Notice and takedown regime against online IPR infringement in Vietnam

in IP Practice, Related Matters in Vietnam

Online IPR infringement is a serious issue in Vietnam, where a large number of offending rogue websites continue to operate and grow in popularity. This results from various reasons, firstly, the lack of adequate legislation or the current ineffective statutory regulations, and secondly, the weak enforcement. In common sense, Notice-and-Takedown refers to situations in which a rights holder may send a notice to an Internet Service Provider (“ISP”), search engine service provider, or link service provider, notifying them of relevant infringing contents being uploaded onto the ISP’s information storage spaces and providing preliminary evidence as a proof; the ISP, upon receipt of the notice, may evade liabilities by entering into a safe harbor if it timely removes the allegedly infringing contents or disconnects the links, provided that all other exempt terms are met. The Notice-and-Takedown regime is said to not only allow parties to an IPR infringement dispute to resolve it amicably, but also to alleviate judicial burden and increase judicial efficiency.

The question of how the notice and takedown regime actually works in practice in Vietnam is of great interest to IPR stakeholders. Please see our Q&A section below for additional information on this subject.

1. What are intermediary services in Vietnam?

Intermediary service includes 5 categories, namely:

(i) Telecommunication service,

(ii) Internet service,

(iii) Service of online social network,

(iv) Service of digital information search, and

(v) Service of leasing digital information storage space including service of leasing website storage space (See Article 3.1 of Inter-ministerial Circular No. 07/2012/TTLT-BTTTT-BVHTTDL dated 19 June 2012)

2. Who are intermediary service providers in Vietnam

Intermediary service providers in Vietnam include 5 entities, namely:

(i) Internet service providers (ISPs),

(ii) Telecommunication service providers;

(iii) Leasing digital information storage space service providers, including service providers of leasing website storage space;

(iv) Online social network service providers;

(v) Digital information search service providers.

(See Article 3.2 of Inter-ministerial Circular No. 07/2012/TTLT-BTTTT-BVHTTDL dated 19 June 2012)

3. Who are major Internet service providers (ISPs) in Vietnam?

There are 9 major ISPs Vietnam as follows:

(i) CMC Telecom (website: https://cmctelecom.vn/en/)

(ii) FPT (website: https://www.fpt.com.vn)

(iii) Hanoi Telecom (website: https://vnptonline.com.vn/)

(iv) Netnam Company (website: https://netnam.com/)

(v) Saigon Post and Telecommunications Services Corporation (website: https://www.spt.vn/)

(vi) Vietnam Data Communication Company (website: https://www.vnnic.vn/)

(vii) Viettel Company (website: http://viettel.com.vn)

(viii) Vinaphone (website: https://www.vinaphone.com.vn/)

(ix) VNPT (website: https://www.vnpt.com.vn/)

4. How is an ISP liable to online copyright infringement in Vietnam?

An ISP in Vietnam must resume the following liabilities in the event of online copyright infringement:

(i) Obeying works of inspection, check of competent state management agencies under provisions on copyright and related rights.

(ii) Removing and deleting content of digital information which violates copyright and related rights, cutting, stopping and suspension of the Internet line, telecommunication line as receiving request in written of the inspector of the Ministry of Information and Communications or inspector of the Ministry of Culture, Sports and Tourism or other competent State agencies as prescribed by law.

(iii) Supplying information of customers hiring websites, digital information storage space and customers using other intermediary services at the request of the inspector of the Ministry of Information and Communications or the inspector of the Ministry of Culture, Sports and Tourism or other competent State agencies.

(iv)Having responsibility directly for paying damages due to violation of copyright and related rights as prescribed by law on intellectual property and other related laws in the following cases:

(a) Being source to start publishing, transmitting or supplying content of digital information by Internet and telecommunication network without permission of the subject having right;

(b) Editing, truncating, copying content of digital information in any manner without permission of the subject having right;

(c) Intentionally canceling or disabling technical measures performed by the subject having right for protection of copyright and related rights;

(d) Operation as source of secondary distribution of content of digital information that is obtained due to violation of copyright and related rights.

(See Article 5.2 of Inter-ministerial Circular No. 07/2012/TTLT-BTTTT-BVHTTDL dated 19 June 2012)

5. Can a copyright holder send a “takedown notice” to an ISP upon detecting a copyright infringement in Vietnam?

While you may consider sending a “takedown notice” to an ISP, requesting that it remove an infringement of your copyright, at this current stage (when the revised IP Law is still under public consultation process), such an ISP is not obligated to comply with your requirement. Under Article 5.2.3 of Inter-ministerial Circular No. 07/2012/TTLT-BTTTT-BVHTTDL, ISPs in Vietnam are only required to remove and delete copyright infringements from their internet service sources/means upon receipt of a written request from the Vietnamese competent enforcement authorities. This means that an ISP will remove a copyright infringement only after a case is received and confirmed by a Vietnamese competent enforcement authority. In a broader sense, you need to submit a case (on copyright infringement claim/allegation) to a Vietnamese for settlement under either/both administrative or/and civil proceedings so that such a Vietnamese competent enforcement authority may request the IPS to take down the infringing material.

