THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH FOREIGN ELEMENTS IN VIETNAM OF PEOPLE’S PUBLIC SECURITY IN CURRENT PERIOD

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 f

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

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

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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

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

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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

asanalysis, synthesis, comparation of law, sociology investigation and history

5 New contributions of the thesis in scientific aspects

- 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

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 statemanagement 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

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

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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

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 "fashionablechasing 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

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Intellectual property rights enforcement is the public power activities of state competent authorities to ensure that intellectual property rights laws are enforced strictly, thereby protecting the rights and legitimate interests of state, society, rights and legal interests of intellectual property rights holders To enforce intellectual property rights, the state bodies is authorized to conduct more strict and powerful enforcement measures in various levels to handle violations of intellectual property rights

- Intellectual property rights enforcement by civil remedies is handling

infringement of intellectual property rights under the civil proceedings In the process of solving this infringement, people’s courts apply the measures, such as forcing to terminate the infringement; forcing apology and public correction; forcing to execute civil obligations; forcing to compensate for damages; forcing to destroy, forcing to

distribute or put into use goods without commercial purposes

- Intellectual property rights enforcement by administrative measures is the

enforcement in which the state competent authorities handle intellectual property rights violation cases according to the order and procedures of administrative law provisions, such as: warning; fines; confiscating counterfeit goods as intellectual property rights, raw materials, materials and means used mainly for the production and trading of intellectual property rights counterfeit goods, etc

In some cases, such as intellectual property rights infringement with risks causing serious harms to consumers or society; to ensure the implementation of the administrative penalty decision, the state competent authorities are allowed to apply some temporary emergency measures to prevent the law evasion, ensure administrative sanctions prescribed by law

In addition, state competent authorities can also apply some measures to control the export and import of goods related to intellectual property rights at the border, including suspension of customs procedures for goods suspected as intellectual property rights infringement, etc

- Enforcement by criminal measures, is the enforcement in which the state

competent authorities handle intellectual property rights infringements by the provisions

of the criminal law Specifically, if an individuals implements intellectual property rights infringement with enough evidence of crime, the state competent authorities will apply criminal liability to this acts of infringement according to related charge

- Effective enforcement of intellectual property rights in Vietnam is a factor against the risk to the country's backwardness in science and technology

- Effective enforcement of intellectual property rights encourages creative works,

commercial competition in a healthy way, prevents the risk of revenue losses and breaks

the domestic market

- Effective enforcement of intellectual property rights is the protection of benefits

of the consumer

- Effective enforcement of intellectual property rights in Vietnam also contributes

to protecting national security sovereignty and preserving social order and safety

- Enforcement of intellectual property rights in Vietnam will create a healthy intellectual property rights environment, attract international trade relation development, contribute to the successful implementation of the guidelines and policies of international integration of our Party and State

2.2.2 Definition, characteristics of the enforcement of intellectual property rights with foreign elements in Viet Nam

2.2.2.1 Definition, characteristics of intellectual property 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

is enforced to comply with the provisions of the law on methods, sequences, procedures and jurisdiction 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 elements in Vietnam includes People’s Courts, Market Management, Customs agencies, People’s public security, People’s Committee, specialized inspectors These agencies enforce intellectual property rights with foreign elements in Vietnam by itself or

in collaboration with other agencies, organizations or individuals to build and deploy mechanisms to handle the above intellectual property rights infringement

- In terms of purposes, the enforcement of intellectual property rights with foreign

elements in Vietnam is to prevent and combat violations of intellectual property rights with foreign elements in Vietnam, to protect the legitimate interests of State and society, rights and legal interests of intellectual property rights holders with foreign elements in Vietnam, while creating a healthy legal environment to promote creative activities of people

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2.2.2.2 Characteristics of the enforcement of intellectual property rights with foreign elements in Viet Nam

- The order and procedures for state agencies authorized in the application of intellectual property rights enforcement with foreign elements in Vietnam is mainly comply with Vietnam law, without application of foreign law, except in special cases where Viet Nam laws or international treaties which Vietnam is a member have other provisions

- Intellectual property rights enforcement activitywith foreign elements in Vietnam profoundly affected by intellectual property rights international treaties which Vietnam is

a contracting party (especially the TRIPS Agreement)

- Any entity violating intellectual property rights laws with foreign elements in Vietnam are equal in legal status during handling and liability incurred by their behavior causes

- For jurisdictions of intellectual 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 the enforcement of intellectual property rights with foreign elements in Viet Nam

- Role of the People's public security force in the enforcement of intellectual property rights with foreign elements in Vietnam reflected in the "empower" to People's public security direct implementation of measures to prevent, fight, handle acts violating law of intellectual property rights with foreign elements in Vietnam by administrative measures and criminal measures

- Role of People’s public security force is also promoted through coordinating relations with other agencies, organizations and individuals (People’s Committee, Customs Agencies, Market Management, People’s Courts .) in activities to prevent, detect and treat the infringement of intellectual property rights with foreign elements in Viet Nam

2.3.2 Functions of People’s public security force in the enforcement of intellectual property rights with foreign elements in Viet Nam

The function of People’s public security force is mainly operation aspects, associated with the structure, inculude People’s security and People’s police, with advisory function to State and Party to protect and preserve national security and social order and safety; uniform state management in national security and social order and

safety; fight and plot against activities of hostile forces, crimes and law breach in national security and social order and safety

With the above regulations, People’s public security force has three basic functions: advisory; state management in national security and social order and safety and directly struggle with hostile forces, crimes, other violations of law For each function, the force required to conduct synchronously many aspects of work on a consistent basis with the economic and social conditions of our country

For the advisory function of the People’s public security force in the enforcement of

intellectual property rights with foreign elements in Vietnam, People’s public security needs to synchronously conduct operations , such as information gathering, analysis, evaluation, forecasting and proposing to Party, State to issue and direct guidelines, policies and legislation on the enforcement of intellectual property rights with foreign elements in Vietnam affecting national security and social order and safety, economy, society, defense and foreign affairs of the country; Short-term and long -term planning in the enforcement

of intellectual property rights with foreign elements in Vietnam to get Government approval, coordinate with ministries, branches and People's Committees at all levels in the implementation of plans; particintellectual propertyate in the evaluation of eco-society projects, society by ministries , agencies and localities related to purchasing, sale, transferring of intellectual property rights with foreign elements in Vietnam that the objects

of these contract associated with national security and social order and safety

For state management functions in national security and social order and safety related to the enforcement of intellectual property rights with foreign elements in Vietnam, People’s public security needs to conduct works, including propaganda, mass

education in respecting and the enforcement of intellectual property rights with foreign elements in Vietnam; guidance, support businesses, organizations and individuals (especially foreign organizations, individuals in Vietnam) to effectively themselves protect their intellectual property rights

Perform functions of direct fight, suppress the enemy forces, crimes and law violation of intellectual property rights with foreign elements in Vietnam, People’s public

security force is necessary to carry out the following activities: discover, verify, collect information and evidence of infringement of intellectual property rights with foreign elements in Viet Nam, in coordination with the competent agencies to handle violations

in accordance with law; organize, direct and conduct investigations under the criminal procedure, the struggle to prevent the infringement of intellectual property rights with foreign elements in Viet Nam …

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