Thesis Organization

The objective of this research and its original contribution to knowledge in mapping the transplantation of TRIPs into Vietnam‟s domestic law imposes some limits on this thesis. It covers seven categories of intellectual property rights and their enforcement. Some such as copyright and patents are covered in greater detail than others such as geographical

indications or layout designs (topographies) of integrated circuits. As the study was

conducted between 2006 and 2009 some of the relevant local legislation and other collected data may have changed, especially where intellectual property protection has developed relatively quickly.

The general reasons why law itself, whether national or international, and whether the TRIPs provisions or Vietnamese law, have inherent flexibilities are cons idered in Chapter 2: Conceptualizing Law‟s Flexibility. This takes a different approach from many studies of the transplantation of commercial law. They often consider the problems of the rule of law in developing economies such as Vietnam. This goes to a more fundamental issue relating to the rule of law in all legal systems.

Firstly, law‟s flexibility lies in problems of the law itself. Law is encoded in language and language is often vague or ambiguous. Language used in law is specialized and

distinguished from other kinds of technical language. Using ideas from Hart it is recognized

101 _{Gu mmesson (2003), Stuart et al (2002), Te llis (1970), Dyer and Wilkins (1991), Bensabat et al (1987),}

27

that words may have a core meaning but may have other meanings which create uncertainty.102

The ambiguity of legal language increases when law is interpreted. There are conflicting rules for interpreting legal texts. Interpretation poses a difficulty at the outset. In

transposing TRIPs from its original languages into Vietnamese choices have to be made about the meaning of the original text and the Vietnamese law. It is commo n practice in all legal systems to search for the meaning of legal provisions not only in the relevant

statement of the law but also in the legislative debates, the reports of responsible bodies, and also in the purpose of the statute.103

Law also has gaps in it. Kelsen is drawn on in considering that there are both proper or true gaps and technical gaps in law. A true gap appears where there is the absence of a general norm to apply for a case. True gaps can also exist where the law contains a general nor m but lacks a particular content so it may become inequitable or unjust. A technical gap may present when lawmakers fail to prescribe something that they would have had to have prescribed to make it possible to apply the law.

Flexibility in law is also produced in circumstances where the law gets out of date because it does not reflect technological development or commercial practices, or where lawmakers do not have the experience or knowledge of commerce or technology, or where they cannot reach agreement.104

102

This is discussed by established scholars including HLA Hart, in Essays in Jurisprudence and Philosophy

(Clarendon Press, 1983) and The Concept of Law (Oxfo rd Un iversity Press, 1961), fo r e xa mp le.

103

Here Lle we llyn‟s conflicting ru les of legal construction are considered, as well as how their use is guided within lee ways of justice, reason, and legal doctrine, see Ka rl N Llewe llyn, eg, „Re ma rks on the Theory of Appellate Decision and the Rules or Canons about How Statutes are to be Construed‟ (1950) 3 Vanderbilt Law Review and Jurisprudence: Realism in Theory and Practice (University of Ch icago Press, 1962).

104 _{Weber has insights into this. See Max Weber, eg, Basic Concepts on Sociology (translated by HP Secher}

(Citadel Press, 1962) and From Max Weber: Essays in Sociology (translated and edited with an Introduction by Hans H Gerth and C Wright Mills ) (Oxford University Press, 1946).

28

As a developing country with a low per capita income and low levels of economic and technological development with no experience of, and little familiarity with intellectual property, law‟s flexibility in a Vietnamese context also relates to features of Vietnamese culture and society. This relates to both understanding and interpreting international and foreign intellectual property laws which have been transplanted into the local legal system. Vietnamese people traditionally favoured a cooperative communal life based on

agriculture. They had little respect for commerce and merchants leading to the lack of development of both industrialization and urbanization. Prose and verse and other forms of artistic creation were not concerned with personal rewards. These values were supported by dominant spiritual beliefs including Confucianism and Buddhism. They were also

supported by Vietnam‟s recent economic and political development including socialist theories opposing private ownership, especially of the means of production.

