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Improving the effectiveness of intellectual property practices in Vietnam to meet the requirements of development and international integration
4/3/2019 10:55' Send Print
Illustrative photo. Photo: Savvycom

Current status of Vietnam's intellectual property system and intellectual property practices

International laws and laws of most countries now recognize and protect the intellectual property rights of organizations and individuals with the aim of encouraging creative activities and popularizing advances in science, technology, culture, and art for socio-economic development and improvement of the quality of life. Intellectual property really plays the role of a driving force to boost innovation, creativity to develop national intellectual property in both quantity and value, contributing to improving creative capacity and creating an healthy environment of competition.

In Vietnam, the current intellectual property system at the central level consists of three specialized areas under the management of three ministries: Ministry of Science and Technology (in charge of state management of industrial property and intellectual property in general; the focal point is the National Office of Intellectual Property); The Ministry of Culture, Sports and Tourism (in charge of state management of copyright and related rights; the focal point is the Copyright Office); Ministry of Agriculture and Rural Development (in charge of state management of rights of plant varieties; the focal point is the Plant Variety Protection Office under the Department of Crop Production). In localities, the People's Committees of provinces and centrally-run cities (through specialized bodies such as the Departments of Science and Technology, the Department of Culture, Sports and Tourism; the Department of Agriculture and Rural Development) are in charge of state management of intellectual property according to their competence.

By the time Vietnam applied for accession to the World Trade Organization (WTO), Vietnam's intellectual property system functioned mainly on the basis of a “sub-law” documents, including the “Ordinance on the Protection of Industrial Property” (issued in 1989) and the Ordinance on the Protection of Copyrights (in 1994) which were developed on the basis of legal normative documents, such as decrees of the Government and guiding circulars of the ministries). To meet requirements of "adequacy" and "effectiveness" of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement of the WTO) and other bilateral and multilateral international treaties on intellectual property, in 2005 Vietnam enacted the Law on Intellectual Property, changing the whole structure of Vietnam's legal document system of intellectual property, transferring the system of single incomplete and non-unified legal documents into a unified specialized law. The Law on Intellectual Property (amended in 2009) together with 17 decrees regulating in details, 19 circulars and inter-sectoral circulars guiding the implementation have helped Vietnam's intellectual property regulations not only meet international treaties’ standards but also get closer to intellectual property systems of many advanced countries in the world.

Currently, Vietnam has been a member of the core international treaties of the world intellectual property system, such as the Paris Convention for the Protection of Industrial Property; the Berne Convention for the Protection of Literary and Artistic Works; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the International Convention for the Protection of New Varieties of Plant (UPOV Convention); Stockholm Convention Establishing the World Intellectual Property Organization (WIPO), among others; international treaties that facilitate international registration of intellectual property rights, such as the Patent Cooperation Treaty (PCT Treaty); The Madrid Agreement Concerning the International Registration of Marks and the Madrid Protocol Relating to the Madrid Agreement. Vietnam is preparing to join the Hague System for the International Registration of Industrial Designs.

The first milestone of international cooperation in the field of intellectual property of Vietnam was the signing of the ASEAN Framework Agreement on Intellectual Property Cooperation in 1995. Then, while negotiating to join the WTO, Vietnam began to negotiate and sign cooperation agreements with Switzerland (in1999); with the United States (in 2000); with Japan, Russia (in 2008) and a series of scientific and technical cooperation agreements, including intellectual property provisions. After accession to the WTO, along with the trend of international economic integration, intellectual property has gradually become an increasingly important issue and is an indispensible part of new generation free trade agreements. Accordingly, at that stage, Vietnam proactively and actively participated in negotiating 6 free trade agreements (including the agreement between Vietnam and the Eurasian Economic Union, the agreement between Vietnam and South Korea; another 2 free trade agreements which have just ended negotiations and are in the process of ratification; 2 free trade agreements under negotiations), of which 2 already came into effect.

Regarding registration of industrial property rights, in the period of 10 years since the Law on Intellectual Property took effect (2006-2016), the total number of industrial property registrations received by the National Office of Intellectual Property (Ministry of Science and Technology) increased on an average of 10%-15% each year. Regarding the registration of rights to plant varieties, after the promulgation of the Law on Intellectual Property, the Department of Crop Production (Ministry of Agriculture and Rural Development) received 927 applications for registration of plant varieties and granted 432 certificates. Among them, the number of applications by Vietnamese was much higher than that by foreigners (from 2004 to 2016 the total number of applications originating from Vietnam was about 2.5 times higher than the number applications originating from abroad).

