Intellectual property in the field of computer software is probably no longer a strange field for countries. However, this does not mean that creators know how to protect their interests against risks. It is for this reason that software copyright infringement acts are becoming more and more dangerous. Therefore, this issue has become more popular than ever when each country must face it and find a solution. Vietnam is also the same, to contribute to preventing software copyright infringement, it is first necessary to identify behaviors in parallel with appropriate solutions. In the following article, NPLaw will provide you with some necessary information about software copyright infringement.
Currently, there are many different perspectives on “Software Copyright”, but in general, software copyright is “the right to use software legally”.
Software copyright infringement is understood as an act of using software without a legal copyright, this act is also seen as “Illegal software copying”.
Individuals and organizations that commit software copyright infringement will be handled under the law on intellectual property. Computer software is a category of work that is automatically protected without registration. However, in reality, most of the software currently being used in our country is unlicensed software.
Software copyright is a legal mechanism that protects software or computer programs by copyright. Therefore, software copyright infringement can be understood as an act of copyright infringement against computer programs. According to Article 28 of the Intellectual Property Law 2005, as amended and supplemented in 2022, the following cases are considered software copyright infringement:
- Infringement of the moral rights set forth in Article 19 of the Intellectual Property Law.
- Infringement of the property rights set forth in Article 20 of the Intellectual Property Law.
- Failure to perform or fully perform the duties set forth in Articles 25, 25a and 26 of the Intellectual Property Law.
- Intentionally destroying or ineffectively making effective technological measures implemented by the author or copyright owner to protect the copyright of their work in order to carry out the acts set forth in Article 28 and Article 35 of the Intellectual Property Law.
- Production, distribution, import, offer for sale, sale, promotion, advertising, marketing, leasing, or storage for commercial purposes of devices, products, or components; introduction or provision of services when knowing or having basis to know that such devices, products, components, or services are produced or used to disable effective technological measures protecting copyright.
- Intentionally deleting, removing, or changing copyright management information without the permission of the author or copyright owner when knowing or having basis to know that the performance of such acts will incite, enable, facilitate, or conceal behaviors of copyright infringement under the law.
- Intentionally distributing, importing for distribution, broadcasting, transmitting, or providing to the public a copy of a work when knowing or having basis to know that copyright management information has been deleted, removed, or changed without the permission of the copyright owner; when knowing or having basis to know that the performance of such acts will incite, enable, facilitate, or conceal behaviors of copyright infringement under the law.
- Failure to implement or improperly implement the regulations to be exempt from the legal liability of the intermediary service providers set forth in Article 198b, Clause 3 of the Intellectual Property Law.
First of all, it is important to state that using unlicensed software is a violation of the law. Article 18 of Decree 131/2013/ND-CP stipulates that a fine of between 15,000,000 VND and 35,000,000 VND shall be imposed for copying the work without the permission of the copyright owners. However, it is important to note that this sanction only applies to individuals, not legal entities.
In addition, Article 212 of the Intellectual Property Law also clearly stipulates that individuals who infringe upon intellectual property rights in a manner that constitutes an offense shall be liable for criminal prosecution.
Depending on the nature of the act, an individual may be held criminally liable as follows: Pursuant to Article 225.1 of the Criminal Code 2015, as amended and supplemented in 2017, if any person, without the permission of the copyright owner or related rights, intentionally commits one of the following acts: (đến đây)
(1) Making copies of work, video recordings or audio recordings;
(2) Making copies of work, video recordings, audio recordings publicly available that infringe upon copyrights and relevant rights being protected in Vietnam for commercial purposes or illegal profits of from 50,000,000 VND to under 300,000,000 VND or causing damage of from 100,000,000 VND to under 500,000,000 VND for the owners of copyrights and relevant rights, or violating goods assessed at from 100,000,000 VND to under 500,000,000 VND shall be liable to a fine of from 50,000,000 VND to 300,000,000 VND or probation for up to 03 years.)