Finally, returning to the international law, conflicting interests are unavoidable when two or more sovereign contracting states sign a treaty or convention. Creating flexible provisions is important in dealing with such conflicts. Conflict is present in the WTO‟s integral agreements, including TRIPs, in particular between less-developed or non- industrial and developed or industrial countries. They differ from each other in levels of economic and technological development and in legal systems and practices. Conflict also lies behind the such four other intellectual property treaties incorporated into TRIPs as the Paris

Convention (1967), the Berne Convention (1971), the Rome Convention, and the Washington or IPIC Treaty.

The third chapter discusses the process of acceding to the WTO and implementing TRIPs in Vietnam generally. As an economy in transition, indicated by the Memorandum of Foreign Trade Regime, Vietnam took a flexible approach in taking membership. It was a lso

inevitable for Vietnam, as an acceding member, that it would incur both WTO-plus and TRIPs-plus requirements. This prolonged the period required to accede by adding time- consuming and costly legal and institutional reforms to meet WTO norms and TRIPs standards. The period was also prolonged by the local lack of familiarity with intellectual

29

property. Vietnam‟s implementation of TRIPs can be broken into three periods: 1995-1998, 1999-2004, and 2005 to date. In these periods Vietnamese law is found to have

simultaneously responded to three flexibilities in TRIPs‟ general provisions: whether Vietnamese law represents a more extensive protection than that produced by TRIPs; how Vietnam chose its methods of implementing TRIPs; and, how Vietnam perceived TRIPs‟ incorporation of such four other treaties.

The fourth chapter examines copyright and related rights in Vietnam in the context of TRIPs‟ flexibilities. Copyrightable subject matter, the bundles of economic or property and personal or moral rights conferred by copyright, the periods of copyright protection, and limitations and exceptions to copyright infringement, as well as the protection of related or neighbouring rights have involved the application of TRIPs‟ flexibilities in Vietnamese law. For example, the local law resembles Article 2 of the Berne Convention by creating a list of protected works but further defining some so that the scope of the protection is limited. Also, it provides for copyright exceptions ranging from the non-commercial reproduction for personal or individual study, or library archival purposes, to public performance without charge and to information or review purposes. However, the local copyright law contains some provisions overlapping each other when requiring the fixation of a work in a material form.

In the fifth chapter the thesis investigates the relationship between Vietnamese law and the international standards for patents and the protection of plant varieties. The prescription of standards concerning the availability, scope and use of intellectual property rights to be reflected in national laws is at the heart of TRIPs with copyright and patents at its core.105 Unlike the protection of copyright, which mostly relates to cultural products, patents relate directly to the level of a nation‟s technological development. This is because an effective legal system for patents requires an understanding of which only comes with that

technological development. It confers on policy and law makers a knowledge of business

105 _{Christopher Arup, The World Trade Organization Knowledge Agreements (Ca mb ridge Univers ity Press,}

30

and technology and their interactive effects in the evolution of both commercial practices and scientific and industrial knowledge. From this perspective it is important for Vietnam to use TRIPs‟ flexibilities in respect of patents but its low level of technological

development has limited that use in practice. This is seen, for example, in the Vietnamese patent law which provides for exceptions to the exclusive rights of patent owners but often lacks particular or detailed regulations for their implementation. The local law is also seen to have made a choice to harmonize its protection of plant varieties with standards in a sui generis system set out in the UPOV Convention.

The next chapter concentrates on other categories of intellectual property protection under TRIPs‟ standards in Vietnam consisting of trademarks, geographical indications, industrial designs, layout designs (topographies) of integrated circuits, and undisclosed information. As with copyright and related rights and patents, the local law is found to involve some applications of the flexibilities within TRIPs. In respect of the protection of trademarks and geographical indications, Vietnamese law contains procedures for terminating a registered trademark on a non-use basis or permitting the use of trademarks which are identical with, or similar to, protected geographical indications where such trademarks have been used in good faith prior to the date of filing application for registration of such geographical

indications. In respect of the protection of industrial designs, it excludes the appearance of a product which is dictated by the technical features of the product or which is invisible when being used from the scope of protection. Similarities are found with the protection of layout designs (topographies) of integrated circuits and undisclosed information.

