Live stream: how to be legal?
In recent years, mobile and computer-based applications which have livestream technology are becoming more and more popular. "Livestream" is a term referring to the direct transmission of contents and databases which are formed in images and audio records to the recipients at the same time by means of Internet. Currently in Vietnam, Youtube and Facebook are widely used, meanwhile, other countries mostly prefer mobile applications which allow livestream such as Periscope, Meerkat,… Livestream that allows users are able to stream any show/event by just using a smartphone is well-liked because several audiences on social networks and channels can interact with live streamers without being present. However, the usage of this modern technology also results in a lot of inadequacies and risks for not only the livestreamers but also the holder, author of the show/event broadcasted and other relevant persons. In other words, if a livestreamers does not well aware of the possibilities of infringing copyright and related personal rights, the risks and legal consequences will be more likely. A livestream of "Co Ba Sai Gon" by an audience or a livestream by a concert listerner who both did not aware that their behaviors had infringed copyright are some highlighted examples.

Nowadays in Vietnam, the copyright infringement of cinematographic works, live art works, live art shows is happening so usually and randomly that the livestreamers do not aware that they themselves are violating the laws. If these copyright infringements are sued by the copyright holders, the livestreamers will probably be handled administrative violations by the competent authorities, or even be prosecuted for criminal liability which the maximum penalty can be up to 1 billion VND or non-custodial rehabilitation or imprisonment.

To help users know more about copyright infringement possibilities when livestreaming, this article will discuss and analyze (i) how a livestream shall be regarded as a copyright infringement act, (ii) how a copyright infringement when livestreaming is handled, (iii) how to avoid copyright infringement when livestreaming and (iv) some cases in Vietnam.

How a livestream shall be regarded as a copyright infringement act?

As prescribed in Article 28 of Law on Intellectual Property (“IP”) promulgated in 2005, amended in 2009, the following acts shall be regarded to infringe copyright when livestreaming: 
  • Publishingor distributing awork without permission from the author or co-authors;
  • Copying a work without permission from the author or copyright holder;
  • Usinga work without permission from the copyright holder without paying royalties, remuneration or other material benefits in accordance with the laws.
Asprescribed in Article 7 of Decree of Government No.105/2006/ND-CP, copies of awork, fixations of a performance, copies of a phonogram, video recording or broadcast shall be regarded as an infringing element in the following cases:
  • The copy is a duplicate of part or the whole of a protected work, the first fixation of a protected performance, phonogram, video recording or broadcast of another person;
  • The work (part of the work) is part or the whole of a protected work, the first fixation of a protected performance, phonogram, video recording or broadcast ofanother person;
  • The work or part of the work contains a character, image, way of expression of the personality of a character or image or circumstances of a protected work of another person.
Pursuant to the mentioned provisions, a livestream shall be regarded as a copyright infringement when: 
  • Livestreaming a live music show/concert/circus performance/television show which have a copyright or any live event that the livestreamers are not the holders although the livestreamers may have paid to watch the show, however, this livestream shall be regarded as publishing a work without permission from the author/co-authorsand/or the show producer, performer, author of the work and the holder of the show.Therefore, this livestream shall be an act of copyright infringement;
  • Livestreaminga movie being screened at the cinema, although the viewer may have paid the movie ticket; however, this livestream shall be regarded as  publishing a work without permission from the author and the movie producer, performer, causing heavy economic damage for theproducer, author, director, artist/actress and other persons. Therefore, thislivestream shall be an act of copyright infringement;
  • Livestreaming a live sport game which was bought exclusive license to broadcast and this livestream shall be an infringement of copyright. 
Note: The mentioned cases are not all copyright infringement acts, just common acts in Vietnam and other countries related to infringement of copyright when livestreaming.

The remedies to handle illegal livestreaming

In accordance with the intellectual property law and other related provisions,when finding out his own work being infringed, the holder/owner is entiled toapply the following remedies to protect their rights to works:

Self-protecting remedies:

Self-protecting remedies may include but notlimit to:.
  • Sending cease and desist in many forms to person/entity who has infringed copyright to request for termination of the conduct, public apology or rectification, or paydamages;
  • Requesting the competent State bodies to handle copyright infringement acts in accordance with the intellectual property law and other relevant provisions;
  • Incase person/entity who has infringed copyright does not cooperate, the author/holder is entiled to apply other following measures to self-protect.
The mentioned self-protecting remedies are encouraged to be applied. However, incase they do not meet the requirements of author/holder, they are entiled to consider conducting the following remedies if necesssay.

