Review videos in Vietnam: A case of copyright infringement?
13 January 2021
Review videos on social media are the rage nowadays in Vietnam.
Review videos are movie reviews on video shown via different social media channels such as Facebook and YouTube. They feature scenes from the movie as the reviewer talks about the storyline.
A typical movie review it would seem; however, this one tells viewers the entire story including the film’s much-awaited parts and surprise elements. As reported in an article in VnExpress International, this may result in lost revenues for the film’s creators. Viewers of these videos may feel that the review has already “let them in” on the movie and decide not to go to the cinema and shell out money for the actual film screening.
Plus, certain footages may have been shown in the review video without obtaining permission from the filmmakers.
According to Yen Vu, executive and country manager of Rouse in Ho Chi Minh City, such acts constitute unauthorized reproduction, use and communication to the public of a cinematographic work in accordance with Article 28.6, Article 28.8 and 28.10 of Vietnam’s Intellectual Property Law. Cutting out movie shots, adding commentaries which reveal or mislead viewers about movie plots are also likely to violate moral rights of the authors in accordance with Article 28.5.
“These acts are not qualified for any defense since they do not fall into any category of fair use under Article 25,” said Vu.
“The current IP Law provides that ‘reasonable recitation of published works without misrepresenting the authors' views for commentary or illustration purpose’ is a case in which permission and payment of royalties or remunerations are not required in accordance with Article 25.1.c of the IP Law,” said My Doan, senior associate at Hogan Lovells in Ho Chi Minh City. “However, ‘reasonable recitation must satisfy the following conditions: the recited parts aim merely to introduce, comment or clarify matters touched upon in his/her work and the recited parts are not prejudicial to the copyright to the works used for recitation and suitable to the nature and characteristics of the type of work used for recitation according to Article 23 of Decree 22/2018/ND-CP.”
The movie review videos may not meet these conditions as their recap of film plots and highlights exceed the aim of introduction, comment and clarification. They also have a negative effect on the normal exploitation of the original movies, said Doan.
According to the article, more than 80 websites have been found to violate Vietnam’s copyright law. Among them are Phimmoi, HDonline and Phimbathu.
“In terms of policy, a clear distinction between slavish recapping content and creative analytical content should be drawn in regulating and applying fair use defense for movie reviews,” said Vu. “The second type has been increasingly seen in Vietnam, too. Such reviews tend to contain scenes cut out from movies, but the excerpts are usually used for objective illustration, comparison, interpretation and evaluation of movies. Compared to the first type of movie review, they are not simply a ‘summarized version’ of the movie itself. More importantly, the amount of excerpts appear to be reasonable. This second type of review may enjoy the ‘reasonable quotation’ defense under Vietnam’s IP Law.”
However, Vu said that “reasonable quotation” needs to be clarified as there is no quantitative requirement to it. Thus, it is too broad to interpret and apply in practice.
“In our view, the government is doing well in drawing the line between copyright protection and the exercise of movie/TV/content reviewing in Vietnam. In particular, regulations on ‘reasonable recitation’ are relatively clear and balanced between the right holders and the audience, including the movie reviewers,” said Doan. “That said, ‘reasonable recitation’ is obviously permitted but remedies are clearly provided for illegal review videos which do not satisfy prescribed conditions to be considered ‘reasonable recitation.’”
According to Vu, filmmakers whose copyright works have been infringed have two practical enforcement options:
- Notice and takedown mechanism. An account repeatedly uploading Infringing videos may be permanently terminated.
- Site-blocking, administrative sanctions and other administrative measures.
“Although website blocking has only been implemented recently, it has produced positive results,” said Vu, “thanks to the active cooperation of the network providers.”
Espie Angelica A. de Leon