The seventh chapter focuses on provisions for enforcing intellectual property in Vietnamese law under TRIPs‟ requirements. Enforcement plays such a significant role in the protectio n of intellectual property that in TRIPs, with its 73 Articles, intellectual property enforcement is contained in an individual part. This part has five sections with 21 Articles, from 41 to 61. Reflecting this central importance, provisions for the enforcement of intellectual property rights are found to be significant in Vietnamese law, including the 2005

31

or ministerial regulations such as Decree 106/2006/NĐ-CP of 22 September 2006 on Sanctioning Administrative Violations of Industrial Property and Decree 47/2009/NĐ-CP of 13 May 2009 on Penalizing Administrative Violations of Copyright and Related Rights. The TRIPs Agreement has one of its largest gaps in this area of e nforcement. Its

implementation neither obliges members to create a system of intellectual property enforcement distinct from their general law enforcement, nor does it affect members‟ capacity to enforce their law in general (Article 41:5). Vietnam has retained the same system and practices for enforcing its law in this area, in particular its distinctive system of administrative penalties. For example, inspectors, specialized in industrial property or copyright and related rights or plant varieties, and market management officials are empowered to deal with administrative infringements in accordance with their authorized areas of responsibility, levels of competency and monetary ranges for imposing fines.

Linked to the theme of enforcement with the authorities of differential state bodies in Chapter 7, the eighth chapter turns to case studies on copyright litigation dealt with by the provincial- level civil courts. Copyright infringement was chosen since it is the most commonly litigated intellectual property with many thinking specifically of enforcement when they think of copyright protection.106 It was also chosen as getting access to

documents and individual opinions is still in fact often seen as too politically sensitive for many local authorities.

The Vietnamese judicial system, composed of the Supreme People‟s Court and the People‟ Courts at provincial and district levels with the constitutional principle of trial by judges and people‟s assessors and procedures for hearing at courts of first instance and hearing at courts of appeal, is described. It is included in Appendix 1 to the thesis for those unfamiliar with it. Disputes over intellectual property rights, as well as the hearing of this kind of civil dispute, have been recognized as new and comple x by the Supreme People‟s Court.107 This

106 _{Copyright & Ne w Media La w Ne wsletter, „The Copyright Monitor and Enforcer‟ (2010) 14(2 ) 1, 7}

<http://www.sla.org/PDFs/clic ku//2010/ Copyright_newsletter_sample.pdf>.

107 _{See Offic ial Letter No. 97/ KHXX of 21 August 1997 of the Supre me People‟s Court on the Determination}

32

is the main reason that courts at provincial level, rather than at district level, have been authorized to hear these cases since the 1989 Industrial Property Ordinance and the 1994 Copyright Ordinance. Ten selected copyright cases are discussed. These 10 cases fall into two broad sub-sections. The first is literary and artistic works as cultural and social

products and the second is copyright regulation. This analysis demonstrates, to some extent, the judicial use of flexibilities. It describes how the Vietnamese judiciary, among other actors in intellectual property protection discussed in other chapters, has participated in implementing TRIPs protecting the rights of copyright holders in literary or artistic works. It also demonstrates the difficulties the courts face in handling the complexity of these cases within Vietnam‟s legal system. It lastly reflects the discussion of the ambiguities of law in Chapter 2 and how meaning is given to the language of the law by the social, political, and economic experiences of the judiciary.

The study concludes with the ninth chapter. This chapter summarizes the scheme for intellectual property and its protection in Vietnam focusing on the application of the flexibilities within the TRIPs Agreement. It concludes that although the TRIPs Agreement requirements have been incorporated into the national laws with a considerable number of flexibilities embodied in them Vietnam still has far to go in its use of those flexibilities in its implementation of the Agreement to promote the welfare of its own people.