MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY NGUYỄN VĨNH DIỆN THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH FOREIGN ELEMENTS IN VIETNAM OF PEOPLE’S PUBLIC SECURITY IN CURRENT PERIOD Major : International Law Code : 62.38.01.08 SUMMARY OF THE DOCTORAL THESIS ON LEGAL STUDIES HANOI - 2014 The thesis is completed in: HANOI LAW UNIVERSITY Supervisors: 1. Assoc. Prof. Dr. PHÙNG THẾ VẮC 2. Assoc. Prof. Dr. HOÀNG PHƯỚC HIỆP Reviewer 1: Prof. Dr. Lê Hồng Hạnh Reviewer 2: Assoc. Prof. Dr. Nguyễn Trung Tín Reviewer 3: Dr. Vũ Đức Long The thesis was defenced in the thesis examination board at Hanoi Law University at on date: 2014 For more details of the thesis, please visit: 1. The National Library 2. Library of Hanoi Law University LIST OF THE AUTHOR’S RESEARCH PROJECTS RELATED TO THE THESIS 1. Nguyễn Vĩnh Diện (2008), Enforcement of intellectual property in the condition that Vietnam is a member of WTO and issues set forth for people’s public security, Scientific title at the academy level, Academy of Public Security, Hanoi; 2. Nguyễn Vĩnh Diện (2009), “Intellectual property rights in Vietnamese Laws”, Commercial Journal (8), Hanoi; 3. Nguyễn Vĩnh Diện (2009), “Several main committments of Vietnam on the enforcement of intellectual property rights when joining WTO”, Commercial Journal (20), Hanoi; 4. Nguyễn Vĩnh Diện (2013), “Discussion about definition of commercial scale in Law on Intellectual Property Rights of Vietnam”, Crime Prevention and Fighting Journal (2), Hanoi; 5. Nguyễn Vĩnh Diện (2008), International Private Law Textbook, People’s Public Security Academy, Hanoi. 1 INTRODUCTION 1. Rationale of the thesis research Nowadays, intellectual works gain a special significance in the spiritual and material life of the human, and reflect inevitable development tendency of human society based on knowledge economy. Due to that important role of intellectual property, many countries have paid special attention to the field of intellectual property, considering it as the platform to promote the economy development of the country; and simutaneously the law enforcement against intellectual property right infringement has always caught attention in international cooperation and exchanges. From a country with a low starting point, in order to develop quickly and sustainably to gradually assert its position, Vietnam is necessary to pay special attention to science and technology market and to promote enforcement activities of intellectual property rights, including intellectual property rights with foreign elements in Vietnam. However, how to maintain national security, ensure social order and safety, and acquire human intelligence to develop country and expand international cooperation and exchanges is the big problem facing our country in the current period. Enforcing intellectual property rights with foreign elements in Vietnam is directly related to functions and duties of people’s public security forces. However, because of many different reasons , PPS forces still do not effectively promote all working aspects in the protection of national security and maintenance of social order and safety in general and intellectual property rights enforcement with foreign elements in Vietnam in particular. For the above reasons, the author has selected the title "Enforcement of intellectual property rights with foreign elements inViet Nam of people’s public security in the current period" for the doctoral thesis in order to meet theoretical and practical requirements. 2. Purposes and duties of research With regard to the research purposes, the thesis clarifies the theoretical and practical issues on the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security force whereby proposing solutions to improving the efficiency of the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security forces in the current period. With regard to research duties, the thesis sets out following main duties: (i) Analysis and assess national and international research situations of intellectual property rights with foreign elements and the enforcement of intellectual property rights with 2 foreign elements, whereby finding contents that need further clarification and research in the thesis; - Analyze and evaluate, from the perspective of legal science, general awareness of intellectual property rights with foreign elements in Vietnam and the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security forces; - Survey situations of acts of infringement of intellectual property with foreign elements in Viet Nam and find out the causes of the infringement; - Analyze and evaluate enforcement activities of intellectual property rights with foreign elements in Viet Nam of people's public security forces, and then propose solutions to improving the effectiveness of the enforcement of intellectual property rights with foreign elements in Viet Nam of people’s public security forces. 3. Research object and scope of the thesis Regarding research object: The thesis studies some theoretical and practical issues of the enforcement of intellectual property rights with foreign elements in Vietnam of people’s public security force. Regarding research scope: - Carry out research on activities of the people’s public security force in the enforcement of intellectual property rights with foreign elements in Vietnam through the application of administrative and criminal measures based on functions and duties prescribed by law. The application of civil measures and others is not covered by the scope of thesis research. - Research site is on the territory of Vietnam, focusing on some selected typical areas, such as Ha Noi City, Ho Chi Minh City, Hai Phong, Lang Son, Quang Ninh, Nghe An, Ha Tinh, Da Nang, Dong Nai, Tay Ninh. - Study period is from 2003 to 2014, especially since Vietnam joined the World Trade Organization (WTO) to present. 