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Vietnamese filmmakers celebrate following the Script to Screen Film Workshop hosted at the American Centre in Ho Chi Minh City in 2019.

Introduction

 However, with increased levels of production and distribution of content, comes a more urgent need to protect that valuable creative work.

Vietnam is currently undertaking a comprehensive review of its intellectual property  (“IP”) law. As part of that process, the Vietnamese Government released a Draft Law  for public consultation in late 2020. I first engaged with Vietnamese IP law more than 15 years ago as an Australian government official negotiating the IP chapter of the ASEAN-Australia-New Zealand Free Trade Agreement (“FTA”). At that time, Vietnam was in the process of enacting its first IP law, and not surprisingly, the negotiations were all about the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”).

Since that time, Vietnam has developed as a major trading power in the region and has become party to a series of increasingly ambitious plurilateral trade deals which include “TRIPS-plus” obligations. These include, the European Union-Vietnam FTA (“EVFTA”), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CTPP”) and most recently, the Regional Comprehensive Economic Partnership (“RCEP”). These FTAs have seen Vietnam make a number of revisions to its IP law, with the latest amendments being the third major revision of Vietnam’s IP law in 15 years.

Below, I briefly examine some of the key copyright provisions in the Draft Law from the perspective of their compliance with Vietnam’s international treaty obligations, and whether they are “future proof” and in keeping with Vietnam’s national Intellectual Property Strategy Until 2030.

Implementing the Internet Treaties

One of the objectives of the Draft Law is to bring Vietnam’s copyright law into compliance with the WIPO Copyright Treaty (“WCT”) and the WIPO Performances and Phonograms Treaty (“WPPT”). These treaties were concluded in 1996 and are often collectively referred to as the “Internet Treaties”. In implementing the Internet Treaties, Vietnam sought to achieve strict compliance, for example, by implementing a rental right for performers in sound recordings (which on the face of it, does not seem to be included in the Draft Law) but also to engage with the policy intention of those treaties.

Future proofing and capturing relevant business models

A hallmark of copyright law is its ability to adapt to technological change. The Draft Law proposes changes to the exclusive rights of reproduction, distribution and communication. It is vital that the way these rights are enacted is suitable not only for existing market conditions but also takes account of possible future developments.

By way of illustration, amendments to the reproduction right introduce the concept of “temporary reproduction” in Vietnam’s IP law. This concept emerged in copyright law in the 1990s to provide an exception to copyright infringement for the technical process known as caching. However, it is worth considering the impact of this concept in a modern technological environment where it may be possible to reproduce a third party’s copyright material on a mass scale, without storing a permanent copy. For example, if I were to go to a cinema and press “record” on my phone and simultaneously livestream that content to thousands of people, would I be held liable for infringing the right of reproduction under the Draft Law and subject to a full suite of remedies, including criminal sanctions? Or could I rely on the “temporary reproduction” definition to avoid liability for infringing the reproduction right? And if so, would I be liable for infringing the communication right and what sanctions would follow? A reading of the Draft Law suggests that only civil and administrative action might be available.

An appreciation of fast evolving technological and a consideration of Vietnam’s obligations under the CTPP suggest that this would be a perverse outcome and precisely the scenario that the Vietnamese Government needs to carefully consider in order to “future proof” the Draft Law.

Online copyright infringement

A related issue is the approach to online copyright infringement, which remains rampant in Vietnam. It is home to major piracy websites such as Phimmoi, which was ranked 15th in Vietnam and 832 globally and averaged more than 80 million visitors per month in 2020. Phimmoi, and many piracy websites like it, entirely undermine the business model that allows creators and legitimate services to produce quality content and seek appropriate remuneration for their efforts.

While the Draft Law appears to acquit Vietnam’s treaty obligations in relation to intermediary liability, there is an opportunity to go further to address online copyright infringement. Other countries, including Australia, have had success with codes of conduct and site blocking legislation. Vietnam has the chance to learn from this experience and, in keeping with its own innovation agenda, take a bolder approach to the prevention of online copyright infringement.

Limitations and exceptions and the three-step test

The Draft Law introduces a lengthy list of exceptions to copyright. The list is not exhaustive but includes things such as private study and use as illustration for teaching. In other words, these are put forward as “special cases” within the meaning of the three-step test for exceptions and limitations set out in TRIPS.

Some of the proposed exceptions are subject to qualifications such as “not for commercial purposes” (Article 251(a1) and being “reasonable” (Articles 251(b) (c) and (d)), however most are merely subject to a general proviso in Article 25(2) that they “must neither affect the normal utilization of such works nor cause prejudice to rights of the authors and/or copyright holders”. Broadly speaking, this transposes the requirements of the second and third limbs of the three-step test into Vietnamese domestic law.

While this may formally meet Vietnam’s international treaty obligations, at a practical level, further guidance is likely to be required to help stakeholders use the exceptions in a way that is consistent with the three-step test and to ensure Vietnam’s compliance with its treaty obligations.      

Conclusion

Vietnam’s IP regime has come a long way since 2005. For Vietnam to meet its Intellectual Property Strategy until 2030, the Draft Law should not just be another patchwork of amendments to ensure compliance with Vietnam’s international treaty obligations. Rather, it presents an opportunity to ensure that IP becomes a driving force for innovation in Vietnam, and that Vietnam will benefit long term from jobs growth in the creative sector, increased cultural output, and recognition of its filmmakers on a global stage.

Fiona Phillips

Principal Fiona Phillips Law

                                                    Sydney, Australia