Decree No. 28/2017/NĐ-CP dated 20 March 2017: amending and supplementing some articles of Decree No. 131/2013/NĐ-CP stipulating sanctions for administrative violations of copyright and related rights and Decree No. 158/2013/NĐ-CP stipulating sanctions for administrative violations in the fields of culture, sport, tourism and advertising.

On 30 March, 2017 the Government promulgated Decree No. 28/2017/NĐ-CP (“Decree 28”) to amend and supplement some articles of Decree No. 131/2013/NĐ-CP dated 16 October 2013 regulating sactions for administrative violations of copyright and related rights and Decree No.  158/2013/NĐ-CP stipulating sanctions for administrative violations in the fields of culture, sport, tourism and advertising. Decree 28 has some remarkable new provisions as follows:

1. Amending and supplementing some articles of Decree No. 131/2013/NĐ-CP stipulating sanctions for administrative violations of copyright and related rights

Decree 28 clarifies in more details the administrative violation sanctioning jurisdiction of Inspectorates, Customs, Market Management Forces, Border Guards, Coast Guards as well as gives the sanctioning jurisdiction to several bodies and individuals. The details are as follows:

Sanctioning jurisdiction of Inspectorates

The sanctioning jurisdiction of Inspectorates has been given to 16 official titles such as Inspectors, Chief Inspectors of Departments, Inspectors-In-Chief of the Specialized Inspectorates, Chief Inspectors of Ministries, etc. Accordingly, Inspectorates have the competence to impose fines, confiscate infringed materials, deprive of business licenses for a definite time, apply remedial measures. The fines of from US$25 up to US$12,500 are decided by the individual having the corresponding titles and jurisdiction. For instance, Inspectors only have competence of imposing fines of up to US$25 whereas Chief Inspectorates of Ministries have competence to impose fines of up to US$12,500.

Sanctioning jurisdiction of Customs

The sanctioning jurisdiction of Customs has been given to 11 official titles such as Directors of Customs Departments, Directors of Anti-smuggling and Investigation Department, the Director of General Department of Vietnam Customs, etc. Accordingly, Customs have the competence to impose fines, confiscate infringed materials, deprive of business licenses for a definite time, apply remedial measures. The fines of from US$1,250 up to US$12,500 are decided by the individual having the corresponding titles and jurisdiction. For instance, Directors of Customs Departments only have competence of imposing fines of up to US$1,250 whereas the Director of General Department of Vietnam Customs has competence to impose fines of up to US$12,500.

Sanctioning jurisdiction of Market Management Forces

The sanctioning jurisdiction of Market Management Forces has been given to 6 official titles such as Heads of Market Management Teams, Directors of Market Management Sub-Departments of provincial-level Industry and Trade Departments, the Director of the Market Management Department etc. Accordingly, Market Management Forces have the competence to impose fines, confiscate infringed materials, deprive of business licenses for a definite time, apply remedial measures. The fines of from US$1,250 up to US$12,500 are decided by the individual having the corresponding titles and jurisdiction. For instance, Heads of market management teams only have competence of imposing fines of up to US$1,250 whereas the Director of the Market Management Department has competence to impose fines of up to US$12,500.

Sanctioning jurisdiction of Coast Guards

The sanctioning jurisdiction of Coast Guards has been given to 7 official titles such as Heads of Professional Operation Teams, Heads of Professional Operation Squads, the Commander of Vietnam Coast Guard, etc. Accordingly, Coast Guards have the competence to impose fines, confiscate infringed materials, deprive of business licenses for a definite time, apply remedial measures. The fines of from US$250 up to US$12,500 are decided by the individual having the corresponding titles and jurisdiction. For instance, Heads of Professional Operation Teams only have competence of imposing fines of up to US$250 whereas Director of the Commander of Vietnam Coast Guard has competence to impose fines of up to US$12,500.

Sanctioning jurisdiction of Border Guards

The sanctioning jurisdiction of Border Guards has been given to 6 official titles such as Chiefs of Border-guard Stations, Commanders of Border-gate Guards at Ports, Provincial-level border-guard Commanders etc. Accordingly, Border Guards have the competence to impose fines, confiscate infringed materials, deprive of business licenses for a definite time, apply remedial measures. The fines of from US$1,250 up to US$12,500 are decided by the individual having the corresponding titles and jurisdiction. For instance, Chiefs of Border-guard Stations only have competence of imposing fines of up to US$1,250 whereas Provincial-level border-guard Commanders have competence to impose fines of up to US$12,500.

