by Tran Van Nam, Law Faculty, National Economics UniversityThe WTO, through its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), obligates all of its member states to protect intellectual property (IP) rights, requiring them to build or revise domestic legislation to conform to standards set forth in the TRIPS Agreement.
Viet Nam has complied through passage of its Civil Code in 2005 and the Law on Intellectual Property. The latter governs copyright, inventions, industrial designs, trademarks and trade names, geographical indicators, business secrets and such specific areas as integrated circuit designs and plant varieties. Where Viet Nam’s legal provisions on IP rights differ from IP provisions in treaties to which Viet Nam is a contracting party, those treaties prevail.
Viet Nam joined the Paris Convention for the Protection of Industrial Property in 1949 and has concluded and acceded to the Berne Convention on copyright; the Geneva Convention on recorded works; the Brussels Convention on satellite transmissions; the Madrid Agreement and Protocol on international registration of marks; the Patent Co-operation Treaty; and the Stockholm Convention Establishing the World Intellectual Property Organisation (WIPO), as well as the TRIPS Agreement.
With WTO accession, Viet Nam’s IP commitments and obligations in the TRIPS Agreement exert impacts on most of other bilateral and multilateral commercial and trade relations between Viet Nam and its partners.
Economic impacts
Meeting the requirements of the TRIPS Agreement is likely to create a financial burden on countries with small budgets, including Viet Nam. The most-developed countries are most likely to benefit from greater protection of IP rights, while countries that need to import technology will be economically burdened. Fairly high costs are likely to be borne by developing countries, including licensing of IP such as computer software.
The Business Software Alliance, a non-profit organisation operating in 80 countries, has gathered information on software copyright infringements committed by Vietnamese enterprises and concluded that software piracy exerted negative impacts on the development of the domestic software industry, tax revenues and local job opportunities. A 10-per-cent reduction in the piracy rate (from 92 per cent to 82 per cent) by this year could help add US$1 billion to the country’s GDP,.create more than 4,000 jobs in hi-tech industries, generate an additional $43 million in local tax revenues and bring $726 million in additional revenue to domestic software companies, the alliance concluded.
According to general forecasts of WIPO and the UN Conference on Trade and Development (UNCTAD), short-term impacts of the TRIPS Agreement’s high standards on developing countries, including Viet Nam, will be adverse in that that strict IP rights protection is likely to limit the access of Vietnamese society and consumers to many products and services that are simply priced beyond their reach.
At present, almost all patents in Viet Nam are held by foreign parties. During 1995-2003, Vietnamese invention registration applications accounted for only 3.4 per cent of the total number of patent applications filed in Viet Nam. This figure implies that most new products and technologies patented in Viet Nam since 1995 were created overseas or held by foreign parties. As a result, the use and import in Viet Nam of such products and technologies have been controlled by their foreign patent holders.
Most commercially valuable copyrighted materials (books, CDs and DVDs, computer software) are also from foreign countries. Protecting such products would result in more limited access to them at much higher costs beyond what local users could reasonably afford.
Strict IP rights protections also put Vietnamese businesses and investors in a complex and costly legal environment. Many Vietnamese businesses are still not fully aware of the significance and operation of IP rights protection. Complying is a burden on domestic businesses, few of whom in turn benefit from IP regulations as they themselves have registered few IP objects for protection.
Patent protection also makes investments to create new technologies more risky, especially in circumstances in which research is slow to bring about inventions or invention registration procedures are carried out late, and all IP rights to research might be appropriated by other entities that have obtained patents for similar products. Stringent IP rights protection tends to favour large-sized enterprises and large economies over small.
Let’s examine the case of Viet Nam and the US: the number of Vietnamese inventions and marks registered for protection in the US remains negligible compared with that of US inventions and marks registered for protection in Viet Nam. A similar situation can be seen in the exchange of invention and mark registrations between Viet Nam and regional countries. As a result, Vietnamese entities have few opportunities to exploit IP rights in other countries whereas foreign IP rights holders, with many more opportunities here, benefit from IP rights protection in Viet Nam. Poor financial capacity and the small size of Vietnamese businesses also hinder them, and high legal costs conspire to prevent Vietnamese parties from pursuing legal actions to protect IP rights against infringements in foreign countries.
What’s your prescription?
Access to pharmaceuticals is crucial to many developing countries as disease and other health problems greatly impede development and public welfare. IP objects mentioned in the TRIPS Agreement related to pharmaceuticals include inventions, marks and business secrets.
For developing and the least developed nations, essential medicines are much needed for public health. Lack of these medicines is a major problem for many developing countries and becomes more difficult when they accede to the TRIPS Agreement. However, Article 125 of Viet Nam’s Law on Intellectual Property provides some limitations on the rights of industrial property rights holders to prevent other entities from using industrial property objects.
At present, though most inventions patented in Viet Nam come from foreign countries, a few of them have been utilised in the country. Protected products have therefore to be imported at high prices, especially Western medicines and hi-tech products. Article 125 has helped improve access to medicines patented in Viet Nam allows the importation of medicines which cannot be domestically manufactured.
Source: Viet Nam NewsLabels: News
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