'Taking photos to post on Facebook requires permission' case: Misunderstanding about the scope of regulation?
“I think the idea that posting photos on Facebook requires permission is incorrect, because Decree 72/2016/ND-CP does not have any provision stating that “individuals taking photos to post on Facebook must ask for permission” - Lawyer Le Hong Hien shared.
On Facebook, there is an article with the title: “After August 15, posting photos on Facebook requires a license? The article states that from August 15, 2016, Decree 72/2016/ND-CP on photography activities will come into effect, at that time posting photos on Facebook requires permission.
This article explains, according to Clause 4, Article 3 of this Decree, that a photographic work is a creative product that represents an image of the objective world on a light-sensitive material or on a medium on which the image is created, or can be created by chemical, electronic or other technical methods. In very short, a photographic work is a photo.
According to Clause 9, Article 3, Exhibition of photographic works is a form of popularizing, introducing, displaying, and presenting photographic works, including exhibition of photographic works on the internet. According to Article 11, organizations and individuals organizing exhibitions of photographic works in Vietnam must have an exhibition license.
“Thus, according to the spirit of Decree 72/2016/ND-CP, when you want to post or upload a photo or a photo album to Facebook, you will need an exhibition license because you are disseminating, introducing, and displaying a photographic work on the internet” - the content on the personal page concluded.
From this incorrect conclusion, the above article has made incorrect attributions about the State's activities in promulgating legal documents.
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| Image of article making incorrect inferences about Decree 72/2016/ND-CP |
Speaking to reporters, Lawyer Le Hong Hien, Director of Nay & Mai Law Firm (Hanoi Bar Association) said that there is a misunderstanding about the scope of Decree 72/2016/ND-CP. This article has had thousands of likes, nearly 1,000 shares and many comments. Many of the comments are misleading about the State's policies. So from a legal perspective, how should we understand this provision?
“I think the idea that posting photos on Facebook requires permission is incorrect, because Decree 72/2016/ND-CP does not have any provision stating that “individuals taking photos to post on Facebook must request permission” from the State Management Agency,” Lawyer Hien shared.
Lawyer Le Hong Hien explained that Article 1 and Article 2 of Decree No. 72 clearly stipulate the scope of regulation and applicable subjects, that is, this Decree regulates photography activities and state management of photography activities; it is applied to Vietnamese agencies, organizations, individuals and foreign organizations and individuals participating in photography activities in Vietnam.
Here, we need to note that only organizations and individuals participating in photography activities are subject to the provisions of this Decree. That means that only organizations and individuals participating in creative activities, organizing creative camps, competitions, festivals, exhibitions, buying, selling and using photographic works must comply with the provisions of this Decree (Clause 1, Article 3), which includes provisions on the procedures for granting licenses for photography activities.
“Personally, I do not think that the above regulation is misleading or has any technical legislative problems. However, if deemed necessary, the Ministry of Culture, Sports and Tourism can completely stipulate and explain in its Circular on the implementation of Decree No. 72 mentioned above,” emphasized lawyer Hien.
According to lawyer Le Hong Hien, based on the Law on Promulgation of Legal Documents 2015 (effective from July 1, 2016), it only regulates the interpretation of the Constitution, Laws and Ordinances, but does not regulate the interpretation of Decrees. Therefore, in case the State Management Agency finds one or several provisions in this Decree to be incorrect, inaccurate or inappropriate, it will issue a Decree to amend and supplement them accordingly. In case there are provisions or terms in the Decree that are unclear or not detailed, a Circular will be issued to provide detailed instructions so that people do not misunderstand.
"Article 1. Scope of regulation This Decree provides for photography activities and state management of photography activities. Article 2. Subjects of application This Decree applies to Vietnamese agencies, organizations and individuals and foreign organizations and individuals participating in photography activities in Vietnam. Article 3. Interpretation of terms In this Decree, the following terms are construed as follows: 1. Photography activities include: Creative activities, organizing creative camps, competitions, festivals, exhibitions, buying, selling and using photographic works. 2. The photographer is the person who creates the photographic work. 3. Co-authorship of photography is when two or more authors jointly create a photographic work. 4. A photographic work is a creative product that represents an image of the objective world on a light-sensitive material or on a medium on which the image is created, or can be created by chemical, electronic or other technical methods. A photographic work may or may not have a photo caption. 5. Material transfer is the form of using a photographic work to express it in a material different from the original material. 6. Combination with other art forms is the form of using part or all of a photographic work to create products belonging to art forms: Fine arts, theater, cinema and other forms. 7. Photography competition is the activity of selecting and publishing photography works with awards, including photography competitions on the internet. 8. Photography festivals are activities of gathering, publishing, exhibiting, exchanging, and displaying photography works, with or without awards, including photography festivals on the internet. 9. Exhibition of photographic works is a popular form of disseminating, introducing, displaying and presenting photographic works, including exhibition of photographic works on the internet. 10. Promotion of photographic works is an activity to encourage the creation of photographic works with specific themes and purposes, with or without awards, including promotion of photographic works on the internet. 11. A photography creation camp is a place where photographers gather to create works with the same purpose and theme organized by agencies, organizations, and individuals" - Excerpt from Decree 72/2016/ND-CP. |
According to Infonet
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