Copyright infringement of computer software is a widespread issue not only in developing countries but also in developed nations. Currently, this is a pressing reality in Vietnam, where the legal framework surrounding this issue is still in its infancy.
VietNamNet presents some analyses on this matter by two experts currently working in the field of legal consulting.
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Deputy Minister of Science and Technology Bui Manh Hai (left) and BSA Vice President previously chaired an important seminar on enhancing software copyright protection in Vietnam. (Photo: HS) |
Upon hearing that Vietnam’s software copyright infringement rate was 92% in 2004 – one of the highest in the world with a violation value of 55 million USD – many people opined that while this figure is high, the total value of damages remains low compared to other countries. This is true; however, considering Vietnam as an emerging IT market, it will face significant challenges in attracting investment and may raise concerns among other countries in the region and worldwide.
In addition to computer software copyright issues, newer forms such as mobile content services and online content (online games, online music, online videos, etc.) are also highly sensitive to copyright issues but have yet to be updated in the law.
The legal practice in Vietnam shows that there have been no cases addressing copyright infringement in this area. However, this is a real issue that will likely persist in a developing ICT market like Vietnam. A recent dispute over the use of images in an online game between VinaGame and FPT is a prime example.
Software was created to protect the rights of authors and its owners, and laws have been established regarding software copyright. With this goal in mind, to encourage software development and ensure legal operations for businesses utilizing legitimate software, software copyrights must be respected and enforced to promote social and technological progress.
As IT and its applications in businesses continue to grow, the unauthorized proliferation of computer software not only leads to losses for software companies but also creates unfair competition among enterprises. The issue of software copyright has become more crucial than ever, as the legal mechanisms for developing and protecting copyright have implications for the business community and the economy’s growth.
Awaiting an Effective Legal Framework
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Pirated CD software packages are easily found in the Vietnamese market. |
The current state of copyright infringement in our country raises urgent concerns about the need for mechanisms to resolve and address existing issues.
One of the initial moves is the introduction of the Intellectual Property Law 2005 (approved by the National Assembly on November 29, 2005, and effective from July 1, 2006). The Intellectual Property Law aims to create a comprehensive legal framework and a basis for effectively protecting copyright.
This law also dedicates a section (Part Five) to the Protection of Intellectual Property Rights (IPR), specifically outlining measures for protecting IPR: self-defense mechanisms, and handling IPR infringements through various measures.
Notably, the Intellectual Property Law specifies protections for IPR through administrative, civil, and criminal measures, including different compensation levels for IPR violations.
Specifically, based on the severity of the IPR infringement, competent authorities can impose compensation up to 500 million VND (for material damages) and from 5 to 200 million VND (for moral damages). Additionally, by regulating the control of goods related to IPR in import and export, the Intellectual Property Law 2005 promises to mitigate unlawful acts related to IPR.
Article 198 of the Intellectual Property Law 2005 1. The holders of intellectual property rights have the right to apply the following measures to protect their rights: a) Apply technological measures to prevent acts of infringement on intellectual property rights; b) Request organizations or individuals infringing on intellectual property rights to cease such acts, apologize, publicly rectify, and compensate for damages; c) Request competent state authorities to handle acts infringing on intellectual property rights according to this law and other relevant legal provisions; d) File lawsuits in court or arbitration to protect their legitimate rights and interests. |
Along with the regulations on copyright and related rights in the Civil Code 2005 (effective from January 1, 2006), the Intellectual Property Law 2005 establishes a clear and effective legal mechanism with provisions for protecting and enforcing copyright and related rights, along with mechanisms for addressing violations.
With the introduction of these legal documents, Vietnam has made significant progress in institutionalizing international commitments regarding the protection of intellectual property rights in general and copyright in particular (Vietnam is a member of the Berne Convention for the Protection of Literary and Artistic Works. The Vietnam-U.S. Trade Agreement of 2000 and the regulations of the World Trade Organization (WTO), which Vietnam is in the process of joining, contain specific provisions regarding the protection of IPR). The state’s policy on software technology development needs to be concretized through the issuance and effective implementation of relevant legal regulations.
It Still Comes Down to Awareness…
Additionally, preventing acts of IPR infringement, especially violations of copyright regarding computer software and online games, requires not only establishing a necessary legal framework to regulate these activities but also fostering a sense of self-discipline in adhering to the law among all social strata, including those who directly or indirectly use intellectual products. Enterprises or economic organizations affected by copyright infringement should voice demands to stop illegal activities or request relevant authorities to resolve complaints related to copyright infringement.
Moreover, authors themselves, the creators of works, must speak up to protect their own rights, aiming to prevent and limit systematic and unlawful acts of copyright infringement.
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BSA Vice President Jeff Hardee: “Vietnam’s software copyright infringement rate of 92%, alongside China, is the highest in the world.” (Photo: HS) |
However, under the current conditions in our country, where the populace’s living standards are still low and legal awareness is limited, reporting and preventing copyright infringement remains infrequent. Furthermore, the reluctance to engage with competent authorities and the complexities of legal procedures related to copyright infringement resolution contribute to authors or rights holders refraining from litigation if the material damage is minimal.
Nonetheless, it is important to remember that we have previously handled several copyright infringement cases, such as the music plagiarism of the song “Tình thôi xót xa,” and more recently, the paintings “Nụ hôn của gió” and “Bình minh trên công trường.”
As for computer software products and new forms of business content such as mobile content, online content (online games, online music, online videos, etc.), there have been no significant legal disputes related to copyright infringement in Vietnam. At present, this is a newly emerging issue while the relevant legal provisions have not fully anticipated or specifically regulated it. It is hoped that in the future, the guiding documents for the implementation of the Intellectual Property Law 2005 will address these shortcomings to some extent, thereby mitigating the current state of copyright infringement in our country.
Illegal copying and distribution of computer software programs are prevalent in our market. To reduce the incidence of software copyright infringement, alongside a comprehensive legal system, effective enforcement mechanisms, and protection of copyright, it is essential to promote self-defense mechanisms and awareness among involved parties in both the production and use of software.
Thế Phong (recorded)
This article was consulted by Tran Sy Vy (Vilaf Law Office) and Nguyen Dang Minh (Leadco Law Office)
