What are the prescriptive time limits for imposing penalties for administrative violations on copyright and related rights in Vietnam?

What is copyright?

According to the provisions of the Law on Intellectual Property 2005, copyright means rights of an organization or individual to works which such organization or individual created or owns.

Types of works protected by copyright include:

(i) Literary, artistic and scientific works which are protected by copyright comprise:

- Literary works, scientific works, textbooks, teaching courses and other works expressed in written language or other characters;

- Lectures, addresses and other speeches;

- Press works;

- Musical works;

- Stage works;

- Cinematographic works and works created by a process analogous to cinematography (hereinafter all referred to as cinematographic works);

- Plastic art works and applied art works;

- Photographic works;

- Architectural works;

- Sketches, plans, maps and drawings related to topography or scientific works;

- Folklore and folk art works;

- Computer programs and data collections.

(ii) Derivative works shall only be protected pursuant to the lă if such protection is not prejudicial to the copyright in the works used to create such derivative works.

Note: Protected works as stipulated in (i) and (ii) must be created personally by authors through their intellectual labour and without copying the works of others.

What are the prescriptive time limits for imposing penalties for administrative violations on copyright and related rights in Vietnam? (Internet image)

What are copyright related rights?

According to the provisions of the Law on Intellectual Property 2005, copyright related rights (hereinafter referred to as related rights) means rights of an organization or individual to performances, audio and visual fixation, and broadcasts and satellite signals carrying coded programmes.

Subject matter of related rights eligible for protection in Vietnam include:

(i) Performances shall be protected if they fall into one of the following categories:

- They are made by Vietnamese citizens in Vietnam or abroad;

- They are made by foreigners in Vietnam;

- They are fixed on audio and visual fixation and protected pursuant to the provisions of article 30 of this Law;

- They have not yet been fixed on audio and visual fixation but have already been broadcast and are protected pursuant to the provisions of article 31 of the Law on Intellectual Property 2005;

- They are protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

(ii) Audio and visual fixation shall be protected if it falls into one of the following categories:

- It belongs to audio and visual fixation producers bearing Vietnamese nationality;

- It belongs to audio and visual fixation producers protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

(iii) Broadcasts and satellite signals carrying coded programmes shall be protected if they fall into one of the following categories:

- They belong to broadcasting organizations bearing Vietnamese nationality;

- They belong to broadcasting organizations protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

Note:  Performances, audio and visual fixation, broadcasts and satellite signals carrying coded programmes shall only be protected pursuant to the provisions above on the condition that they are not prejudicial to copyright.

Prescriptive time limits for imposing penalties for administrative violations on copyright and related rights in Vietnam

According to the provisions of Decree 129/2021/ND-CP,  the prescriptive time limit for imposition of a penalty for an administrative violation against regulations on copyright and related rights shall be 02 years. Within this time limit, if a violating person deliberately evades or militates against penalty imposition by a competent authority, the time limits shall be reset, starting from the time of abandonment of acts of evading or militating against penalty imposition.

The dates which are used to determine the prescriptive time limits for imposing penalties for administrative violations against regulations on copyright and related rights are as follows:

- For an in-progress administrative violation, the prescriptive time limit begins from the date on which that the competent law enforcement officer detects such violation;

- For a completed administrative violation, the prescriptive time limit begins from the date on which that violation terminates;

- For a case where a penalty is imposed for an administrative violation committed by an organization or individual which is transferred by the competent person making the administrative violation record, the prescriptive time limit for imposition of a penalty therefor shall be applied according to the above provisions up to the time of issuing the decision on sanctioning of administrative violations.

In-progress administrative violations and completed administrative violations against regulations on copyright and related rights

- In-progress administrative violation against regulations on copyright and related rights is a persistent violation which has been occurring at the time when it is discovered and penalized by the competent authority or competent person and has been directly infringing upon state management order;

- Completed administrative violation against regulations on copyright and related rights is a violation which is committed one or more occasions and there are grounds and information proving that such violation had been completed before the competent authority or competent person discovered such violation.

Mai Thanh Loi

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