Procedures for settling copyright and related rights disputes
Procedures for settling copyright and related rights disputes
Legal grounds
- The 2005 Law on Intellectual Property was amended and supplemented in 2009, 2019.
- Decree 22/2018/ND-CP detailing a number of articles and measures to implement the Law on Intellectual Property 2005 and the Law amending and supplementing a number of articles of the Intellectual Property Law 2009 on copyright , related rights.
- Joint Circular 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL-BKH&CN-BTP guiding the application of a number of legal provisions in the settlement of disputes over intellectual property rights at people’s courts.
- Civil Procedure Code 2015.
- Decree 99/2013/ND-CP of the Government on sanctioning of administrative violations in the field of industrial property.
In Vietnam today, copyright infringement is quite common, mostly in the fields of photography, journalism, performance, music, cinema, computer software, etc.
The following persons have the right to initiate a copyright dispute:
– The author is also the owner of the work;
– The author is not concurrently the owner of the work;
– The owner of the work is not the author at the same time;
– The author’s heir is also the owner of the work;
– Persons with rights related to copyright, including: performers; organize the production of audio and video tapes; broadcasting organization;
– The person who has the legal right to use the work through the work use contract;
– Organizations and individuals authorized by the above subjects according to the provisions of law.
Note: the right to sue for copyright protection arises from the time the individual creates the work and expresses that creativity in a certain material form. In case a person has an idea to create a literary, artistic or scientific work, but has not yet expressed this idea in any form, he cannot initiate a lawsuit to request the State to protect his or her rights.
Copyright disputes:
- Disputes between individuals and individuals over copyright over literary, artistic, scientific and derivative works;
- Disputes between co-authors over division of co-authorship;
- Disputes between individuals and organizations about the copyright owner of the work;
- Disputes between copyright holders and authors over royalties and remunerations for authors who create works on the basis of assigned tasks or contracts;
- Disputes over the exercise of moral rights or property rights of authors or copyright holders;
- Disputes over copyright over computer programs, data collection between financial providers and material conditions that are decisive for the construction and development of computer programs, data collection with designers, computer program builders, data collectors;
- Disputes over copyright over cinematographic works and theatrical works between financial investors and material and technical facilities for the production of cinematographic works and theatrical works with creative participants and producers of cinematographic works, theatrical works or disputes between them over royalties, remuneration and other material benefits;
- Disputes between copyright owners and users of published works without asking for permission, without paying royalties or remuneration, for the reason that the use affects the normal exploitation of the work. , to the detriment of the rights of the author or owner of the work;
- Disputes between copyright owners and users of published works do not require permission but must pay royalties or remuneration because the users do not pay royalties or remuneration or affect the the normal exploitation of the work, to the detriment of the rights of the author or the copyright holder;
- Disputes over contracts for assignment, transfer of copyright use rights or disputes over copyright service contracts; Contract for transfer and use of copyright
- Disputes arising from acts of copyright infringement;
- Disputes over inheritance and inheritance of property rights.
- Other disputes over copyright as prescribed by law.
Related rights disputes:
- Disputes between the investor and the performer over personal rights and property rights to the performance; a dispute between a performer and an operator using the property rights to the performance over remuneration;
- Disputes between producers of phonograms and video recordings and those who exercise the rights of producers of phonograms and video recordings about material interests when the producer’s phonograms and video recordings are distributed to the public ;
- Disputes between broadcasting organizations and users of broadcasting organizations’ rights about material interests when their broadcasts are recorded, videotaped or distributed to the public;
- Disputes between performers, producers of phonograms, video recordings, broadcasting organizations and related rights users do not require permission, do not have to pay royalties or remuneration for the reason of using as images. interfere with the normal exploitation of performances, phonograms, video recordings and broadcasts and prejudice the rights of spectators.
- Disputes between authors, copyright holders, performers, producers of phonograms, video recordings, broadcasting organizations and related rights users do not require permission but must pay royalties, remuneration, for the reason that the user does not have to pay royalties, remuneration or interfere with the normal exploitation of performances, phonograms, video recordings, broadcasts and prejudice the rights of performers, producers of phonograms and video recordings, broadcasting organizations;
- Disputes over related rights to performances, phonograms, video recordings, broadcasts (disputes over who is the owner of such performances, phonograms, video recordings, broadcasts). , etc.);
- Disputes arising from infringements of related rights;
- Disputes over inheritance and inheritance of related rights;
- Other disputes about related rights as prescribed by law.
