Circular No. 15/2012/TT-BVHTTDL guiding the operation of copyright and related rights appraisal activities

CIRCULAR

Guidelines for the operation of copyright and related rights appraisal

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Based on the Intellectual Property Law 2005; Provincial People's Committees set specific pricesamending and supplementing certain articles of the Intellectual Property Law 2009;

Based on Decree No. 100/2006/NĐ-CP dated September 21, 2006 of the Government detailing and guiding the implementation of certain articles of the Civil Code and the Intellectual Property Law regarding copyright and related rights; Decree No. 85/2011/NĐ-CP dated September 20, 2011 of the Government amending and supplementing certain articles of Decree No. 100/2006/NĐ-CP;

Based on Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain articles of the Intellectual Property Law regarding the protection of intellectual property rights and state management of intellectual property; Decree No. 119/2010/NĐ-CP dated December 30, 2010 of the Government amending and supplementing certain articles of Decree No. 105/2006/NĐ-CP;

Based on Decree No. 185/2007/NĐ-CP dated December 25, 2007 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Culture, Sports and Tourism;

At the proposal of the Director of the Copyright Agency,

The Minister of Culture, Sports and Tourism issues this Circular to guide the operation of copyright and related rights appraisal.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

Article 1. This Circular guides the operation of copyright and related rights appraisal including the issuance, reissuance, revocation of Copyright Appraisal Officer Cards; the issuance, reissuance, revocation of Certificates for Copyright and Related Rights Appraisal Organizations; conducting copyright and related rights appraisal upon request from organizations and individuals.

Article 2. In cases of judicial appraisal concerning copyright and related rights, such appraisals shall be carried out in accordance with the laws on judicial appraisal.

Article 2. Applicability

This Circular applies to organizations and individuals involved in the operation of copyright and related rights appraisal within the territory of Vietnam.

Article 3. Copyright and Related Rights Appraisal

Clause 1. Copyright and related rights appraisal (hereinafter referred to as appraisal) is the process where organizations and individuals with authority use their expertise and specialized knowledge to evaluate and conclude on matters related to copyright and related rights according to the requests of the requesting organizations and individuals.

Clause 2. The scope of copyright and related rights appraisal as specified in point a, Clause 2, Article 39 of Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain articles of the Intellectual Property Law on the protection of intellectual property rights and state management of intellectual property (hereinafter referred to as Decree No. 105/2006/NĐ-CP), amended and supplemented by Decree No. 119/2010/NĐ-CP dated December 30, 2010 of the Government amending and supplementing certain articles of Decree No. 105/2006/NĐ-CP (hereinafter referred to as Decree No. 119/2010/NĐ-CP) includes the following specialties:

Point a. Copyright appraisal for literary, artistic, and scientific works as stipulated in Article 14 of the Intellectual Property Law;

Point b. Related rights appraisal for objects of related rights as stipulated in Article 17 of the Intellectual Property Law.

Article 4. Principles of Appraisal

Clause 1. Compliance with the law.

Clause 2. Honesty, accuracy, objectivity.

Clause 3. Conclude only on professional issues related to copyright and related rights within the scope requested.

Clause 4. Be responsible under the law for the results of the appraisal.

Chapter II

ISSUANCE, REISSUANCE, REVOCATION OF COPYRIGHT AND RELATED RIGHTS APPRAISAL OFFICER CARDS

Article 5. Copyright and Related Rights Appraiser

A copyright and related rights appraiser is an individual who meets all conditions stipulated in Clause 2 of Article 44 of Decree No. 105/2006/NĐ-CP amended and supplemented by Decree No. 119/2010/NĐ-CP and has been issued a Copyright and Related Rights Appraiser Card (hereinafter referred to as the Appraiser Card).

Article 6. Authority to Issue, Reissue, and Revoke the Appraiser Card

The Director of the Copyright Agency under the Ministry of Culture, Sports and Tourism has the authority to issue, reissue, and revoke the Appraiser Card.

Article 7. Procedures for Issuing, Reissuing, and Revoking the Appraiser Card

1. An individual requesting issuance of the Appraiser Card shall submit one set of application documents through the post or at the office of the Copyright Agency under the Ministry of Culture, Sports and Tourism. The documents include:

a) Application form for issuance of the Appraiser Card (in accordance with Form 1 attached hereto);

b) Copy of the result of passing the professional appraisal examination or a document from the Examination Board accepting exemption from the professional appraisal examination;

c) Copy of the Identity Card;

d) Two color photographs measuring 3x4 cm.

