IF THERE IS NO OTHER EVIDENCE, THE ORGANIZATION OR INDIVIDUAL WHOSE NAME PRESCRIBED IN THE ORIGINAL WORK WILL AUTOMATICALLY BE CONSIDERED AS THE AUTHOR

This is a principle for determining copyright in proceedings prescribed in the Law No. 07/2022/QH15 on the amendments and supplements of the Law on Intellectual Property dated June 16, 2022 (“Law 07”). This revised Law on Intellectual Property (“IP”) has a fairly wide scope, with more than 100 articles being amended and supplemented. Some important contents mentioned in the Law 07 include:

1. Supplement the exception of copyright non-infringement

The Law 07 amends Article 25 of the current IP Law on cases of use of published works without having to seek permission or pay royalties, but to provide information on the author’s name and the origin of the work. In which, there are some updated contents as follows:

• Making one copy of the work of an author for personal scientific research or teaching purposes without commercial purposes, but not applicable in the case of making by copying equipment.

• Works used for illustration in lectures, publications, performances, phonograms, video recordings, broadcasts for teaching purposes must be used reasonably.

• Supplement provisions on the exception of non-infringement of copyright for people with disability. This is a new regulation to protect the rights of people with disability, giving them the opportunity to have broad access to works in the most appropriate forms without infringing on copyright.

2. Change on the definition of a well-known trademark

3. Supplement regulations related to the procedure for establishing industrial property rights

According to Article 112 of the IP Law (amended on 2019), from the date an industrial property registration application is published in the the Official Gazette of Industrial Property until the issuance date of the decision for granting a protection title, any third party shall have the right to give opinions to the state management agency in charge of industrial property rights on the grant or non-grant of a protection title for such application. Opinions are made in writing with documents or cited sources of information for demonstration.

Law 07 supplemented on objection of industrial property registration applications. This new regulation contributes to improve the quality of protection titles granted, minimizing the negative impacts of the IP protection mechanism. The law allows any third party to have an opinion/objection on an industrial property registration application in order to create an opportunity for the public to have an opinion on the granting of an exclusive right to industrial property objects, of which, the public must respect.

4. Supplement a compensation mechanism for the State’s invention owners for the delay in granting circulation permits for pharmaceutical products

This is a new regulation compared to the IP Law (amended on 2019). According to Article 131a of Law 07, invention owners need to pay attention to the following contents:

• Unliable for paying the patent use fee for the period during which the initial registration of a pharmaceutical product manufactured under a patent in Vietnam is delayed.
• In order to be unliable for paying such fee, the patent holder must submit to the agency granting industrial property rights a document from the agency competent to grant the circulation of pharmaceutical products, certifying the delay of such products’ circulation registration procedure within 12 months from the date the products are licensed for marketing.
• Conditions for being considered as delay in the circulation registration procedure of pharmaceutical products:

+ Within 24 months from the date of the submission of the application for circulation registration without any response from the pharmaceutical management agency.

+ Delayed time, except for cases due to the fault of the applicant or causes beyond the control of the competent state agency.

Although the implementation of this mechanism could be a burden on the state budget, it creates a safe business environment for enterprises, speeds up the process of pharmaceutical circulation registration applications at the pharmaceutical management agency.

5. Supplement the obligation to pay remuneration to owners of inventions, industrial designs and layout designs

Under the current Law, for all inventions, industrial designs and layout designs, the remuneration paid to authors is limited to 10 – 15% of the pre-tax profit.

Meanwhile, Law 07 splits into the following two cases:

a. For inventions, industrial designs and common layout designs:

• 10% of the pre-tax profit earned by the owner(s) from using inventions, industrial designs, layout designs;
• 15% of the total amount received by the owner(s) in each payment due to the transfer of the right to use the invention, industrial design, layout design before paying tax as prescribed.

b. For inventions, industrial designs and layout designs that are the results of scientific and technological works using the state budget:

• A minimum of 10% and a maximum of 15% of the pre-tax profit earned by the owner(s) from the use of the invention, industrial design or layout design;
• A minimum of 15% and a maximum of 20% of the total amount received by the owner(s) in each payment due to the transfer of the right to use the invention, industrial design, or layout design before paying tax as prescribed.

6. Change the conditions for the business of industrial property representation service

Pursuant to Article 154 of the IP Law, enterprises, cooperatives, law-practicing organizations, science and technology service organizations shall be established and operated in accordance with law, except for the case of foreign organizations practicing law in Vietnam (hereinafter referred to as industrial property representation service organizations), who wish to provide industrial property representation services, must meet the following conditions:

Thus, from January 1, 2023, new regulations will loosen the conditions for business in industrial property representation services.

7. Lawyers are given priority to be granted industrial property representation practice certificates

Law 07 supplemented Clause 2a after Clause 2, Article 155 of the current IP Law as follows: Individuals who are lawyers practicing under the Law on Lawyers will be granted an industrial property representation practice certificate when they have graduated from the legal training course on industrial property recognized by the competent authority, while other subjects will need to undergo an examination of industrial property representation by the competent authority according to point e, clause 2 of this Article.

Lawyers licensed to represent industrial property in the above case will be able to practice related to 4 groups of subjects including trademarks, geographical indications, trade names, unfair competition and business secrets.

8. If there is no other evidence, the organization or individual named on the original work is automatically considered the author

This is the assumption principle of copyright and related rights in civil, administrative and criminal proceedings on copyright and related rights under Article 198a of Law 07. Specifically: organizations, individuals named in the usual manner as authors, performers, producers of phonograms and video recordings, broadcasting organizations, producers of cinematographic works, publishers, are considered to be rights holders of the works, performances, phonograms or video recordings of such broadcasts. In which, the name in the usual manner is “name on the original...” or “the corresponding copy lawfully published” in case the original no longer exists.

Law 07 shall take effect from January 1, 2023, except for regulations on protection of trademarks as sound signs that took effect from January 14, 2022 and regulations on protection of test data for agricultural chemicals that will take effect from January 14, 2024.