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THE PROJECT OF AMENDING AND SUPPLEMENTING SOME ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY: ELIGIBLE TO BE SUBMITTED TO THE NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM FOR APPROVAL
Source: Portal of the National Assembly of The Socialist Republic of Vietnam
Translated by ELITE LAW FIRM
On the afternoon of September 14, 2021, under direction and moderation of Mr. Nguyen Khac Dinh – the Vice Chairman of the National Assembly, for the continuation of the program of the 3rd session The National Assembly Standing Committee, discussed and contributed opinions on the Draft Law amending and supplementing a number of articles of the Law on Intellectual Property (“Draft IP Law”). The National Assembly Standing Committee agreed that the Draft IP Law was eligible to be submitted to the National Assembly for consideration and discussion for the first time at the coming 2nd Session of the National Assembly…
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At this session, the National Assembly Standing Committee heard to Mr. Huynh Thanh Dat – the Minister of Science and Technology (MOST) presenting the Government’s proposal on the Draft Law amending and supplementing a number of articles of the Law on Intellectual Property and then heard the report on preliminary review of the Law project of the Law Committee of the National Assembly and discussed about this issue.
The Vice Chairman of the National Assembly, Mr. Nguyen Khac Dinh, said in the discussion section that the Law on Intellectual Property has a wide governing scope, with deep and complicated specialized contents. Therefore, the Standing Committee of the National Assembly spent a lot of time for discussion of this Draft Law. In which, these following issues were taken into account: whether the Law project is eligible for submission to the National Assembly; the scope of the subject matter of the Draft Law; issues about the draft Law that the Government has consulted; the conformity of the content of the Draft Law with the line and policies of the Party; constitutionality, legitimacy, consistency of the Draft Law with the legal system and compatibility with relevant international treaties; the feasibility of regulations in practice to meet the requirements of innovation and development.
Request for change of name of the Law was not approved
Mr. Huynh Thanh Dat – the Minister of Science and Technology said that the Draft Law shall amend and supplement 93 articles (of which 12 articles shall be newly added, 81 articles shall be amended) and 01 article shall be annulled according to the Draft, increasing the total number of articles of the Law on Intellectual Property after amendment to 233 articles (from the current 222 articles), belonging to 7 groups of policies that have been approved.
With the reason that the number of articles amended and supplemented is 93 articles out of 222 articles (accounting for 41%) and the addition of many contents and references leads to unfavorable conditions for the dissemination, propagation and application of the Law in practice, the Minister of Science and Technology said that the Government has submitted to the National Assembly for consideration of change of the project name from “Law on amending and supplementing a number of articles of the Intellectual Property Law” to “Law on Intellectual Property (amended)”.
In addition, the Government also consulted on regulations on the right to register inventions, industrial designs and layout designs which are the results of scientific and technological tasks using the state budget and regulations on sanctioning administrative violations for acts of infringing upon intellectual property rights due to differing opinions in practice.
When presenting the report on preliminary examination of the Law project, Chairman of the Law Committee, Mr. Hoang Thanh Tung said that the Standing Law Committee approved the amendment of the Law for the reasons as stated in the Government’s Proposal. Documents of the Law Project have met the requirements specified in Article 64 of the Law on Promulgation of Legal Documents.
However, the Standing Law Committee did not agree with the proposed name of the Law as “Law on Intellectual Property (amended)” because the proposal to amend the name of the Law was not strong and convinced. For 07 policies presented in the Draft Law, appraisal process and giving it into the Plan of drafing laws and examination, its name is all called as “Law amending and supplementing a number of articles of the Law on Intellectual Property” . If the name is changed to the Law on Intellectual Property (amended), it is necessary to study all 222 articles of the current IP Law in order to have a comprehensive amendment and supplement plan, meeting the requirements of institutionalizing the views and policies of the (Communist) Party on intellectual property issues.
Moreover, the remaining time of the law-making process to implement international commitments will create a big challenge for improving, synchronization of the legal document system on intellectual property because the total amendment of the Law will lead to the need to simultaneously study, amend, supplement and replace 44 documents guiding the implementation of the Law on Intellectual Property. In addition, there are 39 other legal documents with provisions related to intellectual property that must also be reviewed and amended to ensure the synchronization.
At the discussion session, members of the National Assembly Standing Committee agreed with the need to amend the Law on Intellectual Property. Mr. Le Quang Huy – Chairman of the Science, Technology and Environment Committee (of the National Assembly) emphasized that this amendment is to promptly institutionalize the Party’s guidelines, especially the Resolution of the 13th National Congress of the Communist Party of Vietnam; for international integration, promoting business, production, and service provision at the scale of enterprises as well as across economies. Specially, the amendment of the Law on Intellectual Property this time has a very important motivation to protect the results of creative labor, liberate the creativity and intellectual labor of all employees in the context of The Communist Party of Vietnam is advocating for a fast and sustainable development of the country based on science, technology and innovation.
Opinions at the meeting also expressed agreement with the preliminary examination opinion of the Standing Law Committee. Among them are issues on changing the name of the Law, on the right to register inventions, industrial designs and layout designs which are the results of scientific and technological tasks using the state budget and on sanctioning administrative violations for acts of infringing upon intellectual property rights.
Accordingly, the Standing Law Committee basically agreed with the plan to assign the registration right to the organization chairing the research automatically and without reimbursement and the organization chairing the research also has the ownership of inventions, industrial designs and layout designs when granted a protection title. However, it is recommended to continue to review and complete this plan in the direction of supplementing and clarifying the “reasonable distribution of benefits between the State, the organization chairing the research and the author” to fully institutionalize the Party’s policy in Resolution No. 20-NQ/TW; study and expand the mechanism of similar ownership assignment for plant varieties, copyrights and related rights; overcome the inconsistency between regulations on registration rights and ownership of results of scientific and technological tasks using the state budget in current laws.
