certificate must be submitted together with the application;

c) Within 20 days from the date on which adequate application is received, certificate of assessing bodies shall be reissued.

5. Certificate of assessing bodies shall be revoked when:

a) Assessing bodies no longer satisfy conditions under Article 95 hereof;

b) Assessing bodies violate the law on assessment operation at which point competent authorities request revocation of certificate of assessing bodies as per the law;

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d) Assessing bodies cease to conduct assessment operation.

6. State authorities governing copyright and related rights affiliated with the Ministry of Culture, Sports and Tourism shall produce and update list of assessing bodies according to decisions on issuance, re-issuance, revocation of certificate of assessing bodies and publish on their websites.

Article 100. Request for copyright, related right assessment

1. Organizations and individuals that have the right to request copyright, related right assessment include:

a) Copyright, related right holders;

b) Organizations, individuals requested to be met with actions for infringement of copyright, related rights or complaints, denunciations regarding copyright, related rights;

c) Other organizations, individuals related to the disputes, infringement, complaints, denunciations regarding copyright, related rights.

2. Organizations and individuals having the right to request assessment under Clause 1 of this Article have the right to request copyright, related right assessing bodies or assessors to conduct assessment by themselves or by authorizing other organizations, individuals to do so.

3. Organizations and individuals requesting for copyright, related right assessment have the right to:

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b) request assessing bodies, assessors to provide explanation for conclusion results;

c) request additional assessment or re-assessment in accordance with Article 106 hereof;

d) negotiate about costs for requesting assessment.

4. Organizations and individuals requesting for copyright, related right assessment have the obligation to:

a) adequately and truthfully provide documents, evidence, information relating to assessment subjects at request of assessing bodies, assessors;

b) clearly and specifically present issues that need to be assessed;

c) incur assessment costs as per agreement; incur advance assessment costs at request of assessing bodies, assessors;

d) receive assessment subjects at request of assessing bodies, assessors.

Article 101. Receipt of request for copyright, related right assessment

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a) Written request for assessment which contains basic information below:

Name and address of individuals, organizations requesting assessment;

Number of ID Card or Citizen ID Card or decision on establishment or certificate of operation registration, date of issue, place of issue of individuals or organizations applying for assessment;

Phone number, email address of individuals or organizations applying for assessment;

Position of applicants (authors; copyright holders; related right holders; individuals having related rights and benefits; others);

Grounds for requesting assessment;

Subjects and contents requested for assessment;

Other relevant details.

b) Attachments:

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Documents proving authorship, copyright ownership, related right ownership, works, subjects of related rights;

Other relevant documents.

2. Independent assessors or assessing bodies shall receive application for assessment, estimate assessment costs, negotiate and sign assessment agreements with the applicants, except for cases where the application is rejected in accordance with Clause 3 of this Article.

3. Independent assessors or assessing bodies shall reject the application when:

a) The assessment details are not specified under Clause 2 Article 92 hereof;

b) Cases under Point a Clause 2 and Point dd Clause 3 Article 93 hereof.

Article 102. Copyright, related right assessment service agreement

1. Application for assessment must be compiled into assessment service agreements between the applicants and assessing bodies or assessors.

2. Assessment agreement consists of:

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b) Subjects and contents requested for assessment;

c) Location and time of assessment;

d) Assessment costs and payment methods thereof;

dd) Rights and obligations of the parties;

e) Contract take-over and finalization;

g) Responsibilities for incurring damages; solutions for settling disputes;

h) Other conditions as per agreement (if any).

Article 103. Handover, receipt, and return of subjects of copyright, related right assessment

If application for assessment includes subjects of assessment, the handover, receipt, and return of subjects of assessment must be logged in form of written records which contain basic information below:

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2. Name and address of parties handing over and receiving subjects of assessment or representatives.

3. Name of subjects of assessment; relevant documents or items.

4. Conditions and methods of preservation of assessment subjects upon handover, receipt, return.

5. Signatures of parties handing over and receiving subjects of assessment.

Article 104. Sampling for copyright, related right assessment

1. Assessing bodies and assessors shall collect assessment samples by themselves (specific exhibits that are infringing elements and subjects of copyright, related right protection) or by requesting applicants to provide samples. Sampling process must be logged in form of written records which must be witnessed and countersigned by relevant parties.

2. The handover, receipt, and return of assessment samples shall conform to Article 103 hereof.

Article 105. Conducting copyright, related right assessment

1. Copyright, related right assessment shall be conducted by one or multiple copyright, related right assessors. Individual assessment means assessment conducted by one assessor. Group assessment means assessment conducted by at least two assessors.

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Article 106. Additional assessment and re-assessment

1. Additional assessment shall be conducted when assessment conclusion is inadequate or unclear regarding issues to be assessed or more details need to be clarified. Application for additional assessment and conducting of additional assessment shall conform to regulations applicable to first-time assessment.

