The Vietnam’s Ministry of Information and Communications (“MIC“) published a Draft Decree (“Draft Decree“) amending Decree No. 72/2013/ND-CP on the management, provision, and use of Internet services and online information and Decree No. 27/2018/ND-CP amending Decree 72/2013/ND-CP (collectively referred to as “Decree 72”) for public consultation.
Social networks have been one of the main subjects of application of Decree 72. Among other things, the Draft Decree suggests an amendment to Article 22 of Decree 72 regarding the cross-border provision of information. Notably, it is proposed that foreign organizations and individuals providing information across the border and either having rented a place to store digital information in Vietnam or having regular access in 1 month of 100,000 people or more in Vietnam shall enter into a content cooperation agreement with the Vietnamese press agency when providing information cited from the local media on the basis of copyright regulations.
Before delving into analysis, it is relevant to observe that this lately proposed regulation appears to be inspired by what has been introduced by the Australian News Media Bargaining Code (“Australian Code“) earlier this year which follows the Digital Platforms Inquiry Report published in July 2019 and aims at addressing bargaining power imbalances between digital platforms and Australian news businesses.[1] The promulgation of the Australian Code has gained some initial success, one of which was the fact that large media companies like News Corp and the Australian Broadcasting Corp have struck content-supply deals with some tech giants.[2]
Among other provisions, the Australian Code devotes one Division (Division 6) to prescribe matters relating to the issue of agreement bargaining. Specifically, as soon as an Australian news business is registered by the Australian Communications and Media Authority, the registered news business corporation can notify a responsible digital platform corporation of its intention to bargain under the Code in relation to issues of remuneration for making available the news content on designated digital platforms.[3] Once the intention is indicated, a responsible digital platform corporation and a registered news business corporation shall negotiate in good faith,[4] any breach of which shall be subject to a civil penalty.[5] Where an agreement concerning remuneration is not reached between the parties within a specified period of time, recourse can be made to mediation or arbitration.
Although it appears that the bargaining provisions are identical to the proposed amendment under the Draft Decree, they differ from each other substantially. What should be highlighted is that Vietnam and Australia employ two different approaches to achieve the same goal: making digital platforms pay for the dissemination of news content. Australia’s adoption of the Competition Law-based approach can be partially justified by the country’s judicial practices indicating that the use of both headlines and snippets is unlikely to infringe copyright law[6] as well as the provision of links is not deemed as a communication to the public.[7] Vietnam, on the other hand, grounds its legislative proposal on the Copyright regime, which, to this end, largely resembles the EU’s Directive 2019/790 on copyright and related rights in the Digital Single Market (“EU Directive“).[8] Among other things, the Copyright Law-based requirements under both the EU Directive and the Draft Decree have not addressed the quandary with regard to the copyright status of the use of news content by digital platforms. Moreover, unlike the Australian Code’s clear-cut interpretation of what is considered “making content available” and “distributing content”, the Draft Decree contains no definitions as such, potentially impeding the implementation of this provision once the Draft Law is promulgated should no further reasonable changes be suggested.
As the Draft Decree is still in the public opinion gathering round, it is interesting to see how legislators and industry stakeholders interact and substantiate their arguments to advocate for the prescription of an interest-harmonizing legal provision.
[1] News media bargaining code | ACMA
[2] Australian publisher calls government on Facebook, regulator concerned | Reuters
[3] Section 52ZE(1), Australian Code.
[4] According to the Revised Explanatory Memorandum accompanying and explaining the amended version (third reading) of the Australian Code bill, examples of conduct that would likely breach the good faith requirement include avoiding or refusing to engage in discussions with the other party, making clearly unreasonable offers or failing to consider or accept reasonable offers made by the other party.
[5] Sections 76(1)(a)(iaa), (1A)(b), and (4A)(e), Australian Code.
[6] Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984 (7 September 2010) (austlii.edu.au)
[7] Universal Music Australia Pty Ltd v Cooper (with Corrigendum dated 19 September 2005) [2005] FCA 972 (14 July 2005) (austlii.edu.au)
