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Alert 356 - Vietnam - Amended Intellectual Property Law 2009 and Amended Penal Code 2009
These amended laws, enacted on 1 January 2010, aim to clarify previous inconsistencies and ensure Vietnam’s obligations under TRIPS and the US-Vietnam Bilateral Trade Agreements. The most important provisions are as follows:
Amended Intellectual Property (IP) Law 2009
1. Copyright – Term of Protection
The term of copyright protection for cinematographic, photographic, dramatic, applied art and anonymous works has been increased from 50 years to 75 years from first publication. For cinematographic works, photographic works and applied art works not published within 25 years of the date of fixation, the term will be 100 years from the fixation date.
2. Royalty Payments for uses of published works where permission is not required
Broadcasters may broadcast published works without prior permission from the IPR holders, whether for commercial or non-commercial use. Royalties must be paid whether the use is commercial or non-commercial.
Commercial Use: royalties may now be agreed between the parties, failing which the rates payable are to be based on Government regulations, or fixed by virtue of a civil court action.
Non-Commercial Use: royalties are to be based on Government regulations.
3. Examination Terms
Substantive time limits for examination for registrability have been extended to not more than 7 months from the date of publication of the application for Designs, 9 months for Trademarks and 18 months for Patents. This aims to give the National Office of Intellectual Property (NOIP) time to ensure quality examinations and bring legislation into line with reality; however time limits are still exceeded.
4. Intellectual Property Assessments
State agencies, including the NOIP are now able to provide assessment conclusions on IPR infringement. Such conclusions can be used as evidence (but not a decision) for resolution of a case; such expertise is of great assistance to IP owners.
5. Administrative Action
Acts liable for administrative sanction now include those which cause loss to authors and IP owners; thus there is now no need to send a warning letter prior to taking administrative action in these cases. Guidance on when an infringement will “cause loss” and the meaning of ‘loss’ is still required.
Competent authorities are now able to administratively sanction individuals who direct others to commit IP infringement.
Criminal penalties are provided for violating copyright (and related rights) and for willful infringements of rights over trade marks and geographical indications on a commercial scale. Increased financial fines of up to VND500 million (US$26,880) and VND1,000 million (US$53,760) for organized/repeated offences are welcomed; however these are insufficient to deter large scale infringers. As yet there is no guidance on the phrase “on a commercial scale”.
Our Comment
Overall these amendments have brought Vietnam's IP system closer to international standards, although there remain some exceptions. Other important areas still to be tackled by legislation are the growing issue of internet piracy, the liability of internet intermediaries and other issues related to on-line content.