Due to subordinate regulations outlined in Inter-Ministerial Circular No. 07/2012/TTLT-BTTTT-BVHTTDL, ISPs in Vietnam are unable to take direct action against pirate websites or online copyright infringement/piracy without government involvement/intervention.

Vietnam’s current “notice and takedown” regime has hampered enforcement actions aimed at preventing and combating online copyright infringement/piracy in a cost-effective and timely manner. Thus, Vietnam’s “notice and takedown” regime has been widely criticized in numerous reports by EUROCHAM, IIPA, and AUSCHAM, among others.

Numerous countries, including the United States, have adopted a very progressive “notice and takedown” regime under which a copyright holder may directly send a notice (a takedown notice) to an ISP that hosts a website that contains infringing material. The ISP that is hosting the content is required to remove it immediately upon receipt of the notice. Additionally, it must notify the alleged infringer that their content has been removed and explain why. The alleged infringer has the option of filing a counter-notice at this point. For the counter-notice to be valid, it must include the user’s contact information, identification of the removed content, a statement under penalty of perjury that the user believes the content was removed in error, consent to the jurisdiction of the appropriate federal court in the United States, and the user’s signature. If the alleged infringer fails to submit such a counter-notice or if the counter-notice is deemed invalid, the copyright holder is not required to take any further action. The ISP is required to notify the copyright holder if a valid counter-notice is submitted. The copyright holder may then pursue legal action in court. If a lawsuit is filed within a specified time period, the ISP will be prohibited from re-uploading the material until a judgment is rendered. However, if a valid counter-notice is filed and the copyright holder does not take legal action within the specified time period, the content will be restored online.

The above US “takedown notice” regime provides valuable experience to not only Vietnam but other developing countries in dealing with online copyright infringement/piracy, which is still increasing at an alarming rate.

What can we expect from Vietnam’s soon-to-be-revised intellectual property law?

As a result of the recent signing of the above-mentioned major trade pacts (including EVFTA, CPTPP, RCEP and UKVFTA), Vietnam issued another draft amendment to its IP Law in 2020 although its IP Law was just amended and approved in 2019. Notable in the 2020 draft Law is the proposal to increase ISP liability. In detail, under the draft Law, ISPs are required, inter alia, to [Quickly remove or block access to information upon becoming aware that it is illegal, upon receipt of a written request from the rights holder or a competent state agency in accordance with the law] (see full text of Article 198(b) of the draft Law below). The draft Law is expected to come into effect in 2022. Although the aforementioned provision has not yet taken effect and, if retained in the law, much work will be done to detail how to enforce such regulation in order to properly facilitate and avoid abuse of the “notice and takedown” regime as well as to further detail rights and obligations of (i) notifiers and (ii) counter-notifiers, IPR holders view this provision as a significant and positive development in the course of Vietnam’s IPR protection against online infringement.

Alternative options

While waiting for draft Law to take effect, IPR holders may pursue other administrative avenues to quickly combat online IPR infringement. You may find more details from our articles in the following links:

Article 198(b) of the Law on Intellectual Property of Vietnam 2005, revised in 2009, 2019 and 2022:

Legal liability for copyright and related rights to intermediary
service providers

1. Intermediary service provider means an enterprise providing technical means for service users to upload digital contents in the telecommunications network and Internet; and providing online connectivity for the public to access and use digital contents in the telecommunications network and Internet.

2. Intermediary service providers shall apply technical measures and coordinate with competent state agencies and rights holders in implementing measures to protect copyright and related rights in the telecommunications network and Internet.

3. An intermediary service provider may be exempted from legal liability for acts of infringing upon copyright and related rights in the telecommunications network and Internet related to the provision or use of its services in the following cases:

a/ It only transmits digital contents or provides access to digital contents;

b/ In the course of information transmission, it automatically and temporarily performs the function of buffer storage to transmit information and make information transmission more efficient on the following conditions: only transforming information for technological reasons; complying with conditions on access and use of digital contents; adhering to specific rules of updating digital contents in a manner that is widely recognized and used by a certain industry; refraining from preventing lawful use of technologies widely recognized in a certain industry to obtain data on the use of digital contents; removing digital contents or denying access to digital contents when knowing that digital contents have been removed from the originating source or the originating source has canceled access to such digital contents;

c/ It stores digital contents of service users at the latter’s request on the following conditions: not knowing that such digital contents infringe upon copyright and related rights; taking prompt actions to remove or prevent access to such digital contents when knowing that such digital contents infringe upon copyright and related rights; d/ Other cases specified by the Government.

4. Intermediary service providers eligible for exemption from legal liability under Clause 3 of this Article are not required to supervise their own services or take the initiative in seeking evidences proving infringements.

5. Digital contents specified in this Article means works and subject matters of related rights that are protected under this Law and expressed in digital form.

6. The Government shall detail this Article.

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