Intellectual property rights with public interests; do not protect intellectual property objects that are contrary to social ethics, public order, harmful to national defense and security. Article 3 of Decree 100/2006/ND-CP dated September 21, 2006 detailing and guiding the implementation of a number of articles of the Law on Intellectual Property on the protection of intellectual property and related rights stipulates that intellectual property protection is the protection of the rights of authors to types of literary, artistic and scientific works as prescribed in Article 738 of the Civil Code and Articles 18, 19 and 20 of the Law on Intellectual Property.
Thus, according to current legal regulations, the protection of intellectual property rights for CTMT includes: The State is the subject of protection; CTMT is the protected object; the content of protection is that the State: builds a legal system on intellectual property rights for CTMT, enforces and ensures the enforcement of the law on intellectual property rights for CTMT.
Intellectual Property Protection for Industrial Property and Intellectual Property Protection for Industrial Property are two different concepts. In which, Intellectual Property Protection for Industrial Property is broader (understood in a broad sense) and includes the content of Intellectual Property Protection for Industrial Property. The State is the subject of Intellectual Property Protection for Industrial Property and Intellectual Property Protection for Industrial Property. And individuals, units, and organizations are allowed to use forms and measures to protect intellectual property for industrial property that the State protects.
Thus, from the above approach, the concept of IPR protection for CTMT can be proposed as follows: The State promulgates a system of regulations to establish and regulate the legal rights and obligations of authors, owners, and legal users of IPR for CTMT , and enforces and ensures the enforcement of those regulations in practice.
1.2.2. Basic characteristics of the author's book for computer programs
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In addition to the general characteristics of copyright for literary and artistic works such as: the subject of copyright is always creative and protected
regardless of content value and artistic value; QTG tends to protect the form of expression of the work; the form of establishing rights according to the automatic protection mechanism; QTG is not absolutely protected, QTG for CTMT also has the basic characteristic of always being associated with the assistance of technical measures. Unlike other protected objects of QTG or intellectual property rights, CTMT is an intellectual product created by technical and intellectual factors, ... so the use of this type of product is also associated with the use of scientific and technical technology. To protect QTG for CTMT, protection by the technical factors that created CTMT is currently considered the most effective measure. For example, to protect the copyright of a copyrighted work, in addition to applying common protection measures such as checking and inspecting the use of copyrighted work, applying civil, administrative and criminal measures to protect the copyright of the copyrighted work, the author of the copyrighted work can also encrypt the file format, create specialized programs to reverse engineer files, or use electronic licenses... to protect the copyright of the copyrighted work.
1.2.3. The development of copyright protection for computer programs in the world
In the 1970s and 1980s, the use of computer software began to become popular. However, computer software was almost always associated with hardware and not produced separately. The production of computer software was only for the purpose of selling hardware, including computer software. At that time, computer software was quite large and expensive, and was only popular in large companies and organizations. Moreover, in the early days of the computer software writing industry, computer software experts and authors still had a high sense of responsibility and professional ethics, so the protection of intellectual property against third-party infringement, although it was raised, was not yet an urgent issue. At this time, computer software was considered a trade secret and the protection of computer software was subject to contractual constraints with provisions protecting the manufacturer and protecting trade secrets.
According to the US National Research Council in 1984, there were over 14 thousand businesses trading and producing computer programs established, and revenue increased by 30% each year. In 1984, in the US, the computer program writing industry reached 8 billion USD in revenue, while the world reached 100 billion USD. With the expansion of the computer program writing industry in the 1980s, the large software market was no longer made through orders. After the need for computer program protection was noticed, different waves appeared in the appreciation of the application of many intellectual property protection mechanisms for computer programs. The two mechanisms that were considered most feasible were: copyright protection for computer programs as a literary and artistic work and computer program protection as an industrial technical product under patent rights. The standards for a computer program to be granted a patent are different in each country. In Europe, the condition for a computer program to be protected by a patent is that the programming activity must be novel and creative and not based on the obvious knowledge of a person with specialized programming knowledge. Computer programs that have novel features related to the content and functions contained in the computer program (such as computer programs Word 2003, Excel 2003... with content that helps to edit documents and calculate more simply and conveniently than other editing and calculating programs, or computer programs that contain new content that is a breakthrough in commercial innovation or business production) are not protected by a patent as intended because those novel features are not related to the technical element of programming. In the US, there are no specific criteria for protecting CTMT as an invention, but there are general criteria for granting a patent: Any technical solution, innovation that is new and useful related to machinery, manufacturing, and components of matter is granted a patent, and there are no exceptions to granting a patent for CTMT.
