WORLD TRADE  
ORGANIZATION  IP/C/W/509 
26 May 2008 
 
 (08-2431) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
 
REVIEW OF LEGISLATION 
 
Questions posed by the European Communities  
 
 
 By means of a communication from the Dele gation of the European Communities, dated 
15 May 2008, the Secretariat has received a copy of  the following questions that it has communicated 
to Viet Nam.  
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VIET NAM 
  The European Communities appreciate the Viet namese Government's efforts to step up 
Intellectual Property protection and enforcement.  The EC are pleased to see that, in particular thanks 
to the enhancement of EU-Viet Nam cooperation on IP during 2007 and the first months of 2008, a 
positive development concerning criminal prosecution against acts of infringement of intellectual property rights has occurred recently. 
 The European Communities believe that a number  of clarifications are still needed with 
regard to laws and regulations on the protection and enforcement of intellectual property rights in 
Viet Nam. 
A. G
ENERAL  
1. Article 7.3 of the Intellectual Property Law es tablishes that "In the circumstances where the 
achievement of defence, security, people's life-rela ted objectives and other interests of the State and 
society specified in this Law should be guaranteed, the State may prohibit or restrict the exercise of 
intellectual property rights by the holders or compel the licensing by the holders of one or several of 
their rights to other organizations or individuals with appropriate terms." 
 Please assess the compliance of Article 7.3 with the TRIPS Agreement. B. C
OPYRIGHT AND RELATED RIGHTS  
2. Article 17.4 of the Intellectual Property Law establishes that "Performances, phonograms, 
video recordings, broadcasts and encrypted program -carrying satellite signals shall only be protected 
under the provisions of Clauses 1, 2 and 3 of this Article provided that they are not prejudicial to copyright." 
 Article 17.4 seems to create a hierarchy of copyright over related rights.  Please explain the 
meaning of the expression "provided that th ey are not prejudicial to copyright." IP/C/W/509 
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  3. Please specify the meaning and the legal conse quences of Article 40 of the Decree 100/2006, 
Detailing and Guiding the Implementation of a Nu mber of Articles of the Civil Code and the 
Intellectual Property Law Regarding the Copyrights and Related Rights. 
 Please explain under which conditions " those various kinds of copyright certificates"  shall 
continue to be valid. 
4. Please indicate whether the Copyright Office of Viet Nam mentioned in Article 6.3 of the 
Decree 100/2006 has already taken over the Copyright Protection Firm of Viet Nam and the Copyright Protection Agency of Viet Nam, both mentioned in Article 40 of the same Decree. 
C. P
ROTECTION OF UNDISCLOSED INFORMATION  
5. Please indicate the specific provisions implementing Article 39.3 of the TRIPS agreement. 
 According to Article 128.1 of the Intellectual Property Rights Law, applicants for licences for 
trading in or circulating pharmaceuticals or agroch emical products need to specifically request such 
data to be kept secret. 
 Please also assess the compliance of Article 128 with Article 39 of the TRIPS Agreement. 
D. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS  
6. Please provide a scheme of the different admini strative bodies engaged in the enforcement of 
intellectual property rights.  Please detail the respect ive competences and cite the relevant provisions 
of law.  Please also explain the cooperation between  administrative and criminal bodies, in particular 
with regard to the transfer of cases from the administrative to the criminal authorities. 
7. Please provide statistical data on the ex officio  actions against intellectual property rights 
violations undertaken by the different administra tive bodies engaged in the enforcement, classified by 
administration. 
E. ADMINISTRATIVE MEASURES  
8. Please provide statistical data on both the c onfiscation for distribution or use for non-
commercial issues as well as on the confiscation for destruction, as foreseen in Article 29 of the 
Decree 105/2006 of 22 September, 2006, Detailing a nd Guiding the Implementation of a Number of 
Articles of the Law in Intellectual Property on Prot ection of Intellectual Property Rights and on the 
State Management of Intellectual Property. 
9. With regard to the compelled distribution or  use for non-commercial purposes, please explain 
how the applicability of the conditions contai ned in Article 30.1 of the Decree 105/2006 of 
22 September, 2006 is assessed in the cases foreseen in  Article 30.2:  raw materials, materials and 
means for producing and trading intellectual pr operty counterfeit goods or infringing goods. 
10. Please indicate the authorities responsible for th e application of the compelled destruction 
foreseen in Article 31 of the Decree 105/2006 of 22  September, 2006.  Please provide relevant data on 
compelled destruction actions undertak en under the aforementioned Decree.  
11. Please cite the other administrative remedies and sanctioning competence and procedures 
mentioned in Article 33 of the D ecree 105/2006 of 22 September, 2006.  IP/C/W/509 
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  12. Article 48.2 of the TRIPS Agreement establishes that "In respect of the administration of any 
law pertaining to the protection or enforcement of  intellectual property rights, Members shall only 
exempt both public authorities and officials from lia bility to appropriate remedial measures where 
actions are taken or intended in good faith in the course of the administration of that law." 
 Please explain how your legislation implements the provisions set forth in Article 48.2 of the 
TRIPS Agreement. 
F. CIVIL PROCEDURES AND REMEDIES  
13. Article 47 of the TRIPS Agreement establishes that "Members may provide that the judicial 
authorities shall have the authority, unless this w ould be out of proportion to  the seriousness of the 