In cases where the offenses are committed by an organized group, the offenses have been committed more than once, the illegal profits reaped are 300,000,000 VND or more, the losses incurred by the owners of copyrights and relevant rights are 500,000,000 VND or more, or the illegal goods are assessed at 500,000,000 VND or more, shall carry a fine of from 300,000,000 VND to 1,000,000,000 VND or a penalty of 06 months - 03 years of imprisonment in accordance with Clause 2, Article 225 of the Criminal Code 2015. Not only that, the offenders might also be fined from 20,000,000 VND to 200,000,000 VND, prohibited from holding certain positions or doing certain work for 01 - 05 years.
For commercial legal entities using the unlicensed software, the fine can be determined under Clause 4, Article 225 of the Criminal Code 2015, as amended and supplemented in 2017:
- Committing one of the acts specified in Clause 1, Article 225 of the Criminal Code 2015 on commercial purposes or illegal profits of from 200,000,000 VND to less than 300,000,000 VND or causing damage to the owners of copyright or related rights of from 300,000,000 VND to less than 500,000,000 VND or infringing goods worth 300,000,000 VND to less than 500,000,000 VND; making illegal profits of from 100,000,000 VND to less than 200,000,000 VND or causing damage to the owners of copyright or related rights of from 100,000,000 VND to less than 300,000,000 VND or infringing goods worth 100,000,000 VND to less than 300,000,000 VND but has been administratively sanctioned for one of the acts specified in Article 225 or has been convicted of this crime and has not been erased from the criminal record but still violates, will be fined from 300,000,000 VND to 1,000,000,000 VND.
- If the offenses fall under the cases specified in Clause 2 of Article 225, the offenders shall be fined from 1,000,000 VND to 3,000,000 VND or have their operation suspended for a period of from 06 months to 02 years
- Business entities may also be fined from 100,000,000 VND to 300,000,000 VND, banned from doing business, operating in certain fields, or raising capital for a period of 01 to 03 years.
Currently, copyright infringement can be handled in three forms, including civil, administrative or criminal. Depending on the nature of the act and your wishes, you can choose one or all of these three forms.
In terms of civil measures, you can file a lawsuit at the competent People's Court under the Civil Procedure Law to request the copyright infringer to cease the infringing acts, compensate for damages, make corrections, and apologize publicly. However, applying for the filing measure at the civil Court will be very time-consuming (it must go through two levels of trial and also may take many years to complete a case) and expensive.
In terms of administrative measures, you can request competent administrative authorities to handle the copyright infringement. In addition to being forced to cease the copyright infringement, the infringer may also be fined, have their goods confiscated, or have their operations suspended. However, administrative measures cannot force the infringer to compensate for damages, publicly apologize or make corrections.
In terms of criminal measures, if the infringing acts meet the elements of a criminal offense, you can file a complaint with the police or the prosecutor's office. At that time, the state agencies will be able to intervene to assess the severity of the act. If there is sufficient evidence demonstrating that the acts have constituted criminal offenses, the infringers may be indicted, prosecuted in court, and subject to criminal punishment.
Some solutions that can help reduce software copyright infringement include:
- Software producers should offer discounts and prices that are affordable for consumers. This can make it more attractive for people to purchase legitimate software instead of pirated software.
- The government should develop plans to promote software that uses open source code and has significant quality to widely distribute and apply to everyone.
- Protecting registration for software copyright to use it as a basis for protecting your software copyright when disputes arise.
The price of software copyright for Vietnamese people is still quite high. In fact, you still have many different choices to suit your budget. Please minimize the use of pirated software to avoid unnecessary consequences.
Pursuant to Article 22 of the Intellectual Property Law 2005, as amended and supplemented in 2022, there are provisions on copyright for computer programs and database collections, as follows:
- A computer program is a set of instructions expressed in the form of commands, codes, diagrams, or other forms. When it is attached to a medium or device operated by a computer programming language, it has the ability to make the computer or device perform tasks or achieve specific results. Computer programs are protected as literary work, whether they are expressed in source code or computer code.
Authors and copyright owners of computer programs have the right to agree in writing on the repair and upgrade of the computer program. Organizations and individuals have the right to legally use a copy of a computer program that is made as a backup copy to replace it when that copy is deleted, damaged, or unusable, but it is not transferred to other organizations or individuals.
