MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING HANOI LAW UNIVERSITY LY THU HA 452845 GRADUATION THESIS HANOI — 2024 DECLARATION Thereby declare that that work which is being presented in the thesis, entitled “Personal Data: The Idea of a New Intelectnal Property”, is an original piece of research work under the guidance of Dr. Vuong Thanh Thuy, Department of Intellectual Property Law, Hanoi Law University. The conclusions and data provided in the thesis are researched and presented with academic integrity, ensiwing clarity and reliability in the research outcomes./ Professor’s Student’ s Signature Confirmation INDEX OF ABBREVIATIONS Decree 13/2023/ND-CP Decree No. 13/2023/ND-CP on Protection of Personal Data Decree 15/2020/ND-CP Decree No.
15/2020/ND-CP on Penalties for Administrative Violations in the Fields of Postel Services, Telecommunications, Radio Frequency, Information Technology and Electronic Transactions Decree 64/2007/ND-CP Decree No. 64/2007/ND-CP on Information Technology Application in State Agencies Operations eg Exempli gratia (for example) Et al. Et alia (and others) EU European Union GDPR General Data Protection Regulation ie. Inter alia (that is) Tbid.
Ibidem (previously cited) IP Intellectual Property Iss. Number OECD The Organization for Economic Cooperation and Development PD Personal Data Pages/page Vol. Volume WIPO The World Intellectual Property Organization TABLE OF CONTENTS DECLARATION ii INDEX OF ABBREVIATIONS CHAPTER I. The Rationale Of The Thesis.
Overview Of The Current Research Situation. The Significance Of The Thesis.---cc+ccseerieerrerrrsrrser 5 4, The Objectives Of The Thesis. The Objects And Scope Of The Thesis. The Methodology Of The Thesis.
“The Structure Of The Thesis sssisscscsisssisssssecsssssisesssucssessossassississansnsasinssssoissisensiticens 7 CHAPTER IE. ANALY SIS sicssssssssssosasssssssssssssscssnsssoszsonscosscossonssnasaaccoscessossonnesusenoaniesnes 8 SECTION 1. LITERATURE REVIEW ON PERSONAL DATA AND INTELLECTUAL PROPERTY PROTECTION OVER PERSONAL DATA 1. LITERATURE REVIEW ON PERSONAL DATA.
Definition of Personal Date. Characteristics of Personal Data. Classification of Personal Data. THEORETICAL FOUNDATION FOR INTELLECTUAL PROPERTY PROTECTION 1.
Rationales of Protecting Personal Data as an Intellectual Property - The Value of Personal Data Towards Related Subjects.1 A CON DI ENESSCIĂE:s:sGsGGytsgtötttguijGfGSiàqogasgi—snuassvdlt 1. The Individhial Perspeciive. The Society Perspective. Co-existence of the Intellectual Property Mechanism and Other Mechanisms fo Protect Persceial!D TƯ NNẢợẢẻẽ | 1.
Protecting Personal Data as a Human Rầghi. Advantages of the Intellectual Property Mechanism Compared to Other CONCLUSION OF SECTION 1 SECTION 2. LEGAL FRAMEWORK OF VIETNAM INTELLECTUAL PROPERTY LAW ON PROTECTING PERSONAL DATA. OVERVIEW OF CURRENT VIETNAM LEGAL FRAMEWORK ON PERSONAL 21/1:;.
Principles and Rights of Data Ownes. POTENTIALITY TO PROTECT PERSONAL DATA AS AN INTELLECTUAL 2. Property Rights in Personal Data sosscssscvcsasscstsissttcscctssssnstsnevssssvantastteenee BB 2. Personal Data as an Intellectual Prơperty.
Personal Data Protection under Moral Rights of Copyrights’ Authors 2. Application of Trade Secrecy Model for Promoting Information 2. Establishinga New Form of Intellectual Property Right on the Basis of the Sta Generis Righf. AD CONCLUSION OF SECTION 2.
