. /.   WORLD TRADE  
ORGANIZATION  IP/C/W/508 
15 May 2008 
 
 (08-2235) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
 
REVIEW OF LEGISLATION 
 
Questions posed by the United States  
 
 
 By means of a communication from the Delegation of the United States, dated 9 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 
  
A. C
RIMINAL ENFORCEMENT  
1. Please clarify how Viet Nam has implemented its obligations under Article 61 of the TRIPS 
Agreement to provide criminal procedures and penalties at least in cases of wilful trademark counterfeiting and copyright piracy on a commercial scale. 
2. We understand that Viet Nam recently adopted a cr iminal circular that is intended to enhance 
the application of Viet Nam's Criminal Code to intellectual property rights infringement.  How will 
this circular enhance Viet Nam's Criminal Code?  Please provide a detailed explanation of how the 
circular expands protection for copyrights and th e manner in which "commercial scale" activity is 
captured both in cases of trademark counterfeiting and copyright piracy.  Has Viet Nam notified the criminal circular to the WTO?   
B. P
ROTECTION OF UNDISCLOSED INFORMATION  
3. Regarding Article 2(3) of the "Regulation on Data Security of Drug Registration Records" 
("Regulation on Data Security"), please explain what is meant by "circulated pharmaceutical 
substances". 
4. Regarding the term "business secret" as it is used  throughout the Regulation on Data Security, 
please explain the criteria by which it is determin ed that information received from financial 
investment or intellectual activities becomes qualif ied to be a "business secret", and what laws, 
regulations, decrees, etc., provide for any such criteria.  
5. Regarding Article 4(2), please explain what constitutes "significant effort".  
6. According to Article 4(1), data to be s ecured must qualify as a "business secret". Please 
explain the reasoning behind the requirement that da ta to be secured under Article 10(2) must qualify 
as a "business secret".  IP/C/W/508 
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  C. T
RADEMARKS /GEOGRAPHICAL INDICATIONS  
7. Please explain any policies or requirements maintained by Viet Nam regarding the 
substantiation, by another WTO Member's government , of information submitted in connection with 
applications seeking the protection of geographical i ndications in Viet Nam.   Please explain how any 
such policies ensure that the national treatment obligations of the TRIPS Agreement are respected. 
D. COPYRIGHT  
8. Article 7(2) of Viet Nam's Law on Intellectual Property states that "[t]he exercise of 
intellectual property rights must neither be prejudici al to the State's interests, public interests or 
legitimate rights and interests of other organizations  and individuals, nor violate other provisions of 
law".  Article 7(3) in turn states that "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".  We unde rstand that Viet Nam's position is 
that Article 7(2) is not intended to set out any lim itation on copyrights and related rights, but aims at 
the limitations applicable to some industrial property rights, especially certain identified patent rights.  
With regard to concerns that Article 7(3) permits  Viet Nam to restrict right holders from exercising 
lawful rights and that it could allow unlimited compulsory licensing of copyrighted materials, we 
understand that Viet Nam has asserted that this article , also, does not apply to copyright.  It would be 
helpful if Viet Nam could provide support for the cl aim that Articles 7(2) and 7(3) do not apply to 
copyright and related rights.  Co nversely, if they do apply to co pyright and related rights, please 
describe how Viet Nam ensures that these provi sions respect Viet Nam's TRIPS obligations. 
9. Article 42 of Viet Nam's Law on Intellectual Property states that "The State shall be the 
holder of copyright in the following works: a) Anonymous works. . . ".  Article 2(6) of the Berne 
Convention states that "This protection [of the Conven tion] shall operate for the benefit of the author 
and his successors in title".  Likewise, Berne Article 3 states that "The protections of this Convention 
shall apply to:  a) authors who are nationals of one of the countries of the Union . . .;  b) authors who are not nationals of one of the countries of the Union . . ." 
(a)  Is Article 42 of the Law on Intellectual Property, which vests copyright in anonymous 
works in the state rather than in the author, compatible with the Berne/TRIPS 
injunction to protect "authors"?  If so, please explain how? 
(b) Is Article 42 compatible with Berne Ar ticle 15, which states that "[i]n the case of 
anonymous . . . works . . ., the publisher whose name appears on the work shall . . . be deemed to represent the author, and in th is capacity shall protect and enforce the 
author's rights"?  If so, please explain how? 
 
(c) Please also explain how Article 42 operat es when an anonymous  work's author's 
identity becomes well known.  Does the st ate retain the copyright in such 
circumstances?  What happens if the anon ymous work's author declares himself and 
demands rights in the work? 
  
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