Implementing the Agreement on Trade-Related Aspects of Intellectual Property Rights in Vietnam THANH THI KIEU i iN ray Vue ⁄⁄2 /nidng 2⁄7 1» HIN Hi ⁄> , 08 - 4øJ/C ne gi NÓ, ee (¿ấu 7% 14 A Thesis Submitted and Corrected for the Degree of Doctor of Philosophy School of Law Victoria University Melbourne 2014 TRUNG TAM THONG TIN THU VIEN TRƯỜNG ĐẠI Wo HỌC qe HA HAS- PHONG ĐỌC Abstract This is a mapping of WTO members’ obligations under TRIPs against the national laws of Vietnam implementing those obligations. Vietnam has produced comprehensive substantive laws harmonizing its intellectual property laws with the intellectual property laws of the international community. These substantive laws are complemented by procedural laws also required by TRIPs for the enforcement of intellectual property rights. The analysis focuses on how flexibilities within the obligations under TRIPs have been exercised by Vietnam to adapt those obligations to meet its own circumstances as a developing country.
It seeks to frame the flexibilities within the wider context of the problems of law, sometimes overlooked in transplant of law analysis, including the ambiguity of language, conflicting rules of interpretation, lack of comprehensiveness, unpredictable technological and social change, and the limitations on law and policy makers including lack of knowledge and experience and conflicts between them over policies which are not resolved in the legal text. These are exacerbated where law is transposed from other national legal systems, through international law, into ones with differences in traditions and culture such as Vietnam. Its agricultural, Confucian, Buddhist and socialist heritage neither valued nor saw the products of human creativity as individually owned property. Vietnam has not always chosen to use the flexibilities within TRIPs to make laws appropriate to its economic and social situation.
The generality of its national law creates ambiguities and gaps making it difficult for administrators and judges to apply in the absence of further administrative regulation or guidance on its implementation. The failure to fill these gaps reflects the reality that although the law is comprehensive Vietnamese law and policy makers are not sufficiently familiar with policies relating such laws to levels of development or with their practical application. Doctor of Philosophy Declaration I, Thanh Thi Kieu, declare that the PhD thesis entitled Implementing the Agreement on Trade-Related Aspects of Intellectual Property Rights in Vietnam is no more than 100,000 words in length including quotes and exclusive of tables, figures, appendices, bibliography, references and footnotes. This thesis contains no material that has been submitted previously, in whole or in part, for the award of any other academic degree or diploma.
Except where otherwise indicated, this thesis is my own work. Signature Thanh Thi Kieu iii TABLE OF CONTENTS ABSTRACT CHAPTER 1: INTRODUCTION - IMPLEMENTING THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS IN VIETNAM 1. Flexibilities in Vietnam’s Intellectual Property Protection under TRIPs 2. Research Questions, Methodology, and Thesis Organization 2.3 Thesis Organization 25 CHAPTER 2: CONCEPTUALIZING LAW’S FLEXIBILITY 32 1.
Problems of Law Itself 35 1.1 Law is Encoded in Language and Language is Ambiguous 1.2 Law May Have Conflicting Rules for Interpreting Law 4] (a) Interpretation within the WTO 45 (b) How Vietnam Has Dealt with Interpretative Problems in Respect of the WTO 48 1.3 Law May Have Gaps in It 50 1.4 Law May Get out of Date 57 1.5 Law Makers May Not Have Sufficient Knowledge 60 2. Vietnamese Culture and Society 63 2.1 Favouring Community Life and Cooperation 64 2.2 Non-Development of Commerce, Urbanization, and Industrialization 65 2.3 Religious and Political Factors 66 2.4 Legal Legacy 72 (a) French Colonial Law of Limiting Industrial Development 72 (b) Socialist Legislation Opposing Private Ownership 74 3. Conflict within the WTO/TRIPs Environment 78 3.1 Conflicting Interests between Developing and Developed Members 78 3.2 TRIPs and the Incorporation of Previous International Conventions 80 4. Locating TRIPs Flexibilities 82 iv CHAPTER 3: LOCALIZING THE WTO TRIPs AGREEMENT IN VIETNAM 85 1.