infringement, to order the infringer to inform the ri ght holder of the identity of third persons involved 
in the production and distribution of the infringi ng goods or services and of their channels of 
distribution." 
 Please describe how your legislation implements the requirement of Article 47 of the TRIPS 
Agreement.  Please cite the relevant provisions of law. 
G. ENFORCEMENT OF IPR  BY CRIMINAL PROSECUTION  
14. Please explain whether the conditions specified in Articles 1.1, 1.2 and 1.3 of the Inter-
Circular No. 01/2008/TTLT-TANDTC-VKSNDTC-BCA-BTP (hereinafter Inter-Circular) are cumulative or not. 
15. Both Articles 1.2 and 1.3 of the Inter-Circular - infringement of copyrights and related rights 
"causing very serious consequences"  as well as acts " causing extremely serious consequences"  - remit 
to Article 131 of Section 2 of the Criminal Code.  Since Article 131 of  Section 2 of the Criminal Code 
provides only a single legal consequence, although a pplicable in three particular cases, please explain 
the difference between Articles 1.2 and 1.3 of the Inter-Circular. 
16. Please specify the meaning of " other elements that are enough to make up a crime"  as 
mentioned in Articles 1.1, 1.2 and 1.3 of the Inter-Circular.  
17. Please specify the meaning of " physical loss"  as mentioned in Articles 1.1 b, 1.2 b and 1.3 b 
of the Inter-Circular.  Please also explain the calcu lation of loss, especially when different copyright 
holders are involved or foreign copyright holders do  not have market access, and the burden of proof. 
18. Please specify the basis on which the value of the infringing goods as mentioned in 
Articles 1.1 c, 1.2 c and 1.3 c of the Inter-Circular is calculated.  
19. Please specify the " other elements that are enough for making up a crime under other articles 
of the Criminal Code" , as mentioned in Article 1.4 of the Inter-Circular. 
20. Please specify the meaning of " on a commercial scale"  as mentioned in Articles 1.1 a, 1.2 a 
and 1.3 a) of the Inter-Circular.  Please also provide some examples that would fulfil this requirement. 
21. We assume that there will be an assumption based on  the copyright notice and no additional 
need for the prosecution to show intent for the applicability of criminal penalties.  Please clarify. IP/C/W/509 
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  22. Both Articles 2.2 and 2.3 of the Inter-Circular - acts of infringement of industrial property 
rights " causing very serious consequences"  as well as acts " causing extremely serious consequences"  
- remit to Article 171 of Section 2 of the Crimin al Code.  Since Article 171 of Section 2 of the 
Criminal Code provides only a single legal consequence,  although applicable in three particular cases, 
please explain the difference between Articles 2.2 and 2.3 of the Inter-Circular.  
23. Please explain in which circumstances Articles 131 of Section 3 and Article 171 of Section 3 
of the Criminal Code apply. 
24. Please assess the deterrent effect mentioned in Article 61 of the TRIPS Agreement with 
regard to the Inter-Circular and Articles 131 and 171  of the Criminal Code.  In particular, please 
provide an explanation for the fact that the fin es foreseen in Article 131 as well as in Article 171 of 
the Criminal Code are much lower than the thr esholds for the applicability of criminal penalties 
foreseen in the Inter-Circular.  Pl ease specify the applicable penalties. 
H. B
ORDER MEASURES  
25. Article 25.1.j of the Intellectual Property Law establishes that in the " Importation of copies of 
others' works for personal use"  permission and payment of royalti es and/or remunerations is not 
required. 
 Please assess the compliance of Article 25.1.j with Article 60 of the TRIPS Agreement, which 
establishes a de minimis imports  exception to special requirements related to border measures for 
"small quantities of goods of a non-commercial nat ure contained in travellers' personal luggage or 
sent in small consignments ." 
26. Please provide statistical information on the number of petitions submitted to the General 
Department of Customs under Article 36 of the Decree No. 105/2006 of 22 September, 2006.  Please 
include the number of accepted petitio ns and the number of refused petitions. 
27. Please provide data on how many customs clearances have been ceased ex officio according 
to Article 37 of the Decree No. 105/2006, class ified by counterfeited tr ademarks, geographical 
indication and pirated copyright goods if available. 
I. SECTOR SPECIFIC QUESTIONS  
28. Market access barriers, especially those related to " cultural products"  require further 
clarification since they have an effect on the co mpetitiveness of legitimate, duly licensed products. 
 Please explain how the engaged administration is  planning to address the problem of market 
access barriers which keep foreign firms offering cultural products from entering the Vietnamese 
market and thus producing and di stributing these products legally. 
29. Piracy in the sector of optical discs is an issu e of great concern.  Please inform us about the 
steps which the Vietnamese Authorities are planning to take in order to strengt hen controls and target 
actions against organized piracy activities, especially  with regard to optical disk plants, pirate 
warehouses and retail shops. 
 Please explain whether there are any plans to enact  legislation targeted at optical disk piracy, 
including registration and licensing requirements.  IP/C/W/509 
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  30. It appears that foreign broadcast TV signal remains a serious problem in Viet Nam in terms of 
intellectual property rights and causes significant dama ge to the legitimate industry.  IP infringements 
here include piracy of cable and satellite broa dcasting signals from neighbouring countries as well as 
unlicensed play-out of DVDs which might themselves be pirated.  
 Please explain how the Vietnamese Authorities plan to implement the WTO commitment to 
adopt laws ensuring that only licensed content will  be broadcasted and the right holders will be 
remunerated in accordance w ith the Berne Convention. 
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