Throughout the period from the 1970s to the mid-1990s, these two protection mechanisms were always considered and debated by lawmakers as well as software experts in choosing the form of protection.
protection. The first wave is in favor of protecting CTMT in the form of patents. At first glance, it seems that software is subject to the protection criteria of patents rather than the protection criteria of QTG. The content of the rights of patent protection is quite attractive to manufacturers because the business and production of this product can be prohibited because the use for commercial purposes is still a private right of the owner of the patented product. However, in reality, patent protection for CTMT contains high risks and there are many complicated procedures.
Faced with the above complex situation, there has been a trend of shifting to the approach of protecting intellectual property rights by copyright. In 1978, WIPO proposed to protect intellectual property rights in the spirit of copyright protection. However, during this period, there was still a conflict between the views on whether protecting intellectual property rights for intellectual property rights by copyright or patent is more useful. In 1986, the French Court of Appeal seemed to want to replace the originality standards in protecting intellectual property rights with the novelty standards in protecting inventions for intellectual property rights. The protection of intellectual and scientific investment was placed at the forefront of this decision. The benefits of protecting intellectual property rights in the form of patents are completely visible compared to copyright protection. With the desire to stimulate new innovations in science and technology, the trend of protecting intellectual property rights in the form of patents during this time developed strongly. In the 1990s, patent protection for computer software was so widespread that people were willing to grant patents for any computer software, even those with little value. Faced with this situation, in 1996, the United States Patent and Trademark Office issued principles to strengthen and adjust the trend of widespread patenting. The requirement for originality of computer software as well as the typical characteristics of intangible and not requiring many technical features limited the trend of patent protection for computer software. Meanwhile, computer software is increasingly
increasingly showing its role in appearing in most economic, social, security and defense activities..., and not all useful CTMT meet the criteria for patent protection [35].
With the emergence of personal e-commerce in the 70s of the 20th century, humanity has gradually entered a new era - the era of information technology development. Personal e-commerce has penetrated into all activities of social life. Next, the development of intellectual property protection for CTMT is a process of consideration and deliberation in choosing between copyright or patent protection mechanisms, considering which elements in CTMT will be protected, and the inclusion of some priority rights to use exceptions against the existing rights of the owner, thus creating different views on the protection of intellectual property rights for CTMT.
1.2.4. Vietnamese law on copyright for computer programs
1.2.4.1. Before the promulgation of the 2005 Civil Code
- Constitution and law
After the promulgation of the 1992 Law, the Ordinance on the Protection of Intellectual Property dated December 2, 1994 was considered the first legal document of Vietnam regulating intellectual property rights for CTMT. On October 28, 1995, the National Assembly of the Socialist Republic of Vietnam passed the 1995 Civil Code. This is the first important law regulating intellectual property rights in general and intellectual property rights for CTMT in particular. To specify the provisions of the 1995 Civil Code, the Government issued a number of decrees guiding the implementation. In addition, the Press Law, the Publishing Law, the 1999 Penal Code and other legal documents also have provisions on intellectual property rights for CTMT.
- Sub-law documents
Decree No. 76/CP dated November 29, 1996 of the Government guiding the implementation of a number of provisions on QTG in the 1995 Civil Code; Circular 27/2001/TT-
BVHTT guides the implementation of Decree No. 76/CP dated November 29, 1996 of the Government; Decision No. 128/QD-TTg dated November 20, 2000 on a number of policies and measures to encourage investment and development of the software industry...
