After nearly three years in effect, however, limitations have emerged that need to be addressed, and the fifth draft of a revised IP Law is currently being circulated for comments, with passage of a final version of the law expected by the National Assembly this year.

Among proposed changes, the copyright protection for cinematographic, photographic, and dramatic works, as well as applied artworks and anonymous works, would be extended from the current 50 years to 75 years, making Vietnamese law consistent with US Copyright law and ensuring Viet Nam follows the WTO principles of national treatment.

In the area of patents, the specific term of examination for industrial property applications stipulated in Article 119 of the current law would be removed and stipulated in a separate regulation issued by the Ministry of Science and Technology, easing the burden on an overloaded National Office of Intellectual Property of Viet Nam (NOIP) by allowing opportunities to extend the time of examination of patent applications.

Under a proposed amendment to Article 201.1, State authorities in charge of IP rights administration would be designated as organisations with authority to assess alleged infringements of intellectual property rights, paving the way for the NOIP or Copyright Office of Viet Nam to continue assessing infringements as before the current IP Law was enacted.

Under the current IP Law, the NOIP and Copyright Office lack this authority because they are registries of IP rights. They were not authorised under the IP Law to assess alleged infringements. In practice, however, and contrary to the expectations of lawmakers, this became an obstacle to enforcement of IP rights due to a lack of qualified assessment organisations or specialists as anticipated in the law.

A proposed amendment to Article 211.1 would also eliminate the need to send a warning letter to suspected Violaters. Violaters of IP rights are violating private ownership rights, making these civil matters, and are not violating public order, which would make them administrative matters. But seeking civil remedies through courts is not practicable in Viet Nam, say many IP lawyers, due to the limited effectiveness and availability of civil remedies.

Unfair competition

Under an amendment to Article 211.1.b, acts of unfair competition would be handled under the IP Law, not the Law on Competition, as currently. Again, lawmakers argue that acts of unfair competition are civil matters that would therefore be dealt with more effectively under the IP Law.

Under a revised Article 214.4, the Government would apply fines in compliance with the Ordinance on Handling of Administrative Violations, newly amended in 2008. Accordingly, fines imposed for IP rights infringements must not exceed VND500 million under administrative procedures, the maximum fine level provided under the ordinance.

Lawmakers argue that such a fine would be strict enough to punish and deter IP rights Violaters and would be more reasonable and feasible than the current fine of one- to five-times the total value of goods seized. Under the current IP Law and the Ordinance on Handling of Administrative Violations, only the chief inspector in charge of intellectual property can issue an administrative decisions imposing a fine in excess of VND500 million, a provision that overloads the chief inspector.

Under Article 220A on settlement of appeals and disputes involving intellectual property, the Government would provide detailed regulations on the settlement of appeals related to the establishment, transfer and protection of IP rights, while the People’s Supreme Court would prepare and submit to the Standing Committee of the National Assembly a plan for setting up specialized IP courts located in Ha Noi, HCM City and Da Nang.

Lawmakers argued that, since IP was a complex and highly specialised field, the settlement of IP disputes requires specialised judges and courts.

Provisions in the law concerning rights for plant varieties, such as distinctiveness of the plant variety (Article 160), extension of the rights of protection of certificate holders (Article 187), and limitation of the rights of certificate holders (Article 190), have also come to be considered non-compliant with the International Convention for the Protection of New Varieties of Plants and are amended in the draft law.