Methods of resolving disputes over copyright and related rights
- Settle copyright and related rights disputes by conciliation and negotiation: When the rights and interests of copyright and related rights are infringed, the infringing party has the right to request the other party. Infringement terminates the violations and compensates for the damage caused by the violations.
- To settle disputes over copyright and related rights by filing a lawsuit to court, which takes place when the two parties cannot negotiate a conciliation, the infringing party has the right to sue the infringing party to the Court according to the procedural law. civil litigation.
Competence to settle disputes over copyright and related rights
- When applying civil and criminal measures, it will fall under the jurisdiction of the Court. In necessary cases, the Court may apply provisional urgent measures as prescribed by law.
- Apply administrative measures under the authority of the Inspectorate, Public Security, Market Management, Customs and People’s Committees at all levels.
In case of necessity, these agencies can apply preventive measures and ensure administrative sanctions according to the provisions of law.
Conditions for initiating a civil lawsuit over copyright and related rights
Clause 1, Section III, Part A, Joint Circular No. 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL-BKH&CN-BTP dated April 3, 2008 stipulates:
- Copyright and related rights have arisen under the provisions of Clauses 1 and 2, Article 6 of the Intellectual Property Law.
Authors, copyright holders and related rights holders have the right to apply for a certificate of copyright registration or a certificate of registration of related rights in accordance with Article 49 of this Law. wisdom. However, this is not a mandatory procedure to enjoy copyright and related rights.
When there is a dispute over copyright or related rights and the litigants initiate a lawsuit and request the Court to protect their legitimate rights and interests, the Court must consider it, regardless of whether they already have a registration certificate. registered copyright, related rights registration certificate or not, they have filed or not filed an application for registration of copyright, related rights.
- The term of protection of copyright and related rights remains in accordance with the provisions of the law on intellectual property
Authors, copyright holders and related rights holders may only exercise their moral and property rights within the scope and time limit prescribed by the law on intellectual property.
The term of protection of copyright and related rights is specified in Clauses 2 and 3, Article 739 of the 2005 Civil Code, Articles 27 and 34 of the Intellectual Property Law and Article 26 of Decree No. 100/2006/ND-CP.
Upon the expiration of the term of protection for copyright and related rights as provided for above (except for the moral rights specified in Clauses 1, 2 and 4, Article 19 of the Intellectual Property Law), the copyrights’ rights authors, copyright holders and related rights holders are no longer protected by the State and the law; therefore, the Court only accepts lawsuit petitions for settlement if those rights are still within the protection period, unless the law does not provide for the protection term for copyrights.
Procedure to initiate a lawsuit
Step 1: Prepare the petition file
– The petitioner prepares a lawsuit petition, the contents of the lawsuit petition must contain the contents specified in Article 164 of the Civil Procedure Code.
– Documents attached to the petition (evidence to prove that his/her claim is grounded and lawful).
According to the provisions of Article 203 of the Intellectual Property Law: “The plaintiff and the respondent in the case of infringement of intellectual property rights have the right and obligation to prove according to the provisions of Article 79 of the CPC and the provisions of Articles this”
Step 2: File a lawsuit at the Court
Step 3: The court considers and accepts the settlement
Within five working days after receiving the lawsuit petition, the Court must consider and issue one of the following decisions:
– Proceed to accept the case if the case falls under its handling competence;
– In case the lawsuit is not under the jurisdiction of the Court, the lawsuit petition must be transferred to the competent Court and notified to the plaintiff.
The time limit for preparation for trial of cases is prescribed as follows:
– 04 months from the date of acceptance of the case. For complicated cases or with objective obstacles, the chief justice of the court may decide to extend the time limit for trial preparation once but for no more than 2 months.
– In case there is a decision to temporarily suspend the settlement of the case, the time limit for trial preparation shall be recalculated from the date on which the court’s decision to continue the settlement of the case takes legal effect.
During the trial preparation stage, the judge assigned to handle the case must take testimonies of the involved parties, conduct meetings to check the handover, access and publicize evidences and conciliate, conduct conducting on-site review, appraisal or valuation, entrusting evidence collection (if any).
Step 4: The court brings the case to first-instance trial:
Within 01 month from the date of issuance of the decision to bring the case to trial, the court must open a court session; in case there is a plausible reason, the time limit for opening a court hearing may be extended but must not exceed 30 days.
Please contact us immediately for advice:
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