General Overview of Civil Dispute Resolution on Rights

Multinational civil copyright disputes: These types of disputes can arise from relationships that span many different countries due to the subjects having different nationalities, and the location of the dispute can be in many places around the world at the same time. Therefore, civil copyright disputes are also subject to the regulation of many international treaties, typically the Berne Convention and the TRIPs Agreement. Court judgments on civil copyright disputes also require international recognition to be enforceable in practice.

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1.2.2. General overview of resolving civil disputes over rights

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Dispute resolution is a method or measure to overcome or

Eliminate disputes arising to protect the legitimate rights and interests of the parties. Thus, the purpose of dispute resolution is to ensure fairness, protect the legitimate rights and interests of the disputing parties. From that, it can be defined that resolving civil disputes on copyright is a method and measure to overcome or eliminate disputes to protect the legitimate rights and interests of the parties in the legal relationship on copyright, which is synonymous with protecting copyright.

Resolving disputes satisfactorily helps ensure the legitimate rights of the parties (both material and spiritual), eliminates psychological burdens, and maintains the relationship between the parties. Correctly resolving civil disputes on copyright aims to ensure equality between subjects and citizens before the law, contributing to establishing fairness in the whole society. Quick and convenient resolution contributes to creating and perfecting a healthy environment for authors to enhance their creativity. Through resolving civil disputes on copyright in court, it is possible to assess the conformity of the law with reality to find out the

inappropriate, inconsistent, overlapping points, from which there are directions for building and perfecting the legal system.

In the event of a civil dispute over copyright, if the parties cannot reach an agreement, they may choose a method of dispute resolution involving the intervention of a "third party" that they deem most effective. Depending on the circumstances, civil disputes over copyright may be resolved by one of the following methods:

- Mediation;

- Arbitration proceedings;

- Court proceedings;

* Mediation

Mediation can be an informal method of resolution or a mandatory procedure in court or arbitration proceedings. Here we are not referring to mediation in litigation or self-mediation between parties, but only to mediation as a method of dispute resolution outside of litigation with the participation of a third party acting as a mediator. While in Vietnam there are no regulations on procedures for mediation, this method has been widely used in the world, especially in resolving civil disputes over intellectual property rights in general and copyright in particular.

Mediation differs from court or arbitration in that the third party does not have the power to make a binding decision or impose any issue on either party to the dispute. The third party only helps, suggests, and persuades the parties to resolve the disagreement to find a solution to the conflict, but does not have jurisdiction. In essence, the third party is a person who supports the parties in negotiations that the parties cannot conduct directly.

The success of mediation depends on the combination of two factors: information exchange and mutual trust. Therefore, the third party must be someone that the disputing parties trust enough to be able to exchange their private positions in resolving the dispute. Obviously, if a person understands the disagreements, and at the same time knows the thoughts and aspirations of the parties, he or she can remove barriers and heal the rift in the relationship between the disputing parties. Although he or she does not have the power to decide on the resolution of the dispute, the role of the mediator is very important. With his or her experience and skills, the mediator facilitates the parties to exchange and provide new information, helps the parties understand each other's points of view, encourages the parties to propose flexible solutions and suggests solutions that meet the interests of both sides.

For civil disputes over intellectual property rights in general and civil disputes over copyright in particular, this method will be effective if both parties find someone who is knowledgeable about both the law and the technical aspects of intellectual property.

* Arbitration proceedings

Arbitration is a method of dispute resolution whereby the parties agree to submit disputes that have arisen or will arise before a sole arbitrator or an arbitral tribunal for resolution. The arbitral tribunal or sole arbitrator, after considering the case, will issue an arbitral award binding on the disputing parties.

Arbitration can only be conducted if both parties agree to use it by means of an arbitration agreement. The arbitration agreement must be recorded as a clause in the contract to apply to future disputes arising from the contract or a separate agreement signed after the dispute arises. Once the arbitration agreement is legally established, a party cannot unilaterally withdraw from the arbitration agreement.

Also on the basis of the agreements, the parties can choose the form of arbitration themselves, provided that the arbitration agreement specifically states which form of arbitration is chosen (ad hoc arbitration or institutional arbitration). The parties can jointly choose an independent arbitrator or each party can appoint 1/3 of the members of the arbitration panel to find experienced experts in dispute resolution, knowledgeable in both the law and the technical aspects of copyright. This meets the complex characteristics of this dispute, which is difficult for Court proceedings to satisfy because not all Judges have in-depth expertise in the field of IP in general and copyright in particular.

Civil disputes over intellectual property rights often involve foreign elements, so the law applied to resolve the dispute is often international treaties or foreign law. Therefore, if an arbitrator or an arbitration panel that knows a foreign language and understands both international and national law can be selected, the dispute will be resolved more quickly. On the other hand, the parties can choose an arbitrator who is not of the same nationality as the disputing parties to ensure objectivity, while the parties cannot choose a Court or Judge to resolve the dispute in a third country. At the same time, although the Judge may be objective, he or she is still required to use the language and apply the procedures and proceedings of his or her country, which is often the same nationality as one of the parties.

