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Addressing international commitments
The changes that went into effect in January 2023 are the most significant since the original law went into effect in 2005. They relate to copyrights, industrial property, and enforcement of intellectual property and are broadly similar to the definitions used by many members of international trade agreements, such as the US and UK.
The Amended IP Law also changes a number of relevant articles of the Law on Prices, the Law on Customs, the Law on Science and Technology, and the Law on Management and Use of Public Property.
The IP law was previously amended by Vietnamese lawmakers in 2009 and 2019, but the changes adopted in 2022 reflect Vietnam’s commitments under several international agreements it signed in recent years. Namely, the amendments address requirements stipulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the Regional Comprehensive Economic Partnership (RCEP) agreement, and the European Union-Vietnam Free Trade Agreement (EVFTA).
These new-generation free trade agreements (FTAs) provide considerably stronger intellectual property right (IPR) protection than does the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), according to the Ministry of Science and Technology’s Intellectual Property Office of Vietnam (IP Vietnam). The FTAs include strict IPR provisions, which help sanction violators and improve the investment environment but challenge enterprises with more difficult procedures, including formalities to deal with disputes and lawsuits.
The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), for example, sets a regional standard for the protection and enforcement of IP rights across the Asia-Pacific region. It includes provisions in almost all categories of IP rights, and builds on the framework established under existing international IP treaties.
According to the agreement, each party 1) must make public its laws, regulations, procedures and administrative rulings concerning the protection and enforcement of intellectual property rights; 2) endeavor to make available information concerning applications for trademarks, geographical indications, designs, patents and plant variety rights; and 3) make available information concerning registered or granted trademarks, geographical indications, designs, patents and plant variety rights, in order to inform the public of those rights.
Tighter enforcement
The 11-nation CPTPP requires tighter enforcement of IPR through civil, administrative and criminal tools. For example, courts must have the authority to consider the price-of-genuine-goods factor and the way IPR owners calculate the price when determining damage; the enforcement agency must have the authority to force the destruction of counterfeit goods and raw materials and facilities used in the production of those goods.
The 2018 treaty also requires member countries to control imported, exported, transited and pirated counterfeit goods without a specific request from IPR owners as stipulated in the current regulations. This provision would make it easier for customs authorities to implement inspection and supervision but might hinder customs clearance related to genuine importers and exporters.
The importance of IPR protection in stimulating innovation and creativity has been recognized. In today’s world, pharmaceutical manufacturers, for example, need a sufficient length of patent protection and exclusive (or monopoly) sales to recoup high costs of research, testing, and development of drugs. Writers, artists, entertainment companies, and other producers of original material benefit from protection that prevents others from reaping financial gains from their creative works for the duration of the copyright.
However, a trade-off exists between the degree and length of protection for producers of intellectual property and the interests of users, innovators, and the broader public. Critics at home and abroad have argued that these extensive IPR protections tilt too far toward producer interests and could negatively impact public health and access to affordable medicines, especially in low- to middle-income countries; internet user privacy and the protection of personal data; access to knowledge; and innovation in a range of industries.
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