2. Re-assessment shall conducted when applicants disagree with assessment results or assessment conclusions conflict with one another regarding the same issues. Re-assessment can be conducted by assessing bodies, assessors that conducted the previous assessment or other assessing bodies, assessors ate request of the applicants.

3. In case of difference between assessment conclusions or between assessment conclusions and remarks of state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism regarding the same issues, the applicants have the right to request other assessing bodies, assessors to conduct re-assessment.

Article 107. Advisory council for copyright, related right assessment

1. During assessment of copyright and related rights, independent assessors and assessing bodies are allowed to establish advisory council for copyright, related right assessment.

2. Independent assessors and assessing bodies shall select members of the advisory council depending on the assessment specialty and issue decisions on establishment of advisory council for copyright, related right assessment.

Advisory council for copyright, related right assessment consists of chairpersons and members. There must be an odd number of advisory council members with a minimum of 3 members.

3. Advisory council for copyright, related right assessment shall operate in a manner that respects democracy and open ballot system for field-specific matters. Members of advisory council for copyright, related right assessment shall hold collective discussion regarding field-specific matters and have their remarks recorded in meeting minutes of advisory council for copyright, related right assessment.

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Article 108. Conclusion of copyright, related right assessment

1. Assessment conclusion under Clause 5 Article 201 of the Law on Intellectual Property must be presented in written form.

2. Written assessment conclusion must contain:

a) Name and address of assessing bodies, assessors;

b) Name and address of applicants;

c) Subjects, details, and scope of assessment;

d) Assessment methods;

dd) Assessment conclusion;

e) Time and location of assessment.

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4. If more time for assessment is required, independent assessors and assessing bodies shall inform applicants in writing.

Article 109. Costs for copyright, related right assessment

1. Costs for assessing copyright, related rights depends on service requirements agreed upon by the parties and include costs below in part or in whole:

a) Experiment costs;

b) Machinery and equipment costs;

c) Document study costs;

d) Discussion, commentary, evaluation costs;

dd) Management costs and other necessary costs.

2. Collection, management, and use of assessment costs shall conform to regulations and law.

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Article 110. Intermediary service providers

1. Intermediary service providers under Article 198b of the Law on Intellectual Property mean domestic and foreign enterprises that provide any of the services below:

a) “Mere conduit” service means a service that transmits digital information provided by service users via telecommunication network and the internet or a service providing access to telecommunication network and the internet;

b) “Caching” service means a service that transmits digital information provided by service users via telecommunication network and the internet that involves automatic, intermediate, and temporary storage of the digital information. The automatic, intermediate, and temporary storage is implemented for the sole purpose of allowing allocation of the digital information to other users at their request to be more effective;

c) “Hosting” service means a service that allows users to store digital information provided by users at their request.

2. Intermediary service providers include:

a) Telecommunication enterprises providing internet access service, internet connection service;

b) Telecommunication enterprises providing line leasing service in case leased lines are not used to provide services in accordance with Point c and Point d of this Clause;

c) Enterprises leasing server collocation, leasing dedicated server in case servers are not used to provide services in accordance with Point d of this Clause;

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dd) Enterprises providing online social network services;

e) Enterprises providing digital information search services;

g) Other enterprises providing one, several, or all services similar to those under Clause 1 Article 198b of the Law on Intellectual Property and Clause 1 of this Article.

Article 111. Responsibilities of intermediary service providers in protecting copyright, related rights on telecommunication network and the internet

1. Intermediary service providers under Point c Clause 1 Article 110 hereof must develop tools to receive request for removal or disabling of access to digital information infringing copyright, related rights. Tools that receive request can be:

a) Computer programs that receive request;

b) Website that receive request;

c) Email addresses that receive request;

d) Web portals that receive request;

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Confirmation of successful request submission via receiving tools means that intermediary service providers have received the request.

2. Intermediary service providers shall notify state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism about their contact points for matters regarding copyright and related rights and publish on their websites. Contact points must include: email address, phone number.

3. Intermediary service providers must warn service users about their legal liabilities if they infringe copyright, related rights, authenticate information when users register digital accounts; maintain security of information, accounts of users; provide user information at written request of competent authorities for the purpose of verifying, taking actions against violations of copyright, related right laws.

4. Intermediary service providers under Point c Clause 1 Article 110 hereof shall remove or disable access to digital information when they know that the digital information infringes copyright, related rights in accordance with Article 113 and Article 114 hereof.

Intermediary service providers that implement Point a and Point b Clause 1 Article 114 hereof are responsible for publishing internal procedures for processing request for removal or disabling of access to digital information infringing copyright, related rights or request for rejection of request for temporary removal or disabling of access to digital information on their service.

5. Intermediary service providers must comply with inspection and investigation of competent authorities in accordance with copyright, related right laws.

6. If intermediary service providers use information under copyright, related right protection uploaded by their users onto telecommunication network and the internet for commercial purposes, the intermediary service providers must apply for permission and pay royalties in accordance with Clause 2 Article 20, Clause 4 Article 29, Clause 2 Article 30, or Clause 2 Article 31 of the Law on Intellectual Property.