Regarding registrations of copyright and related rights, according to law, registration of these rights is not a compulsory to enjoy copyright and related rights. However, aware of the benefits of copyright and related rights registration, many authors, copyright and related right holders have applied for Copyright Registration Certificates, Related Rights Registration Certificates. Accordingly, within 10 years since the issuance of the Law on Intellectual Property (data as of the end of 2015), the Copyright Office received and granted 43,450 registration certificates, of which 43,321 were Copyright Registration Certificates; 129 Related Rights Registration Certificates. The number of Copyright Registration Certificates and Related Rights Registration Certificates increased by about 6% annually.

Regarding the protection of intellectual property rights, although intellectual property rights are essentially civil rights, over time, the protection of intellectual property rights by civil measures in our country is still limited. According to the statistics of the Supreme People's Court, from 1 July 2006 to 30 September 2016, the courts received 182 civil law suits for the first instance trial relating to disputes over intellectual property (including 158 disputes over copyright, 10 disputes over industrial property rights), resolved 174 cases while resolving 200 out of 235 cases of intellectual property-related commercial business disputes.

With the advantages of time, procedures and costs, protection of intellectual property rights by administrative measures still plays a key role in the protection of intellectual property rights. In the period of 2012-2015, the culture, sports and tourism sector inspected and imposed administrative sanctions on 386 organizations and individuals for their violation of copyrights and related rights, with a total fine of over VND 9 billion on 384 cases. The science and technology industry handled 473 cases of infringement on industrial property rights, including issuing warnings to 66 cases, imposing fines worth a total of nearly VND 6 billion on 264 cases. The market management force of the Ministry of Industry and Trade inspected and handled 22,441 cases of trading counterfeit goods, intellectual property infringement goods, levied administrative fines with the amount of nearly VND 53 billion on violating organizations and individuals. Criminal measures were taken against intentional acts of counterfeit trademarks, geographical indications and piracy of copyright, related rights for commercial purposes, or reaching criminal line in terms of value of counterfeit goods, pirated goods for illicit profits or damages.

The Intellectual Property Research Institute under the Ministry of Science and Technology (currently the unique agency which provides assessment of industrial property) regularly provides expertise services for enforcement authorities, organizations, enterprises and individuals. From September 2009 to 2016, intellectual property assessment was provided for 3,829 cases, of which 416 cases were requested by competent authorities, mainly enforcement agencies with 383 requests, including 57.7% from the market management agency, 29% from the police, the rest from other agencies, such as science and technology inspectors, customs office, and people's courts).

Besides, Vietnam also has a series of policies to support and promote innovation, transfer and dissemination of intellectual property, many of which are legalized; supporting programs have been expedited, including the policy on empowerment (granting autonomy to scientific research organizations and enterprises; delegation of authority for patent registration, management, and exploitation to organizations which lead research projects); policies and mechanisms to divide rights and interests in public-private research cooperation; policies to encourage the exploitation of inventions made with the State funding; policies to support intellectual property development at enterprises through the Program on Supporting Intellectual Property Development, among others. Particularly, the Program on Supporting Intellectual Property Development in the period of 2011-2015 supported 213 projects, and in 2016-2020 period, 23 projects so far.

Besides achievements, there remain limitations in intellectual property practice. In terms of organizational structure of the intellectual property system, the current model comprising three agencies in charge of three different areas of intellectual property rights is not concentrated, discrete, and non-systematic; inter-sectoral coordination is poor and weak. Until now, the system of legal documents is still quite cumbersome and complicated, with many levels, and different guiding documents; Regulations in different legal documents are not highly consistent and synchronous; some regulations are not detail and clear, leading to different interpretations and implementation; some regulations are not feasible, not really suitable to the actual socio-economic development of Vietnam. Regarding registration of industrial property rights, the processing time is longer than that prescribed by law. The handling process is not transparent, making it difficult for applicants and the public to access information. Regarding the protection of intellectual property rights, there are different competent agencies which issue administrative sanctions; there is no main focal point; each agency is in charge of a field (specialized sector) or a scope (in the market, at place of production), the scope of authority and responsibilities of these agencies still overlap; there is no close coordination; information update and exchange between ministries, branches and localities are not in time, leading to poor and ineffective coordination among concerned agencies. Meanwhile, the court system does not have enough trained and experienced personnel to quickly and effectively resolve complicated intellectual property cases. The mechanism to resolve disputes through mediation and arbitration has not been promoted.

