By Tran, Thi Lan Anh, LLM. International and European Business Law
The Socialist Republic of Vietnam is largely considered an agricultural economy with a population of approximately 76 million. After reunifying in 1975, Vietnam developed a state-regulated economy, which was based on the Soviet Union economic model and the Marxist ideologies. In the mid-1980s, the currency devaluation and food supply management problems forced the Vietnamese government to implement several reforms under the program of economic renovation. From 1986, Vietnam started the course of economic renovation, implementing the open-door policy and building a market-oriented economy. Trade cooperation and participation in the international economic globalisation are inevitable thrusts of the Vietnamese development strategy. Vietnam is currently a member of the Association of Southeast Asian Nations (ASEAN) and is scheduled to join the Asian Free Trade Area (AFTA) by 2006. Vietnam joined the Asian Pacific Economic Cooperation Forum (APEC) in 1998 and took part in the Bilateral Trade Agreement (BTA) with the United States on July 2000.
Under the pressure of the international trade law and definition the value of the membership of WTO, from 1995 Vietnam has been pursuing the membership of WTO. Most national legal sectors have been reformed in accordance with the WTO membership’s conditions. The protection of IP rights must be also enforced in Vietnam legal system as a compulsory condition of the WTO’s membership. However, as most of the developing countries, Vietnam is facing the challenge of implementing the compliance of the Agreement on Trade - Related Aspects of Intellectual Property Rights (TRIPS) into the national jurisprudence. In order to perform the WTO’s member’s responsibilities, the Vietnam Government must improve the IP rights protection in the way to reach the minimum requirements of the TRIPS in both statutory law and the effectiveness of enforcement system. However, setting a well–developed IP protection jurisprudence is not an easy task to the least developed country like Vietnam. The shortcoming of economic development and the weakness of national jurisprudence have resulted in an incomprehensive statutory law and ineffective enforcement system in Vietnam .
Basically, the current Vietnam IP law might be in line with the TRIPS in statutory law but it significantly lacks the enforcement power. As the assessment of Rama John Ruppenthal, "Vietnam with its 98% software piracy rate and total lack of enforcement structure for intellectual property protection"1. This deadlock situation has a variety of causes like historical economic development, legal tradition, and cultural aspects, and foreign jurisprudence influences. Furthermore, defining an appropriate level of protection for IP rights especially those concerns the public interests like the health care and education is still a challenge for the developing countries in general and the Vietnam Government in particular. The intellectual properties are created under a long period of Research and Development and a huge number of financial investments. As a matter of course, the IP users must pay for their use. However, the property rights usually cost too much to bear for the poor countries. So, in many emergency situations like the protection of human rights in health care and education and the democracy of an independent country, some poor countries would infringe or reduce the level of IP protection in their national legal system. The gap between the level protection of IP rights in Vietnam legal system and the TRIPS Agreement obligation has been remaining also due to these reasons.
1. TRIPS obligations and developing countries
In general, the TRIPS Agreement has increased the level of IP protection in international trade. However, the developing and least developed countries, which are the main IP importers, can get plenty exemptions from the TRIPS member obligations. According to the "Transitional Arrangements" provisions, the developing countries can delay their TRIPS obligations for a further four-year period compare to developed countries. The least-developed countries can seek for a further ten-year period in order to improve their economy and domestic legal system2. These exemptions are granted on the ground of balance between the benefit of IP holders and the development of poor countries.
How to set the balance between the advantages and disadvantage of implementing the TRIPS obligations into the domestic IP protection still remain a big question to the developing and least – developed countries. Developing countries are main IP importers and they are also condemned as the most IP infringement countries in the world. It is not an unusual thought that developing countries lack the capacity in both IP production and protection. This shortcoming situation is caused by plenty of reasons. The poor countries lack extensive funds, methods, and skilled professionals to Research, Develop, Apply, and Maintain the IP products within their border. In addition, the IP products are exported from developed countries with high prices especially in the cases where the intellectual works would be used in promoting the health care protection and education. This situation might cause conflicting interests. On the one hand, the poor countries want to use the result of the Research and Development of IP works to promote their education, health care protection, scientific, and industrial development. On the other hand, they are unable to pay the cost of the royalties for those privileges. The dispute around the patent holder rights of pharmaceuticals and the Doha Solution is the fundamental example of this situation3. Moreover, if the IP users can cover the full royalties, they must spend a significant percentage of their income. This money will pay for the IP exporters - developed countries - and the gap of wealth between the developed and developing countries is bigger. However, the application of TRIPS into particular national legal system is indispensable duty of any WTO’s member state. If those IP rights will be infringed in an ineffective legal system, the country might easy meet the economic sanctions4 is This explains why the TRIPS Agreement has been applied in most of countries in the world although providing a comprehensive and effective IP protection regime is a hardly and costly task for every nations. Furthermore, in compare the Western people, the IP rights protection is a new concept in developing citizen ideology even if these countries can provide a well-developed economy and national legal system. This has created significant difficulty in IP protection enforcement.
