Pre-1981: From One to Zero

During colonisation, the French imposed their entire IP system on Vietnam through various decrees and conventions. The Decree of 1887 demanded that French rules governing intellectual and artistic property be applied in the colonies.Footnote ³⁸ Similarly, the Decree of 1893 recognised French patents in Indochina.Footnote ³⁹ In 1933, France ratified the Berne Convention for the Protection of Literary and Artistic Works on behalf of Vietnam.Footnote ⁴⁰ However, this imperialist transplantation (or direct imposition) did not serve to establish local IP laws or allow the Vietnamese to benefit from their intellectual activities. Instead, its main purpose was to safeguard French property on colonial land and to transfer colonial capital to the ‘mother country’ by legal means.Footnote ⁴¹

Although the French introduced a civil law system based on the French Civil Code to Vietnam, they paid little attention to IP law, unlike other areas such as matrimony law and labour law.Footnote ⁴² This lack of focus may have been partly due to the French view that the colony's interest in IP was minimal. In addition, IP rights were alien to the locals, as the country had no indigenous system prior to French colonisation.

After declaring independence in 1945, the then Democratic Republic of Vietnam retained certain colonial and feudal laws as long as they did not conflict with the provisions of Decree No 47.Footnote ⁴³ The purpose of this retention was to fill regulatory gaps in the ‘embryonic legal system’,Footnote ⁴⁴ and to provide some continuity during the transition to self-government. Unfortunately, there are no historical records that clearly indicate how well the transplanted IP system was implemented during this period.

In the 1950s, however, North Vietnam buried its colonial past by repealing all pre-existing laws that were deemed incompatible with communist ideology and the socialist revolution.Footnote ⁴⁵ As a result, French IP laws ceased to apply in the North, although there was no replacement system in place. At the time, North Vietnam's primary objective was to reunify the country, which had been divided under the Geneva Accords, and other aspects of life were largely neglected. Although the communist regime protected intellectual works, the regulations focused on establishing a royalty scheme for authors employed by the government, rather than addressing other general aspects of copyright law.Footnote ⁴⁶ This meant that creators were essentially treated as wage earners.

After 1975, the government effectively ended colonial and feudal laws in the South. Colonial laws have all but disappeared. The removal of all vestiges has had far-reaching consequences for Vietnam. First and foremost, it shattered the country's legal frameworks and created voids that Vietnam had to fill later. Not only did the Communists wipe out the remnant of the previous regime, but they did so hastily and prematurely, especially given that Vietnam did not adopt any new laws to replace the old ones or, at the very least, assess which parts of the old rules should be retained.

Second, the Communist Party did not utilise the existing human resources trained under South Vietnam's government because they were seen as collaborators with the US puppet regime. Instead, the new Communist government imprisoned them, including intellectuals such as lawyers, scholars, journalists, and writers, in ‘re-education camps’.Footnote ⁴⁷ After being subjected to forced indoctrination in these camps, many fled the country. Those who chose to stay faced social stigma. Vietnam's iron fist crushed its vast human capital. ‘In the confusion of the exodus, a great many technicians and professionals that the country urgently needed for reconstruction had left’, noted Gabriel García Márquez, author of One Hundred Years of Solitude, in a documentary made after his visit to Vietnam in 1979.Footnote ⁴⁸

Third, Vietnam missed an opportunity to benefit from the well-established French IP system, which could have been leveraged and adapted to suit the needs of a war-torn country. This would have had many benefits, including increasing Vietnam's bargaining power in future trade negotiations and presenting itself as an IP expert. Vietnam's Supreme Court has acknowledged on multiple occasions that local lawyers and judges struggled with foreign concepts related to IP rights.Footnote ⁴⁹

In stark contrast with Vietnam, other colonies took a more pragmatic approach to their inherited IP laws. For example, after gaining independence from Britain in 1947, India did not immediately repeal its colonial-era Patent Act of 1911. Instead, it set up two committees to examine the patent system. The Ayyangar Committee was particularly influential, recommending changes to Indian patent law that would benefit the country. Although they acknowledged that the patent system neither stimulated nor encouraged new inventions, they did not call for its abolition because patents had been used in India for over a century as the most popular means of promoting and rewarding ideas.Footnote ⁵⁰ In 1970, more than two decades after achieving its independence, India approved a new Patents Act based on the British model, with substantial reforms.Footnote ⁵¹ The most notable change was to allow the patenting of pharmaceutical methods rather than pharmaceutical products. India's flexible strategy, which allowed local firms to legally replicate drugs patented elsewhere, has fuelled the rise of its generic sector to global prominence. By contrast, Vietnam's emotionally charged stance against capitalism and imperialismFootnote ⁵² led the state to hastily abolish the colonial IP laws, even though it had no plans to replace the rules that had endured for almost a century. As I will show, Vietnam fomented the communist revolution not only politically but also legally and culturally, setting the country back decades.

