Heavy Obligations for ISPs/Platforms under Vietnam’s Latest Draft Copyright Decree

The Vietnam Ministry of Culture, Sports and Tourism (“MCST”) is working on the latest version of the Draft Copyright Decree to submit to the Government for review very soon.

As a matter of legislative formality, once the Government receives the final version, its members will discuss the decree’s core issues before voting on the issuance of the decree.

Our review of the updated version of the Draft Copyright Decree revealed the following notable information:

• The provisions concerning ISPs’ obligations have been significantly updated:
• Additional definitions for ‘mere conduit’, ‘cache’, and ‘hosting’ services; 
• A new rule that both offshore and onshore ISPs must comply with the rules under Article 18 (measures to prevent and combat the violations in cyberspace) and Article 26 (data security in cyberspace) of the Cybersecurity Law; 
• A new standard for the ISP’s knowledge of copyright infringement. The lawmakers propose that any requests for removal or blocking access to a digital content that is submitted to the ISP will constitute evidence of the ISP’s knowledge of copyright infringement. 
• A new mechanism to handle a copyright takedown request of a copyright holder, in which an ISP may have to temporarily block or remove a piece of alleged copyright-infringing content for more than 30 days before reinstating the same if the copyright holder does not initiate a legal action against the alleged infringer. 
• A new obligation concerning taking down livestream, which is potentially quite troublesome for platforms. A copyright holder can submit supporting documents prior to the livestream, and ISPs seemingly will have to immediately remove or block access to the livestream when it takes place. Technically speaking, this obligation grants the copyright holder the right to pre-emptively block livestreams while imposes a proactive obligation to identify, filter and block livestream on the ISP side.

Manh Hung Tran   Manh-Hung Tran is the practice group leader of the Intellectual Property (IP) and Technology Practice Groups of Vietnam offices. For years, he has been constantly ranked as a leading IP lawyer by numerous researchers such as Chambers Global and Chambers Asia. He regularly writes articles concerning pressing legal issues in both English and Vietnamese, and his works have been published regularly in various reputable publications. He has assisted the government in reviewing and revising the IP Law, the IP provisions under the country’s criminal code, the draft e-Transaction Law, and the first draft Personal Data Protection Decree, etc. While Hung’s practices run the full gamut of IP work, he also specializes in the Telecommunications, Media, and Technology (TMT) practice, advising multinational corporations on data privacy, monetization, product reviews, AdTech, regulatory and user rights, cybersecurity, e-commerce, offshore social media, digital services, data breach and incidents, and other emerging technologies. He has been assisting international film studios and streaming clients with various film and TV series productions in Vietnam.

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This post was written by Baker McKenzie