To conclude, a huge benefit of the TRIPS Agreement has been recognized without a shadow of doubt in every country in the world. It is a significant development of IP protection system at the international level. The stringent protection in TRIPS Agreement is the useful thrust to develop the Research and Development of the intellectual works of human. The cost of Research, Development, and Testing any high-tech product like software program and pharmaceuticals is very expensive while the cost for the reproducing and distributing these IP products is always lower5. Thus, the IP users should pay the reasonable cost for the expenditure of IP creation.
2. TRIPS obligations & Public interests in Vietnam
At the present, Vietnam is classified as a WTO observer and promoted to a full member by the year 20056. As many developing countries, the Vietnam Government has been facing the conflict between the property rights of IP holders and the interests of Vietnamese citizens in IP rights protection. In comparison with the "exception" articles in Public Interests of the TRIPS Agreement, the Vietnam’s current IP law still has a gap.
Patent holder property rights and Public health
Although in Vietnam, the rate of HIV/AIDS prevalence among adult population accounts only 0.29%7, it is not very high compare to with some regional countries like Thailand and Cambodia or African countries. However, like in all those countries, most HIV/AIDS patients in Vietnam are poor people and lose the labour capacity. Moreover, due to the lack of health care education, in many cases, the relatives and employers do not allow the HIV/AIDS patients to stay in the same house and working area. Thus, the HIV/AIDS patients are normally unable to pay the cost of HIV/AIDS treatment by themselves. In spite of the fact that the Vietnamese healthcare system is assessed with a good record in " a comprehensive public health structure reaching down to commune level"8 and that the Government spend significantly on social welfare. However, with the limit of state budget, which spends for the health care system, the royalties for medicinal patent holder is still too hard to bear. Up to present, Vietnam has not yet successfully researched and developed HIV treatment medicine. All of HIV drugs are imported from other countries. If 150mg of the HIV treatment medicine (AZT) from India, without patent’s royalties, costs $48 per month, then costs $239 in the United State with the pharmaceutical patent holder rights protection9. Vietnam as other nations understands that, the cost of the Research and Development of any pharmaceutical product is impossible to estimate. However, protecting the human health is always in priority. In addition, TRIPS Agreement and the Declaration on the TRIPS Agreement and Public health – the Doha Declaration – have classified a legal "Solution"10 for the harmonization between the property rights of patent holders and the Public interest11. The developing and least-developed countries, especially those affected by the HIV/AIDS, tuberculosis, malaria and other epidemics have the rights to determine their national emergency. Each Member has the rights to grant the compulsory licenses and the freedom to determine the grounds upon in which such licenses are granted12. These regulations give the poor countries an opportunity to improve their health care system with the minimum cost.
Under the "Exclusions" from Patent ability inventions of Art. 27 of TRIPS Agreement and the Doha Declaration, the Vietnam’s IP law have implemented these provisions into the national legal system by the Vietnam’s Civil Code and the Degree No. 63. According to Art. 787 of the Civil Code, the industrial property "subject-matters" which are contrary to social interest, public order, and the principles of social humanity shall not be protected under the Vietnam IP law. Art. 4.4 of the Decree No.63 detailed the "subject-matters" which concern to the Public interest as "Scientific concepts, principles and discoveries; Methods and systems for economic organization and management; Methods and systems for education, teaching and training; Methods for the training of animals; Systems in regard of linguistics, information, classifications and compiling of documentation; Designs and planning schemes for construction works, projects for regional development and planning; Solutions concerning only the shape of articles and being of an aesthetic nature only; Conventional signs, timetables, rules and regulations and symbols; Computer software, layout designs of integrated circuits, mathematical models, graphs and the like; Plant or animal varieties; Methods for the prevention, diagnosis or treatment of diseases for human being, animals; Essential biological processes for the production of plants or animals other than microbiological processes". The following acts are not considered as patent infringements either "The use of non-commercial purpose; The use of products having been put into the market place including foreign markets by the owner of the patent, licensee, non-voluntary licensee or the person entitled to the prior use rights; The use for maintaining operations of foreign transport means temporarily entering or being in the territory of Vietnam"13.