1981–1995: Beating around the Bush

At the peak of communism in Vietnam, the country voluntarily adopted many of its laws, including those on IP, from its communist ally, the Soviet Union, with little regard for local conditions. In 1981, Vietnam passed its first IP legislation, known as Decree 31-CP,Footnote ⁵³ which faithfully followed the Soviet model. The language of Decree 31-CP mimicked the Soviet Statute of 5 March 1941, which also covered inventions, technical improvements, and production rationalisation.Footnote ⁵⁴ A year later, Vietnam established the Inventions Office, which eventually became the current National Office of IP (NOIP), modelled on the Soviet Union's Committee for Inventions and Discoveries, which in turn became the Russian State Academy of IP. Vietnam's voluntary transplantFootnote ⁵⁵ served as a ‘cost-saving’Footnote ⁵⁶ measure for a war-torn country that did not have the resources to create its own laws. Following Decree 31-CP, Vietnam issued a series of laws to regulate various IP matters:

• • Decree No 197/HDBT on Regulations on Trademarks (1982),

• • Decree No 142/HDBT on the Protection of Copyright (1986),

• • Decree No 85/HDBT on Regulations on Industrial Designs (1988),

• • Decree No 200/HDBT on Regulations on Utility Solutions (1988), and

• • Decree No 201/HDBT on Regulations on Licensing (1988).

Several aspects of Vietnam's legal system in the 1980s stand out. First, Vietnam's regulatory procedure reflected the command-and-control approach, with all Decrees drafted by the Inventions Office and approved by the Council of Ministers (ie, the government), which is also a replica of Soviet governance.Footnote ⁵⁷ No other parties were involved in the decision-making process. In addition, many employees of the Inventions Office had links with the Soviet Union, where they were either educated or trained. In 1982, the Inventions Office hired thirty-three new employees, a significant increase from the previous year's twenty, twenty-two of whom had received their bachelor's degrees in the Soviet Union and were trained by the Committee for Inventions and Discoveries.Footnote ⁵⁸ The Soviet influence on Vietnam's IP regime was thus to a considerable extent a matter of the education of its architects.

Second, all the above-mentioned decrees were in fact guidelines, a regulatory tool that remains an essential component of the country's legal structure to this day. While the Constitution and any statutes enacted by the National Assembly are laws, ‘sub-law’ documents – such as decrees, decisions and circulars issued by the government, relevant ministries or state agencies – serve to clarify the content of a law. Although they carry less legal weight than laws, guidelines are indispensable, and no legislation in Vietnam can function without them.

Third, the period between 1975 and 1992 witnessed a ‘legislative standstill’ when the National Assembly passed only forty-two statutes. However, the number of laws ratified subsequently increased to 395 between 1992 and 2001, as Vietnam loosened state control to free up the economy and prepare for WTO accession. Rather than addressing social relations, legislation during the Communist era consolidated state power and accelerated the country's path to socialism. It is impossible to say where the law ended and the Party's political desires began. As two Vietnamese scholars have rightly pointed out, socialist laws served as a tool for party leadership and state governance rather than for the protection of citizens’ rights.Footnote ⁵⁹

Fourth, because the communist regime allowed only state and collective ownership, individual legal rights were obliterated. The government favoured bureaucratic orders because they were quick to grant. Civil matters, including IP rights, were ignored or dealt with through administrative channels, as evidenced by 188 guideline texts published between 1975 and 1992. This has left an indelible mark on the public's mind, to the extent that people still avoid going to court to resolve IP disputes, preferring administrative measures.Footnote ⁶⁰

Fifth, another socialist concept that undermines a creator's identity and individuality, and thus potentially claims to IP, is the concept of ‘the People's art’ (văn hóa quần chúng) or ‘the People's artists’ (nghệ sĩ nhân dân). This highest recognition for artists, originally introduced in the Soviet Union and still present in Vietnam and Russia, reinforces the idea that art is a common property. In Vietnam, the People's Artists Award has existed since 1984.

