Circular No. 02/2019/TT-BVHTTDL stipulates the procedures for forensic examination regarding copyright and related rights.

 

CIRCULAR

REGULATIONS ON THE PROCEDURE FOR LEGAL EXPERTISE ON COPYRIGHT AND RELATED RIGHTS

On the basis of The Legal Appraisal Law on June 20, 2012;

On the basis of Intellectual Property Law dated November 29, 2005 and Law Amending and Supplementing Certain Provisions of the Intellectual Property Law dated June 19, 2009;

Decree No. Decree No. 85/2013/ND-CP dated July 29, 2013 of the Government detailing and guiding the implementation of Pursuant to the Law on Forensic Examination;

Decree No. Decree No. 105/2006/ND-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law and state management over intellectual property and Decree No. 119/2010/ND-CP dated December 30, 2010 of the Government amending and supplementing certain provisions of Decree No. 105/2006/ND-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law and state management over intellectual property;

Decree No. Decree No. 79/2017/ND-CP dated July 17, 2017 of the Government stipulating functions, tasks, powers, and organizational structure of the Ministry of Culture, Sports and Tourism;

At the proposal of the Director of the Legal Department;

The Minister of Culture, Sports and Tourism promulgates this Circular on the procedure for legal expertise on copyright and related rights.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular regulates the procedure for legal expertise on copyright and related rights at the request of judicial authorities, persons conducting proceedings, or upon the request of those requesting legal expertise.

Article 2. Applicability

This Circular applies to legal experts, organizations conducting legal expertise, and other organizations and individuals related to legal expertise on copyright and related rights.

Article 3. Explanation of Terms

In this Circular, the following terms shall be understood as follows:

1. Copyright and related rights are defined according to the provisions of the law on intellectual property.

2. Legal expert on copyright and related rights includes judicial appraisers, case-specific judicial appraisers in the field of culture within the appropriate specialty who have been appointed and announced in accordance with the law on judicial appraisal.

3. Organizations conducting legal expertise on copyright and related rights include the Ministry of Culture, Sports and Tourism, Departments of Culture, Sports and Tourism, Departments of Culture and Sports of provinces and centrally governed cities, Expertise Offices, and organizations conducting case-specific legal expertise with appropriate specialized activities that have been announced in accordance with the law on legal expertise.

Chapter II

PROCEDURE FOR LEGAL EXPERTISE ON COPYRIGHT AND RELATED RIGHTS

Article 4. Accepting Requests and Forensic Appraisals

1. Legal experts on copyright and related rights (hereinafter referred to as legal experts), organizations conducting legal expertise on copyright and related rights (hereinafter referred to as organizations conducting legal expertise) shall accept requests for expertise and accompanying objects and relevant documents (if any) to conduct the expertise; if they lack the conditions to conduct the expertise, they shall refuse in accordance with the law on legal expertise.

2. The handover and receipt of files, documents, objects requested for legal expertise on copyright and related rights shall be carried out in accordance with Article 3 of Circular No. 07/2014/TT-BVHTTDL dated July 23, 2014 of the Minister of Culture, Sports and Tourism on files and templates for implementing legal expertise; applying professional standards for legal expertise activities in the cultural field; material conditions, equipment, and means of expertise of Expertise Offices for cultural relics, antiques, copyright, and related rights (hereinafter referred to as Circular No. 07/2014/TT-BVHTTDL).

Article 5. Preparing to Conduct Appraisal

1. Legal experts and organizations conducting legal expertise shall study the request files, specific provisions of the law on intellectual property to prepare for conducting legal expertise. In cases where additional clarification is needed regarding the content of the request for expertise, the object of expertise, they shall request the requester to provide additional information and relevant documents.

2. Legal experts may themselves take samples for expertise (specific objects that are elements of infringement or protected subject matter of copyright and related rights) or request the requester to provide samples for expertise. The provision of samples for expertise must be recorded in a record and kept in the expertise file.

The record of providing samples for expertise shall be carried out according to Model No. 01 attached to this Circular.

If necessary, legal experts may organize testing results or other professional conclusions to make evaluations and conclusions.

3. Organizations conducting legal expertise decide to conduct legal expertise on copyright and related rights through individual or collective expertise for complex cases. In cases of collective expertise, the number of participants in legal expertise must be three or more, including at least one person trained in Law.

The decision to conduct legal expertise on copyright and related rights shall be carried out according to Model No. 02 attached to this Circular.

4. Organizations conducting legal expertise shall select appropriate legal experts and case-specific legal experts based on the request files for expertise and assign a person responsible for coordinating the implementation of legal expertise.

Article 6. Conducting Appraisal

1. Legal experts examine the object of expertise and use their professional knowledge to evaluate and conclude on issues related to copyright and related rights as prescribed by law based on the request files for expertise. The examination of expertise includes one or more of the following contents:

a) Determining the subject matter of copyright and related rights;

b) Determining the elements of infringement of copyright and related rights;

c) Determining the value of copyright and related rights, determining the value of damages;

d) Other related contents concerning copyright and related rights.

2. Legal experts are responsible for promptly, fully, and truthfully recording the entire process of expertise and the results of the implementation of expertise in writing and keeping it in the expertise file.

The record of the implementation of expertise shall be carried out according to Model No. 02 issued together with Circular No. 07/2014/TT-BVHTTDL.

Article 7. Appraisal Conclusion

Based on the results of legal expertise and the provisions of the law on intellectual property, legal experts conclude on issues related to copyright and related rights.

