Vu Van Ngoc, PhDngocvv@neu.edu.vn

LAW ON INTELLECTUAL PROPERTY RIGHTS

If you don’t see a problem with this question, you need this class!

Learning objectives (1)

At the end of this module you should understand:

¨ ‘intellectual property law’ and the philosophy behind the concept of protecting intellectual property

¨ how to distinguish between the products that are protected by copyright, patent, trade mark and design legislation

¨ the definition of the term ‘copyright’ and explain how the law relating to it protects the physical expression of ideas

¨ the definition of the term ‘trade mark’ and the operation of the Register of Trade Marks

Learning objectives (2)

¨ the definition of the term ‘patent’ and outline the requirements for patentability

¨ the remedies for breach of copyright, unauthorised use of trade marks, designs, patent infringement, passing off and breach of confidential information

Intellectual Property

¨ Intellectual Property is a property that arises from the human intellect. It is a product of human creation.

¨ Intellectual Property is the creation of the human intellectual process and is therefore the product of the human intellect or mind.

Intellectual property

¨ Copyright¨ Industrial Propertya.Trademarksb. Patentc. Industrial designs d. Confidential informatione. Geographical Indications

Intellectual property

¨ Intellectual property law deals with the legal rights that relate to intangible property such as:

¤ copyright

¤ registered designs

¤ trade marks

¤ patents.

¨ Intellectual property is not capable of being possessed like other personal property.

¨ May have significant commercial value.

Protected Intellectual Property

¨ Invention by a patent or as trade secret.¨ Utility models by a certificate or secret.¨ Industrial Design by a certificate.¨ Trade and Service Mark by a certificate.¨ Copyright by reducing to a fixed form.

IP as intangible property

¨ Tangible property¨ Land, houses, TV, car¨ Intangible property¨ -intellectual property¨ Intangible wealth, easily appropriated and re-

produced, once created the marginal cost of reproduction is negligible

¨ Intellectual property is becoming more important because the value of many corporations (e.g., Microsoft) is based primarily on I.P.

The role of IP as intangible property

1. economic rights of creators 2.commercial exploitation of owner of IP3.capital expenditure 4.transfer of technology 5.cultural development

Why IP protection is given

¨ The philosophical justification for granting property rights is grounded in two different theories about property.

¨ One theory is based on the rationale that a property right is a type of “natural right” that should be granted to individuals for the products that result from the labor expended in producing an artistic work or a practical invention.

Why IP protection is given

¨ The other theory is that property rights are social contracts designed to encourage creators and inventors to better serve society by bringing forth their artistic works and practical inventions into the marketplace.

Why IP protection is given

¨ Capital expenditure for new products¨ R and D¨ Marketing and advertisement¨ No free loaders¨ Maintaining loyal followers¨ Profit

Why Protect “Intellectual Property”?

1) Because one has expend a lot of investment into production ofnew & innovative products & they have a right, at least for aperiod of time, to:

* have their name associated with their product and/or theirauthorship associated with it* get paid for their efforts & to recover their investment, &* frustrate the efforts of “free riders” to make money off theirefforts & investment whilst not having any input.

2) Protection stimulates creativity and innovation necessary forproductivity, competitiveness, and national economic development

IP as a property

¨ Can be sold¨ Can be bought¨ Can be lease or rent¨ Can pass under a will¨ Can be assigned

The Legal Framework for IP

¨ Three machinery of administration- the IP office (the National Office of Intellectual

Property of Viet Nam)- the external machinery (customs)- the court

International Convention for IP

¨ Paris Convention for Protection of Industrial Property 1967 ( 1989)

¨ Berne Convention for the Protection of Literary and Artistic Works 1971 ( 1990)

¨ Trade-related aspects of Intellectual Property Agreement 1994 ( 1995)

¨ WCT ( digital agenda)¨ PCT 2004

Paris Convention for the Protection of Industrial Property (Paris Convention)

¨ Signed in Paris, France, on 20 March 1883, was one of the first intellectual property treaties

¨ As of September 2013, the Convention has 175 contracting member countries

¨ Protection for industrial property¨ Trade mark¨ Patent¨ Unfair competition¨ Governed by domestic legislation

Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)

¨ Is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886

¨ Protection of literary and artistic work¨ Governed by national legislation

Wipo Copyright Treaty

¨ Digital agenda.¨ Technological measures such as circumvention of

technological measures.

TRIPS 1994

¨ Additional to Paris and Berne.¨ Minimum requirement.¨ Most favoured nation treatment.¨ Strong enforcement procedure.

Patent Cooperation Treaty

¨ Making it easier to make paten application¨ Designated country.¨ International phase to national phase.

Basic principle of international conventions

¨ Laying down the minimum requirement for the national legislation.

¨ “members may but shall not be obliged to implement more extensive protection in their law than is required by the agreement. (TRIPS 1(1))

The principle of national treatment

¨ “Each members shall accord to the nationals of other Members treatment no less favourable than it accord to its own national”

Legal framework for IP in Vietnam

¨ Civil Code 2005¨ Law on Intellectual Property 2005

Law on Intellectual Property 2005

¨ This Law stipulates copyright, copyright-related rights; industrial property rights; rights in plant varieties and for the protection of these rights.