Finally, the shortcomings of the Communists' drafting abilities were exposed by their piecemeal approach to lawmaking, particularly when grappling with the intricacies of IP rights. Rather than embracing established terminology like ‘industrial property’ or ‘intellectual property’, the drafters opted for alternatives such as ‘inventors’ rights’, ‘authors’ rights’, or ‘the person entitled to the use’. This choice reflected a certain ‘linguistic inertia’Footnote ⁶¹ that mirrored their aversion to private ownership, coupled with an ideological resistance to imported private rights. The socialist IP law adhered to Marxist ideology and granted creators a degree of compensation for their contributions, but the law was confined to personal property and satisfied only cultural needs. Most notably, the compensation could not be transformed into a source of private property as it symbolised the creators’ contributions to the ‘common good’.

The term ‘industrial property’ made its initial appearance in Vietnam in the Ordinance on the Protection of Industrial Property (1989), which consolidated all industrial property into a single law, coinciding with Vietnam's policy reforms. Nevertheless, the leaders delayed embracing the term ‘intellectual property’ for irrational fears that it implied a link between ‘knowledge’ and ‘ownership’.Footnote ⁶² The primary objective of the 1989 Ordinance and subsequent decrees was to attract foreign investment by providing adequate protection for IP rights, rather than to demonstrate Vietnam's changing attitude towards IP rights per se.Footnote ⁶³ In fact, it was never the legislators’ intention to ‘promote the progress of science and useful arts’, as in the US,Footnote ⁶⁴ or to promote learning, as the full title of the UK's Statute of Anne (1710) declares.Footnote ⁶⁵

Despite Vietnam's policy reforms, the Soviet legacy remained prevalent in the 1989 Ordinance, as evidenced by the continued use of a paternalistic tone. Articles 5 to 7 of the 1989 Ordinance empowered political organisations such as the Labour Confederation, the Ho Chi Minh Communist Youth Union, and state-owned enterprises to create ‘favourable conditions’ for creativity and to protect the rights of authors and inventors. However, it would be futile to expect these organisations to incentivise research and development.

When collectivism took centre stage in Soviet-style IP law, it marginalised creators and rights holders. The law did not refer to ‘owners’ but only to ‘certificate holders’. Because industrial property was considered a ‘common good’, its exploitation was the responsibility of the state, state-owned enterprises, and other political and social organisations, leaving the concept of ownership blurred.

Although the language of the 1989 Ordinance was ideological and discursive, it marked a departure from the blatant communist tone of previous decrees. Rather than relying solely on administrative measures, the Ordinance allowed ‘persons entitled to use’ to protect their industrial property through legal proceedings.Footnote ⁶⁶ However, in an environment where private property did not exist, it was difficult to imagine anyone taking legal action. Nevertheless, the 1989 Ordinance held a higher legal status than its predecessors and demonstrated Vietnam's aspirations to welcome foreign trade after years of isolation. Although there was still some scepticism, it hinted at the relatively important role of IP rights to the public.

The First Civil Code of 1995: Calling a Spade a Spade

Vietnam's economic reform began in 1986 but did not gain momentum until the mid-1990s. 1995 marked a turning point, as the country re-established diplomatic ties with the US, joined ASEAN, signed the Framework Cooperation Agreement with the EU, and initiated the WTO accession process. Domestically, market liberalisation prompted regulatory reform. As the country moved towards a free market zone, bureaucratic orders anchored in a command economy had to be dismantled.

In the 1994 Government Report on the Civil Code Project, the then-Minister of Justice highlighted the need for a civil code.Footnote ⁶⁷ The government argued that firstly, the ‘socialist-oriented market economy’ would place citizens at the centre of the law and require recognition of the principles of equality and voluntary participation in civil relations.Footnote ⁶⁸ This recognition could only be achieved through a civil code. Secondly, it was maintained that the absence of a civil code had led to numerous instances of the State failing to protect the legitimate interests of its citizens. Such failures had undermined trust in the government and caused misunderstandings about the regime.Footnote ⁶⁹ And finally, the legal framework for foreign economic relations had fallen short of expectations, affecting the credibility of the investment environment.Footnote ⁷⁰

It was not only the unleashing of the economy but also the need to protect the regime that gave rise to a procedural ‘rule of law’. As such, a civil code was essential not only to ensure economic growth but also to safeguard the integrity of the regime. Recognising this need, the National Assembly enacted the Civil Code in 1995, marking a historic first for Vietnam twenty years after the end of the war. Although the drafting of the Code had begun in 1980,Footnote ⁷¹ its enactment in 1995 was timely given Vietnam's application to join the WTO that year.

Following the application, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) had to be incorporated into domestic law. The Civil Code codified all pre-existing IP ordinances under Chapter 6 (‘IP Rights and Technology Transfer’). This separate IP section aimed to raise the profile of IP law and addressed foreign criticism that Vietnam did not adequately protect property rights.Footnote ⁷² A spade was finally called a spade.