In comparison with the TRIPS Agreement and the Doha Declaration, the current effective regulations on patent holder rights protection of Vietnam is greater than the "Exceptions" from the patent holder rights of the international IP law. Under the accession schedule of Vietnam to the WTO, Vietnam must take a "quantum jump" in amendment and promulgation the national legal system including the patent rights protection in order to meet the goal of joining the WTO by 200514.
Copyright and related rights in education
Copyright and related rights, in the words of Simon Fizpatrick, are "at once the most "domestic" and "cosmopolitan" form of property"15. The concept of protecting copyright and related rights is disputed by two points of view. On one hand, according to the "utilitarian or incentive-based" theory, the consumer has rights to access the intellectual works as the "public domain". On the other hand, the "personality or author’ rights" theory, the author has the rights to receive the property of their intellectual effort16. In different country with different culture, the protection of the copyright and related rights in the national legal system is affected by one of these theories.
Vietnam with the Confucian tradition and Asian culture regards the public interests much important than the personal rights especially in education. Moreover, as many poor countries in the world, the Vietnam’s budget for buying the copyright of intellectual works is limited. Similar to the patent protection situation, the reasonably harmonization between public interests and author property rights is still the heterogeneity dispute in Vietnam copyright protection law in particular and worldwide in general. The TRIPS Agreement also allow each nation to have the rights to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder"17 in the copyright protection. Under the implementation of TRIPS Agreement into Vietnam’s copyright protection law, the "special cases" are mentioned as the "non-commercial purpose"18 that detailed like "Copying a work for private use; Extracting a work without falsifying the intent of the author for the purposes of comment or illustration; Extracting a work without falsifying the intent of the author, in order to write a paper or for use in a periodical, broadcast, television program or documentary film; Extracting a work without satifying the intent of the author, for teaching or examination; Copying a work for archives and use in libraries; Translating and disseminating a work from Vietnamese into an ethnic minority language and vice versa; Performing a theatrical work or another type of artistic performance in cultural or propaganda activities at public places; Making a direct audio, visual recording of a performance for reporting the news or teaching; Taking photographs or televising a work of fine-art, architecture, photograph, or a work of applied fine-art for public display; and Transforming a work into Braille for the blind"19. The consumers may use a published copyright work for "non-commercial purposes" without the permission of the author and without paying royalties. However, their use must not affect the normal exploitation of the work and not cause any detriment to the author’s enjoyment of copyright in the work. The author’s name and the origin of the work must be mentioned whenever the work is used20.
In short, comparing to the TRIPS regulation and the Western copyright protection law, the protection in Vietnam seems to lack the discipline. However, it means the citizen have more opportunities to subscribe the advance intellectual works especially in education improvement. This exploitation from the information development will advance the development of national education and economy.
As many Asian countries at the present, Vietnam economy has been developing with a high-speed growth. At the same time, a comprehensive legal framework has been developing as the national long-term vision. The implementation of the WTO’s trade rules and the requirements of TRIPS into national legal system is a challenge of the Vietnam Government. To reduce the gap between the requirements of international standards and the current status of national IP law, Vietnam has to advance a number of action plans in upgrading IP rights protection in both statutory law and the effectiveness of enforcement system. However, the fundamental goal of the Vietnamese Government is to improve the living standards for the citizens and the sustainable development of the national economy. To maximize the achievement, a comprehensive approach to the national IP legal development should be built on the ground of the international legal standards, national economy, legal tradition, and a rich culture history of Vietnam. Any rigid copying of the statutory law and enforcement system structure from the developed countries, without adaptation according to the background of domestic economy, social, and culture, might create a number of negative influences on the national development like the "resentment, lax enforcement, dependent technological system and other unforeseen problems that will undercut the promises of the WTO and TRIPS"21. Thus, while Vietnam adopt the WTO membership obligations and the TRIPS requirements to the national legal system, the Vietnam Government must find the suitable way so that IP rights protection "be implemented in such a way as to promote dynamic competition through the acquisition and local development of technology is an environment that is conducive to growth"22. Moreover, the public interests must be put in the same position with the IP holder rights in the Vietnam national legal system.