- Database collections are creative collections that are expressed in the selections and arrangements of documents in electronic or other forms. The copyright protection for database collections does not include the documents or data themselves, it isn’t harmful to the copyright of the documents or data themselves.
Therefore, the software, specifically the computer programs, are scientific work that are protected by copyright. Installing the software on your computer without purchasing the copyright is considered an act of copying the work without the permission of the copyright owners. These acts will be penalized under the regulations on copyright infringement.
Pursuant to Article 18 of Decree 131/2013/ND-CP, as amended by Clause 2, Article 3 of Decree 28/2017/ND-CP, there are provisions on the administrative penalties for infringing the copyright and related rights, as follows:
- A fine of 15,000,000 VND to 35,000,000 VND is imposed for the acts of copying work without the permission of the copyright owners.
- The infringer shall be ordered to remove the infringing copies of the work in electronic form, on the internet and digital environment, or to destroy the infringing evidence for the above acts .
Accordingly, the acts of infringing the right to copy work will be fined from 15,000,000 VND to 35,000,000 VND for the acts of copying work without the permission of the copyright owners. At the same time, it is forced to remove infringing copies of the work in electronic form, on the Internet and digital environment, or to destroy infringing objects.
Pursuant to Article 22 of the Intellectual Property Law 2005, there are provisions on copyright for computer programs and database collections, as follows:
- A computer program is a set of instructions expressed in the form of commands, codes, diagrams, or other forms. When it is attached to a medium or device operated by a computer programming language, it has the ability to make the computer or device perform tasks or achieve specific results. Computer programs are protected as literary work, whether they are expressed in source code or computer code.
- Database collections are creative collections that are expressed in the selections and arrangements of documents in electronic or other forms. The copyright protection for database collections does not include the documents or data themselves, it isn’t harmful to the copyright of the documents or data themselves.
Therefore, software is a type of scientific work that is protected by copyright. Installing it on computers without purchasing software licenses is considered an act of copying the work without the permission of the owners. Therefore, you should purchase licenses for computer programs to use them legally. Therefore, if you are using Microsoft software but do not have Windows licenses, you need to purchase licensed software for the computers you are using, otherwise, you will be penalized under the law for the copyright infringement of computer programs and database collections.
First, it is necessary to understand the definition of "trade secret" as provided in Clause 2, Article 1 of the Intellectual Property Law 2009: "Trade secret is information obtained from financial and intellectual investment activities, not yet disclosed and has the potential to be used in business."
According to the Intellectual Property Law 2005, the following acts are considered infringements of the rights to trade secrets:
- The following acts shall be deemed infringements of the trade secret rights:
+ Accessing or collecting information that constitutes trade secrets by resisting the security measures of the lawful controllers of trade secrets;
+ Disclosing or using information that constitutes trade secrets without the permission of the owners of trade secrets;
+ Infringing confidentiality agreements or deceiving, persuading, bribing, coercing, seducing, or taking advantage of the trust of persons who are obliged to maintain confidentiality in order to access, collect, or disclose trade secrets;
+ Accessing or collecting information that constitutes trade secrets of the applicants in the procedures for granting business licenses or product circulation by resisting the security measures of the competent authorities;
+ Using or disclosing trade secrets even if they know or are obliged to know trade secrets obtained by others related to one of the acts specified in points a, b, c, and d of this Clause;
+ Not fulfilling the confidentiality obligations specified in Article 128 of the Intellectual Property Law.
Therefore, if Company A can prove that this is a trade secret of the company (not allowed to be disclosed to the public), then the actions of Company B (a later-established company) have infringed the trade secrets of Company A because they have committed acts as provided in Clause 1, Article 127 of the Intellectual Property Law mentioned above, then Company A may request compensation or termination of using Company A's trade secrets, etc.
The price of software licenses for Vietnamese people is still significantly high. However, in reality, we still have many different options to suit our budget. Please minimize the use of unlicensed software to avoid unnecessary consequences. If you have any questions about software copyright infringement or legal issues, please contact NPLaw, we are always willing to answer.
NPLaw
Hotline: 0913449968
Email: legal@nplaw.vn
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