The conclusion of expertise shall be carried out according to Model No. 04a and 04b issued together with Circular No. 07/2014/TT-BVHTTDL.

Article 8. Handover of Appraisal Conclusion

When the judicial appraisal regarding copyright and related rights is completed, the judicial appraiser or the judicial appraisal organization shall be responsible for handing over the appraisal conclusion to the requesting party or the party that requested the appraisal.

The handover record of the appraisal conclusion shall be carried out according to Model No. 05 issued together with Circular No. 07/2014/TT-BVHTTDL.

Article 9. Establishment and Retention of Appraisal Files

The judicial appraiser or the judicial appraisal organization shall be responsible for establishing the judicial appraisal file on copyright and related rights in accordance with Clause 1 of Article 33 of the Law on Judicial Appraisal and the provisions of this Circular.

The preservation and retention of judicial appraisal files are carried out in accordance with the law on archives.

Chapter III

IMPLEMENTING PROVISIONS

Article 10. Implementation Organization

1. The Legal Affairs Department shall take the lead and coordinate with relevant agencies and units to guide and organize inspections on the implementation of this Circular.

2. The Department of Culture, Sports and Tourism, the Departments of Culture and Sports of provinces and centrally-administered cities shall be responsible for organizing the implementation, inspection, and urging relevant agencies, organizations, and individuals to implement this Circular.

Article 11. Effective Date

1. This Circular takes effect from September 1, 2019.

2. During the implementation process, if any difficulties arise, it is recommended that agencies, units, and individuals promptly reflect them to the Ministry of Culture, Sports and Tourism (through the Legal Affairs Department) for research and appropriate amendments and supplements.

 

 

ANNEX

(Attached to Circular No. 02/2019/TT-BVHTTDL dated July 5, 2019 of the Minister of Culture, Sports and Tourism)

Model No. 01: Handover Record of Providing Appraisal Samples

Model No. 02: Decision on Conducting Judicial Appraisal Regarding Copyright and Related Rights

 

Model No. 01. Handover Record of Providing Appraisal Samples

 

RECORD

PROVIDING APPRAISAL SAMPLES

Today, at...hours...on...day...month...year...at:... (2)

We include:

1. Representative of the party requesting/requiring expertise:

Mr./Ms.... position...

2. Representative...(3):

Mr./Ms.... position...

3. Witness (if any):

Mr./Ms....(4)

Providing the appraisal sample for the case pursuant to the Request for Appraisal Decision/Request for Appraisal No... (5) as follows:

.....................................................................................................................................

.....................................................................................................................................

(Note: Clearly state the name, type, number, code, date, month, year, key content of information, and condition of the appraisal sample; method of preserving the sample when provided.)

The handover record of providing the appraisal sample has been read aloud to the persons named above and confirmed by their representatives; the record is made in two copies, each party retains one copy.

The handover was completed at...hours...on.../.../...

 

 

_____________

(1) Name of authority/Expert receiving the request.

(2) Location of providing the appraisal sample.

(3) Name of authority, unit, or expert receiving the request.

(4) Clearly record the full name, position, address of the witness.

(5) Number of the request (or requirement) for expertise document.

 

Model No. 02. Decision on Conducting Judicial Appraisal Regarding Copyright and Related Rights

 

Pursuant to …;

On conducting judicial appraisal pursuant to the Request for Appraisal/Request for Appraisal Decision No... on... day... month... year... of...(4)

........................(5)

Pursuant to the Law on Forensic Examination dated June 20, 2012;

Pursuant to the Government Decree No. 85/2013/NĐ-CP dated July 29, 2013 detailing and guiding the implementation of the Forensic Appraisal Law;

Based on Circular No. 04/2013/TT-BVHTTDL dated May 3, 2013 of the Minister of Culture, Sports and Tourism stipulating standards, files, procedures for appointing and dismissing judicial appraisers; establishing and announcing lists of judicial appraisers and judicial appraisal organizations by cases; procedures for assigning persons to participate in judicial appraisal and forming appraisal boards in the cultural sector;

Based on... (6);

Based on the Request for Appraisal/Request for Appraisal Decision No... on... day... month... year... of... (4);

Considering the proposal of... (if any),

DECISION:

Article 1. Conducting judicial appraisal for the case/pending matter pursuant to the Request for Appraisal/Request for Appraisal Decision No... on... day... month... year... of... (4) in the form of... (7), the members participating in the appraisal are as follows:

1....;

2.....;

3.....; (8)

Article 2. Entrusting... (9) to organize the implementation of judicial appraisal in accordance with the law... (9) to assign... (10) comrade(s) as assistants to the judicial appraiser.

Article 3... (11) is responsible for implementing this Decision./.

 

_____________

(1) Name of the organization issuing the decision to conduct the appraisal.

(2) Abbreviation in capital letters of the organization issuing the decision to conduct the appraisal.

(3) Location where the decision to conduct the judicial appraisal is issued.

(4) Clearly state the number, date, month, year, and the requesting agency or organization.

(5) Person authorized by the judicial appraisal organization to issue the decision to conduct the appraisal.

(6) Basis for determining the authority of the person issuing the decision to conduct judicial appraisal.

(7) Clearly indicate whether the appraisal is conducted by a group or individually.

(8) Name, position, workplace of each person conducting the appraisal, must be at least three people, including one person trained in law.

(9) The unit serving as the lead in the judicial appraisal work of the judicial appraisal organization.

(10) Number of assistants assigned to the judicial appraiser.

(11) Organizations and individuals related to the implementation of the decision are responsible for its execution.