At the same time, the Standing Law Committee also said that related to regulations on sanctioning administrative violations for acts of infringing upon intellectual property rights according to the proposal of not applying administrative sanctions for violations of intellectual property rights as to inventions, industrial designs, layout designs, trade names, business secrets and acts of unfair competition but only being handled by civil measures is not reasonable.
It is necessary to continue to review and concretize the contents of the Draft Law
Mr. Vuong Dinh Hue – Chairman of the National Assembly assessed the preparation of the Drafting Committee and the preliminary examination report of the Law Committee was prepared meticulously. Mr. Chairman also noted that this Draft Law has made progress, basically institutionalizing the line and policies of the Party and State related to intellectual property. On the other hand, the Draft Law has also directly mentioned and overcome many limitations and shortcomings in terms of copyright, related rights, industrial property rights and protection of plant varieties recently; as well as there are amending and supplementing regulations to be compatible with commitments and international treaties.
In order to improve the Draft Law, Chairman of the National Assembly Vuong Dinh Hue demanded the Drafting Committee and the examining body continue to review the following 05 groups of contents:
First is regulations on prohibitions.
Second, continue to review to complete regulations to ensure compatibility with international treaties.
Third, continue to review and carefully consider the significant narrowing of authors’ economic rights of creators/authors because the Draft Law has stipulated quite a few exceptions when using the work without paying royalties or remuneration. This will cause a conflict between copyrights and the right to exploit without paying royalties or remuneration.
Fourth, continue to review to complete regulations on the right to register inventions, industrial designs, layout designs, etc., which are the results of scientific and technological tasks using the state budget. Regard this issue, the Chairman of the National Assembly expressed his agreement with the report on preliminary examination, with the plan to assign the registration right to the organization chairing the research automatically and without reimbursement, the organization chairing the research also has the right to own inventions, industrial designs and layout designs when granted a protection title.
Fifth, continue to study and argue thoroughly on the regulation of narrowing the violations of intellectual property rights that are administratively sanctioned. The Chairman of the National Assembly said that the current regulations have not much obstacles. The civil law relationship and the administrative law relationship are not mutually exclusive. Moreover, administrative measures will be implemented quickly, reducing the compliance costs of the parties, which also affects the business investment environment.
In addition, the Chairman of the National Assembly also proposed to consider some more specific contents, consider the addition of regulations on digital transformation that need to be specified in the Law such as online registration and establishment of industrial property rights; online registrability search and online database for search trademark/industrial design.
The Chairman of the National Assembly said that the definition of business/trade secret in the Law on Intellectual Property is still quite vague and unclear, and at the same time he proposed a review to consider whether user data is considered as a trade secret or not? If it is, what kind of protection mechanism should there be? In addition, it is also necessary to consider amending and supplementing provisions of the Law on Intellectual Property to recognize and protect types of intellectual property in the digital economy as well as regulations related to the protection of corresponding digital properties in contracts/agreements, including civil, labor contracts, etc.
Regarding copyright and copyright registration, it is necessary to clearly define the content of the name of the author to facilitate copyright registrants, especially foreigners; it is necessary to supplement regulations on issue of authorization, especially authorization procedures to facilitate application.
Having concluded the content of the program of the third session under the direction of Mr. Nguyen Khac Dinh – the Vice Chairman of the National Assembly, the National Assembly Standing Committee found that the law project dossier was prepared meticulously, thoughtfully, in accordance with regulations, with complete attached documents and ensure progress as required. The examination dossier was also prepared thoughtfully, thoroughly, seriously and in consultation with experts and scientists, of good quality and relatively sufficiency and comprehensive, basically agreed and appreciated by the drafting body. The National Assembly Standing Committee considered that the law project was eligible to be submitted to the National Assembly for consideration for the first time at the second Session of the National Assembly (about at the end of this 2021).
Regarding the issues the Government consulted, the National Assembly Standing Committee proposed to keep the name of the law as the Law on amending and supplementing a number of articles of the Law on Intellectual Property as defined in the Law-making Program and because this name was also consistent with the content that the Government are submitting.
Regarding the right to register inventions, industrial designs, layout designs which are the results of scientific and technological tasks using the state budget, the Standing Committee agreed with the plan to assign the registration right to the organization chairing the research, except for subjects in the field of national defense and security. At the same time, it is required to absord, explain and clarify the application of this mechanism to groups of copyright and related rights and to plant varieties; further clarify the mechanism for reasonable distribution of benefits between the State, the organization chairing the research and the author in the spirit of Resolution No. 20-NQ/TW of the Party and continue to review relevant laws to ensure uniformity and consistency.
On the issue of narrowing the violations of intellectual property rights that are administratively sanctioned, the National Assembly Standing Committee basically agreed with the examination content of the Standing Law Committee on not agreeing to narrow the violations of intellectual property rights that are administratively sanctioned but keep the current regulations.
The Vice Chairman of the National Assembly Mr. Nguyen Khac Dinh also proposed that the drafting body and the examining body continue to review specific groups of regulations, noting the groups of contents mentioned by the Chairman of the National Assembly; at the same time, further clarify the issue of continuing to reform administrative procedures in the registration of industrial property rights; review more contents on digital transformation, intellectual property, artificial intelligence, security control when transferring technology abroad.
On the basis of opinions of the National Assembly Standing Committee and examination opinions, the Government shall continue to study, absorb and complete the Draft Law with specific provisions, complete the Proposal and the law project dossier to send to the Law Committee for official examination to ensure the progress and time according to regulations./.
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