However, Soviet influence was evident in the inclusion of IP rights as a chapter in the Civil Code. In fact, Vietnam's first draft of the Code was modelled on the civil codes of the Eastern Bloc,Footnote ⁷³ and although later drafts drew inspiration from other jurisdictions, such as Japan, China, and even France, an estimated seventy per cent of the articles in the 1995 Civil Code were directly or indirectly derived from the Soviet Civil Code.Footnote ⁷⁴

Vietnam's first Civil Code corresponded to the ideological shift in its 1992 Constitution, which upheld ‘socialist legality’ as a core pillarFootnote ⁷⁵ while also recognising authors’ rights and industrial property rights as constitutional rights for the first time.Footnote ⁷⁶ Eager to pursue its reform agenda, the Communist Party broadened its coalition of the working class and peasantry to include intelligentsias, whose creativity and energy were finally recognised by the state as a valuable resource.

By recognising IP rights as legal rights, the 1995 Civil Code placed them on an equal footing with other rights. However, a key tenet of ‘socialist’ IP law was that it was treated as part of civil law.Footnote ⁷⁷ As a result, IP rights were governed by the Civil Code and forty guidelinesFootnote ⁷⁸ that often contradicted each other, leading to diverging interpretations and legal uncertainty. Moreover, Chapter 6 of the Civil Code lagged behind TRIPS standards, and it was not until ten years later that Vietnam recognised the need for specific IP legislation.

The First IP Law of 2005: Too Fast but Not Too Furious

In its 2004 Report on IP Law, the Vietnamese government considered that having an effective IP regime was necessary to fuel the country's economy and meet the external pressures of global trade.Footnote ⁷⁹ The report concluded that the existing provisions in the Civil Code did not address the unique characteristics of IP rights related to trade, science, and technology.Footnote ⁸⁰ Therefore, creating a specific IP law became an urgent and critical priority.

During this period, party-sponsored discourse began to give way to the ‘rule of law’ concept, including transparency and enforcement.Footnote ⁸¹ Discussions about what the IP law should look like, and whether separate laws regulating different categories of IP or a single IP law would be more suitable for Vietnam, started to take shape.Footnote ⁸² While relevant stakeholders and lawmakers recognised that many countries followed the former model, Vietnam decided to opt for the latter. Although there is no authoritative account that explains this all-in-one approach, some plausible explanations can be drawn from the legislative process.

First, the IP Law was drafted under the considerable time pressure of Vietnam's desired WTO accession in 2005. Despite missing the deadline, Vietnam moved at breakneck speed to modernise its complex IP web. The government report acknowledged that the IP Law was possibly the shortest legislative process in the history of the National Assembly, being researched, drafted, and reviewed in just eleven months.Footnote ⁸³ The pace of drafting was so rapid that those responsible for the English translation struggled to keep up.Footnote ⁸⁴ In contrast, India delayed adopting TRIPS for as long as possible, opting to amend the 1970 Patents Act incrementally in 1999, 2002, and 2005, rather than transposing all international legal obligations into domestic law at once.Footnote ⁸⁵

Second, the time pressure placed Vietnamese drafters in a difficult position, as they were ‘riding a tiger’ with a lot of work remaining but very little time left.Footnote ⁸⁶ However, the National Assembly's decision to put the IP Law on the agenda in late 2005 presented a significant opportunity, and failure to take advantage of it would have amounted to squandering a valuable chance.Footnote ⁸⁷ As a result, the law-making process left little time for the government to develop separate laws for different categories of IP.

A decade after introducing its first Civil Code in 1995, Vietnam enacted its first comprehensive IP Law. This new legislation took an all-encompassing approach by covering all aspects of IP rights, such as copyrights, trademarks, geographical indications, and patents. The 2005 IP Law laid the foundation for the country's IP system and provided a detailed set of rules that meet minimum international standards.

