The Role and Liability of Internet Intermediaries in Copyright Enforcement under Vietnamese Law
Online piracy is a growing problem in Vietnam. Experts indicate that a large volume of all digital content (music, movies, e-books, software and mobile phone applications) provided to users on the Internet in Vietnam is pirated. The copyright enforcement has been facing big challenges due to the scale and the borderless nature of the internet. In this context, the role of online service providers in protecting online contents from copyright infringement must be carefully taken into account. Under current Vietnam legal framework, the liability of online intermediaries is mainly governed by the Law on Intellectual property law 2005, amended on 2009 and the Law on Information Technology 2006 and relevant decrees, circulars.
However, before analyzing the approach of these legislations, it is necessary to briefly overview the development in policy perspectives in this issue overtime. Accordingly, the first decree covering this issue was Decree No. 55 adopted in 2001. This Decree clearly stated the goal of “developing diversified Internet services at high quality and reasonable price in order to serve the nation’s industrialization and modernization progress.” In addition, the Decree also emphasized the roles of Internet services in popularizing laws and policies to the public as well as promoting the growth of private sectors. Under the Decree No. 55, “Online Service Providers” are businesses which use the Internet to provide application services such as information, telecommunications, culture, baking, commerce, healthcare, education, and technical assistance to users. The Decree explicitly entitled users to use Internet application services of both domestic and foreign OSPs, except for the services whose use is prohibited or not yet permitted.
The Decree No. 72 which replaces the Decree No. 55 continues to emphasize the government’s policies of, among other things, in its article 4: “Promoting the use of Internet in all economic and social activities, especially in education and training, health care, and scientific and technological research in order to raise productivity, create jobs and improve the quality of life; Encouraging the development of contents and applications in Vietnamese to serve the Vietnamese community on the Internet; [and] Intensifying the upload of healthy and useful information to the Internet.” However, regarding the liabilities to copyright infringements, this Decree only mentions the responsibilities the news sites but keep silent about the cases of social network sites.
The other legislation that governs the liabilities of online service provider on the intellectual property infringements on the internet is the Law on Information Technology 2006. Accordingly, this law explicitly exempts online intermediaries from liabilities in certain circumstances. For example, entities transmitting digital information are not liable for the information content unless they self-initiate, select or modify the content, or select the recipients of the information. Similarly, those who temporarily store digital information are not liable for the information content unless they modify the content, illegally collect data, disclose information, or fail to comply with regulations on information accession or update. The similar approach can be observed in many jurisdictions such as the US or European union. The law also explicitly provides that, unless otherwise required by the competent authorities, entities applying information technologies are not responsible for tracking or monitoring digital information of third parties, or investigating infringing acts of third parties while transmitting or storing their information. These regulations illustrate the State’s acknowledgment of the need to exempt online intermediaries from certain liability in order to promote the development of ICT industry in Vietnam.
In order to further clarify the implementation of the information technology law, the Joint Circular No. 07 was issued. Accordingly, telecommunications service suppliers, internet service suppliers, providers of online social network services, providers of information search services, and companies leasing digital information storage space are directly liable for infringing content only in limited circumstances. The circumstances include when intermediary service provider:
- Is the source of uploading, transmitting or providing digital information content through telecommunications networks and the Internet without the permission of the right holder;
- Fix, mutilate, copy digital information content in any form without the permission of the right holder;
- Deliberately cancel or disable technical measures taken by the right holder to protect copyright and related rights;
- Act as a secondary distribution of digital information content due to copyright and related rights violations
Intermediary service providers are responsible for removing and deleting digital information that violates copyright and related rights, cutting, stopping and suspending Internet transmission and telecommunications lines after receiving written requests of the Inspectorate of the Ministry of Information and Communications or inspectors of the Ministry of Culture and Information or other competent agencies. In terms of the copyright law, based on the above regulations, Internet service providers have a duty to remove and delete digital content that violates copyright and related rights, and can cut, stop or suspend an individual's internet/telecommunication line under a state agencies' order.
Notwithstanding the above strict approach, the implementation of such legislations in fact is not really effective since the Vietnamese copyright law has so far not accepted an official notice-and-takedown regime and the remedies for copyright infringements so far is not really a deterrent. Thus, it still requires more efforts from lawmakers and rightholders to improve copyright legal framework and effectively dealing with online copyright infringements.
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Decree on Management, Provision, and Use of Internet Services and Online Information No. 72/2013/ND-CP dated July 15, 2013.