Administrative remedies

Administrativeremedies may include caution, administrative remedy along with the request for remedying consequences.

Asprescribed in Decree No. 131/2013/ND-CP, some administrative remedies tocopyright infringement as follows:

  • As for acts of infringing upon the right to publicize works: A fine of between VND 5,000,000 and 10,000,000 shall be imposed for publishing the work without permission of the copyright holders in accordance with regulations.
  • Acts of infringing upon the right to communicate works to the public: A fine of between VND 15,000,000 and 30,000,000 shall be imposed for communicating a work to the public by wire or wireless means, electronicinformation network or any technical means without permission of the copyright holder in accordance with regulations;
  • As for acts of infringing upon the right of performers to fix live performances: A fine of between VND 3,000,000 and 5,000,000 shall be imposed for fixing live performance on phonogram or video recording without permission of the right holders of performer.
  • As for acts of infringing upon the right to broadcast or otherwise communicateun fixed performances to the public: A fine of between VND20,000,000 and 40,000,000 shall be imposed for broadcasting or other wise communicating an unfixed performance to the public without permission of theright holder of performer, unless such performance is intended for broadcasting.
  • As for acts of infringing upon the right to distribute works:A fine of between VND 10,000,000 and 30,000,000 shall be imposed for distributing the works without permission of the copyright holders.
Civil remedies 

The holder may sue the person who has committed acts of infringement and the court may apply remedies in accordance with the civil procedure law such as compulsory termination of the infringingacts, compulsory public apology and rectification, compulsory performance of civil obligations and compulsory payment of damages for loss.

Criminal remedies 

Criminal remedies may be applied to handle act of infringement in case the act constitutes crime in accordance with the Criminal code. Offence of copyright infringement is prescribed in detail in Criminal code.

As prescribed in Article 225 of Criminal code, a person who, without the permission of the holders of copyrights and relevant rights, deliberately commits any of the following acts such as (i) making copies of works, video recordings or audio recordings and/or (ii) distributingto public the copies of works, video recordings or audio recordings, infringing upon copyrights and relevant rights protected in Vietnam and earning an illegal profit of from VND 50,000,000 to under VND 300,000,000 or causing a loss from VND 100,000,000 to under VND 500,000,000 for the holders of such copyrights and relevant rights or with the violating goods valued at from VND 100,000,000 to under VND 500,000,000 shall be liable to a fine of from VND 50,000,000 to VND 300,000,000 or face a penalty of up to 03 years' community sentence.

If the offence is committed by an organized group, committed more than once, the illegal profit reaped is VND 300.000.000 and more or causes a loss VND 500.000.000 and more, the fine is from VND 300.000.000 to 500.000.000 and more or the imprisonment from 06 months to 03 years.

How to legally livestream?  

To livestream legally, users should consider thoroughly the following rules before livestreaming:
  • Do not livestream the contents if they are not in your ownership. The contents maybe movies which are screening in the theaters, music concerts, circus performance, drama show and other entertainment show that are owned/produced by otherperson/entity;
  • When livestreaming, if the livestream results in economic benefit or serves commercial intention such as advertisement, marketing,… the users do not usesong/piece of music/work if they are not in your ownership, the trademark that is protected, even in the hashtag form appearing in livestream.
Back to recently controversial “Co Ba Sai Gon” case related to illegal livestream, as prescribed in intellectual property law and relevant provisions, from the author’s perspective, this livestream shall probably be regarded as an act of infringement upon copyright of the movie because this act is a publishing work without permission of author/co-authors, distributing to public the copies of work without permission of the holder, causing heavy economic loss for the holder/producer of the movie.

The producer of “Co Ba Sai Gon” movie may probably prove the loss due to the livestream, for instance, they can base on the views of that audience’s publication on his social network and account,then multiply with the ticket price and assess the loss. If the loss is VND 100.000.000 and more, this audience may be prosecuted for criminal liability with the minimum penalty of VND 50.000.000 or non-custodial rehabilitation of 03 years and the maximum of VND 1.000.000.000 or imprisonment from 06 months to 03 years.

The mentioned acts of infringement upon copyright do not first appear in Vietnam. Moreover, Vietnameses’ sense in general on self-protection of their intellectual property rights and respect for the others’ rights is not heavily considered. Therefore, there should have some remedies in realtiy to avoid the acts of infringement, besides, enhance people’s sense on self-protection of their intellectual property rights and respect for the others’ rights.

Ms. Duong Thi Van Anh

Vietthink Law Firm


 



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