Amendment of Vietnamese IP Law (Intellectual Property Law)

IP Law, which was enacted in 2005, amended and supplemented in 2009 and 2019, was an important milestone in the history of building, developing and improving the IP legal system of Vietnam. So far the IP Law has created a legal framework for organizations and individuals to establish, utilize and protect IP rights, hence contributed to encourage innovation activities and promote technology transfer. However, after more than 15 years since its enactment, problems and shortcomings have also been exposed, as Mr. Dinh Huu Phi, Director of IP Vietnam shared at the "Conference on IP policy dissemination and consultation of the Report on Policy impact assessment of IP Law amendment" co-organized by the Ministry of Science and Technology, Ministry of Culture, Sports and Tourism and Ministry of Agriculture and Development Rural on October 7, 2020 in Hanoi.

On the other hand, the IP Law is required to be amended due to new commitments to the new-generation FTAs which Vietnam have just signed, as the Deputy Minister of Science and Technology Pham Cong Tac commented, if "participating in a game without following its rules, we will lose, domestically and internationally". Overall, the new context of international integration, the wave of the Industrial Revolution 4.0, the increasing trend of trade protectionism etc. have placed a practical need for the IP law to be amended.

Therefore, the goal of amending and supplementing a number of articles of the IP Law is to institutionalize the directions and policies of the Party and the policies of the State; resolve obstacles and problems in practice; transform international commitments into domestic legislation, creating a legal framework for IP activities of Vietnam; ensure the stability, unity, consistency, transparency, feasibility, accessibility, effectiveness and efficiency of the IP legal system, effectively facilitate the development of the country in a period of industrialization, modernization and extensive international integration.

To prepare for the submission of the Draft Law for comments from the National Assembly at the 2nd session of the 15th National Assembly in October 2021, IP Vietnam, as the coordinating organization with cooperation from relevant agencies of other ministries as well as judicial agencies, has prepared the draft law and sought opinions from the public by posting on official web portals of the Government and the Ministry of Science and Technology, organized consultation workshops, and sent documents to request for comments from relevant agencies, organizations and individuals.

The Draft Law focuses on 7 main groups of content:

(i) To ensure clear regulations on author, copyright owner, performers, and related rights holders in cases of assignment or licensing of copyrights, related rights: Provisions relating to determine the owner of property rights (owner, author, performer) will be more coherently and specifically clarified to facilitate the process of assignment and licensing of copyrights and related rights;

(ii) To encourage creation, exploitation and dissemination of inventions, industrial designs and layout designs funded from the State budget: Provisions relating to determine ownership rights and rights to utilize from inventions, industrial designs, layout designs that are resulted from scientific research funded by state budget will be more specified and detailed with the aim to encourage transforming research results into protected IP assets, creating a premise for a more effectively commercial exploitation of these assets in the market;

(iii) To facilitate the process of registration of copyrights, related rights and industrial property rights: In general, the proposed amendments will facilitate IP protection registration due to simpler, faster, more convenient and more transparent procedures; online registration regulations are also supplemented to be compatible with the Government's roadmap of providing online public services etc.;

(iv) To ensure an adequate and balanced level of IP right protection between the benefits of the right holders and rights of the public to use and access knowledge and technology: Proposed amendments will focus on handling issues related to the right to access works, phonograms, video recordings, and broadcasts; rationalizing patent protection mechanism; providing additional bases to patent and trademark cancelation; rationalizing the protection of plant variety rights (balancing breeders' rights and farmers' rights in keeping harvested materials);

(v) To enhance the effectiveness of supporting activities on IP (including representation and assessment activities): Proposed amendments will focus on clearer responsibility, more specific and detailed scope of operations, and eliminating a number of operation conditions to comply with the country's general administrative procedure reform;

(vi) To improve the effectiveness of IP enforcement activities: Proposed amendments will focus on solving shortcomings related to measures to handle infringements of IP rights to ensure a more effective, rational and feasible IP enforcement mechanism; improving regulations on IP rights enforcement in the digital environment; amending and supplementing a number of provisions related to the scope of border control methods for import and export goods;

(vii) To ensure an appropriate and strict implementation of Vietnam's international commitments on IP protection: Proposed amendments will focus on existing provisions in the IP Law which are not fully compatible with the commitments in newly-signed FTAs (such as the protection of test data for agrochemicals; jurisdiction of customs authorities in border control, etc.); or the missing provisions needed to supplement to comply with international commitments (such as sound trademark protection; compensation mechanism for patent owners of pharmaceutical products due to unreasonable delay in marketing authorization procedure, etc.).