Arbitration is a secret procedure: Court hearings are mostly public, and if closed, the Court's decision must be public. Meanwhile, arbitration hearings are not held in public, and only the disputing parties receive the decision. This is a great advantage of arbitration.

The arbitral award is immediately enforceable and cannot be appealed like a first instance judgment or decision of the Court. The chances of annulment of the arbitral award are also very small, mainly due to basic procedural errors.

Court decisions are often difficult to achieve international recognition and usually have to go through a bilateral agreement or follow very strict rules with some regional exceptions. For arbitration, arbitral decisions achieve international recognition through a series of international treaties, especially the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which currently has over 120 member countries, including Vietnam. However, despite such advantages, when choosing the method of dispute resolution by arbitration, it should be noted that the arbitral decision is not binding on third parties but only on the parties who have signed the arbitration agreement (therefore, witnesses or experts cannot be forced to attend the arbitration hearing if they do not voluntarily do so). Another difference between arbitration proceedings and court proceedings is that arbitration does not act on behalf of the state's judicial power but on behalf of the supreme will of the parties, so the arbitral decisions are not guaranteed to be enforced by state power, and in the process of dispute resolution, the arbitrator does not have the right to apply temporary emergency measures; therefore, great support from the Court is needed to ensure that the resolution is highly effective and that the arbitral award is enforceable in practice.

* Court proceedings

This is a method of dispute resolution carried out by the State judicial agency (Court). Civil procedural law is the legal basis for litigation activities in Court, therefore, both litigants and participants in the litigation must comply with the correct form, order and procedures prescribed by procedural law. In court proceedings, the Judge acts as an arbitrator to adjudicate between the disputing parties. The main function of the Judge is to hold the scales of justice to adjudicate between the two parties participating in the litigation, maintain order in court and the litigation process between

The parties shall direct the litigation process towards resolving the parties' requests, the factual and legal bases of such requests, and the various circumstances of the civil relationship from which the dispute arises between the parties.

Unlike the arbitration method, the litigants are Judges on behalf of state power (public power). Judges are people appointed according to the provisions of law to try cases and resolve other matters under the jurisdiction of the Court with very strict appointment standards.

Unlike arbitration proceedings, the judgments and decisions of the Court that have come into legal effect must be respected by state agencies, economic organizations, social organizations, people's armed forces units and all citizens, and must be strictly implemented by relevant individuals and units (Article 136 of the 1992 Constitution of Vietnam). The agency directly responsible for organizing the enforcement of judgments and decisions of the Court is the competent state agency (in Vietnam, they are civil judgment enforcement agencies, organized and operated according to the Law on Civil Judgment Enforcement of Vietnam (effective from July 1, 2009) and documents guiding its implementation).

In general, the procedure for resolving disputes in Court is very strict. We will elaborate on this method of dispute resolution in the following sections.

Resolving civil disputes on intellectual property rights in general (copyright in particular) in court is the most effective mechanism for protecting intellectual property rights in the world today. Choosing to resolve civil disputes through the court means choosing a judicial body with civil proceedings that are coercive to the State. In industrialized countries, the role of the court in resolving civil disputes on intellectual property rights in general and copyright in particular is especially valued because only the court can resolve them completely.

disputes. When filing a lawsuit in Court, intellectual property rights holders not only have the right to request the Court to apply effective measures to prevent infringement by state coercion but also to force the infringing party to compensate for damages caused by such infringement (including material and spiritual damages). On the other hand, for contract disputes in the field of copyright, only the Court has the authority to resolve them to ensure the civil rights of the disputing parties.

1.3. RESOLVING CIVIL DISPUTES ON COPYRIGHT IN COURT ACCORDING TO THE LEGAL PROVISIONS OF SOME COUNTRIES IN THE WORLD

1.3.1 Federal Republic of Germany

- The Court system with jurisdiction to resolve civil cases is organized as follows:

District Court

High Court

Federal Ordinary Court

In Germany, there are no specialized courts or judges dealing with IP cases. IP cases are dealt with in the General Civil Court, which also deals with other ordinary civil cases. However, the courts are now being gradually specialized in order to be able to function better. Therefore, specialized departments or committees of judges within the courts are being established to deal with specific types of cases, such as cases related to construction works,

medical cases, matrimonial and family cases, commercial cases and also cases related to intellectual property rights. However, it should be noted that all judges in the Court can participate in one of the above committees. They can transfer from one committee to another if necessary because all cases related to that specialty fall under the general jurisdiction of the Civil Court system.

Intellectual property cases include all cases involving patents, utility models, industrial designs, trademarks, trade names, copyright cases, including software cases and disputes involving royalty collection organizations, semiconductor circuit cases, publisher cases and in certain cases unfair competition cases.

An IP lawsuit includes not only an infringement lawsuit but also a request for a declaration of non-infringement. This is a negative infringement lawsuit where the IP owner has warned the infringer but has not filed a lawsuit and the alleged infringer wants to know whether he will be forced to stop his production activities in the future. However, this lawsuit ends as soon as the IP owner files an infringement lawsuit because the consideration of whether or not the right is infringed will be considered in the infringement lawsuit.

1.3.2. Thailand

Central Intellectual property & International Trade Court

Supreme Court

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