The first time Vietnamese authorities deal with Vietnamese copyright infringers using internet
January 22, 2009-
Elsevier of USA is the world’s leading publisher of science and health information and it serves more than 30 million scientists, students, and health and information professionals worldwide. In 2007, it dicovered that some individuals (“the Subject”) in Vietnam infringed its copyrighted scientific works. D&N International is chosen by Elsevier as its legal counsel in dealing with this piracy and we have suceeded in administrative action against this piracy.
In September 2007, Elsevier became aware that un unknown person or persons has transmitted unsolicited e-mails to academic professors informing them that copyrighted Elsevier journals and textbooks were availabe for sale via Internet. The email instructed recipients interested in purchasing the journals to send an inquiry to “firstname.lastname@example.org” for information about how to place an order. When an inquiry was sent to that Gmail address, the response directed the purchaser to access a website http://www.sciencejournals.co.nr – through which the CDs could be purchased. The “sciencejournals.co.nr” website indicated that the journals could be purchased through that website and paid for via Moneybookers, an Internet payment facilitor based in the United Kingdom. Thereafter, Elsevier became aware of a second piracy scheme using another Internet website. This second scheme use as website known as “www.sciencejournals.info” and was much larger in scope than the first. As in the first piracy scheme, these works could be purchased through the website and paid for through Moneybookers. Elsevier did not authorize the sales of its works through either websites above and does not sell its publications in the ways described above.
Basing on initial information provided by Elsevier concerning the Subject and its activities in Vietnam and in abroad, we have conducted a preliminary investigation on the Subject and then proposed Elsevier a course of action to deal with in accordance with the current Vietnamese laws and regulations.
Under Elsevier’s authorization, on June 2008, we prepared and submitted an appropriate Letter of Complaint on settlement of copyright infringement to the Chief Inspector (“the CI”) of the Ministry of Information and Communication (“MoCI”) who is responsible for dealing with such infringement and then conducted a several meetings and worked closely with the Inspectorate Agency (“the IA”) under MoIC in order to clarify a number of matters related to the Subject and its infringement activities and to set out a detailed working plan.
To facilite the proceedings, several related bodies are invited to involve such as Vietnam Military Telecommunication Corporation (Viettel) for obtaining information on internet subscribers which have IP addresses as mentioned above; Ho Chi Minh City’s Police Department for investigating and verifying the Subject residing in Ho Chi Minh City; and Vietnam Export Import Commercial Joint-Stock Bank (EXIMBANK) for obtaining the relevant information on bank account under the name of the Subject and requesting them to blockade the account of the Subject later.
Upon reviewing our concrete documents and evidences showing the possible infringement of Elsevier’s copyrighted works by the Subject, on August 2008 an Official Decision allowing to search the Subject’s premise has been issued by CI and a Special Inspection Delegation (“SID”) responsibe for undertaking this task has also been establised. Upon completion of the inspection and interrogation of the Subject, CI came to conclude that there was only one individual who infringed Elsevier’s copyrighted works and with all evidences to prove the same, he had to admit his infringement of the Elsevier’s works. The related others were not aware the infringement activites conducted by the infringer and they only helped the infringer in some activites without gaining any profit.
As a result, the following remedies has been imposed on the infringer in accordance with the current Vietnamese laws and regulations:
- Impose a fine of of VND1,000,000 (one million) on the infringer for the illegal use of personal information of others without notifying them of mode, scope, place and purpose of collecting, processing and using the information, pursuant Article 6, item 2.d) Decree 63/2007/ND-CP dated April 10, 2007 issued by the Government on regulations of punishments of administrative violations in sectors of information technology;
- Impose a fine of VND19,000,000 (nineteen millions) on the infringer for copying and duplicating copyrighted publications for commercial purposes without a consent of the right holders, pursuant to Article 44, item 5.a) Decree No. 56/2006/ND-CP dated June 06, 2006 issued by the Government on regulations of punishments of administrative violations in sectors of culture and information;
- Confiscate for contribution to the State Budget the sum of VND103,000,000 (one hundred and three million) gained from the infringement, pursuant Article 44, item 7.a) Decree No. 56/2006/ND-CP dated June 06, 2006 issued by the Government on regulations of punishments of administrative violations in sectors of culture and information;
- The infringer is requested to withdraw the websites offering for sale Elsevier’s copyrighted works and immediately cease the infringing acts.
This case is very complicated because the infringement committed through Internet and involved foreign elements. In addition, Vietnamese authorities do not have experiences in dealing with such a case. However, under a close working cooporation between IPR experts and the relevant enforcement authorities, the infringement has been prompltly settled in a cost and effective manner. The infringer admitted his infringment and committed to stop infringements in the future.
Although under administrative procedures, the copyright owner can not claim damages and the remedies imposed on the infringer are not severe, however it shows that administrative measures are more rapid and efficient to stop and prevent future infringement rather than judicial mesures. In this case, it took us only 3 months.
More importantly, this is the first time Vietnamese authorities have dealt with Vietnamese copyright infringers using internet as a means to develop a transactional network in order to illegally promote and sell foreign copyrighted works to foreign customers world-wide. Of note, until recently the authorities are rather reclutant to deal with IPR infringements cases involving foreign elements. This case will hopefully encourage them to be more active and willing to deal with similar transactional cases in the future.