4. Research method of the thesis The thesis is researched based on the methodology of Marxism - Leninism, Ho Chi Minh’s ideology, opinions, guidelines and policies of the Party and laws of Vietnam in the fields related to the thesis title. During the study, the author focused on use of specific research methods, such as analysis, synthesis, comparation of law, sociology investigation and history. 5. New contributions of the thesis in scientific aspects 3 - Clarify the connotation definition of intellectual property rights with foreign elements and enforcement of intellectual property rights with foreign elements in Vietnam, contributing to completing theory of legal science in our country in the field indicated; - Clarify the roles, position, functions and duties of the people's public security force and requirements for people's public security in the enforcement of intellectual property rights with foreign elements in Vietnam in the conditions of international integration; - Forecast foreign and domestic situations related to the enforcement of intellectual property rights with foreign elements in Vietnam, propose scientific solutions to improving the enforcement of intellectual property rights with foreign elements in Vietnam of people’s public security force in the current period. 6. Theoretical and practical significance of the thesis As regards theoretical significance, research results of the thesis can be used as foundation to propose and supplement theoretical issues of the enforcement of intellectual property rights with foreign elements in Viet Nam, especially theory of the prevention and fighting of crimes and violations of intellectual property rights with foreign elements in Viet Nam in the current period. As regards practical significance, the thesis can be used as a material to research, teach at the universities, or a material to cultivate knowledge of international law for officers and soldiers of people’s public security in combating against crimes and violations of intellectual property rights with foreign elements in Vietnam in the conditions of international integration. 7. Thesis structure In addition to the introduction, conclusion, list of references, list of the author's research projects related to the thesis title, thesis consists of four chapters as follows: Chapter 1. Overview of the research situation related to the thesis in Vietnam and countries over the world; Chapter 2. General awareness of enforcement of intellectual property rights with foreign elements in Vietnam of people’s public security force; Chapter 3. The real situation of enforcement of intellectual property rights with foreign elements of people’s public security; Chapter 4. Some solutions to improving the efficiency of intellectual property rights with foreign elements in Vietnam of people's public security forces. 4 Chapter 1 OVERVIEW OF THE RESEARCH SITUATION RELATED TO THE THESIS IN VIETNAM AND COUNTRIES OVER THE WORLD 1.1. The research situation in countries over the world The reseach projects have reflected: some countries have built a relatively complete legal system on intellectual property, established agencies responsible for intellectual property rights enforcement, focused on the protection of intellectual works of organizations and individuals in their countries (especially those works related to national security and social order and safety), and exploited foreign intellectual works. Also, they have reflected roles of the international treaties (especially the TRIPS Agreement) and of international organizations (WTO, EU, ASEAN) in formation of intellectual property rights enforcement mechanisms, etc. 1.2. The research situation in Viet Nam The research projects has consisted of the theoretical aspects, such as the protection conditions, intellectual property rights enforcement measures, legal and practical aspects of the protection and combat of intellectual property rights, etc. There is no project mentioning the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security forces as an state management agency in social order and safety and national security, as well as functional agencies in investigating and handling crimes under criminal proceedings, etc. 1.3. Issues that need further research - Generalize general issues of intellectual property rights and intellectual property rights enforcement, continue to research to introduce the definition and characteristics of the enforcement of intellectual property rights with foreign elements in Vietnam; - Clarify the legal basis regulating the functions and duties of the people's public security forces in the enforcement of intellectual property rights with foreign elements in Vietnam; - Survey reality of laws and violations of intellectual property rights with foreign elements in Vietnam, indentify causes and conditions led to this situation; - Survey and assess the operation situation of people’s public security forces in the enforcement of intellectual property rights with foreign elements in Vietnam; - Forecast world’s and Vietnam’s situations related to the enforcement of intellectual property rights with foreign elements in Vietnam, thereby bringing out solutions to improving the efficiency of the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security force in the following years. 