Principles for determining damages due to infrigement of copyright and related rights in Vietnam

Principles for determining damages due to infrigement of copyright and related rights in Vietnam​ (Image from the Internet)

1. Principles for determining damages due to infrigement of copyright and related rights in Vietnam

According to Article 69 of Decree 17/2023/ND-CP, the principles for determining damage from infringement of copyright, related rights are as follows:

- Damage caused by acts of infringement of copyright, related rights as stipulated in Article 204 of the Intellectual Property Law 2005 is the actual material and spiritual loss directly caused to the subject of copyright, related rights.

- It is considered an actual loss if the following conditions are met:

+ The material or spiritual benefits are real and belong to the injured party: Material or spiritual benefits are the results (products) of copyright, related rights and the injured party is entitled to these material or spiritual benefits;

+ The injured party has the capability to gain the benefits specified in point a, clause 2, Article 69 of Decree 17/2023/ND-CP: The injured party could achieve (gain) these material or spiritual benefits under certain conditions if the act of infringement of copyright, related rights did not occur;

+ There is a reduction or loss of benefits of the injured party after the act of infringement of copyright, related rights compared to the ability to gain those benefits when there was no infringement, and the infringement is the direct cause of the reduction, loss of those benefits: Before the infringement occurred, the injured party had material or spiritual benefits, and after the infringement, the injured party suffered a reduction or loss of benefits they obtained before the infringement; a causal relationship must exist between the act of infringement and the reduction, loss of those benefits.

- The extent of damage is determined in accordance with the infringement elements to the subject of copyright, related rights.

Determining the extent of damage is based on evidence of damage provided by the parties, including assessment results and damage declarations, in which the bases for determining and calculating the extent of damage are clarified.

2. Determining spiritual damage from infringement of copyright, related rights in Vietnam

According to Article 70 of Decree 17/2023/ND-CP, spiritual damage is the harm to honor, dignity, reputation, fame, and other spiritual damages caused to the author, performer, owner of the copyright, or related rights owner due to infringement leading to harm to honor, dignity, reduced or lost trust or reputation because of misunderstanding, time enduring loss, level of grief, sorrow, emotional loss, to the extent that individuals, violating organizations must apologize, publicly correct, and compensate for spiritual damages.

3. Determining asset damage from infringement of copyright, related rights in Vietnam

According to Article 71 of Decree 17/2023/ND-CP, asset damage from infringement of copyright, related rights is stipulated as follows:

- Asset damage is determined by the degree of reduction or loss in the monetary value of the subject of copyright, related rights being protected.

- The monetary value of the subject of copyright, related rights stipulated in clause 1, Article 71 of Decree 17/2023/ND-CP is determined based on one or more of the following bases:

+ Transfer price of ownership or price for transferring the right to use the subject of copyright, related rights;

+ Contribution value in business using copyright, related rights;

+ Value of copyright, related rights in the total assets of an enterprise;

+ Investment value for research, creation, and development to produce works, related rights subjects, including investment costs, research, technical equipment, facilities, marketing costs, advertising, labor, tax, and other costs.

- Determining the monetary value of the subject of copyright, related rights stipulated in clause 1, Article 71 of Decree 17/2023/ND-CP is conducted by valuation enterprises according to the regulations on valuation. The valuation results provided by the valuation enterprise are used as one of the bases for organizations, individuals with authority to consider, decide, or approve the assessed value of the assets.

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE