Protection of performers' rights under Vietnamese intellectual property law

sue to request the Court to protect their rights and interests against infringements. Instead, they request competent authorities to handle administrative violations to ensure timely and prompt termination of such infringements.

- Second, the capacity to resolve intellectual property disputes has not met requirements.

The law on intellectual property protection is a relatively new field of law in Vietnam. Although the Court has paid due attention to the training and professional development of judges on intellectual property law in recent times, due to the complexity and diversity of intellectual property disputes, some judges still face many difficulties in resolving intellectual property disputes because they do not have sufficient expertise in intellectual property.

Therefore, in resolving intellectual property disputes, the results of the appraisal request or the conclusion of the violation factors by the competent authority on whether or not there is an act of infringement of intellectual property rights are of important value for the Court to use as a basis for resolving intellectual property cases accurately, in accordance with the law, and ensuring the legitimate rights of the parties.

In addition, the recognition and assessment of intellectual property infringements by competent authorities often lacks a unified viewpoint. This has led to many cases where, after the Court of Appeal has issued a verdict on a case, the parties still cite opposing opinions to the type of opinion consulted for the verdict to continue to complain and request consideration of appeals under the supervisory review procedure, causing prolonged litigation and affecting social stability.

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- Third, it is difficult to determine the damage caused by intellectual property infringement.

Before the Law on Intellectual Property was promulgated, there were almost no documents regulating the legal basis for determining the level of compensation for damages caused by infringement of intellectual property rights. Therefore, in the vast majority of cases, the plaintiff could not prove his or her damages or determined the level of compensation incorrectly and was not accepted by the Court.

The promulgation of the Intellectual Property Law has added important provisions on the principles for determining damages caused by infringement of intellectual property rights (Article 204) and the basis for determining the level of compensation for damages caused by infringement of intellectual property rights (Article 205). However, due to the special nature of the "intellectual property rights" asset type, in many cases, the plaintiff cannot prove the damage or cannot fully determine the damages that have actually occurred (which may be more or less than the actual damage that has occurred). The bases for determining material damages such as the level of loss of income, profits, loss of business opportunities, reasonable costs to prevent and remedy damages or spiritual damages including losses in honor, dignity, prestige, reputation and other spiritual losses caused to the subject of intellectual property rights, which in the scope of this thesis is to the performer, the owner of related rights to the performance according to the provisions of the Law on Intellectual Property, are in fact very difficult to determine accurately and completely. Therefore, when resolving these issues, the Court has encountered many difficulties in determining damages in order to have an accurate and legal judgment, ensuring the legitimate rights of the parties.

3.1.3.2. Practice of protecting performers' rights by administrative and criminal measures

- For administrative measures

Regulations on administrative sanctions on related rights are prescribed.

in Decree No. 131/2013/ND-CP dated October 16, 2013 of the Government. The content of this Decree has very specific provisions on acts of infringement of the rights of performers that are subject to administrative penalties and the level of penalties for each act. However, in reality, acts of infringement of the rights of performers that are subject to administrative penalties are often acts such as acts of infringement of the right to copy the performance and acts of infringement of the right to distribute to the public the original or copy of the performance. These acts of infringement often occur in the fields of music and cinema, especially in the current digital environment.

Normally, copyright issues in the field of cinema and television are less concerned than music copyright in the digital environment. Therefore, violations in this field are becoming more and more common. As a result, administrative sanctions for these violations are increasing. According to statistics from lawyer Phan Vu Tuan, Chief of Office of the Intellectual Property Association of Ho Chi Minh City, there are currently over 180 websites posting films (including American films). However, in a discussion with a representative of the Motion Picture Association of America - MPA, lawyer Tuan said that MPA has not provided film copyrights to any Vietnamese website. In 2013, the Motion Picture Association of America sent a petition to the Ministry of Culture, Sports and Tourism requesting that they handle copyright infringements of MPA's film works on three websites: http://phim47.com/; http://v1vn.com/ and http://pub.vn/. However, after the inspectors of the Ministry of Culture, Sports and Tourism intervened and requested the owners of the three websites to immediately remove copies of the film works that were subject to administrative violations, these websites changed or kept their domain names as before and continued to violate. Specifically, the website http://phim47.com/ changed to phimhh.com, the remaining two websites still posted the latest films that had not been shown on television or in theaters. Not only for

