The Law on Intellectual Property (IP), which came into force on July 1, 2006, together with the Civil Code, which took effect on January 1, 2006, has laid a legal foundation to encourage and protect the fruits of creativity, boost the protection of IP rights in the context of international integration and contribute to the conclusion of Vietnam’s WTO accession negotiations.
With a view to promoting international cooperation, 10 bilateral and multilateral IP treaties have taken effect in Vietnam.
A number of agreements, e.g., the Agreement on mutual protection of rights over results of IP activities used and created in the process of economic and military bilateral cooperation between Vietnam and the Federation of Russia, the Vietnam-Russia Bilateral Agreement on cooperation in the IP sector, the Vietnam-Japan Economic Partnership Agreement (EPA) and the ASEAN-EU Free Trade Agreement (FTA), with IP contents, have been enforced.
In order to make specific provisions in treaties, the Civil Code and the IP Law, a number of sub-law documents, including five government decrees, one prime minister’s directive, four ministerial circulars and four ministerial decisions, were promulgated. More than 100 workshops, seminars and training courses were held with the participation of over 10,000 persons who have related rights and obligations, from creators and users to managers and law enforcement personnel. Thanks to these propagation, education and enforcement efforts, public awareness about IP matters has been markedly increased.
However, after two years in effect, the law has revealed several limitations which needed to be promptly addressed in order to incorporate into domestic law the provisions of IP treaties to which Vietnam was a contracting party, meet practical integration requirements and specify general IP principles set forth in the 2005 Civil Code.
Reality continues to show that IP rights infringements are very common against almost all protection objects, from copyright to industrial property and plant varieties. Works of all types, including phonograms and video recordings and valuable computer programs, are illegally duplicated while famous trademarks are imitated, causing damage to investors. The digital environment in general and the internet in particular are exploited for self-seeking purposes, leading to serious infringements of copyright in literary, artistic and scientific works.
The situation can be attributed to a number of causes. Public awareness of IP rights is limited, and the sense of law observance remains low. A lack of experience and capacity is still seen in the law enforcement system, and a number of provisions of the IP law fail to suit the practical situation, while others are incompatible with international law.
Establishment of IP rights
Organizations performing the collective management of copyright and related rights, namely the Vietnam Center for Protection of Music Copyright (VCPMC), Vietnam Literary Copyright Center (VLCC) and the Recording Industry Association of Vietnam (RIAV), have signed contracts with organizations and individuals to license the use of copyrighted works and collect and distribute royalties to their members. These operations have significantly contributed to the self-protection of IP rights, creating confidence in artists, intellectuals and investors in the sector.
In addition, owners of IP objects have proactively registered copyright and related rights as well as established industrial property rights and rights to plant varieties.
Regarding copyright and related rights, the number of granted registration certificates has increased from 3,147 in 2006 to 4,324 in 2008 (as of November 20, 2008).
As for industrial property rights, the National Office of Intellectual Property (NOIP) received 27,107 industrial property registration applications in 2006, including 2,411 invention/utility solution applications, 1,604 industrial design applications, 23,086 national mark applications, 5 geographical indication applications and one registration for semi-conductor integrated circuit layout design application. In addition, the NOIP received and processed 17,678 other applications related to the establishment and protection of industrial property rights. It granted 11,054 protection titles, of which 669 were invention/utility solution patents, 1,475 industrial design patents and 8,840 registered mark certificates. In 2007, the NOIP received 54,438 applications, including 36,987 applications for establishment of industrial property rights, of which 3,080 were invention and utility solution applications, 1,908 were industrial design applications, 27,074 were national mark applications, 4,920 were applications for international mark registration, 4 were geographical indication applications and one a layout design application. The NOIP processed 39,920 applications, granted or recognized the protection of 22,203 industrial property objects, including 792 inventions/utility solutions, 1,360 industrial designs, 15,622 national registered marks, 4,422 international registered marks, and 7 geographical indications, and rejected the protection of 2,400 industrial property objects.
Concerning rights to plant varieties, the Ministry of Agriculture and Rural Development issued a list of 38 plant varieties eligible for protection. The Ministry also received 65 protection registration applications and granted 16 protection titles for plant varieties.
Crackdown on violations
In order to enhance law enforcement efforts, a program on cooperation against IP right infringements during 2006-2010 was concluded on January 19, 2006, by the Ministry of Science and Technology, the Ministry of Culture, Sports and Tourism, the Ministry of Agriculture and Rural Development, the Ministry of Industry and Trade, the Ministry of Finance and the Ministry of Public Security. The program had encouraging results.
