Phần thứ nhất Luật Sở hữu trí tuệ 2005: Những quy định chung

PART I

GENERAL PROVISIONS

Article 1. Governing scope

This Law regulates copyright, copyright related rights, industrial property rights and rights to plant varieties; and the protection of such rights.

Article 2. Applicable entities

This Law shall apply to Vietnamese organizations and individuals and to foreign organizations and individuals who satisfy the conditions stipulated in this Law and in any international treaty of which the Socialist Republic of Vietnam is a member.

Article 3. Subject matter of intellectual property rights

1. The subject matter of copyright shall comprise literary, artistic and scientific works; the subject matter of copyright related rights shall comprise performances, audio and visual fixation, broadcasts and satellite signals carrying coded programmes.

2. The subject matter of industrial property rights shall comprise inventions, industrial designs, designs of semi-conducting closed circuits, trade secrets, marks, trade names and geographical indications.

3. The subject matter of rights to plant varieties shall comprise plant varieties and reproductive materials.

Article 4. Interpretation of terms

In this Law, the following terms shall be construed as follows:

1. Intellectual property rights means rights of an organization or individual to intellectual assets comprising copyright and copyright related rights, industrial property rights and rights to plant varieties.

2. Copyright means rights of an organization or individual to works which such organization or individual created or owns.

3. Copyright related rights (hereinafter referred to as related rights) means rights of an organization or individual to performances, audio and visual fixation, and broadcasts and satellite signals carrying coded programmes.

4. Industrial property rights means rights of an organization or individual to inventions, industrial designs, designs of semi-conducting closed circuits, trade secrets, marks, trade names and geographical indications which such organization or individual created or owns, and the right to prevent unfair competition.

5. Rights to plant varieties means rights of an organization or individual to new plant varieties which such organization or individual has selected and created, discovered and developed, or which they own.

6. Intellectual property right holder means an owner of intellectual property rights or an organization or individual to whom intellectual property rights are assigned by the owner.

7. Work means a creation of the mind in the literary, artistic or scientific sector, expressed in any mode or form.

8. Derivative work means a work translated from one language into another; or an adapted, modified, transformed, compiled, annotated or selected work.

9. Published work, audio and visual fixation means a work or audio and visual fixation which has been published with the permission of the copyright holder or related right holder in order to distribute it to the public in a reasonable amount of copies.

10. Reproduction means the making of one or more copies of a work, audio and visual fixation by whatever mode or in whatever form, including permanent or provisional backup of the work in electronic form.

11. Broadcasting means the transmission of sound or image or both sound and image of a work, performance, audio and visual fixation or broadcast to the public by wireless or landline means including satellite transmission, in such a way that the public may access such work from any place and time the public selects.

12. Invention means a technical solution in the form of a product or process which is intended to solve a problem by application of natural laws.

13. Industrial design means the outward appearance of a product embodied in three dimensional configuration, lines, colours or a combination of such elements.

14. Semiconductor integrated circuit means a product in its intermediate or final form in which the elements, at least one of which is an active element, and some or all of the interconnections, are integrally formed in or on a piece of semiconductor material and which is intended to perform an electronic function. Integrated circuit is synonymous with IC, chip and micro-electronic circuit.

15. Design of semi-conducting closed circuits (hereinafter referred to as layout design) means a three dimensional disposition of circuit elements and their interconnections in a semi-conducting closed circuit.

16. Mark means any sign used to distinguish goods or services of different organizations or individuals.

17. Collective mark means a mark used to distinguish goods or services of members of an organization which is the owner of such mark from marks of non-members of such organization.

18. Certification mark means a mark which is authorized by its owner to be used by another organization or individual on the latter's goods or services in order to certify the origin, raw materials, materials, mode of manufacture of goods or manner of provision of services, and the quality, accuracy, safety or other characteristic of goods or services bearing such mark.

19. Integrated marks means identical or similar marks registered by the same entity and intended for use on products or services which are of the same, similar or interrelated type.

20. Well known mark means a mark widely known by consumers throughout the territory of Vietnam.

21. Trade name means the designation of an organization or individual used in business activities in order to distinguish the business entity bearing such trade name from other business entities in the same business sector and area.

Business area as stipulated in this clause means the geographical area in which a business entity has its partners, customers or reputation.

22. Geographical indication means the sign used to identify a product as originating from a specific region, locality, territory or country.

23. Trade secret means information obtained from activities of financial or intellectual investment, which has not yet been disclosed and which is able to be used in business.

24. Plant variety means a plant grouping within a single botanical taxon of the lowest known rank, which is morphologically uniform and suitable for being propagated unchanged, and can be defined by the expression of phenotypes resulting from a genotype or a combination of given genotypes, and distinguished from any other plant grouping by the expression of at least one inheritable phenotype.

25. Protection title means a document granted by the competent State body to an organization or individual in order to establish industrial property rights to an invention, industrial design, layout design, mark or geographical indication; or in order to establish rights to a plant variety.

Article 5. Application of laws

1. The provisions of the Civil Code shall apply to intellectual property related civil matters which are not regulated by this Law.

2. Where there are any differences between the provisions on intellectual property in this Law and the provisions in other laws, the provisions in this Law shall apply.