Foreign films, the situation of distributing cinematographic works to the public through the digital environment without the consent of the owner, without paying royalties is common with both domestic films and even unreleased films. Thien Ngan Film Joint Stock Company is one of the film studios that always has a team of employees who pay close attention to avoid filming and taking pictures of films when showing films in theaters. Not only that, this company also has a separate team that monitors the internet to detect websites that violate the law to force the removal of the film from the website, then they will immediately notify the violating website to force the removal of the film from the website. Although so strict, the draft of the film Dust of Cho Lon by Thien Ngan Film Studio was still leaked into the pirated disc market and online. Or before that, the film Canh Dong Bat Tan , which had not been released in theaters, had a pirated version on the pirated disc market and the Internet. And in both of these cases, the producer and distributor have not yet found the culprit to handle.

Not only in the film industry, the situation of copying and trading in discs without the permission of the owner in the music industry is also rampant in the market. Because the price of a pirated disc is usually only one-tenth (1/10) of the price of the original disc, it always attracts consumers. In addition, the business and trade of pirated discs require little capital but the profits are quite high, so although they know it is against the law, many people still do it regardless for a living. Therefore, although the authorities have handled many administrative violations, the situation of producing and trading in pirated discs has not decreased. According to Mr. Tran Quang Toai, Deputy Director of the Department of Culture, Sports and Tourism of Dong Nai province, in the past time, the cultural inspectorate in the province has made great efforts to rectify the rampant situation of pirated discs. However, the production and trading of pirated discs is becoming more complicated with

abundant supply sources along with a product distribution system in many diverse forms. Although the authorities try their best, they can only inspect and monitor fixed points of sale, while mobile points of sale are very few and very difficult to inspect. In this situation, in addition to continuing to promote inspection, examination and administrative sanctions to confiscate illegal products of individuals and violating units, the Department is coordinating with the press to carry out propaganda work to gradually raise consumers' awareness in using illegal products, avoiding assisting illegal establishments and subjects.

- For criminal measures

Before the Law amending and supplementing a number of articles of the Penal Code in 2009 was issued, the Penal Code in 1999 did not have provisions on the Crime of infringing copyright and related rights. The Law amending and supplementing a number of articles of the Penal Code has stipulated that a number of acts that were not previously considered crimes and were not regulated in the Penal Code are now considered crimes, including the Crime of infringing copyright and related rights. The Law amending and supplementing a number of articles of the Penal Code in 2009 took effect from January 1, 2010 and to date this law has only been in effect for 4 years, meaning that acts of infringing copyright and related rights have only been considered crimes in the last 4 years. Perhaps that is why there are currently no official statistics from competent authorities on the number of cases criminally prosecuted for the Crime of infringing copyright and related rights. For that reason, the author cannot yet make any assessment of the effectiveness of applying criminal measures in handling acts of copyright and related rights infringement.

3.1.3.3. Practices of protecting performers' rights by controlling import and export goods related to intellectual property

In the context of increasing import and export activities and the emergence of

With more and more methods of violating intellectual property rights across the border, Vietnam Customs is facing challenges in enforcing intellectual property rights protection for imported and exported goods. According to the assessment of the General Department of Customs in 2006, there is currently no intellectual property database system to update information, reflecting international practices on border control. Import and export goods are increasingly diverse, difficult to distinguish, smuggling, trading in counterfeit goods, and goods infringing on trademarks are becoming more and more complex and sophisticated, while the Customs authority is under pressure to promote procedural reform and simplify customs clearance procedures. In addition, customs control is carried out on the basis of information analysis, ensuring both effective management and facilitating legal trade, which is also a major challenge for customs in enforcing intellectual property rights protection. Meanwhile, the level of awareness of a significant number of customs officials and civil servants about the importance of intellectual property protection is still low. Most civil servants have limited knowledge about detecting import and export of goods that violate intellectual property rights, distinguishing genuine goods from counterfeit goods, etc.