RECOMMENDATIONS TO IMPROVE LEGAL FRAMEWORK AND ENHANCE THE APPLICATION OF INTELLECTUAL PROPERTY MECHANISMS TO PROTECT PERSONAL DATA. VIETNAM GENERAL CONTEXT OF PERSONAL DATA PROTECTION 3⁄2. CHALLENGES VIETNAM FACING IN APPROACHING THE INTELLECTUAL PROPERTY WAY TO PROTECT PERSONAL DATA. 11ne:BtacHGal/ASDBGbSc66x.Sielsc6f610ieti5)8660sd040128tL0ac0650818sGãzanp OM 3.
RECOMMENDATIONS FOR APPROACHING THE INTELLECTUAL PROPERTY WAY TO PROTECT PERSONAL DATA. Suggestions on the Legal Framework. Suggestions on the Practical Grounds. sasaseasastbncsasien re th CONCLUSION OF SECTION .- SH 58 CHAPTER TIT.scssssssscssssssesscossessorsessssoscenserscenscssconscosscsscensensssnssnsces 59 INDEX OF REFERENCES.
The Rationale of the Thesis In the modem world, characterized by advancements in science, technology and the internet, PD has evolved into a valuable commodity for exchange. In the actual situation, the Draft of the Proposal for the Issuance of a Decree on Personal Data Protection states that Vietnam is one of the countries with the highest Internet development and application rates in the world. The number of Internet users in V ietnam has reached over 64 million people, accounting for more than 2/3 of the population (66%), an increase of over 19% compared to 2018, ranking 13th in the world in terms of the number of users. This includes 58 million Facebook accounts and 62 million Google accounts!.
The abundant amount of PD being digitalized has urged the Vietnam government to issue an official legal framework for protecting PD. After several Proposals and consultations, on 17/04/2023, the Government issued Decree No. 13/2023/ND-CP on Personal Data Protection, being the first official specialized legal document regulating issues revolving around PD. After Decree 13/2023/ND-CP onPersonal Data Protection, the Ministry of Public Security of Vietnam has already proposed the establishment of a Personal Data Protection Law? These initiatives demonstrate the special and close attention of the Vietnamese government to issues concerning PD.
However, these regulations approach the protection of PD as a human right, or the right to privacy, which inherently restricts data ex change in the market. It'simportant to recognize that in today’s interconnected information economy, information exchange is essential for economic development, especially personal information, which holds unique cheracteristics and therefore adds even greater value to the market compared to general information accessible to multiple entities. Therefore, pioneering countries in establishing mechanisms to protect PD always aim to build a legal system that balances the rights of data subjects with the flow of data exchange in the economy. From this "nis of Public Secwray 2022), “Tam gia ý kin vào vie xây dừng Nghị định quy dink về bio vi đỡ liệucá nhân”.
‘ ` Government News (2024), ‘De nghi xây đựng Luật Bão vệ Dit Liu ca nhân!) perspective, considering PD as a tradable asset and exchangeable for currency, is the most reasonable and beneficial approach Moreover, IP right creates an expectation that the data subjects have another level of control over the comm ercialization and tradability of that data. Also, protecting PD as an IP provides data subjects with protection against the misuse of their PD by downstream or third-party users with whom a subject does not have a contractual relationship? Being aware of the urgency and practical value of the topic, the student has chosen to research “Personal Data: The Idea of a New Intellectual Property” as the topic for graduation thesis to resolve to questions: @ Point out the significance of an IP protection mechanism to PD; (i) Suggest potential IP mechanisms for protecting PD. Overview of the Current Research Situation The imperative of safeguarding PD in the digital era is paramount for nations around the world While the concept of propertizing PD as anIP haslong been established in many countries, Vietnam is relatively new to this perspective, primarily due to the recent emergence and enforcement of PD protection legal framework. Global Research Situation The idea of propertizing PD has been discussed and proposed by several scholars in the world for a while.
The followings serve as principal references that closely align with this thesis’s approach to researching the topic of this thesis. - Pamela Samuelson (2000), Privacy as Intellectual Property ? (“Liêu có thé coi sự riêng tư là một tài sản trí tué?”), University of California at Berkeley* This article approached the definition of PD asa scarce commodity in cyberspace. Then, to overcome the failure market that a company can gain benefits but suffer no losses from the disclosure of PD, the author proposed that the lay should grant individuals a property right in their PD. The author first considered both the appeal and *'L.