Integration of Vietnam into the Global Multilateral Trading System 85 1.2 The Memorandum on Foreign Trade Regime 89 1.3 The Bilateral and Multilateral Negotiations 90 1.4 Intellectual Property Questions and Replies Communications 94 1. The TRIPs Agreement: Structure and Main Contents 100 2.3 Categories of Intellectual Property Rights 106 (a) Copyright and Related Rights (Arts. 9-14) 107 (b) Trademarks, Geographical Indications, Industrial Designs, Patents (Arts. 15-34) 108 (c) Layout-Designs (Arts.
35-38) 108 (d) Undisclosed Information (Art.4 Enforcement of Intellectual Property Rights (Arts. Internalizing TRIPs Provisions in Vietnam 111 3.1 The Warming-up Period 1995-1998 113 (a) The 1995 Civil Code 113 (b) The 1995 Civil Code Implementation Regulations 116 (c) Legislative Impediments 117 3.2 The Period of Covering Other TRIPs Subject Matters 1999-2004 119 (a) Covering the Scope of Intellectual Property Protection 119 (b) Provisions for Intellectual Property Enforcement 121 3.3 The Full Completion of TRIPs Requirements 2005 - 122 (a) Enacting the Intellectual Property Law and Amending the Civil Code 122 (b) Guiding the Implementation of the Intellectual Property Law and the New Civil Code 123 4. Flexibilities in TRIPs General Provisions in Vietnam 126 4.1 A More Extensive Protection? 126 4.2 Which Implementation Mcthod? 129 4.3 Other TRIPs-Incorporated Treaties? 132 5. Conclusions 135 CHAPTER 4: COPYRIGHT AND RELATED RIGHTS IN VIETNAM UNDER TRIPs’ FLEXIBILITIES 138 1.
Copyrightable Subject Matter 141 1.2 Exclusions from Protection 148 (a) Non-Protectability 149 (b) Fixation 151 2. Granting Bundles of Rights 152 2.2 ‘Droit de suite’ 155 2.4 Copyright Non-Voluntary Licensing 159 (a) Non-Exclusive and Non-Transferable Compulsory Licenses under Apendix of the Berne Convention 159 (b) Other Non-Voluntary Licenses under the Berne Convention 161 2.5 Parallel Imports and Exhaustion of Rights 162 (a) What Is the Exhaustion of Rights? 163 (b) What Are Parallel Imports? 165 (c) TRIPs Flexibility on Exhaustion of Intellectual Property Rights 167 3. The Terms of Protection 168 4. Exceptions to Infringement 170 4.1 The Meaning of ‘Limitations’ and ‘Exceptions’ Provision 171 4.2 The Scope of the ‘Limitations’ and ‘Exceptions’ Provision 173 4.3 The Prerequisites for Limitations and Exceptions 176 .4 Exceptions to Copyright Protection in Vietnamese Law 176 (a) The General Criteria for Exceptions 178 (b) The Particular Case Criterion 180 5.
The Protection of Related or Neighbouring Rights 185 6. Conclusions 191 CHAPTER 5: PATENTS AND PLANT VARIETIES IN VIETNAM UNDER TRIPs’ FLEXIBILITIES 194 1.2 Detailing the Patent Criteria 200 vị (a) Novelty 201 (b) Inventiveness 203 (c) Industrial Applicability 206 2.1 Ordre Public or Morality 208 2.2 Diagnostic Methods, Plants and Animals, Essentially Biological Processes and Other Exclusions 211 3. Patent Exceptions and Compulsory Licenses 214 3.1 Exceptions to the Exclusive Rights 214 3.2 TRIPs and Post-TRIPs Compulsory Licensing Systems 217 3.3 Patent Exceptions and Non-Voluntary Licenses in Vietnam 222 (a) Exceptions to the Patent Use Prevention Right 223 (b) A Prior User 224 (c) An Interim User 226 (d) Non-Voluntary Licensing 226 4. The Protection of Plant Varieties in Vietnam under TRIPs 232 4.1 Patentability or Non-Patentability of Plant and Animal Inventions 234 4.2 The Protection of Plant Varieties 236 4.3 The Main Features of the Vietnamese System on Plant Varieties 239 (a) The Criteria for Plant Variety Protection 239 (b) The Rights to Plant Varieties 242 (c) The Duration of Protection 244 (d) Exceptions and Restrictions 244 5.
