TIKTOK AND COPYRIGHT ISSUES

The People’s Court of Ho Chi Minh City has recently accepted the lawsuit between VNG Technology Corporation and TikTok Social Network. This is one of the major lawsuits on intellectual property and is being regarded by communities, especially with young Vietnamese, who are taking up the largest number of participating social networks. Therefore, if TikTok violates the copyright in Vietnam, how will they be punished? TikTok and Copyright Issues.

1. Overview of the lawsuit against TikTok 

According to VNG’s lawsuit sent to the People’s Court of Ho Chi Minh City, VNG believed that the short video platform TikTok integrates music, but did not have full copyright for the songs used. In which, the recordings owned by Zing – a subsidiary of VNG that provides online music services,  is used without the consent of the owner / owner of the exploitation.

Therefore, the VNG asked TikTok to compensate more than 221.5 billion VND (9.5 million USD) and must apologize publicly via direct mail and posted on the website. Accordingly, at the report from VNG’s subsidiary, there are a total of about 150 recordings that this company owns and exploits, used in more than 11 million videos on the application and website of TikTok.

According to VNG, the company previously sent a recommendation letter to TikTok in June 2019, but TikTok did not remove the songs, so VNG confirmed that it was a violation. TikTok and Copyright Issues.

TikTok is an application from China, introduced to the world market from 2017-2018. This application allows users to create lip sync or dance videos on the available music, including many songs with the copyright owned by Zing and VNG in Vietnam.

Although, Zing MP3 is a platform for upload / download music, not directly produced, or does not keep the full copyright of the song but Zing MP3 purchased the copyright of these music, VNG has enough grounds to sue TikTok, or any related party to use the songs without the consent of the owner (singer, musician) or party with ownership.

2. Intellectual property regulations on the copyright infringement of TikTok

According to the Clause 9, Article 4 of the Law on Intellectual Property 2019 (consolidation document), published work, phonogram or video recording means a work, phonogram or video recording, with the permission of the copyright holder or related right holder, has been issued in a reasonable quantity of copies.

In which, the copyright infringement of copyright specified in Clause 8, Article 28 of the Law on Intellectual Property are the acts of using a work without the permission from the copyright holder and without paying royalties, remuneration or other material benefits in accordance with the law.

In addition, we can see that the copyright infringements are specifically mentioned in the Law on Intellectual Property such as: TikTok and Copyright Issues

– Appropriating copyright to literary, artistic or scientific works.

– Impersonating authors. TikTok and Copyright Issues

– Publishing or distribution works without permission of authors.

– Publishing or distribution works under joint-authorship without permission of co-authors.

– Modifying, mutilating or distorting works in such a way as prejudicial to the honor and reputation of authors.

– Reproducing works without permission of authors or copyright holders, making derivative works without permission of authors or holders of copyright to works used for the making of derivative work, except for the cases specified at Points a, dd and i, Clause 1, Article 25 of Law on Intellectual Property 2019.

– Using works without permission of the copyright holders, without paying royalties, remuneration or other material benefits according to the provisions of law, except the case specified in Clause 1, Article 25 of the Law …

Based on the above provisions of the law, VNG has the right to sue TikTok if it uses audio tracks owned by VNG (its subsidiary), without VNG’s consent. Because not only does TikTok uses illegally music owned without VNG’s consent, but it also cuts and edits copyrighted music without permission of VNG through short 15s of music.

However, the VNG’s party of course has to provide legal evidence to prove the key points like the aforementioned violations of TikTok. TikTok and Copyright Issues

3. Regulations on compensation in case VNG wins the lawsuit against TikTok

Where the plaintiff is VNG can proven that an act of infringing upon intellectual property rights has caused material damage to them, they shall have  the right to request the Court to decide on the compensation level on one of the following bases: TikTok and Copyright Issues

– Total material damage calculated in an amount of money plus profit gained by the defendant TikTok as a result of an act of infringing upon intellectual property rights where the reduced profit amount of the plaintiff has not yet been calculated into such total material damage;

– The price of the licensing of an intellectual property object with the presumption that TikTok has been licensed by VNG to use that object under a license contract within a scope corresponding to the committed infringing act;

– Material damage by other ways of calculation given by the intellectual property right holder in accordance with the provisions of law.

If where the plaintiff VNG can prove that an act of infringing upon intellectual property rights of TikTok has caused spiritual damage to them, they shall have the right to request the court to decide on the compensation level ranging from 5 million VND to 50 million VND, depending on the damage extent.

In addition to the damage compensation defined in Article 205, VNG shall also have the right to request the Court to compel Tik Tok to pay reasonable costs of hiring lawyers.

Thus, the current problem is that VNG must have concrete proof that TikTok has infringement and that violation is about VNG’s intellectual property (phonogram) copyright, TikTok had benefits from copyright infringement and damage to VNG, and so  VNG can win the case in this copyright lawsuit.

However, the TikTok’s party may also avoid suing for copyright infringement if it have concrete proof that it is an indirect infringement by TikTok users to upload music tracks, not directly infringing by TikTok.