In the bid for WTO accession, Vietnam has to implement the commitments to trade-related aspects of intellectual property rights (TRIPs) including intellectual property (IP) and copyright enforcement.
In the prevailing Vietnamese legal system, amongst the provisions on administrative, civil and criminal sanctions against copyright infringements, border remedies are another integral measures required to be comprehensively regulated and enforced.
On 17 October 17, 2003, the Ministry of Culture and Information and the General Department of Customs jointly issued Inter-Ministerial Circular No. 58/2003/TTLT-BVHTT-BTC (Circular 58), effective on and from 17 November 17, 2003, providing guidelines for protection of copyright by Customs Offices overseeing imports and exports.
Prior to the promulgation of Circular 58, Articles 57 -–to 59 (Section 5) of the Customs Law, and the Government's al Decree No. 101/ND-CP dated December 31, 2001 provided framework procedures for intellectual property holders owners to register their IP protection with Vietnamese Customs and to request for the provisional suspension of goods suspected of IP infringements. Nevertheless, those provisions are still general and vague, for instance, there are not detailed provisions on responsibilities of relevant parties, settlement of infringing goods, and compensation and so on. Circular 58 is supposed to supplement these gaps.
Scope of protection
Given that Customs Offices are authorized to conduct their functions on copyright protection in relation to imports and exports, but not all goods, Customs Offices only interfere in reproduction of goods circulated at through borders without permission of copyright holders and which supposed to constitute copyright infringements in accordance with prevailing laws. Accordingly, Circular 58 provides for registration for protection of any copyrighted imported/exported goods except for humanitarian aids, temporary imports for re-exports, goods in transit and gifts which are duty free under regulations of Customs Law.
Generally, any persons who have copyrighted goods are entitled to request Customs Offices to protect their copyright if they suspect any good of copyright infringement. Those persons may be authors, work’s owners, being Vietnamese individuals, organizations or authorized industrial property agents. Foreigners who have their own works to be created and fixed in any material form, or firstly published, in the territory of Vietnam, as well as American and Swiss authors, shall be protected by Customs Offices.
Registration for protection
As a principle, copyright is deemed as belonging to be civil matters in Vietnam. Therefore, if no request is submitted by the claimant, Customs Offices will not automatically put forth expeditious action against copyright infringement. Besides, depending on the range of border areas requested for copyright protection, the General Department of Customs or Provincial Customs or Customs Branches would be the competent bodies handling the cases. In order to establish copyright protection at Customs Offices, the claimants can file applications for copyright protection for in a long term or on the case-by-case basic.
A request for long-term protection is filed to Customs Offices in case copyright holders has not been able to find out any information on exported or imported items in connection to copyright violation. Customs Offices will require claimants to submit advance payments, each valued at least NVD 20 million, or guarantee letters for a certain amount - each equivalent to at least VND 50 million - from third part or securities for payment from credit institutions.
For case-by-case protection, Circular 58 also stipulates requires that the claimants should demonstrate their claim of piracy with initial authentic proofs when submitting requests for provisional suspension of customs procedures. These proofs must be sufficient for Customs Offices to specify pirated lines i.e. identification of the infringer (exporter/importer), country of origin, details of transportation, expected post of discharge and post of entry, authority to proceed with customs formalities, description or photo of pirated commodities, etc.
Impartially, decisions on provisional suspension of customs procedures would be delivered to both claimants and suspects. The suspension shall be effective within 10 to 20 days, or maximum of 20 days, during this period, Customs Offices will inspect the suspected for final decisions and subsequent remedies. Fines on infringement will be from VND200,000 to VND70,000,000 depending on the seriousness of the offensive, arisen and so on.
Should claimants withdraw their requests or present no evidences of infringement in due course, the head of Customs Offices at the border shall decide whether to release the suspended goods, keep completing procedures on customs clearance and settle all expenses and losses for illegal suspension from the deposit of the claimants. Disputed cases relating to border measures imposed on copyright infringement can be brought to trial by competent courts in Vietnam.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.