Article 112. Legal liabilities of intermediary service providers regarding copyright, related right infringement

1. Intermediary service providers which do not adequately adopt regulations in order to be exempt from legal liabilities in accordance with Clause 3 Article 198b of the Law on Intellectual Property and Article 113, Article 114 hereof must be jointly responsible for incurring damages caused by copyright, related right infringement caused by people using their services.

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Article 113. Procedures for removing or disabling access to digital information of intermediary service providers at request of competent authorities

1. In order to be exempt from legal liabilities in accordance with Point c Clause 3 Article 198b of the Law on Intellectual Property, intermediary service providers under Point c Clause 1 Article 110 hereof must remove or disable access to digital information infringing copyright, related rights within 24 hours from the moment in which they receive written request of competent authorities entitled to sanction copyright, related right infringement in accordance with Article 200 of the Law on Intellectual Property or state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism, notify parties owning digital information that is removed or disabled from being accessed, and submit reports on implementation results to requesting authorities and state authorities governing copyrights and related rights of Ministry of Culture, Sports and Tourism within 24 hours after processing the request.

Notice and reports under this Clause shall be implemented in written form or email or similar forms.

2. If parties owning digital information that is removed or disabled from being accessed or intermediary service providers reject request for removal or disabling of access, they shall adopt procedures for filing complaints, denouncing, filing lawsuits as per the law regarding decisions of competent authorities.

3. Request for removal or disabling of access to digital information infringing copyright, related rights under Clause 1 of this Article serves as proof of intermediary service providers’ knowledge regarding copyright, related right infringement of the digital information.

Article 114. Procedures for removal or disabling of access to digital information of intermediary service providers at request of copyright holders, related right holders

In order to be exempt from legal liabilities in accordance with Point c Clause 3 Article 198b of the Law on Intellectual Property, intermediary service providers under Point c Clause 1 Article 110 hereof must comply with regulations below:

1. Upon receiving request from copyright holders, related right holders (hereinafter referred to as “requesting party”) together with documents and proof in accordance with Clause 4 of this Article via receiving tools under Clause 1 Article 111 hereof:

a) Within 72 hours from the moment in which the request is received, intermediary service providers shall remove or disable access to digital information requested to be removed or disabled from being accessed and notify requesting parties and the parties owning the digital information in question (hereinafter referred to as “requested parties”) regarding temporary removal or disabling of access to the digital information together with documents and proof requested by the requesting parties under Points a, b, c, d, dd, and e Clause 4 of this Article;

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c) If the requesting party and/or the requested party does not file civil lawsuit or request competent authority to take actions against infringement or if the court or competent authority does not accept the lawsuit as per the law after documents and request are forwarded to the requesting party in accordance with Point b of this Clause, intermediary service providers shall restore the digital information which has been removed or disabled.

If the court or competent authority accepts lawsuit of the requesting party or the requested party, intermediary service providers shall conform to decisions of the court or competent authority as per the law.

2. In case of digital information that is broadcasted live in real time, if copyright holders, related right holders pro-actively provide documents and proof according to Points a, b, c, and e Clause 4 of this Article for intermediary service providers at least 24 hours prior to broadcasting live in order to prevent copyright, related right infringement on telecommunication network and the internet, the intermediary service providers shall:

a) temporarily remove or disable access to the digital information upon receiving request for removal or disabling of access to digital information, inform the requesting party, requested party about the temporary removal or disabling of digital information and attach documents, proof provided by the requesting party;

b) comply with Points b and c under Clause 1 of this Article.

3. The notifying, sending, forwarding of documents and proof by intermediary service providers, the requesting party, and the requested party under Clause 1 of this Article shall be implemented via email or other similar means.

4. Documents and proof under Clause 1 of this Article consist of:

a) Information of the requesting party or the requested party: Name; current address; email address; phone number; ID Card, Citizen ID Card, or passport number in case of individuals; enterprise registration, establishment decision, or establishment license number in case of organizations;

b) Proof of right ownership in accordance with Article 77 hereof and commitment to legitimacy of the documents;

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d) Proof of copyright, related right infringement in accordance with Article 78 hereof and damage done;

dd) For the requesting party, information on location and link to the digital information that infringes copyright, related rights, and description of infringement. For the requested party, information on location and link to the digital information that is being removed or disabled;

e) Power of attorney as per the law if the requesting party or the requested party is the authorized party.

5. Request for removal or disabling of access to digital information that infringes copyright, related rights under Clauses 1, 2, and 4 of this Article serves as proof of intermediary service providers’ knowledge regarding copyright, related right infringement of the digital information.

6. Any party that provide incorrect documents, proof thereby infringing legitimate rights and benefits of other relevant parties shall be met with corresponding legal liabilities as per the law.

Chapter VII

Article 115. Entry into force

1. This Decree comes into force from April 26, 2023.

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