However, Vietnam's new law did not come out of nowhere. Between the 1995 Civil Code and the 2005 IP Law, a significant event acted as a springboard: the conclusion of the Copyright Agreement with the US (1997), later incorporated into the US BTA (2000). These two agreements overhauled Vietnam's copyright landscape and brought it closer to the TRIPS rules, even though the country was not yet a member of the WTO. In his memoirs, Joseph Damon, the US chief negotiator of the BTA, recounted why the US wanted to conclude the copyright agreement before the larger trade deal:

Opening the market meant being exposed to new trading concepts that puzzled many Vietnamese officials. For example, the principle of ‘national treatment’ – granting foreigners the same rights as the Vietnamese – initially baffled the negotiators. Nguyen Dinh Luong, former head of Vietnam's BTA negotiating committee, recalled being taken aback by the term at first: ‘[t]his phrase did not exist in the Vietnamese dictionary and went against the views, policies, and laws of the country's socialist economy.’Footnote ⁸⁹ As a result, the term ended up as an alien in communist Vietnam. National treatment was incompatible with a command-and-control economy in which only a small number of state-owned enterprises, not everyone, enjoyed specific privileges. In other words, ‘national treatment’ asked Vietnam to do the almost impossible: to grant the US (and no other country) certain benefits that even an ordinary Vietnamese citizen could not have at the time.Footnote ⁹⁰ The war was over, but the bleeding continued.

It is evident that legal transplants during the 2000s occurred through a process known as ‘contractualisation’,Footnote ⁹¹ whereby Vietnam agreed to accept foreign laws in exchange for market access to other countries. While Vietnam's bargaining power was not so different from that of the colonial or Soviet eras, it is true that Vietnam benefited from the voluntary transplantation of exogenous rules. Unlike France's direct imposition of its laws, which left no room for modification, or the Soviet Union's wholesale transfer of socialist law, Vietnam's 2005 IP Law was largely modelled on TRIPS and incorporated the US BTA.

Although the IP Law already existed, the Civil Code of 2005, interestingly, still devoted a chapter to IP rights. There were two reasons for this. First, some drafters viewed IP rights to be part of civil relations and therefore required the Civil Code to govern them.Footnote ⁹² Second, the government wanted to maintain consistency within the legal system by retaining the existing IP provisions.Footnote ⁹³ However, with the introduction of the IP Law, the IP chapter in the 2005 Civil Code became obsolete, prompting the legislature to remove it from the 2015 Civil Code.

Since 2005, Vietnam has made significant progress in revising its IP Law, with three amendments to date. Rushing to meet the WTO deadline, drafters first fine-tuned the Law in 2009, two years after the country joined the WTO.Footnote ⁹⁴ They then adjusted it in June 2019Footnote ⁹⁵ to meet the standards of the CPTPP. Before the ink was dry, they issued the third amendment to fulfil the EVFTA and the RCEP in September 2020. The amended law came into force on 1 January 2023, demonstrating Vietnam's commitment to strengthening IP protection and enforcement.Footnote ⁹⁶ It is striking how Vietnam, once a neophyte in the field, has caught up with TRIPS standards and made significant progress in less than two decades.

IP rights, once considered an unwelcome guest, have now found a permanent place in the country's legal system. This transformation is evident in the country's latest 2013 Constitution, which explicitly recognises IP rights.Footnote ⁹⁷ The 2013 Constitution also extends to ‘everyone’Footnote ⁹⁸ ‘the rights to carry out scientific and industrial research, engage in literary and artistic creation, and enjoy benefits from those activities’, which were previously limited to ‘citizens’Footnote ⁹⁹. This change is more than a linguistic one; it reflects a shift in Vietnam's focus from inward to outward.

Copyright to Protect ‘Socialist Legality’

On the surface, ‘socialist legality’ may appear akin to the ‘rule of law’, a principle that requires everyone to obey the law.Footnote ¹⁰⁰ However, this concept differs from its Western equivalent in that it stems from the Marxist-Leninist interpretation of law as serving the dictatorship of the proletariat.Footnote ¹⁰¹ Socialist legality was enshrined in Vietnam's ‘class-based’ Constitution of 1980, which excluded intellectuals from the fundamental alliance of the working class and peasants.Footnote ¹⁰²

After 1975, Vietnam's most pressing objective was the transition to socialism – which became the goal of all laws and policies. Copyright, therefore, could not escape its sealed fate. Because it protects literature, theatrical works and films directly relevant to, and intended to support, Marxist-Leninist doctrine, ‘socialist legality’ was more important in copyright law than in industrial property rights.Footnote ¹⁰³ Against this background, copyright law did not fully exist in Vietnam as understood in Western society.

In 1986, Vietnam issued its first copyright law through Decree 142/HDBT, implemented by Circular 04/VH-TT in 1987. When translated into Vietnamese, the term ‘copyright’ has lost its original meaning of a right to copy (ie, to duplicate), and instead encompasses both the author's entitlement (quyền tác giả) and the associated economic prerogatives – the ‘copyright’ in the narrow sense. This shift in meaning (a case of ‘lost in translation’) can be attributed to a process of legal transplantation where the new legal concept became entangled with the old French-imported idea of droit d'auteur [the author's right] during Vietnam's first encounter with copyright.