The awareness of people, organizations and enterprises on protection of intellectual property rights is not high. They have not yet fully understood the necessity to protect their rights as well as respect the intellectual property rights of others; rights holders and industrial property representative organizations do not want to go to courts and prefer administrative measures to handle infringement on their rights.

Some solutions to improve the efficiency of intellectual property activities in Vietnam

In order for intellectual property activities of Vietnam to develop in the right direction, effectively contribute to socio-economic development, it is necessary to clarify the following viewpoints: intellectual property of Vietnam as well as of mankind must be used as a lever to boost technological innovation, improve competitiveness. Improve the quality and ensuring the outstanding efficiency of intellectual property activities are a cross-cutting requirement and a top priority for the goal of developing Vietnam's intellectual property system; the intellectual property system must develop on the basis of the Fourth Industrial Revolution’s modern technology, first of all internet of things and artificial intelligence; high quality human resources for intellectual property is a key factor to ensure the success of intellectual property activities; Vietnam's intellectual property system must be open and dynamic, adaptable to economic movement and development in association with active and proactive international integration in intellectual property.

Based on those viewpoints, 5 groups of tasks to develop intellectual property for the period of 2019-2030 should be implemented including intellectual property policies and laws; state management of intellectual property; protection of intellectual property rights; intellectual property rights serve economic growth and improve innovation capacity; supporting and supplementing intellectual property activities with the following specific solutions:

First, step up information and communication innovation to raise awareness of the society about intellectual property - an important activity that encourages innovation and creates valuable intellectual property, and technology transfer, contributing to improving productivity and quality, creating highly competitive products, promoting socio-economic development. In addition, it is necessary to gradually integrate intellectual property and intellectual property specialization into higher and general education programs.

Second, improve and implement preferential policies, support enterprises to use and transfer the rights to use intellectual property, perfect the law on intellectual property transactions, and mechanism of benefit sharing among stakeholders of the creative products; perfect the policy of balancing benefits to reasonably and satisfactorily handle relations among intellectual property-related stakeholders such as patent owners and communities, between owners of plan variety rights, producers, businesses and farmers.

Third, increase investment and improve investment efficiency for intellectual property development, invest in modernizing technology resources for registration and protection of intellectual property rights; set up a National Intellectual Property Support Fund to invest in creative activities, support for application and transfer of intellectual property.

Fourth, streamline focal points and specialize the system of intellectual property protection, continue to improve legal documents on intellectual property, especially enforcement regulations; gradually shift the handling of intellectual property disputes to civil cases; rectify all regulations on sanctions to ensure that civil sanction is the main measure (while administrative sanction is an additional measure for civil sanction when infringement of intellectual property rights goes beyond the civil extent).

Fifth, improve the State's management role for the protection intellectual property. Effectively coordinate the State management agencies and other concerned individuals and organizations to improve intellectual property law, making it a solid legal basis to boost innovation and high feasibility, encouraging creativity. Enhance the effective use of intellectual property monitoring and management tools, increase the use of new technologies, especially information technology, in intellectual property operations.

Sixth, expand support and assistance to promote and protect intellectual property rights, such as production and business activities; build and develop a model linking university/research institute with businesses; operate a network of intellectual property and technology transfer centers at universities and research institutes connected to intellectual property support centers; support intellectual property management and judicial services, set up non-public non-business organizations providing intellectual property services, such as intellectual property information, intellectual property valuation.

Seven, improve capacity of intellectual property human resources through innovation and professional training and retraining on intellectual property, perfect standards of professional qualifications and recruitment for positions which directly handle business in intellectual property management agencies. It is necessary to have a training program for focal points on enforcement of intellectual property rights at central and local enforcement agencies; set out concrete practical contents in state management areas to enhance focal points’connection. Periodically organize in-depth training programs providing intellectual property knowledge to focal point officials.

Eight, proactively enhance international integration and cooperation in the field of intellectual property, expand and develop in-depth international cooperation and support with major intellectual property partners, both bilateral and multilateral in implementing projects on capacity building to enforce intellectual property rights in order to improve human resources capacity in enforcing rights, strengthen information collection and provision between regulatory and enforcement agencies and raise public awareness about respecting intellectual property rights. Exchange experiences and share knowledge with countries around the world on intellectual property commercialization. Proactively and actively participate in international forums to negotiate the development of international intellectual property institutions and sign bilateral agreements on intellectual property.

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This article was published in the Communist Review No. 914 (December 2018)

Dinh Huu Phi,Director of Intellectual Property Department, Ministry of Science and Technology