IP Code as Amended Remains Incompatible with the BTA and Vietnam’s International Obligations: The IP Code and amendments have made a number of improvements in the overall protection of copyright in Vietnam. Yet, they leave questions with respect to Vietnam’s compliance with the BTA and other international obligations/standards. Among issues that should be resolved in the current Code are the following:
• The IP Code does not provide a term of protection of 75 years from publication (or 100 years from fixation) for sound recordings (BTA Article 4.4).
• The IP Code does not expressly afford producers of sound recordings with a WPPT-compatible right of “making available.”16
• An apparent inadvertent gap was created in the enactment of the IP Code, namely, the prohibition on trafficking in circumvention devices (codified in Article 28(14) as to works) was not made applicable to related rights.
• Articles 7(2), 7(3), and 8 of the IP Code appear to give the State power to remove copyright protection in ways similar to provisions in China’s Copyright Law, found by a WTO panel to violate China’s WTO obligations.17
• Article 17(4) creates an unacceptable hierarchy of the rights of authors over related rights owners.
• Certain exceptions in the IP Code may be overly broad and call into question Vietnam’s compliance with its international obligations.18
• Articles 202(5) and 214(3) of the IP Code permit seized infringing goods and the means of producing them to be distributed or used for “non-commercial purposes,” rather than destroyed. These provisions fall short of Vietnam’s BTA (Article 12.4) and TRIPS Agreement obligations.