Tralaman et al. (2019), “Is Privacy and Personal Data Set to Become the Neve Intellectual Property?”, International Review of Intellectuat Property and Competition Law , University of New South Wales Law Research Series, Vol. 944 3 Available at: https://people ischool berke lay edul-pamapapersiprivasip_ draft pat 2 limitations of the intellectual property rights model and then explored an alternative market-oriented legal regime for protecting PD via certain trade secrecy licensing default rules. This article builds a basis for the idea of propertizing PD though its approach seems to be too market-oriented.
Karki (2005), Personal Data Privacy and Intellectual Property ( “Quyên riéng tu đối với dit liệu cá nhân và tài sản trí hệ”), Journal of Intellectual Property Rights, vol 10, January 2005. In comparison to the above article, this article approached PD in both human tights and property rights views. It initially defined privacy and PD, which remain the idea that PD has become an economic resource that many businesses need and use for the supply of their products and services, hence, greater protection of PD should be considered by granting data subjects an intellectual property right. Legal protection of PD in several countries also has been analyzed in this article.
Then, this article has proposed a potential mechanism under IP law to apply to PD. However, in the scope of a journal article, the article merely suggests potential protective mechamsms without delving into their advantages, disadvantages, and the necessity of practical implementation for PD protection. Trakman et al. (2019), Is Privacy and Personal Data Set to Become the New Intellectual Property? ( “Sư riêng tư và dit liệu cá nhân có thé trở thành một loat tài san trí tué mới hay không?”), International Review of Intellectual Property andC ompetition Law, University of New South V/alesL aw Research Series, V ol.
This paper is a recent study on PD protection in which it explored the idea of PD as the new IP to provide data subjects with a higher level of protection for their PD. First and foremost, the paper declared the significance of a right to privacy but stressed the economic rationale for the commercialization of PD. Then, several emerging case laws in jurisdictions beyond the EU, Australia and Singapore demonstrate the tendency of courts to protect PD through an IP right. Based on theoretical analyses and case laws, the author illustrated a pathway ahead for opening the door to such IP protection through the data subject’s consent to use his PD.
The paper has established a solid theoretical foundation for applying IP rights to PD protection However, it has failed to provide general directions or specific mechanisms for applying IP law to PD protection. National Research Situation In Vietnam, there is still little research work on applying IP rights to protect PD. - Nguyen Nhu Ha & Dang Minh Phuong (2024), Báo vệ dit liệu cá nhân dưới góc đồ quyền sở hữm tri tué, National Scientific Conference Proceedings “Dữ liệu cá nhân trong dòng chảy kinh tế số Viét Nam” This article might be the first to propose a perspective of an IP protection mechanism for PD. The article provided an overview of PD and analyzed the condition of protecting PD from the perspective of IP rights under the umbrella of copyright.
Though having significance in pioneering the idea of propertizing PD, the article has feiled to prove the rationale and significance of layering more protection on PD by applying IP law Besides, certain articles, although not directly focusing on this matter, mention PD propertization as a legal issue emerging within legal frameworks on PD protection - Pham Thi Hien& Nguyen Thu Dung (2021), Pháp luật về báo vệ dit liệu cá nhân trong nên kinh tế số ở Liệt Nam hiện nay, Vietnam Trade and Industry Review, No. Upon analyzing the broad landscape of the legal framework concerting PD within Vietnam's digital economy, the article highlights several legal issues, including the question of whether PD should be regarded as a form of property. However, the article merely presents this issue without conclusively affirming whether PD ought to be treated as property or not. - Nguyen Thi Long (2022), Thực trang pháp luật Viet Nam về bảo vệ dit liêu cả nhân trong thời kỳ hội nhập, Journal of Procuratorate Studies, No.
Similar to the previous article, this one also examines some deficiencies in the existing legal framework concerning PD protection in Vietnam and addresses the unresolved question of whether PD should be considered property. The author of the article leans towards the notion of treating PD as property, proposing that it is essential to contemplate designating certain PD as non-traditional assets to capitalize on their economic worth.