HO CHI MINH UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW -----------***------------ VU LE HANH THAO STUDENT ID: 1753801011173 THE IMPLEMENTATION OF COPYRIGHT AND RELATED RIGHTS OF EVFTA IN VIETNAM BACHELOR’S THESIS Academic term: 2017 - 2021 Supervisor: LL. Ngo Kim Hoang Nguyen Ho Chi Minh City – 2021 1 STATUTORY DECLARATION I hereby declare that this work has been originally carried out by me under the guidance of LL. Ngo Kim Hoang Nguyen, lecturer of the Faculty of International Law, Ho Chi Minh University of Law. This work has not been submitted either in part, or in whole, for any degree at any University.
Ho Chi Minh City, July 2021. Vu Le Hanh Thao 2 ACKNOWLEDGEMENT It is with deep gratitude that I want to send to my supervisor, LL. Ngo Kim Hoang Nguyen, lecturer of the Faculty of International Law, Ho Chi Minh University of Law, for providing me invaluable guidance throughout this research. His dynamism, vision and sincerity have motivated me to successfully complete this thesis with the most completeness and satisfaction.
It is a great honor to have him as a consultant for the last four years studying in Ho Chi Minh University of Law and as a supervisor for this last project before becoming an official LL., as well as an alumnus of this beloved school. I would also like to express the sincerest gratefulness to my family: Mom, Dad, and my two dear elder sisters. Their love, caring, continuous support and sacrifices help me become who I am today. Without them, nothing in my life would be possible.
Vu Le Hanh Thao 3 TABLE OF CONTENTS STATUTORY DECLARATION. 2 INDEX OF ABBREVIATION. Objectives of the study. Scope and delimitation.
Methodologies of the study. Structure of the thesis. AN OVERVIEW OF COPYRIGHT AND RELATED RIGHTS UNDER THE EVFTA. Terms and definitions.
Copyright and related rights under the EVFTA. The enforcement of copyright and related rights in the EVFTA. Civil remedies and procedures. Administrative remedies and procedure.
Criminal measures and procedure. 43 CONCLUSION TO CHAPTER I. SOME CHALLENGES FOR VIETNAM IN THE IMPLEMENTATION OF COPYRIGHT AND RELATED RIGHTS UNDER THE EVFTA AND RECOMMENDATIONS. Challenge in implementing the protection of reproduction rights from digital temporary copies from the EVFTA in Vietnam.
The protection of reproduction rights from temporary digital copies in the EVFTA and challenge in the current law of Vietnam. Challenge in implementing rental rights in Vietnam. The protection of rental right in the EVFTA and the current challenge in Vietnamese law and Vietnamese companies’ management. Challenge to the cooperation between Vietnamese and European collective management organizations.
Collective management organizations in Vietnam and challenge to the international cooperation. 76 CONCLUSION TO CHAPTER II. 81 CONCLUSION TO THE THESIS. 91 5 INDEX OF ABBREVIATION Berne Convention The Berne Convention for the Protection of Literary and Artistic Works Directive 2006/115/EC Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property Directive 2001/29/EC Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001on the harmonisation of certain aspects of copyright and related rights in the information society ECJ European Court of Justice European EU Union EVFTA EU–Vietnam Free Trade Agreement Intellectual Property Law Law on Intellectual Property No.
50/2005/QH11 dated November 29, 2005 (amended and supplemented by Law No. 36/2009/QH12 and Law No. 42/2019/QH14) Law amending and supplementing a Intellectual Property Law Bill number of articles of the Intellectual Property Law Bill Rome Convention Rome Convention for the Protection of Performers 6 TRIPS WTO Agreement on Trade-Related Aspects of Intellectual Property Rights WCT WIPO Copyright Treaty WIPO World Intellectual Property Organization WPPT WIPO Performances and Phonograms Treaty WTO World Trade Organization 7 PREFACE 1. Thesis rationale The EVFTA, after ten years of negotiating, finally took effect in August 2020.
This is an ambitious agreement that has a major impact on the economy of Vietnam by eliminating 99% of the custom duties between Vietnam and EU. According to the Ministry of Planning and Investment of Vietnam, this agreement is expected to increase Vietnam’s GDP by 42. Whereas in Europe, GDP is anticipated to increase by $29. 1 Among the benefits that the EVFTA promises to bring to the parties, higher protection levels for intellectual property, specifically copyright and related rights is one of the mostly awaited since intellectual property infringement in Vietnam has been an ongoing phenomenon with yet a thorough solution.
Along with this opportunity, however, Vietnam will face difficult challenges in order to implement important provisions of the EVFTA regarding copyright and related rights. This stems from many reasons, from the gap between the legislation of each party to the difference between the culture and economy of the member states. Recognizing this, in 2019, the Ministry of Science and Technology, upon performing the Government's and the Prime Minister's working program, had proposed a project on the draft of Law amending and supplementing a number of articles of the Intellectual Property Law. This is expected to be submitted to the National Assembly for consideration and comments at the October 2021 session and for approval at the May 2022 session.
During this time, with the hope to bring a worthy and possibly fruitful dedication to Vietnam’s current situation by closely studying the EVFTA, the author decided to carry out the research: “The implementation of copyright and related rights of EVFTA in Vietnam. Literature review 1 Shira, D. Vietnam-EU Trade: EVFTA Comes Into Effect.com/news/vietnam-eu-trade-evfta-comes-into-effect. Foreign materials Since EVFTA is a new agreement, most of the research is under the form of journal articles, newspaper articles and reports made by the government, which are extremely limited.
