Huynh Thien Tu

Briefs on Dissertation Plan

Title: Safe harbor provided for Internet Service Provider under the
“Notice-take down” rule: A comparative study on secondary
liability of ISPs between the US, China and Vietnam legal system

Problems:

- Vietnamese has the record of joint liability in general but no clear record of secondary liability
of ISPs in storing infrindging materials;

- Vietnam law was written in a strict way about liabilities of ISPs in storing infrindging issues,
meanwhile the law on notice-take down encourages the ISPs to freely develop the
information environment without taking care in advance for infrindging issues;

- Vietnam does not have a safe harbor provisions under notice-take down rule, despite having
the rule which envolved the participation of the government;

- Vietnam does not regulate about the form as well as the requirements for the notice in order
to be considered approriate and valid; moreover it does not have the requirement to
terminate repeat infrindgers, instead it just records as a right of the ISPs without
circumstances;

- Vietnam does not have the mechanism on the counter liability in false claims given by the
copyright owner therefore it’s easy to cause loss to other subject’s rights.

Sources:

- US Federal Copyright Act of 19766; The Digital Millenium Copyright Act; 512(c).

- Interpretation by the China Supreme People’s Court of Several Issues relating to Application
of Law to Trial of cases of Dispute over Copyright on Computer Network, 2004.

- Regulation on Protection of the Right to Network Dissemination of Information, Order 468 of

State Council of China.

- Vietnam Civil Code; Itellectual Property Law; Joint circular 07/2012; Information Technology
Act; Internet Security Act.

- A&M Records, Inc v Napster, Inc; Ellison v Robertson; Lenz v Universal; Online Policy Group
v Diebold Inc; Perfect 10 Inc v CCBill LLC; Capitol Records, Inc. v. MP3tunes, LLC; UMG
Recordings, Inc. v. Shelter Capital Partners LLC; vale.com v. tudou.com; Wangyajun v
Lingshida Tech.

- Criminal Law of Vietnam (ammended 2015).

Issues of studying:

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- The different approaches to the secondary liability of ISPs under US Law and China-Vietnam
Law;

- The principle of No Monitoring Responsibility in the US and the lack of it in Chinese and
Vietnamese Law.

- The requirements for the ISPs to be applied to the Notice-take down rule;

- Requirements on the form and content of the notification in order to be considered valid;

- Responsibility in case of false claims to avoid abusing;

- The test on knowledge of ISPs about the infrindging conduct under notification and red flag
test;

- Recommendation to the recognition of joint liability of ISPs and safe harbor under notice-
take down rule;

Expected Table of Contents:

Chapter 1: Introduction

- Statistical data about infridging activities on copyright in US, China and Vietnam.

- Rationale

- The scope of study

- Methodology

Chapter 2: Liability of the ISP under US, China and Vietnam legal system.

1. Secondary liability of ISP under US Law.

- vicarous liability

- contributory infrindgement

2. Rules on secondary liability in China

- Infrindging liability as written in Article 46 of Chinese Copyright Law.

- Joint infrindgement as recorded in Article 130 of General Principles of Civil

Law.

- Article 36 of Tort Liability Law

3. Rules in Vietnam related to joint infrindging liability

- General rule on joint liability in Article 587 of Vietnamese Civil Code.

- Liability as recorded in Vietnamese Intellectual Property Law

- Liability of ISP as recorded in Article 5.5 of Joint Circular 07/2012.

Chapter 3: Immunize of ISP’s liability under the notice-take down rule in the US and
China legal system

1. Conditions for applying the Notice-take down rule

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a) The “No Monitoring Responsibility” Clause in the US legal system in comparison with
China

b) The knowledge test in the US and China legal system

- The “red flag” test in the US System

- The “should know” clause established in Chinese “Hua Xia Shu Ren v.
Youku.com” case

c) Direct financial benefit as ruled in the US and China

d) Requirements for the notice from copyright owner

e) Responsibilities from false claims

Chapter 4: Realities on the legislation of notice-take down rule in Vietnam and

recommendations for future admendments

1. The spirit behind the way of regulating ISP’s responsibilities in copyright infrindging
activities

2. The practical problems of Vietnamese legislation

a) The unclear regarding on the liability status of ISPs

b) The participation of government as a subject in the relationship between infrindger,

copyright owner and ISP.

b) The lack of requirements of the notice

c) The unclear areas of counter liabilities in false claims

3. Recommendations

a) The need to regulate the establishment of an agent to receive notifications

b) Recommendations on regulating the form and contents required in the notification

c) The regard of financial benefits received from the infrindging activity

d) Responsbilities under flase claims

Chapter 5: Conclusions.