The Culture, Sports and Tourism Inspectorate has so far examined 31,477 business and service establishments, detecting and handling 10,599 cases of violations, of which 10 cases were criminally prosecuted. Warnings were given to 786 establishments while operations of 437 others were suspended. More than 200 business licenses and practice certificates were temporarily revoked. A large quantity of violating objects, including 649,234 tapes and discs, 8,266 books, 4,282 publications, 2,808 kg of semi-finished books and 6.2 tons of cultural articles, was destroyed. The total fines collected reached more than VND 23 billion.
The Science and Technology Inspectorate handled 88 cases of infringement upon industrial property rights and three cases of unfair competition, disposing of 449,866 violating products and imposing total fines of over VND 170 million. According to incomplete statistics, over 600 establishments were inspected involving 136 cases of industrial design infringement, 606 cases of trademark infringement, 16 cases of invention infringement, and three cases of geographical indication infringement.
The Agriculture and Rural Development Inspectorate processed two petitions against infringements of plant varieties, namely rice variety VL20 and maize variety Sugar 75.
Thousands of cases of IP infringement were investigated and handled by functional agencies nationwide. Regarding violations of industrial property rights, the market control force handled 2,423 cases while the economic police investigated 128 others. Meanwhile, customs offices suspended customs procedures and confiscated IP rights-infringing exports and imports in 13 cases, involving total fines of VND 970 million.
The court system nationwide admitted 14 civil cases and 51 criminal cases related to IP rights, settled 11 civil cases and 44 criminal cases involving 91 defendants, 47 of whom were sent to jail.
After two years of implementation, the Law has revealed several limitations, especially those related to international standards.
Specifically, the provisions on copyright limits in Article 26 and related rights limits in Article 33 of the Law are not in conformance with the Berne Convention. Meanwhile the rights to plant varieties prescribed in Articles 157, 160, 163, 165, 178, 186, 187, 188, 190 and 194 are incompatible with the UPOV Convention.
Non-conformity with the Bern Convention has also resulted from technical errors in some provisions, e.g., Point a, Clause 1 of Article 42 on “anonymous works” and Point j, Clause 1, Article 14 on “types of works covered by copyright,” which omits architectural works.
Provisions on procedures for registration and establishment of industrial property rights in Articles 87, 90, 119, 134 and 154, and provisions on protection of IP rights in Article 201, 211, 214, 216 and 218, have revealed several loopholes, making them difficult to enforce.
In addition, many problems have newly arisen in the process of integration which must be tackled in order to ensure equality between Vietnamese and foreign entities, such as the term of copyright protection (Articles 27 and 34).
Since IP rights protection is a new and complicated matter in Vietnam, mistakes are unavoidable. Some provisions were designed to meet the requirements of public broadcasting but failed to suit international law (Articles 26 and 33). National Assembly Resolution No. 71/2006/NQ-QH11 ratifying the Protocol on Vietnam’s Accession to the WTO Establishment Agreement prescribed in its appendix adjustments to Articles 26 and 33 of the IP Law, saying that “Broadcasting organizations that use published works, phonograms or video recordings in their broadcasts are not required to ask for permission but shall pay royalties or remunerations to copyright or related rights holders.”
The Ministry of Culture, Sports and Tourism began elaborating a draft Law Amending a Number of Articles of the IP Law in May 2008 and submitted it to the Government in December 2008.
The proposed revision of the IP law would further adhere to five principles applied in the elaboration of the 2005 IP Law. These principles include institutionalizing Party lines and policies and codifying the contents of Resolution No. 71/2006/QH11; protecting national interests; ensuring the balance of interests shared among creators, users and the public; perpetuating the legal values which have been tested in reality and applying international standards; and ensuring consistency, comprehensiveness, transparency, feasibility, adequacy and effectiveness to the system of IP legislation.
In this light, revision of the IP Law focuses on three major issues: adjusting provisions incompatible with multilateral treaties while adding some provisions necessary for protecting interests of Vietnamese organizations and individuals; amending a number of articles in order to overcome practical problems; and correcting technical errors to suit the current legal system.
Under the draft Law, 36 articles of the current IP Law are amended while one new article is added.
Specifically, amendments are made to four groups of articles, including those on copyright, related rights and rights to plant varieties in Parts II and IV of the current Law; the order of and procedures for establishment of industrial property rights in Parts III and VI; IP policies and protection of IP rights in Parts I and V; and technical provisions.
Under the 2009 legislative program, the Law Amending a Number of Articles of the IP Law would be submitted to the National Assembly for passage at its 5th session scheduled for May 2009.-