Therefore, the author had to combine them with works that write about copyright and related rights in Europe for a more in-depth knowledge since the EVFTA, composed by Vietnam and the EU, more or less, will be relevant to European copyright and related rights. 2 “EU Copyright Law: A Commentary” by Irini Stamatoudi and Paul Torremans was the book that the author commenced with. This unique book presents a comprehensive and new analysis of all EU law and case law in the field of copyright, as well as the underlying basic concepts and principles. In addition, the book provides readers with most recent amendments and initiatives by EU in the digital area.
Upcoming challenges for copyright and related rights are also discussed in the book by a team of leading experts in the field, which makes the book extremely valuable. Another book that has an immense influence on this thesis is “Copyright and Fundamental Rights in the Digital Age” by Oreste Pollicino, Giovanni Maria Riccio and Marco Bassini.3 This well-timed book analyzes the needed change in the protection of copyright in the digital age in Europe in order to balance with other fundamental rights and freedom of the human. Recognizing the development in digital technologies as well as the internet, it specifically focuses on the effects of recent reforms to the legal framework for EU’s copyright. Following this, “Propertizing European Copyright” by Caterina Sganga 4 is also a worth-mentioning book since it provides an insight analysis of the cause and effect of propertization of copyright throughout the history of EU, comparing them to other national law and concluding experiences for EU, which Vietnam may gain 2 Stamtoudi, I.
EU Copyright Law: A Commentary. Copyright and Fundamental Rights in the Digital Age. Propertizing European Copyright. Edward Elgar 9 some lessons from this.
Researchers in copyright will find this book very valuable since is rich both in theory and practice. “Guide to the EU-Vietnam trade and investment agreements” made by Delegation of the European Union to Vietnam 5 is totally indispensable since this dogmatic guide is a great contribution to a better and more insight understanding of the new generation agreements between the EU and Vietnam. Although not focusing on copyright and related rights aspect, this guide, written in the most simple and clear language, helped the author in understanding the basics of the EVFTA and acknowledging the importance of this agreement to Vietnam’s economy. From this, the author was able to determine the challenge to Vietnam’s current copyright and related rights.
Vietnamese materials In Vietnam, although there are many research papers on copyright and related rights when Vietnam joins the EVFTA, they are mostly carried out under the form of short journal articles, magazine articles or online newspaper articles with less insight recommendations. They mainly discuss the obvious chance to a higher level of protection for copyright and related rights in Vietnam and the already seen challenge de jure and de facto in Vietnam but leave practical and clear recommendations something to be desired about. In the article “Giải quyết những thách thức về sở hữu trí tuệ khi Việt Nam gia nhập EVFTA” [Solving intellectual property challenges when Vietnam joins EVFTA] by Nguyen Thi Huyen in Review of Finance, 6 the author discusses chances and challenges that the EVFTA will bring to Vietnam’s intellectual property in general. However, the author has no intention of focusing on copyright and related rights, which is why they are mentioned only by one challenge with no specific solution.
5 Delegation of the European Union to Vietnam (2019). Guide to the EU-Vietnam trade and investment agreements.eu/doclib/docs/2016/june/tradoc_154622.pdf 6 Nguyen Thi Huyen (2017). Giải quyết những thách thức về sở hữu trí tuệ khi Việt Nam gia nhập EVFTA [Solving intellectual property challenges when Vietnam joins EVFTA]. Review of Finance, 653, 27-28.
10 A modest part in the article “Cam kết về sở hữu trí tuệ trong EVFTA cơ hội và thách thức” [Commitment to intellectual property in EVFTA opportunities and challenges] by Pham Thi Kem Len and Nguyen Minh Hien in Journal of Finance and Accounting Research7 mentions copyright and related rights. However, similar to the previous one, the author does not depict a thorough solution to the problem. Other materials, although do not directly research on the relationship between EVFTA and copyright in Vietnam, have suggested some directions for the current Vietnamese law to follow in the digital area by making comparisons to other countries. The works that can be mentioned include the master’s thesis “Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa Kỳ, Pháp và kinh nghiệm đối với Việt Nam” [Acts of copyright infringement in the digital environment according to the laws of the United States, France and experience for Vietnam] by Do Huynh Yen Vy, 8 the book “Bình luận bản án quyền tác giả - Góc nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản, Hàn Quốc” [Comments on copyright judgments - Legal perspective of the US, France, Japan, Korea] by Nguyen Thai Cuong9 and the article “Quyền tác giả đối với tác phẩm trong môi trường công nghiệp 4.0 tại các cơ sở giáo dục đại học” [Copyright for works in the industrial 4.0 environment at higher education institutions] by Vu Thi Hong Yen.
Objectives of the study First of all, this thesis intends to provide a fundamental understanding of copyright and related rights as regulated in the EVFTA. It then attempts to justify the challenges to the implementation of copyright and related rights of the EVFTA in 7 Pham Thi Kem Len & Nguyen Minh Hien (2020). Cam kết về sở hữu trí tuệ trong EVFTA cơ hội và thách thức [Commitment to intellectual property in EVFTA opportunities and challenges]. Journal of Finance and Accounting Research, 3(200), 41-44.
8 Do Huynh Yen Vy (2020). Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa Kỳ, Pháp và kinh nghiệm đối với Việt Nam [Acts of copyright infringement in the digital environment according to the laws of the United States, France and experience for Vietnam] (master’s thesis, Ho Chi Minh University of Law). Ho Chi Minh University of Law Library. 9 Nguyen Thai Cuong (2020).