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2018Spec301vietnam VIETNAM INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE (IIPA) 2018 SPECIAL 301 REPORT ON COPYRIGHT PROTECTION AND ENFORCEMENT Special 301 Recommendation: IIPA recommends that Vietnam should be elevated to the Priority Watch List in 2018.1 Executive Summary: As a result of worsening piracy and persistent market access barriers that exacerbate the problem, the market in Vietnam for creative goods and services is severely stunted. While Vietnam’s Government has recently taken certain steps that indicate it is beginning to recognize the seriousness of its growing piracy problem, more substantial actions are needed. Vietnam has committed to ratifying the WIPO Digital Treaties, and, without delay, the government should take the necessary steps to ratify and implement them. It is long past time for Vietnam to make good on its political commitments and international obligations to improve copyright protection in the digital environment, confront its enormous piracy challenges, and remove the remaining barriers to its creative marketplace. Vietnam must take more affirmative enforcement actions against piracy, such as issuing deterrent administrative penalties against infringers, and undertaking criminal prosecutions, beginning with major online piracy operations that are based in Vietnam. Vietnam’s piracy problems would also be reduced if the country removed its highly restrictive market access barriers, which, by limiting Vietnamese consumers’ access to legitimate content, pushes them towards illegal alternatives. IIPA hopes that the Government of Vietnam will support procedures developed by a group of motion picture rights holders in consultation with Internet Service Providers (ISPs) to ensure that online infringing content is taken down and such content does not reappear. The government should also address concerns with the Copyright Office of Vietnam (COV), which is grossly understaffed, and has not taken any action to reform the dysfunctional collective management organization for music producers. Vietnam should move to eliminate discriminatory barriers, and meet its copyright protection and enforcement obligations under its Bilateral Trade Agreement (BTA) with the United States and the TRIPS Agreement. Vietnam should also begin meeting the challenges of the digital age by acceding to the WIPO Digital Treaties, and taking additional steps to bring its standards for copyright protection and enforcement into alignment with evolving global norms. PRIORITY ACTIONS REQUESTED IN 2018 Enforcement: • Ensure enforcement officials, including the Ministry of Information and Communication (MIC), Ministry of Culture, Sports, and Tourism’s (MCST) Inspectorate, and Ministry of Public Security (MPS) IPR/High-Tech Police and related police units, increase the number and the effectiveness of operations focused on online infringement, including against websites identified in this report and operators of such sites; issue administrative penalties for infringement sufficient to deter; and bring criminal prosecutions against commercial scale piracy. • Encourage educational institutions to implement appropriate use and copyright policies to ensure that students and faculty use legitimate textbooks, other course materials, and copyrighted software. • Deregister the Recording Industry Association of Vietnam (RIAV), and engage with local and foreign music producers to set up a new collecting society. • Provide the COV with adequate resources, including additional staff, to develop and implement effective enforcement policies. 1For more details on Vietnam’s Special 301 history, see previous years’ reports at https://iipa.org/reports/reports-by-country/. For the history of Vietnam’s Special 301 placement, see https://iipa.org/files/uploads/2018/02/2018SPEC301HISTORICALCHART.pdf. © 2018 International Intellectual Property Alliance (IIPA) 2018 Special 301: Vietnam Issued February 8, 2018 Page 82 www.iipa.org Legislation: • Make necessary changes to laws and implementing Decrees and Circulars, including the IP Code and the new Criminal Code, to ensure Vietnam is in full compliance with its BTA, TRIPS, and other international obligations, including, in particular, clarifying and confirming that “commercial scale” IP violations under the Criminal Code (1) apply to online distributions, including the unauthorized streaming of content; and (2) that the thresholds include infringement that is significant in its impact even absent a profit motive. • Strengthen the legal framework to take effective action against digital infringement, including by: • affording adequate levels of protection to enable Vietnam to accede to the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT); • encouraging meaningful cooperation between rights