Although there are still many difficulties in the process of implementing intellectual property rights protection, the entire Customs sector has always tried its best in all activities, especially in the fight against smuggling and trade fraud. Although there are no figures reflecting the activities of the entire sector in this work, according to information obtained on the website baodienbienphu.info.vn, in 2013, the Dien Bien Customs Department coordinated with functional forces to detect, arrest and handle 28 violations in general, of which 17 were administratively handled and 113 illegal video discs were confiscated. In the first 5 months of 2014, the Dien Bien Customs force confiscated and destroyed 104 CDs of unknown origin, and imposed an administrative fine of 500,000 VND. In order to prevent and effectively combat

In order to effectively deal with acts of trade fraud and drug trafficking across the border, Dien Bien Customs Department has directed professional units to make a list of subjects who regularly participate in immigration and have suspicious signs; proactively coordinate with functional units to organize patrols and controls inside and outside the area; coordinate with security forces of neighboring countries at border gates to grasp information and promptly handle.

3.2. Solutions to improve the law and enhance the effectiveness of protecting the rights of performers

The current Vietnamese Intellectual Property Law has partly met the requirements for the protection of related rights in general and the protection of performers' rights in particular. However, in order for the provisions of the law to truly come into effect and for performers to truly enjoy their legitimate rights and benefits, it is always necessary to improve the provisions of the law to best ensure these rights and benefits of performers. After researching this topic, the author would like to make some recommendations for improving the law and improving the effectiveness of protecting performers' rights, including:

- Firstly, the author would like to make recommendations on the provisions on the protection period of performers' rights in the Intellectual Property Law. According to the provisions of the 2005 Intellectual Property Law, the protection period of related rights of performers is fifty years from the year following the year of the performance. The rights of performers to be protected include the personal rights and property rights of performers. The provision of a general protection period of fifty years for both personal rights and property rights of performers is not really suitable for practical life and does not really best protect the rights of performers. In relation to copyright, related rights have a close relationship and always exist in parallel with copyright. Personal rights in related rights are essentially similar to personal rights.

in copyright. However, in copyright, the author's personal rights are protected indefinitely, while the performer's personal rights in related rights are only protected for a period of fifty years. For example, in copyright, the right to " have one's real name or pseudonym on the work; to have one's real name or pseudonym mentioned when the work is published or used " is protected indefinitely, while the performer's personal rights, the right to " have one's name introduced when performing, when releasing audio recordings, video recordings, or broadcasting the performance " are only protected for a period of fifty years from the year following the year the performance is fixed. Such a provision has limited the rights of performers, easily leading to acts that affect the rights, reputation, and honor of performers after the end of the protection period for the performance. It is not natural that after fifty years from the date a performance is protected, the performer is no longer allowed to be named when releasing a recording or video recording containing the performance or broadcasting a program broadcasting the performance, and that anyone has the right to distort, edit, or modify the integrity of the performer's image, affecting the honor and reputation of the performer.

To overcome the above limitations and shortcomings, we need to amend the provisions of the Intellectual Property Law in the direction of protecting the personal rights of performers similar to the protection of personal rights in copyright in terms of duration. Specifically, amend Clause 1, Article 34 of the Intellectual Property Law in the direction of protecting personal rights and property rights with a separation in time. Property rights are still protected for a period of fifty years, while personal rights have an indefinite protection period. Only then can we best ensure the rights of performers, which is also consistent with the nature of personal rights in intellectual property rights, contributing to limiting acts of infringement of rights.

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