The Ordinance on the Protection of Intellectual Property Rights, the 1995 Civil Code and related documents have created the basic legal basis for the protection of intellectual property rights for intellectual property rights. The content of the above documents has determined that the subject of protection is the author and the owner of intellectual property rights for intellectual property rights is those who use time and intelligence to directly create intellectual property rights (authors) or only invest in material (owners of intellectual property rights); Documents on intellectual property rights for intellectual property rights at this time all use the term "computer software" instead of intellectual property rights; The conditions for intellectual property rights protection for intellectual property rights for intellectual property rights are that the content of intellectual property rights does not violate the law, does not violate customs and ethics; does not harm national defense and security. Intellectual property rights to be protected must be directly created by the author through his/her intellectual labor without copying from another person's intellectual property rights and intellectual property rights must still be within the protection period as prescribed; The protection mechanism is automatically established without going through any form or procedure; The content of copyright for copyright includes personal rights and property rights. In the case where the author and the copyright owner are simultaneously one, the copyright owner for copyright has full personal rights and property rights. In the case where the author and the copyright owner are not simultaneously one, the author has personal rights and the copyright owner has property rights; Term of copyright protection for copyright: The author's personal rights are protected indefinitely and property rights are protected throughout the author's life and fifty years following the year of the author's death; In addition, the law also regulates other issues such as submitting an application for copyright certificate, copyright inheritance, copyright transfer, etc.
Due to changes and developments in economic life and social sciences, after more than 10 years of implementation, the 1995 Civil Code has revealed some limitations in regulating current civil relations, including the rights and obligations of civil servants such as:
Firstly , the legal relationship on intellectual property is both administrative (for example, procedures for registration of intellectual property rights, related rights; handling of intellectual property rights infringement by measures to control exported goods...) and civil (personal rights and property rights of the subject), so it is impossible to fully regulate administrative issues in the Civil Code; secondly , in addition to regulating personal rights, the Civil Code contains main provisions to regulate tangible property relations while intellectual property rights are intangible property rights; thirdly , intellectual property rights, including intellectual property rights for CTMT, are a type of human intellectual property that is very easy to change over time, but are regulated in a highly stable legal document such as the Civil Code. Therefore, after 10 years of implementing the 1995 Civil Code, the promulgation of another Civil Code to replace it is necessary and reasonable.
1.2.4.2. After the promulgation of the 2005 Civil Code
- Civil Code 2005
On June 14, 2005, the 11th National Assembly, 7th session, passed the 2005 Civil Code with 7 parts, 36 chapters, 777 articles. According to the provisions of the 2005 Civil Code on copyright and related rights, the 2005 Civil Code only regulates the most general issues regarding copyright such as: author; copyright subject; copyright content; time of copyright validity; copyright owner... Other specific contents are regulated by the law on intellectual property.
Article 736 of the 2005 Civil Code stipulates that the author is " the person who creates a literary, artistic or scientific work and is the author of that work. In the case where two or more people create a work together, those people are co-authors ". The subject of copyright is stipulated in Article 737 of the 2005 Civil Code: " The subject of copyright includes all creative products in the fields of literature, art and science expressed in any form and by any means, regardless of content, value and regardless of
any procedure ". The content of copyright in the 2005 Civil Code includes personal rights and property rights (Article 738 of the 2005 Civil Code). CTMT is a scientific work and is therefore the subject of copyright, therefore, copyright for PMMT also includes personal rights and property rights.
The subject of technology transfer is stipulated in Article 755 of the 2005 Civil Code, of which Clause 1 stipulates that one of the subjects of technology transfer is CTMT.
- Intellectual Property Law 2005:
The Law on Intellectual Property was passed by the 11th National Assembly of the Socialist Republic of Vietnam at its 8th session on November 29, 2005. The promulgation of the Law on Intellectual Property is necessary to meet the increasing needs of intellectual property rights holders both domestically and internationally. With 6 parts, 18 chapters and 222 articles, the Law on Intellectual Property meets the requirements for effective protection of intellectual property rights, serving the cause of industrialization and modernization of the country.
The Law on Intellectual Property stipulates that copyright in works is one of 12 types of works protected by copyright (Article 14). The Law on Intellectual Property also stipulates that copyright includes personal rights and property rights. The content of these rights is basically similar to that stipulated in the 2005 Civil Code. The Law on Intellectual Property 2005 clearly stipulates that organizations and individuals, when publishing works or exploiting one, several or all property rights, must ask for permission and pay royalties, remuneration, and other material benefits to the copyright owner of the work (Clause 3, Article 20).
The Law on Intellectual Property is the first specialized legal document that has a provision regulating copyright for computer programs (Article 22). According to the provisions of the Law on Intellectual Property, computer programs are protected as literary and artistic works, regardless of whether they are expressed in the form of source code or machine code (Clause 1, Article 22), and the protection of copyright here will be specifically regulated by the Government (Article 24). The 2005 Law on Intellectual Property provides