Conclusions 245 CHAPTER 6: OTHER TRIPs CATEGORIES OF PROTECTION IN VIETNAM 249 1.1 Protectable Subject Matter 251 1.3 Term of Protection 258 1.4 The Termination of a Registered Mark on Non-Use Basis 258 1.5 The Protection of Well-Known Marks 260 1.6 The Protection of Trade Names 261 2.1 Indentifying Geographical Indications of Origin 264 vii 2.2 Protection against Misleading and Unfair Use 266 2.3 The Higher Level of Geographical Indication Protection for Wines and Spirits 268 2.4 Exceptions to Geographical Indication Protection 270 3.1 Protectability 276 (a) Novelty 277 (b) Creativity 278 (c) Industrial Applicability 278 3.2 The Protection of Textile Designs 279 3.3 Exceptions to Industrial Design Protection 280 3.4 The Duration of Protection 282 4. Layout-Designs (Topographies) of Integrated Circuits 283 4.1 The Legal Form of Protection 286 4.2 Exceptions or Limitations to Layout Design Rights 288 4.3 The Term of Protection 289 5.2 Protection for Undisclosed Data Relating to Pharmaceutical and Agro-Chemical Products 294 6. Conclusions 298 CHAPTER 7: ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN VIETNAM UNDER TRIPs 302 1, Civil Law Remedies 308 1.1 Classifying Wrongs against Intellectual Property Rights 309 (a) Material Damages 309 (b) Moral Damage 311 1.2 The Burden of Proof 312 1.3 Civil Remedies for Intellectual Property Infringements 313 (a) Cessation of Infringing Acts 314 (b) Ordering an Apology or Rectifying Publicity 315 (c) Ordering the Performance of Civil Obligations 315 (d) Payment of Damages 316 (e) Ordering the Destruction, Distribution, or Use of Those on Conditions 318 Vili 2.1 Scientific-Technological Specialized Inspectorates 326 (a) Industrial Property Administrative Violations 326 (b) Primary and Extra Penalties 327 (c) Administrative Remedies 328 (d) Competence to Issue Penalties 329 2.2 Culture-Sports-Tourism Specialized Inspectorates 33] (a) Principal and Additional Sanctions 331 (b) Administrative Remedies 332 (c) Competence to Issue Sanctions 333 2.3 Plant Varieties Specialized Inspectorates 335 2.4 Market Control Units 337 2. Conclusions 352 CHAPTER 8: THE HEARING OF COPYRIGHT DISPUTES IN VIETNAM 355 1.
Overview of Intellectual Property Trials in Vietnam 357 1.1 The Pre-1980s Period 359 1.3 The Period after 1996- 362 2.1 Literary and Artistic Works as Cultural and Social Products 366 2.2 Copyright Regulation 372 (a) The Application of Legislation Prior to the 1995 Civil Code 373 (b) The Application of the 1995 Civil Code, Amended 2005 377 (c) The Protection of Written Works 378 (d) The Protection of Musical Works 388 (e) The Protection of Other Categories of Works 393 (f) Other Infringements of Copyright 395 3. Conclusions 405 ix CHAPTER 9: CONCLUSION - IMPLEMENTATING THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS IN VIETNAM 410 APPENDICES 426 Appendix 1 426 Appendix 2 443 Appendix 3 444 Appendix 4 445 Appendix 5 446 Appendix 6 447 Appendix 7 448 TABLE 1: Applications for Non-Compulsory Patent Licences of Pharmaceutical Products in Some Developing Countries from 2003 to 2007 229 TABLE 2: The 10 Copyright Cases in Court in Vietnam from 1997 to 2006 by Jurisdiction 365 TABLE 3: The 10 Copyright Cases in Court in Vietnam from 1997 to 2006 by Issue 366 BIBLIOGRAPHY xi ABBREVIATIONS lv BIBLIOGRAPHY I.