5 Chapter 2 GENERAL AWARENESS OF ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH FOREIGN ELEMENTS IN VIETNAM OF PEOPLE’S PUBLIC SECURITY 2.1. Some theoretical issues of intellectual property rights and intelletual property rights with foreign elements in Vietnam 2.1.1. Some theoretical issues of intellectual property rights 2.1.1.1. Definition of intellectual property rights Intellectual property rights are the rights given to an organization or individual over the creations of their minds, including copyright and copyright-related rights, industrial property rights and rights to plant varieties (Article 4 of Law on Intellectual Property Right). The definition indicates diversification of intellectual property right holders, including individuals and organizations, and the object of intellectual property rights is “intellectual property” , including copyright and related rights, industrial property rights and rights to plant varieties. Intellectual property rights should be adequately and comprehensively defined in following aspects: - Intellectual property rights are a type of legal relationshintellectual propertys (intellectual property relationshintellectual property); - Intellectual property rights are a type of civil rights; - Intellectual property rights are a legal institution which is a collection of delegated legislation to adjust groups of intellectual property relationshintellectual propertys (this is research object of the thesis). 2.1.1.2. Charateristics of intellectual property rights - The object of intellectual property rights is intellectual property which is immaterial, so it is easy to be infringed if being presented by some form of material. - Intellectual property rights are absolutely territorial-limited. It means that these rights are valid within the territory of a country where they are enforced. - Protection of intellectual property rights is often limited in terms of time. - Intellectual property rights are restricted by regulations of laws if the exploitation and utilization of their objects are involved in common benefits of the community. 2.1.1.3. Contents of intellectual property rights - Personal rights (also called spiritual rights) are rights given to individuals and organizations over the creations of their minds, announcement and popularization of 6 objects of intellectual property rights and these rights often bear personal characteristics of intellectual property right holders. Personal rights are divided into two types: non- property personal rights and property-related personal rights. - Property rights (also called economic rights) of intellectual property right holders are rights to enjoy material benefits from their intellectual works which are protected by the State. These rights have a strong attachment to personal ones. Its manifestation is that if one person has personal rights over his or her intellectual property, he or she will simultaneously have property rights over this intellectual property. According to nature and characteristics of each object of intellectual property, contents of property rights of intellectual property right holders are differently stintellectual propertyulated for different types of intellectual property rights. 2.1.1.4. Violation of intellectual property rights Violation of intellectual property rights is an action against laws taken by an entity with civil capacity which harms intellectual property rights that are recognized and protected by laws. - Violation of intellectual property rights is always made by human; - Violation of intellectual property rights is acts against regulations of laws which harms legal rights and interests of intellectual property right holders who are recognized and protected by laws. Acts violating intelletual property rights include acts of infringement of copyright (Article 28 of Law on Intellectual Property), acts of infringement of related rights (Article 28 of Law on Intellectual Property); acts of infringement of industrial property rights (Article 126, 127, 129, 130 of Law on Intellectual Property); acts of infringement of rights to plant viarieties (Article 188 of Law on Intellectual Property); - Violation of intellectual property rights are acts which contain fault elements of those people who accidentally or intentionally infringe the intellectual property rights; - Those people who infringe the intellectual property rights must have civil capacity; Some cases in which limitations of intellectual property rights are stintellectual propertyulated, although exploitation and utilization of creations of holder of intellectual property rights are not allowed by them, are not considered to be the infringement of intellectual property rights. 2.1.2 Definition and characteristics of intellectual property rights with foreign elements in Vietnam. 2.1.2.1. Definition of intellectual property rights with foreign elements in Vietnam 7 intellectual property rights with foreign elements in Vietnam are rights of foreign organizations and individuals given over their creations of their minds recognized and protected in Vietnam, including copyrights, related rights of the foreigners, foreign legal entities over intellectual works published or disseminated first time in Vietnam or created and expressed in a certain form in Vietnam which are protected by the Vietnam law provisions and international treaties to which Vietnam is a member; industrial property rights, rights to plant varieties of foreigners and foreign legal entities over objects of industrial property rights and objects of rights to plant varieties recognized and protected by Viet Nam law provisions and international treaties to which Vietnam is a member. - Holders of intellectual property rights with foreign elements in Vietnam include foreign organizations, individuals. They can be authors or owners of copyrights, people with related rights, owner of industrial property objects,etc. - The legal basis for intellectual property rights being arisen is the provisions of Vietnamese laws and international treaties to which Viet Nam is a member. - Intellectual property rights of foreign individuals and organizations are recognized and protected by State of Vietnam in accordance with provisions of Vietnamese laws and international treaties to which Viet Nam is a member. 