Although the Communists recognised copyright as a private right, they emphasised that it was an integral part of the socialist regime.Footnote ¹⁰⁴ This emphasis was supported by a provision on censorship, which protected ‘only works that served to build socialism and defend the socialist fatherland, … [that created] a new culture, a new socialist man”.Footnote ¹⁰⁵ Censorship, however, is not unique to socialist law, as it has a historical precedent in early copyright legislation in China, England, and France.Footnote ¹⁰⁶ These governments used copyright to control the press and maintain regime stability by restricting the publication of certain works, as was the case in Vietnam.Footnote ¹⁰⁷ However, Vietnam's Communist Party went further by imposing its political ideology on the author's creative process, as this section will demonstrate.

Cultural censorship had been widespread in Vietnam, even under the South's regime, which restricted press freedom until the regime ceased to exist in 1975.Footnote ¹⁰⁸ However, censorship reached its peak only during the communist era and continues to this day. The Communist Party's cultural policy in the 1950s and 1960s, as advocated by ideologues such as Le Duan and Truong Chinh – two Party leaders – emphasised that the arts should serve the Party, the country, the socialist revolution, and the struggle to unify Vietnam.Footnote ¹⁰⁹ By the early 1960s, the Communist Party had total control over all cultural aspects.Footnote ¹¹⁰

Even former prime minister Vo Van Kiet – one of the most liberal Communists – succumbed to the lure of cultural control, declaring that ‘we have identified five economic components, but there is only one culture: the national and socialist.’ Unsurprisingly, Vietnam's approach to copyright was akin to that of Russia after the 1917 revolution and that of China after 1949,Footnote ¹¹¹ in that it had chosen not to ratify international copyright treaties and had instead censored domestic publications.Footnote ¹¹² Vietnam's hardcore attitude toward copyright stands in contrast to its more lenient approach to industrial property. During French colonisation, Vietnam joined the Berne ConventionFootnote ¹¹³ through the ‘backdoor’ of France's accession. During the country's partition, the South joined the Paris Convention Footnote ¹¹⁴ and the Madrid Agreement, both of which regulate industrial property.Footnote ¹¹⁵ However, while post-1975 Vietnam chose to tolerate industrial property by inheriting the membership of Paris and Madrid, it renounced Berne as it directly affected the country's cultural sphere, which was considered off-limits. It was only in 2004 that Vietnam rejoined Berne to prepare for the WTO.

Grounded in the socialist culture, concepts such as originality and the idea/expression dichotomy were never established in Vietnam. National law protected neither works based on the ‘author's own intellectual creation’Footnote ¹¹⁶ nor works that reflected the author's ‘skills, labour, and judgments’.Footnote ¹¹⁷ Copyright protection was guaranteed only to those who adhered to communism, praised the revolution, and professed the superiority of communism over capitalism. As a result, the law applauded authors as ‘talented and intelligent’Footnote ¹¹⁸ creators, a standard that did not exist in the Western copyright system. Intellectual dissidents who disagreed with the principles of ‘socialist realism’ or ‘the Marxist perspective’ faced repercussions.Footnote ¹¹⁹

The Outline of Vietnamese Culture, a crucial document authored by the Communist Party in 1943, unequivocally sketched the Party's cultural objectives: ‘to combat Classicism, Romanticism, Naturalism, and Symbolism in favour of Socialist Realism.’Footnote ¹²⁰ Despite its brevity of only six pages, this document laid the foundation for Vietnam's cultural revolution and served as a rallying point for the country's intellectuals, writers, and artists to support the Party's revolutionary movement. Consequently, works that deviated from the Party's guidelines or were perceived as criticising the Party, no matter how ludicrous or far-fetched, were banned from publication.Footnote ¹²¹ In essence, works created under the socialist umbrella served as a propaganda tool for the Communist Party.Footnote ¹²²

Censorship was also concealed in the requirement to register one's work with a state agency for permission to publish.Footnote ¹²³ Authors had to use their real names or a pseudonym, and anonymous publication was not allowed, risking accusations of criticism against the State.Footnote ¹²⁴ Compared to the Soviet model, which allowed the author's name to be hidden if it posed no harm to Soviet society,Footnote ¹²⁵ Vietnam's rules were stricter. In this Orwellian state, creators had to either ‘conform to the party line or be incarcerated’.Footnote ¹²⁶ In short, copyright law could not thrive on solid communist soil.