2. Within fifteen working days from the date of receipt of complete and valid documents, the Director of the Copyright Agency shall issue a decision on granting the Appraiser Card. In case of refusal to grant the Appraiser Card, the Copyright Agency shall notify in writing with detailed reasons. The format of the Appraiser Card is specified in Form 2 attached hereto.

3. Validity of the Appraiser Card: The Appraiser Card becomes effective from the date of issuance.

4. Reissuance of the Appraiser Card

a) The Appraiser Card will only be reissued if it is lost or damaged.

b) An appraiser requesting reissuance of the Appraiser Card shall submit a written statement of reason and relevant documents as specified in Points a, c, and d of Subsection 1 of this Article through the post or at the office of the Copyright Agency under the Ministry of Culture, Sports and Tourism. In case of loss, there must be confirmation from the competent authority regarding the loss. In case of damage, the damaged Appraiser Card must be returned.

c) The time limit for reissuance is ten working days from the date of receipt of complete reissuance request documents.

5. Revocation of the Appraiser Card

The Appraiser Card will be revoked in any of the following cases:

a) The holder of the Appraiser Card no longer meets the provisions of Article 5 of this Circular;

b) The holder of the Appraiser Card commits violations of the law during appraisal activities and is proposed by a competent state agency to revoke the Appraiser Card in accordance with the law;

c) There is evidence that the Appraiser Card was issued contrary to the provisions of the law.

6. The Copyright Agency shall establish a list of appraisers based on decisions on issuance, reissuance, and revocation of the Appraiser Card and publish it on the Copyright Agency's website.

Article 8. Professional Appraisal Examination

1. An individual requesting issuance of the Appraiser Card but not having the result of passing the professional appraisal examination as specified in Point b of Subsection 1 of Article 7 of this Circular shall submit one set of registration documents for the professional appraisal examination through the post or at the office of the Copyright Agency under the Ministry of Culture, Sports and Tourism. The documents include:

a) Registration form for the professional appraisal examination (in accordance with Form 3 attached hereto);

b) Curriculum vitae of the applicant for the examination, confirmed by the workplace organization or local government where the applicant resides;

c) Certified copy of the bachelor’s or master’s degree certificate;

d) Confirmation letter from the workplace organization about the actual professional activity related to the appraisal field for at least five consecutive years or fifteen consecutive years (for those exempted from the professional appraisal examination as specified in Clause 5 of this Article);

đ) Health status confirmation letter;

e) Two color photographs measuring 3x4 cm;

g) Request for exemption from the professional appraisal examination (for those exempted from the professional appraisal examination as specified in Clause 5 of this Article).

2. Within fifteen working days from the date of receipt of complete and valid documents, the Copyright Agency shall notify acceptance of the application. In case of rejection, the Copyright Agency shall notify in writing with detailed reasons.

3. Examination Board for Professional Appraisal

a) The Minister of Culture, Sports and Tourism shall issue a decision to establish the Examination Board for Professional Appraisal (hereinafter referred to as the Examination Board) based on the proposal of the Director of the Copyright Agency.

b) The Examination Board shall have a chairman and members. The number of members of the Examination Board must be odd and at least five members. The Chairman of the Examination Board is the Director of the Copyright Agency or a Deputy Director authorized by the Director; members of the Examination Board include individuals with experience and reputation in the field of copyright and related rights.

4. Content of the Professional Appraisal Examination

The content of the professional appraisal examination includes knowledge of laws, copyright and related rights appraisal, and specialized appraisal knowledge as stipulated in Clause 2 of Article 3 of this Circular.

5. Individuals Exempted from the Professional Appraisal Examination

Individuals who have continuously worked for at least fifteen years in drafting and guiding the implementation of legal regulations on copyright and related rights, inspecting, resolving disputes, complaints, and accusations regarding copyright and related rights at state management agencies on copyright and related rights are exempted from the professional appraisal examination.

6. Notification of Results of the Professional Appraisal Examination

The results of the professional appraisal examination will be announced on the Copyright Agency's website. The Copyright Agency shall confirm the results for those who pass the professional appraisal examination.

Chapter III

ISSUANCE, REISSUANCE, AND REVOCATION OF THE ORGANIZATION APPRAISER CERTIFICATE FOR COPYRIGHT AND RELATED RIGHTS

Article 9. Organizations conducting copyright and related rights appraisal

An organization conducting copyright and related rights appraisal is an entity meeting all conditions stipulated in Article 42 of Decree No. 105/2006/NĐ-CP, amended and supplemented by Decree No. 119/2010/NĐ-CP, and holding a Certificate for Copyright Appraisal Organization (hereinafter referred to as the Appraisal Organization Certificate).