holders and ISPs by ensuring that only neutral ISPs are eligible for safe harbors; providing clear legal incentives, including clear liability provisions, for ISPs to cooperate; making clear that ISPs must take action against infringing content without governmental intervention; and ensuring ISPs comply with requests to remove infringing materials and take other measures that have been demonstrated effective in preventing or restraining infringement; • increasing administrative penalties for copyright infringement to achieve deterrence; and • eliminating the legal and procedural impediments that interfere with the ability to take effective action against Illicit Streaming Devices (ISDs) and the apps, services, and platforms that contribute to ISD piracy. • Extend the term of copyright protection for all copyrighted works, including sound recordings, in line with the international trend of 70 years after the death of the author or, when term is calculated based on publication, at least 75 years (or 100 years from fixation) as provided in the BTA. Market Access: • Eliminate foreign investment restrictions, quotas, and other entry barriers with respect to the production, importation and distribution of copyrighted materials, whether in the physical, online, or mobile marketplaces. PIRACY AND ENFORCEMENT UPDATES IN VIETNAM Prior IIPA reports on Vietnam contain detailed discussion of piracy and enforcement issues. This report serves only as an update to those and is not to be considered an exhaustive review of issues.2 The Vietnamese Government has long recognized that piracy in the country is increasingly “sophisticated” and involves violations of “[m]ost of the objects of the rights.”3 Yet Vietnam’s actions to combat piracy (including actions taken pursuant to the 2012 MIC and MCST Joint Circular 074) have not adequately addressed its piracy challenges, including those identified below. Vietnam must take more affirmative enforcement actions against piracy, such as issuing deterrent administrative penalties against infringing operations and spearheading criminal prosecutions, beginning with major online piracy operations based in Vietnam. Growing Online Marketplace Presents Challenges: A significant and growing percentage of the Vietnamese population is online, with most of that access stemming from mobile broadband subscriptions.5 Vietnam’s large population of young people and rapidly growing online and mobile user-base offer enormous new opportunities for legitimate services for creative content. Indeed, a growing number of licensed Internet content providers are trying to take advantage of these opportunities, including Zing.vn, NCT (nhaccuatui.com), Viettel Media 2See, e.g., IIPA, Vietnam, 2017 Special 301 Report, (February 9, 2017), available at https://iipa.org/files/uploads/2017/12/2017SPEC301VIETNAM.pdf. 3Copyright Office of Vietnam, Overview of Copyright in 2008, January 19, 2009 (on file with IIPA). 4Joint Circular No. 07/2012/TTLT-BTTTT-BVHTTDL on Stipulations on the Responsibilities for Intermediary Service Providers in the Protection of Copyright and Related Rights on the Internet and Telecommunications Networks (in force August 2012) (“Joint Circular 07”). 5According to the International Telecommunications Union, the percentage of individuals using the Internet in Vietnam increased from 43.5% in 2015 to 46.5% in 2016, and active mobile broadband subscriptions were almost 47 per 100 inhabitants in 2016. See Measuring the Information Society Report 2017, International Telecommunications Union, at 145, available at https://www.itu.int/en/ITU-D/Statistics/Documents/publications/misr2017/MISR2017_Volume1.pdf. International Intellectual Property Alliance (IIPA) Page 83 2018 Special 301: Vietnam (keeng.vn), iTunes, and Deezer. Mobile applications like Pops TV are also pioneering the availability of music and audiovisual content, using iTunes, Amazon MP3, Android, Windows Phone, and Samsung Smart TV as vehicles for the distribution of content, including local Vietnamese content. Two video-on-demand (VOD) services were launched in Vietnam in 2016: Film+ (“film plus”) and Dannet. Netflix and Iflix are also available. These channels for digital distribution offer huge potential for the creative industries; however, as discussed below, Vietnam must significantly improve its legal framework and enforcement efforts, and dramatically reduce market access barriers for this potential to be realized. Vietnam faces the rising challenge of combating increasing online and mobile network piracy from download sites, peer-to-peer (P2P) networks, linking sites, streaming sites, search engines, cyberlockers, and on social media networks. Streaming of unlicensed music through websites and mobile apps is rising, and stream-ripping
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