Although the 1995 Civil Code upheld state power over copyright, it shifted from a positive to a negative approach, ie, it changed from ‘citizens can do what the law allows’ to ‘citizens can do whatever the law does not exclude’. Article 749 of the Civil Code did not protect works that ‘oppose the Socialist Republic of Vietnam and … harm the bloc of national unity’,Footnote ¹²⁷ nor did it protect materials that ‘propagate reactionary ideologies and cultures, lustful and depraved lifestyle, criminal acts, social evils, superstition and other materials destructive to the fine customs and habits’,Footnote ¹²⁸ and it also did not grant protection to any work that contributes to a distortion of history or a ‘repudiation of revolutionary achievements, disparagement of great persons and national heroes’ or the slander or denigration of ‘the reputation of an organization or the honour and dignity of an individual’.Footnote ¹²⁹ All these abstract provisions provided the State with a potent weapon to reject protection of works that it found unpalatable. While Article 17 of the Berne Convention allows members to impose some controls on copyrighted works, these controls concern merely the format of the work,Footnote ¹³⁰ but they do not allow signatories to deny copyright protection to works that appear inimical to state interests.Footnote ¹³¹

Article 749 of the Civil Code became a source of discord during the Vietnam-US BTA discussions. While Vietnam was adamant about maintaining this provision, it ran counter to the US's stance on freedom of the press and expression. At one point, the two sides appeared to be at an impasse, and the Agreement was on the verge of collapse.Footnote ¹³² Ultimately, Vietnam's limited bargaining power forced it to give in to the US demand.Footnote ¹³³ As a result, censorship vanished from the country's legal texts and has not reappeared in such an extreme form.

Copyright or Moral Rights?

Echoes of socialist legality were also heard in the courtroom, as demonstrated in Nguyễn Kim Ánh v Director Phạm Lộc and Film Production Studio Hanoi I. Footnote ¹³⁴ Notably, even though the essence of the case revolved around a copyright infringement, the Trial PanelFootnote ¹³⁵ focused on moral rightsFootnote ¹³⁶ instead.

Nguyen Kim Anh, the screenplay author of Marriage without Registration (Hôn Nhân Không Giá Thú), sued director Pham Loc for violating his moral right: the right to the integrity of his work.Footnote ¹³⁷ In adapting the script to the film of the same name, the director made a number of changes, including reducing the five unregistered marriages depicted in the original work to just one in the film, and allegedly distorting the features of Vietnamese pilots during the war. Nguyen, who did not wish to be associated with the film production, demanded that the film be withdrawn unless his name was removed from the credits and the title and character names were changed to be different from those in his work.

Two things should be kept in mind. First, the film was produced on a government-funded grant, which means that it belonged to the State. Second, the Ministry of Culture and Information allowed its public release, indicating that the film had passed State censorship before the dispute reached the court.

The Trial Panel reasoned that while unregistered marriages may have occurred in society at large, they were rare in the Vietnamese military.Footnote ¹³⁸ The author certainly had the right to portray their existence, but he could have limited the portrayal to just a few cases.Footnote ¹³⁹ While the script had been written with the intention of praising the soldiers, all the relationships depicted in it revolved around unregistered marriages – an unhealthy type of relationship that was viewed to not be morally or legally justified.Footnote ¹⁴⁰ Hence, the director's decision to reduce the number of unregistered marriages to one was an appropriate means to convey the author's intended message.

Furthermore, while the Trial Panel appreciated the plot of an orphan youngster becoming a pilot in the screenplay, the author placed him in an environment where his existence would not be permitted: the Air Force.Footnote ¹⁴¹ As a result of military regulations, Vietnamese Air Force at the time only recruited personnel with identified parentage. To the Panel, the original work was therefore not an accurate representation of reality.Footnote ¹⁴²

The ruling revealed that the filmmaking process was vulnerable to state meddling and interference. The Ministry of Culture and Information and the Script Review Board demanded changes to the original work, particularly regarding the characters of the pilots. More seriously, the General Political Department of the People's Army would not allow filming at any airport unless the director adjusted the script.Footnote ¹⁴³

Instead of acting as judges, the Trial Panel took on the role of film critics and moral police, criticising the original work's depiction of real life, dismissing it as clichéd and cheesy, and concluding that the author was incompetent. As a result, the director was allowed to revise the screenplay. The Panel determined that the changes made to the film, which had been approved by the Script Review Board and authorised by the Ministry of Culture and Information, did not deviate significantly from the original script, and therefore rejected the author's claim of moral right infringement.Footnote ¹⁴⁴

This case highlights how a court acted as a gatekeeper, preserving socialist beliefs and relying on political propaganda rather than the rule of law to reach a verdict. Instead of resolving disputes, the courtroom became a forum for upholding socialist morality and lecturing on whether a work adhered to such morals. Socialist courts, unfortunately, did not adjudicate disputes but reformed social behaviour.Footnote ¹⁴⁵