Article 10. Authority to issue, reissue, and revoke the Appraisal Organization Certificate

The Director of the Copyright Agency under the Ministry of Culture, Sports and Tourism has the authority to issue, reissue, and revoke the Appraisal Organization Certificate.

Article 11. Procedures for issuing, reissuing, and revoking the Appraisal Organization Certificate

1. An organization requesting issuance of the Appraisal Organization Certificate shall submit one set of application documents through postal service or at the office of the Copyright Agency under the Ministry of Culture, Sports and Tourism. The application package includes:

a) A request form for issuance of the Appraisal Organization Certificate (in accordance with Appendix No. 4 issued together with this Circular);

b) A certified copy of the registration certificate for operation or establishment decision issued by the competent state agency;

c) A certified copy of the recruitment decision, labor contract, or employment contract between the organization and the appraiser working for the organization.

2. Within fifteen working days from the date of receipt of complete and valid application documents, the Director of the Copyright Agency shall issue a decision on granting the Appraisal Organization Certificate. In case of refusal to grant the Appraisal Organization Certificate, the Copyright Agency shall notify in writing, specifying the reasons. The format of the Appraisal Organization Certificate is specified in Appendix No. 5 issued together with this Circular.

3. Effectiveness of the Appraisal Organization Certificate: The Appraisal Organization Certificate becomes effective from the date of issuance.

4. Reissuance of the Appraisal Organization Certificate

a) The Appraisal Organization Certificate will only be reissued in cases where the Appraisal Organization Certificate is lost, damaged, or there is a change in information recorded in the Appraisal Organization Certificate.

b) An appraisal organization requesting reissuance of the Appraisal Organization Certificate shall submit a written statement detailing the reason and application documents as prescribed in Clause 1 of this Article through postal service or at the office of the Copyright Agency under the Ministry of Culture, Sports and Tourism. In case of loss, confirmation from the competent authority regarding the loss must be provided. In case of damage, the damaged Appraisal Organization Certificate must be returned. In case of information changes, legal documents proving such changes must be submitted along with returning the Appraisal Organization Certificate.

c) The reissuance period is ten working days from the date of receiving complete reissuance application documents.

5. Revocation of the Appraisal Organization Certificate

The Appraisal Organization Certificate will be revoked in any of the following cases:

a) The appraisal organization no longer meets the provisions of this Circular;

b) The appraisal organization engages in violations of laws during appraisal activities, leading to a recommendation by the competent state agency to revoke the Appraisal Organization Certificate according to the law;

c) There is evidence that the Appraisal Organization Certificate was issued contrary to the provisions of the law;

d) The appraisal organization ceases its appraisal activities.

6. The Copyright Agency shall compile a list of appraisal organizations based on decisions on issuance, reissuance, and revocation of the Appraisal Organization Certificate and publish it on the Copyright Agency's electronic information website.

Chapter IV

IMPLEMENTATION OF COPYRIGHT AND RELATED RIGHTS APPRAISAL

Article 12. Request for Appraisal and Acceptance of Appraisal Requests

1. Organizations and individuals with appraisal requests as stipulated in Clauses 2 and 3 of Article 40 of Decree No. 105/2006/NĐ-CP amended and supplemented by Decree No. 119/2010/NĐ-CP shall submit one set of appraisal request files to independent appraisers or appraisal organizations. The file includes:

a) A document requesting appraisal containing the following main contents:

- Name and address of the individual or organization requesting the appraisal;

- ID number or establishment decision number or registration certificate number for operation, date of issuance, and issuing authority of the individual or organization requesting the appraisal;

- Telephone number, Fax, E-mail of the individual or organization requesting the appraisal;

- Qualification for requesting the appraisal (author; copyright owner; related rights owner; person with related rights interests; other qualifications);

- Basis for requesting the appraisal;

- Content of the appraisal request;

- Other relevant contents.

b) Attached documents:

- Samples requiring appraisal;

- Documents proving authorship, copyright ownership, related rights ownership, works, and related rights objects;

- Other relevant documents.

2. Independent appraisers or appraisal organizations shall accept the appraisal request files, estimate the costs of implementing the appraisal, negotiate and sign the appraisal contract with the requesting organizations or individuals, except in cases where they refuse to conduct the appraisal as provided in Clause 3 of this Article.