3. Where an international treaty of which the Socialist Republic of Vietnam is a member contains provisions different from those in this Law, such international treaty shall apply.

Article 6. Grounds for the generation and establishment of intellectual property rights

1. Copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered.

2. Related rights shall arise at the moment a performance, audio and visual fixation, broadcast or satellite signal carrying coded programmes is fixed or displayed without causing loss or damage to copyright.

3. Industrial property rights shall be established as follows:

 (a) Industrial property rights to an invention, industrial design, layout design, mark or geographical indication shall be established on the basis of a decision of the competent State body to grant a protection title in accordance with the registration procedures stipulated in this Law or the recognition of international registration pursuant to an international treaty of which the Socialist Republic of Vietnam is a member. In the case of a well known mark, industrial property rights shall be established on the basis of use and shall not be dependent on registration procedures;

 (b) Industrial property rights to a trade name shall be established on the basis of lawful use thereof;

 (c) Industrial property rights to a trade secret shall be established on the basis of lawful acquirement of the trade secret and maintaining confidentiality thereof;

 (d) The right to prevent unfair competition shall be established on the basis of competitive activities in business.

4. Rights to a plant variety shall be established on the basis of a decision of the competent State body to grant a plant variety protection title in accordance with the registration procedures stipulated in this Law.

Article 7. Limitations on intellectual property rights

1. Intellectual property right holders shall only be permitted to exercise their rights within the scope and term of protection provided for in this Law.

2. The exercise of intellectual property rights must not infringe the interests of the State, the public interest or the legitimate rights and interests of other organizations and individuals, and must not breach other relevant provisions of law.

3. In order to assure objectives of national defence and security, the people's livelihood and other interests of the State and society stipulated in this Law, the State may prohibit or restrict the exercise of intellectual property rights by the holders thereof or may compel such holders to license one or more of their rights to other organizations or individuals on appropriate terms.

Article 8. Policies of the State on intellectual property

1. To recognize and protect intellectual property rights of organizations and individuals on the basis of harmonizing the interests of intellectual property right holders and the public interest; not to protect intellectual property objects which are contrary to social ethics and public order or which harm national defence and security.

2. To encourage and promote activities of creation and utilization of intellectual assets aimed at contributing to socio-economic development and improving the people's material and spiritual life.

3. To provide financial support for the receipt and use of transferred intellectual property rights servicing the public interest; to encourage Vietnamese and foreign organizations and individuals to provide financial aid for creative activities and for the protection of intellectual property rights.

4. To prioritize investment in training and fostering senior officials, public servants and other relevant subjects engaged in the work of protecting intellectual property rights and to prioritize research into and application of science and techniques for the protection of intellectual property rights.

Article 9. Right and responsibility of organizations and individuals in the protection of intellectual property rights

Organizations and individuals shall have the right to themselves take measures permitted by law to protect their intellectual property rights, and shall be obliged to respect the intellectual property rights of other organizations and individuals in accordance with the provisions of this Law and other relevant laws.

Article 10. Contents of State administration of intellectual property

1. Formulating and directing the implementation of strategies and policies on protection of intellectual property rights.

2. Promulgating and organizing the implementation of legal instruments on intellectual property.

3. Organizing an administrative apparatus for intellectual property; training and fostering staff to administer intellectual property.

4. Granting and carrying out other procedures related to registered copyright certificates, registered related rights certificates, protection titles for industrial property objects and plant variety protection titles.

5. Inspecting and examining compliance with the law on intellectual property; settling complaints and denunciations, and dealing with breaches of the law on intellectual property.

6. Organizing information and statistics on intellectual property.

7. Organizing and administering intellectual property assessment activities.

8. Educating, and communicating and disseminating knowledge about intellectual property and the law on intellectual property.

9. Conducting international co-operation on intellectual property.

Article 11. Responsibility for State administration of intellectual property

1. The Government shall exercise uniform State administration of intellectual property.

2. The Ministry of Science and Technology shall be responsible before the Government to preside over co-operation with the Ministry of Culture and Information and the Ministry of Agriculture and Rural Development to carry out State administration of intellectual property and of industrial property rights.

The Ministry of Culture and Information shall, within the scope of its duties and powers, carry out State administration of copyright and related rights.

The Ministry of Agriculture and Rural Development shall, within the scope of its duties and powers, carry out State administration of rights to plant varieties.

3. Ministries and ministerial equivalent bodies shall, within the scope of their respective duties and powers, co-ordinate with the Ministry of Science and Technology, the Ministry of Culture and Information and the Ministry of Agriculture and Rural Development to carry out State administration of industrial property.

4. People's committees at all levels shall, within the scope of their authority, carry out State administration of industrial property within their respective localities.

5. The Government shall provide specific regulations on the powers and responsibilities for State administration of industrial property of the Ministry of Science and Technology, the Ministry of Culture and Information, the Ministry of Agriculture and Rural Development Science and of people's committees at all levels.

Article 12. intellectual property fees and charges

Organizations and individuals shall be required to pay fees and charges when carrying out procedures related to intellectual property rights in accordance with the provisions of this Law and other related laws.