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Process for Conducting Expert Opinion in Support of the Claims for Infringement of Copyright and Related Rights under Circular 02/2019 of the Ministry of Culture, Sports and Tourism

17

MAR

2020

Circular 02/2019/TT-BVHTTDL promulgating process for issuance of expert opinion regarding copyright and related rights infringement claims[1]

Perhaps due to the complexity and diversity available in the field of copyright and related rights, the assessment activities cannot begin without the Circular 02 providing the guidance on the assessment process.

Therefore, on July 5, 2019 (more than 3 years since the establishment of the Center for Copyright Assessment[2]), the Circular 02 was issued hoping to positively contribute to copyright, neighboring rights dispute resolutions, particularly to unleash the knot of admissible evidence, ie. only the expert witness conclusion rather than “Ý kiến chuyên môn” - the professional opinion issued by an accredited assessment entity is considered as a valid source of evidence as provided by the 2015 Civil Proceeding Code[3]

Therefore, on July 5, 2019 (after more than 3 years since the establishment of the Copyright Assessment Center), Circular 02/2019 / BVHTTDL was issued hoping to contribute to the long-term positive resolution. This is now a matter of source of valid evidence (only the expert conclusions, rather than the professional opinion, issued by a state-accredited entity is considered an admissible evidence according to Article 94 of the 2015 Civil Procedure Code) to assist judges in resolving copyright and related rights disputes, especially in the court system.

Copyright and related rights expert opinion is one of the forms of judicial appraisal

Copyright and related rights expert opinion is a form of judicial expert opinion whereby judicial appraisers use their knowledge, means, scientific, technical and professional methods to conclude professional issues relating to activities of investigation, prosecution, adjudication and enforcement of criminal judgments, settlement of civil cases or administrative cases at the request of procedure-conducting bodies, persons conducting legal proceedings or at the request of persons or organizations

Subjects conducting judicial appraisal on copyright and related rights include: (a) judicial appraisers, (b) judicial appraisers who conduct judicial assessment in the field of culture having their appropriate-appointed section and expertise and published in accordance with the legislation on judicial appraisal, and (c) judicial assessment organizations on copyright and related rights (including 4 organizations: Ministry of Culture, Sports and Tourism, provincial Departments of Culture, Sports and Tourism, Offices of judicial appraisal, ad hoc judicial appraisal organizations that has been published under the legislation judicial appraisal

The four-step process when receiving a request for expert opinion or a demand for appraisal referendum

Step 1: Receiving the request for expert opinion or a demand for appraisal referendum: the subject conducting judicial assessment receives the request for expert opinion or a demand for appraisal referendum along with related documents and specimens. The hand-over and receipt of these documents are required to comply with Circular No. 07/2014 / TT-BVHTTDL July 23, 2014 of the Minister of Culture, Sports and Tourism

Step 2: Prepare to conduct assessment. The subject conducting judicial assessment must study the request or referendum together with the relevant documents and allegedly infringing sample and may request the requester to provide additional information for clarification. The subject conducting judicial assessment may also carry out taking a sample of assessment by himself (the object containing suspected elements of infringement or the subject matter of copyright or related rights being protected) with note that the taking of sample for appraisal must be made in a minute and archived. The subjects conducting judicial appraisal in the form of an assessment organization shall, based on the actual dossier, select judicial experts or judicial appraisers and decide for yourself whether individual or collective-based assessment (at least 3 people or more) is decided subject to particular case.

Step 3: Conduct an assessment. The appraiser shall examine the subject matter of assessment by using his/her professional knowledge and skills to assess and conclude issues related to copyright and related rights in accordance with the legislation based on the actual documents and evidences, in particular: (i) identifying the protection subject matter of copyright and related rights; (ii) identifying the elements of infringement of copyright and related rights; (iii) determining the value of copyright and related rights as well as the damages; (iv) other issues of copyright and related rights

Step 4: Issue and hand over assessment conclusions. Based on the work carried out in the above 3 steps, the appraiser issues an expert opinion deciding the appraised subject.


[1]Giám định” in Vietnamese language basically has the same meaning as widely accepted terms, namely expert opinion, expert witness, expert testimony, judicial technical appraisal, neutral technical expert, technical investigators, or even simply advice from expert in other jurisdictions. It is difficult for me to exactly translate “giám định”, ie. if translating it into appraisal or assessment then it may be not perceived by readers to be same meaning as commonly-used expert opinion, expert witness, and on the other hand when translating “Giám định” into English easily confusable with “Ý kiến chuyên môn” (professional opinion). Thus, I suggest using interchangeably any of the terms like expert opinion, expert witness, appraisal conclusion, or assessment conclusion for the purpose of confirming their same legal attributes, meaning that the usage, in nature of knowledge, equipment, scientific method, technical, expertise is to conclude a particular and relevant expertise issue in criminal, civil or administrative cases. See more our article “Is expert opinion or appraisal conclusion admissible in the dispute or claim for infringement of intellectual property rights in Vietnam?”: http://bross.vn/en/ip-practices/Is-Expert-Opinion-or-Appraisal-Conclusion-Admissible-in-the-Disputes-or-Infringement-Claims-of-Intellectual-Property-Rights-in-Vietnam

[2] The Center for copyright and related rights assessment under the Copyright Office - Ministry of Culture, Sports and Tourism was established under Decision No. 1981 / QD-BVHTTDL dated June 3, 2016. One of the main functions of this Center is to receive and perform the assessment of copyright and related rights at the request of individuals or referendum of organizations. See more (Vietnamese only): http://toquoc.vn/ra-mat-trung-tam-giam-dinh-quyen-tac-gia-quyen-lien-quan-99158647.htm

[3] The practice has shown that there is no expertise making the court squirm or confuse travelling from one agency to another but cannot solve the case. For example, in a civil lawsuit between Dong Tay Cultural Company (plaintiff) and QGS Co., Ltd. (defendant), was tried at first instance by the Danang People's Court in 2014 regarding a service contract dispute and intellectual property rights with respect to website system software program. Specifically, the plaintiff sued the defendant to take back VND 219,152,490, the partial amount paid to the defendant in the total amount of nearly VND 700 million, because the product provided by the defendant did not meet the quality standards under the signed contract. However, the defendant counterclaimed the plaintiff breached the defendant's obligation to use the software, together with a request before the court so that the court conducted a demand for referendum against the website software reportedly belonged to the defendant. Upon the court’s serve of a demand for referendum of expert opinion addressing the Department of Culture Sport and Tourism of Da Nang city. However, instead of responding to the court, the Department of Culture, Sports and Tourism of Da Nang sent its request to the Ministry of Culture, Sports and Tourism asking for the guidance and the Ministry instructed it to refer to Circular 15/2012 / TT-BVHTTDL on 13/12/2012, and finally the court contacted the Copyright Office of Vietnam (COV). In its response to the court, the COV stated "not yet copyright expert opinion delivery organization has been set up" and it proposed the court to set up a council of expert witnesses. Accordingly, the matter of expert opinion went around until February 11, 2014 - nearly 2 years after the case was accepted, the council of expert witnesses was established and pursuant to this council’s conclusion the People's Court of Da Nang handed down its first instance judgment of May 23, 2014.

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