3. Independent appraisers or appraisal organizations shall refuse to conduct the appraisal in any of the following cases:

a) Not belonging to the specialized field of appraisal as stipulated in Clause 2 of Article 3 of this Circular;

b) Provisions at point b, Clause 3 and point d, Clause 4 of Article 44 of Decree No. 105/2006/NĐ-CP amended and supplemented by Decree No. 119/2010/NĐ-CP.

Article 13. Appraisal Contract

The appraisal contract includes the following main contents:

1. Name and address of the organization or individual requesting the appraisal; name and address of the independent appraiser or appraisal organization;

2. Content of the appraisal request;

3. Location and time of conducting the appraisal;

4. Costs of implementing the appraisal and payment methods;

5. Rights and obligations of the parties;

6. Inspection and termination of the contract;

7. Liability for compensation for damages; dispute resolution methods;

8. Other conditions agreed upon (if any).

Article 14. Costs of Implementing the Appraisal

1. Costs of implementing the appraisal include one or all of the following costs:

a) Testing costs;

b) Machinery and equipment costs for the appraisal;

c) Research costs for files and documents;

d) Costs for discussion, review, and evaluation sessions;

đ) Management costs and other necessary costs.

2. The collection, management, and use of costs for implementing the appraisal shall be carried out in accordance with the provisions of the law.

Article 15. Advisory Board for Appraisal

1. When conducting the appraisal, independent appraisers and appraisal organizations may establish an Advisory Board for Appraisal.

2. Independent appraisers and appraisal organizations select members of the Advisory Board for Appraisal related to the specialized field of appraisal and issue a decision to establish the Advisory Board for Appraisal.

The Advisory Board for Appraisal has a chairman and members. The number of members of the Advisory Board for Appraisal must be odd and have three or more members.

3. The Advisory Board for Appraisal operates on the principle of democracy, publicly voting on professional opinions. Members of the Advisory Board for Appraisal collectively discuss professional matters, and the opinions of the members must be recorded in the minutes of the Advisory Board for Appraisal meeting.

4. The entire advisory process of the Advisory Board for Appraisal is recorded in working minutes signed by the chairman and members of the Advisory Board for Appraisal. The working minutes of the Advisory Board for Appraisal must be promptly, fully, truthfully recorded and kept in the appraisal file.

Article 16. Conclusion of Appraisal

1. In accordance with the time agreed upon in the appraisal contract, the independent appraiser shall work independently and the appraisal organization must issue an appraisal conclusion in writing to the organization or individual requesting the appraisal. The independent appraiser and the legal representative of the appraisal organization must sign and stamp on the appraisal conclusion and bear responsibility for the appraisal conclusion.

2. In cases where additional time is necessary to conduct the appraisal, the independent appraiser and the appraisal organization must promptly notify in writing the organization or individual requesting the appraisal.

Chapter V

IMPLEMENTATION

Article 17. Responsibility for Implementation

1. The Copyright Agency under the Ministry of Culture, Sports and Tourism shall be responsible for:

a) Managing state activities related to the appraisal of copyright and related rights;

b) Organizing guidance and inspection of the implementation of this Circular throughout the country;

c) Building a proposal to submit to the Ministry of Culture, Sports and Tourism to establish an appraisal organization as a public service unit to carry out the appraisal of copyright and related rights according to the provisions of Article 42 of Decree No. 105/2006/ND-CP amended and supplemented by Decree No. 119/2010/ND-CP.

2. The independent appraiser and the appraisal organization shall be responsible for implementing the information reporting system, submitting periodic reports every six months and annually in writing to the Copyright Agency under the Ministry of Culture, Sports and Tourism.

Article 18. Complaints, Reports and Handling Violations

1. Complaints and reports, as well as the resolution of complaints and reports regarding violations of laws related to the procedures for issuing, reissuing, revoking the Appraiser Card, the Certificate of Appraisal Organization, and conducting the appraisal of copyright and related rights as stipulated in this Circular, shall be carried out in accordance with the laws on complaints and reports.

2. If the independent appraiser or the appraisal organization violates the provisions of the Intellectual Property Law, Decree No. 105/2006/ND-CP, Decree No. 119/2010/ND-CP, and this Circular, they will be subject to legal sanctions depending on the nature and severity of the violation.

Article 19. Effective Date

1. This Circular takes effect from February 1, 2013.

2. During the implementation process, if there are difficulties or obstacles, organizations and individuals are requested to promptly report them to the Ministry of Culture, Sports and Tourism for consideration and resolution./.