In addition to the above said amendments and supplements, Decree 28 also amends some provisions regarding the remedial measures, namely, some amendments in the application of the two measures: “forcible re-export of infringed materials” and “forcible destruction of infringed materials” in a number of cases. This change is designed to create a more proper legal base for improving the effectiveness of handling of administrative violations of copyright and related rights in practice.

2. Amending and supplementing some articles of Decree No. 158/2013/NĐ-CP stipulating sanctions for administrative violations in the fields of culture, sport, tourism and advertising.

Similar to the amendments and supplements to the Decree 131 as mentioned above, Decree 28 amends Decree 158 in order to clarify in more details the sanctioning jurisdiction of Inspectorates, Customs, Market Management Forces, Border Guards, Coast Guards as well as to give the sanctioning jurisdiction to several bodies and individuals. Depending on the seriousness of violations, different sanctions may be imposed on the violators such as caution, fine, deprivation of business licenses for a definite time, confiscation of infringed materials or means used for commission of administrative violations. The fines of from US$25 up to US$12,500 are decided by the individual having the corresponding titles and jurisdiction.

In addition, Decree 28 also amends and supplements many other provisions of Decree 158 regarding acts of violations in the field of culture, sport, tourism and advertising, with the following remarkable points:

As to violations against regulations on film distribution, Decree 28 stipulates:

• A fine of US$50 up to 100 shall be imposed with regard to the following acts: Selling, renting films classified for internal circulation only; Erasing, amending rating labels on the video tapes or discs.

• A fine of US$100 up to 250 shall be imposed with regard to the acts of Selling, renting video tapes or discs without rating labels or with rating labels not in compliance with the license of for distribution.

• A fine of US$500 up to 750 shall be imposed with regard to the act of replacing the content of films bearing the rating labels.

• A fine of US$750 up to 1,000 shall be imposed with regard to one of the following acts: Selling, renting or distributing unapproved films; distributing celluloid films; Distributing video tapes or discs beyond the scope approved in the license for distribution.

• A fine of US$1,000 up to 1,250 shall be imposed with regard to the acts of Selling, renting or distributing celluloid films, video tapes or discs of which the decisions on recall, confiscation, prohibition or destruction have been issued.

As to the violations against regulations on the storage and distribution of audio and video recordings of art performances, Decree 28 clearly stipulates:

• A fine of US$500 up to 750 shall be imposed with regard to the acts of illegally storing, distributing audio and video recordings of art performances that are unapproved or without rating stamps;

• A fine of US$750 up to 1,000 shall be imposed with regard to the acts of illegally storing, distributing audio and video recordings of art performances that incite debauchery, are not appropriate for the social moral standards and fine traditions of Vietnam;

• A fine of US$1,000 – 1,250 shall be imposed with regard to the acts of illegally storing, distributing audio and video recordings of art performances of which the decisions on recall, prohibition, confiscation or destruction have been issued;

As to the violations against regulations on advertising that affec the landscape, traffic safety, or social order and advertising on vehicles, Decree 28 stipulates:

• A caution or a fine of US$10 up to 25 shall be imposed with regard to the act of distributing fliers that affects the landscape, traffic safety, or social order;
• A fine of US$100 up to 250 shall be imposed with regard to one of the following acts: Placing advertisements on the front, back, or top of the vehicle; placing advertisement that exceeds the permissible area for advertisement on any side of the vehicle;
• A fine of US$250 up to 500 shall be imposed on any individual whose products, goods or services advertised in leaflets that affects the landscape, traffic safety, or social order.

This Decree 28 shall take effect on 5 May 2017. For the administrative violations of copyright, related rights and those in the fields of culture, sport, tourism and advertising which have been commited before the effective date of this Decree and are discovered afterwards or those being handled, the provisions that are favorable to the violators shall be applied. The amending and supplementing of the above said regulations in Decree 28 will help complete Decrees Nos. 131 and 158 which are the two legal documents providing importants legal frameworks for the handling of the administrative violations in a variety of wide fields including intellectual property. Further, the said amending and supplementing also makes the systems of legal documents on handling administrative violations in all the fields of life become more and more compliant and consistent with the regulations under the effective Law on On Handling of Administrative Violations.