2.1.2.2. Characteristics of intellectual property rights with foreign elements in Viet Nam - The development of intellectual property rights with foreign elements in Vietnam is always associated with viewpoints and policies of our Party and State in innovation of legal thinking and international integration in the justice and law field. - Intellectual property rights with foreign elements in Vietnam are protected and enforced in accordance with international law, Vietnamese laws, traditions and cultures of ethnic groups of Vietnam. - Development of intellectual property rights with foreign elements in Vietnam in recent years has partly influenced psychology and lifestyle of Vietnamese people , creating "fashionable chasing effect" of a small group of Vietnamese people. - The establishment of intellectual property rights with foreign elements in Vietnam could be limited in some certain cases. 2.2. Some theoretical issues on the enforcement of intellectual property rights and intellectual property rights with foreign elements in Vietnam 2.2.1. Some theorectical issues on intellectual property rights enforcement in Viet Nam 2.2.1.1. Definition and intellectual property rights enforcement method [...]... infringing intellectual property rights with foreign elements in Vietnam Chapter 4 SOME SOLUTIONS TO IMPROVING THE EFFICIENCY OF ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH FOREIGN ELEMENTS IN VIETNAM OF PEOPLE’S PUBLIC SECURITY FORCE 4.1 Forecast of international and national situation relating to the enforcement of intellectual property rights having foreign elements in Vietnam of people’s public. .. enforcement of intellectual property rights having foreign elements in Vietnam of people's public security: the possibility of the development of crime and violation of intellectual property rights having foreign elements in Vietnam; methods and tricks of crimes and violations of intellectual property rights having foreign elements in Vietnam; on the subject of infringed intellectual property rights having foreign. .. the influence of international integration process 3.2 The real enforcement of intellectual property rights with foreign elements in Vietnam of people’s public security force 3.2.1 Structure and organization of people’s public security in the enforcement of intellectual property rights with foreign elements in Vietnam The part presents in summary about structure of people’s public security in the enforcement. .. intellectual property rights with foreign elements in Vietnam 3.1.1 The reality of enforcing intellectual property rights with foreign elements in Vietnam 3.1.1.1 Vietnamese law on enforcing intellectual property rights with foreign elements in Vietnam The part presents briefly about regulations of Vietnamese law relating to the enforcement of intellectual property rights having foreign elements in Vietnam. .. foreign elements in Vietnam; on the subject infringing intellectual property rights having foreign elements in Vietnam; on key areas of activity happening the violation of intellectual property rights having foreign elements in Vietnam 4.2 Some solutions to improve operational efficiency enforcement of intellectual property rights having foreign elements in Vietnam of people’s public security forces in the. .. property rights enforcement with foreign elements in Vietnam, Vietnam law generally provides that "narrower" than intellectual property rights enforcement in general 2.3 Roles, functions and duties of the People’s public security force in the enforcement of intellectual property rights with foreign elements in Vietnam 2.3.1 Roles of the People’s public security force in intellectual property rights with foreign. .. rights enforcement with foreign elements in Viet Nam - In terms of content, intellectual property rights enforcement with foreign elements in Vietnam includes all activities of State competent authorities to create mechanisms to deal with all infringements of intellectual property rights with foreign elements in Viet Nam - In terms of the form, intellectual property rights with foreign elements in Vietnam. .. Supplement provisions of the law by increasing the activities of law enforcement agencies in other coordinating relations with the people’s public security on the enforcement of intellectual property rights having foreign elements in Vietnam - There should be a focal point for receiving and handling complaints about intellectual property in the direction of “one door” and simplifying administrative procedures... enforcement of intellectual property rights with foreign elements in Vietnam At present, 15 the people’s public security has not had a specialized unit responsible for the enforcement of intellectual property rights having foreign elements but the activities are integrated with the activities of other agencies (people’s security and people’s police) 3.2.2 The concrete activities in the enforcement of intellectual. .. countries (including Vietnam) It raises many negative elements of 19 society, especially the growing trend of crime and violation of intellectual property rights having foreign elements in Vietnam 4.1.2 Forecast of national situation relating to the enforcement of intellectual property rights having foreign elements in Vietnam of people’s public security - On national security protection area relating to the . duties of the People’s public security force in the enforcement of intellectual property rights with foreign elements in Vietnam 2.3.1. Roles of the People’s public security force in the enforcement. consistent with the characteristics of each object of intellectual property rights with foreign elements in Vietnam. - In terms of the holders, the enforcement of intellectual property rights with foreign. characteristics of intellectual property rights with foreign elements in Vietnam. 2.1.2.1. Definition of intellectual property rights with foreign elements in Vietnam 7 intellectual property rights