Circular No. 02/2019/TT-BVHTTDL dated July 05, 2019 of the Minister of Culture, Sports and Tourism on prescribing the process of judicial expertise of copyright and related rights

CIRCULAR

Prescribing the process of judicial expertise of copyright and related rights^[1]

Pursuant to the June 20, 2012 Law on Judicial Expertise;

Pursuant to the November 29, 2005 Law on Intellectual Property, and the June 19, 2009 Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property;

Pursuant to the Government’s Decree No. 85/2013/ND-CP of July 29, 2013, detailing and providing measures for implementing the Law on Judicial Expertise;

Pursuant to the Government’s Decree No. 105/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Law on Intellectual Property regarding the state management of intellectual property, and the Government’s Decree No. 119/2010/ND-CP of December 30, 2010, amending and supplementing a number of articles of the Government’s Decree No. 105/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Law on Intellectual Property regarding the state management of intellectual property;

Pursuant to the Government’s Decree No. 79/2017/ND-CP of July 17, 2017, defining the 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 the Circular prescribing the process of judicial expertise of copyright and related rights.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Circular prescribes the process of judicial expertise of copyright and related rights solicited by procedure-conducting bodies or persons or when requested by judicial expertise requesters.

Article 2.Subjects of application

This Circular applies to individual and institutional judicial expertise performers and other organizations and individuals engaged in judicial expertise of copyright and related rights.

Article 3.Interpretation of terms

In this Circular, the terms below are construed as follows:

1.Copyright and related rightsmeans rights determined in accordance with the law on intellectual property.

2.Individual performers of judicial expertise of copyright and related rightsinclude judicial experts andad hocjudicial expertise performers in the field of culture relevant to their specialties, who must be appointed or announced in accordance with the law on judicial expertise.

3.Institutional performers of judicial expertise on copyright and related rightsinclude the Ministry of Culture, Sports and Tourism, provincial-level Departments of Culture, Sports and Tourism or Departments of Culture and Sports, judicial expertise offices, andad hocjudicial expertise organizations that have relevant specialized activities that have been announced in accordance with the law on judicial expertise.

Chapter II

PROCESS OF JUDICIAL EXPERTISE OF Copyright AND RELATED RIGHTS

Article 4.Receipt of expertise requests or solicitation

1. Performers of judicial expertise of copyright and related rights (below referred to as judicial expertise performers) shall receive expertise solicitation and requests enclosed with to be-expertised objects and related documents and objects (if any) before performing expertise; and may refuse to do so in accordance with the law on judicial expertise in case the conditions for expertise are not satisfied.

2. The handover and receipt of dossiers, documents and objects of solicited or requested judicial expertise of copyright and related rights must comply with Article 3 of the Minister of Culture, Sports and Tourism’s Circular No. 07/2014/TT-BVHTTDL of July 23, 2014, prescribing dossiers and document forms for judicial expertise; subject to the application of professional regulations on judicial expertise activities in the field of culture, and conditions on physical facilities, equipment and means of expertise of judicial expertise offices for judicial expertise of relics, antiques, copyright and related rights (below referred to as Circular No. 07/2014/TT-BVHTTDL).

Article 5.Preparations for expertise performance

1. Judicial expertise performers shall examine solicitation or request dossiers and specific regulations on intellectual property to prepare for performing judicial expertise. In case it is necessary to further clarify contents of the expertise solicitation or request or expertise objects, to request the solicitor or requester to additionally provide related information and documents.

2. Individual judicial expertise performers may collect expertise samples by themselves (for specific objects being infringing elements or subject matters of copyright or related rights that are being protected) or request expertise solicitors or requesters to provide expertise samples. The provision of samples must be recorded in minutes and kept in expertise dossiers.

The minutes of provision of expertise samples must be made according to Form 01 provided in the Appendix to this Circular.

In case of necessity, judicial expertise performers shall organize the collection of test results or other professional conclusions to make assessments and conclusions.

3. Institutional judicial expertise performers shall decide to perform judicial expertise of copyright and related rights in the form of individual or collective expertise for complicated cases. In case of collective expertise, the number of people participating in judicial expertise must be at least three, including at least 1 person specialized in law.

A decision on judicial expertise of copyright and related rights must be made according to Form 02 provided in the Appendix to this Circular.

4. Institutional judicial expertise performers shall base themselves on dossiers of expertise solicitation or request to select appropriate judicial experts and ad hoc individual judicial expertise performers, and assign persons responsible for coordinating the judicial expertise.

Article 6.Judicial expertise performance

1. Individual judicial expertise performers shall base themselves on dossiers of expertise solicitation or request to examine to be-expertised objects and use their professional knowledge and skills to make assessments and conclusions regarding matters related to copyright and related rights in accordance with law. The examination and expertise cover one or several of the following:

a/ Identification of subject matters of copyright and related rights;

b/ Identification of elements infringing upon copyright and related rights;

c/ Determination of value of copyright and related rights and damage value;

d/ Other relevant contents on copyright and related rights.

2. Individual judicial expertise performers shall promptly, fully and truthfully record in writing the whole expertise process and results, which must be filed in expertise dossiers.

Minutes of the expertise process must be made according to Form 02 promulgated together with Circular No. 07/2014/TT-BVHTTDL.

Article 7.Expertise conclusions

Based on judicial expertise results and regulations on intellectual property, individual judicial expertise performers shall make conclusions on matters related to copyright and related rights.

Expertise conclusions must be made according to Forms 04a and 04b promulgated together with Circular No. 07/2014/TT-BVHTTDL.

Article 8.Handover of expertise conclusions

When the judicial expertise of copyright and related rights is completed, judicial expertise performers shall hand over their expertise conclusions to expertise solicitors or requesters.

Minutes of handover of expertise conclusions must be made according to Form 05 promulgated together with Circular No. 07/2014/TT-BVHTTDL.

Article 9.Compilation and filing of expertise dossiers

Judicial expertise performers shall compile dossiers of judicial expertise of copyright and related rights in accordance with Clause 1, Article 33 of the Law on Judicial Expertise and this Circular.

The preservation and archive of judicial expertise dossiers must comply with the law on archive.

Chapter III

IMPLEMENTATION PROVISIONS

Article 10.Organization of implementation

1. The Department of Legislation shall assume the prime responsibility for, and coordinate with related agencies and units in, guiding and inspecting the implementation of this Circular.

2. Provincial-level Departments of Culture, Sports and Tourism or Departments of Culture and Sports shall organize the implementation and inspect and urge related agencies, organizations and individuals in implementing, this Circular.

Article 11.Effect

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

2. Any problems arising in the course of implementation should be promptly reported to the Ministry of Culture, Sports and Tourism (via the Legal Department) for appropriate amendment and supplementation.-

Minister of Culture, Sports and Tourism
NGUYEN NGOC THIEN