Minutes - TRIPS Council - View details of the intervention/statement

Ambassador Gail Mathurin (Jamaica)
B.i (i) Follow-up to the review of legislation of Viet Nam
6. The representative of Viet Nam said that, at the Council's meeting in March, Viet Nam had provided an overview of the structure and main components of its intellectual property system, including new legislation adopted and the implementation of IP laws since it became a WTO Member. Viet Nam had also submitted to the Council all the legal documents issued by the end of February of 2008 for the purpose of implementing its commitments and obligations under the TRIPS Agreement. 7. Presenting a summary of changes to Viet Nam's legislation on the protection and enforcement of IPRs since March 2008, he said that the legislative, executive and judicial authorities had issued a number of regulations to clarify the general provisions of the IP Law 2005 with a view to bringing its national legislation into full compliance with its accession commitments and the TRIPS Agreement. The following legal documents had recently been issued: (i) A Joint Circular No. 2 issued on 3 April 2008 by the Supreme Court, the Supreme Prosecution Institute, the Ministry of Culture, Sports and Tourism, the Ministry of Science and Technology, and the Ministry of Justice to guide the settlement of disputes concerning IPRs brought before the courts. This circular provided instructions for applying civil measures in handling disputes and infringements of IPRs, following Joint Circular No. 1 issued on 29 February 2008 to provide instructions for criminal prosecution of the IPR infringing acts. (ii) An ordinance amending the Ordinance on Handling the Violation of Administrative Regulations 2002 had been issued on 2 April 2008 by the Standing Committee of the National Assembly to increase the limit of fines and to provide extended discretion for applying administrative sanctions by competent authorities. It was noted that intellectual property was one of the few areas in which the limit of fines was increased up to VND 500 million, five times higher than the previous limit under the original ordinance. The new ordinance increased the discretion for sanctions of relevant administrative authorities to an extent equivalent to the new limit of fines. At the same time, the ordinance allowed the competent authorities to apply additional appropriate measures to the handling of IPR infringing goods (e.g. compulsory movement of the infringing goods out of Viet Nam's territory, or compulsory re-exporting of the infringing goods, offence instruments, etc). 8. Guiding government regulations were being drafted on the implementation of IP Law and enforcement of IP rights in some important areas such as optical disks management, new pharmacy registration, enterprises registration and management, administrative violation handling procedures, etc. The review of the IP Law 2005 and the Criminal Code 1999 was continuing and had been put on the agenda of the Parliament's session by the end of 2008. 9. In the process of research, drafting and issuance of the legal documents on IP, the relevant agencies of the Government had received efficient support from several Members, including the United States, Japan, Switzerland and the European Communities, in the form of cooperation and technical assistance projects at different levels. In a short period, the Government had issued a series of legal documents on enhancing the State management of IP activities. The achievements in the legislation and legal implementation in the last 18 months demonstrated the great effort by the Government to strengthen IPR protection and enforcement. Although the Government was determined to push forward the process of IP legislation, the current legal system still contained some shortcomings that needed to be settled, especially concerning issues related to IPR enforcement. There remained much work to do towards a "sufficient" and "efficient" IP legal system that met the TRIPS/WTO standards and was in line with the circumstances of Viet Nam. 10. He said that his delegation had received a large number of questions to clarify statutory provisions and government regulations for the purpose of evaluating the compliance of the national legislation with TRIPS rules. Viet Nam had studied the questions carefully and prepared appropriate answers to all of them. At the same time, it acknowledged the reasonable proposals and suggestions that were helpful in improving its national IP laws and regulations. He summarized the main points of the responses by dividing the questions into five groups: (i) The first group of questions concerned the principles of IPRs protection stipulated in the General Provisions Part of the IP Law and their compliance with the Berne Convention. Viet Nam confirmed that those provisions were not applicable to copyright and related rights to the extent that there were no specific relevant provisions in the later sections of the IP Law. (ii) The second group of questions concerned the provisions on the ownership over anonymous works under the IP Law, on the obligation of the payment of a remuneration, on the exceptions to the infringement of copyright and related rights, and on hierarchy in protection of copyright and related rights. The responses clarified the purposes and meanings of these regulations and indicated the related government regulations. (iii) The third group of questions related to the undisclosed information protection regime, especially the requirements on undisclosed test data to be protected under the IP Law 2005. Pursuant to the IP Law, test data was regarded as a form of undisclosed information that was protected in the term of a business secret. Accordingly, an applicant should indicate his own request of test data protection and had responsibility for assisting the competent authority in the identification of the test data necessary to be protected. Viet Nam believed that these regulations were consistent with the TRIPS Agreement. However, certain suggestions on simplification of the requesting procedures would be proposed to the competent authorities to facilitate the protection of undisclosed test data. (iv) The fourth group of questions focused on geographical indications protection regime, especially the requirements on foreign geographical indication protection procedures in Viet Nam. The documentary requirement (in the form of a geographical indication certificate or certification trademark or any other) was necessary to prove the geographical indication described in the application was being protected in the country of origin. The difference in the documentary requirement aimed at giving effect to the relevant substantive provisions of the IP Law which was elaborated in the light of the provision of Article 29 of the TRIPS Agreement. (v) The fifth group of questions concentrated on IPR enforcement under the criminal, civil and administrative procedures, especially on the wording of the Joint Circular No. 1 on guiding the criminal prosecution in respect of IPR infringing acts, on the specific regulations on administrative sanctions as well as the civil remedies and proceedings. For these complicated questions, Viet Nam had tried its best to make clear the purpose, meaning and contents of all related regulations and provisions in the different legal texts and indicate the inter-relationship among these regulations within the national IP legal system as a whole. 11. He said that his delegation was ready to provide more information if so requested. It appreciated the questions it had received since they were the result of thorough research on the Vietnamese legislation in comparison with international law. Such questions helped it to understand more about international IP law, to learn more about other legal practices and to have a more comprehensive and objective view on its own national legal system. 12. He noted that IP protection and enforcement had been a special concern of the Government recently. The Government had spent a great deal of effort and resources on the research and improvement of IP policies and legislation as well as on strengthening the enforcement agencies' capacity. The IP management agencies under the related ministries had made great efforts in completing the legal framework on the protection and enforcement of IPRs, including industrial property rights, and copyright and related rights. Despite the limitations in experience and resources for implementation of TRIPS obligations, he expressed his delegation's goodwill to cooperate with all Members, especially with those who had interests in Viet Nam's IP market, and desire to share other Members' experiences in implementing the commitments and obligations under the TRIPS/WTO framework. 13. Regarding the 20 questions which Viet Nam had received from Canada one week before the meeting in addition to the earlier 62 questions, he informed the Council that Viet Nam had asked the relevant agencies to prepare the answers for these questions and provide them to Canada through the Council as soon as possible. In conclusion, he said that Viet Nam had delivered its initial responses to the Members concerned for their consideration, and its relevant agencies were still working actively to seek sufficient responses to the questions. He said that his delegation would appreciate any further questions from Members through the Council and would try its best to provide clear and detailed answers to them as soon as possible.