The concept of ‘socialist legality’ disappeared from both the 2013 ConstitutionFootnote ¹⁴⁶ and Vietnamese discourse.Footnote ¹⁴⁷ Reflecting constitutional change, the current IP Law (as amended in 2022) contains a catch-all article denying protection to IP subjects ‘contrary to social ethics’, which is left undefined, leaving ample room for interpretation.Footnote ¹⁴⁸ Although no copyright disputes have arisen over this concept, a patent example can be used to illustrate the point. The Vietnamese government's tough stance on gambling – it restricts gambling activities to foreigners and only to locals above a certain income thresholdFootnote ¹⁴⁹ – allows it to instruct patent examiners to reject applications for gambling machines on the grounds of social ethics.Footnote ¹⁵⁰

On the cultural front, too, it becomes clear how the regime has tried to justify its hardline stance on pre-1975 songs from South Vietnam on ostensibly moral grounds. In 2017, the Department of Performing Arts banned the circulation of five pre-1975 songs, citing a violation of moral rights.Footnote ¹⁵¹ They reasoned that the lyrics of some songs had been edited, and that the author of one song had been incorrectly named.Footnote ¹⁵² In an interview with the newspaper Tuoitre, Nguyen Dang Chuong, the Director of the Department of Performing Arts, asserted: ‘[t]he songs that were edited have no value, so they will certainly be banned from circulation forever for violating copyright and related rights.’Footnote ¹⁵³

Notably, while moral rights are personal rights and any dispute should be initiated by the authors, the Department of Performing Arts was too eager to act. When asked about the Department's motivation for its action, and whether there were any problems with the content and ideology of the songs, Nguyen Thu Dong, also from the Department, simply replied with the counter-question, ‘On what battlefield are you walking?’, referring to a line from one of the banned songs, ‘I walk on a battlefield’.Footnote ¹⁵⁴ The ban provoked a public outcry, prompting Vietnam's Musicians Association to petition the Department of Performing Arts. Citing national reconciliation as a reason to revoke the ban, the Association asked relevant authorities to act carefully in the fields of literature and art to avoid speculation.Footnote ¹⁵⁵ The Minister of Culture, Sports, and Tourism also chimed in, ordering that the ban be lifted since it was ‘groundless, causing mixed responses in public’.Footnote ¹⁵⁶ The Department of Performing Arts eventually gave in.

State censorship has led to an increase in the modification of pre-1975 works to make them politically correct for broadcast and performance on official channels. Many programme producers and artists have altered the lyrics to eliminate any reference to ‘battlefields’, ‘soldiers’, ‘watchtowers’, or ‘war’.Footnote ¹⁵⁷ However, such changes may violate the author's right to integrity. While Vietnam's IP Law stipulates that the modification of a work must prejudice the author's honour or reputation in order for this right to be established,Footnote ¹⁵⁸ this requirement has not been widely discussed in Vietnam's legal literature. However, there is a court ruling holding that changing a song's title and a few words violates moral rights.Footnote ¹⁵⁹ Based on the above analysis, it is safe to conclude that modifying lyrics could potentially violate moral rights in Vietnam, yet it is currently the only way to eschew State censorship. Ironically, the Soviet command-and-control style provides an effective antidote to the arbitrariness that is a by-product of its legal philosophy.

Patents and Collective Ownership

Marxist-Leninist ideology is centred around the eradication of private ownership. In line with this, Vietnam's 1980 Constitution recognised state ownership (or, in the Constitution's own terms, the property of the whole People) and collective ownership.Footnote ¹⁶⁰ Vietnam's first patent law of 1981, Decree 31-CP, closely reflects this ideology.

As I described above,Footnote ¹⁶¹ because Vietnam did not have a functioning legislative process at the height of communism, decrees served as de facto law even though they were not de jure law. One might ask why Vietnam established a patent system that grants exclusivity to investors, which seems to contradict the basic premise of Communism that emphasises the primacy of the State over individual rights.Footnote ¹⁶² The answer lies in Vietnam's early patent structure in the 1960s. North Vietnamese Communists saw workers’ inventiveness as symbols of patriotism, and inventions and industrial improvements as part of collective leadership and mass mobilisation to win the war. The Party hence issued administrative orders to organise and lead the mass movement for technical advancement.

Decree 31-CP extended such wartime rules to the socialist peacetime era with heavily militarised language. Its objective was to ‘strengthen the organisation and management of invention activities, encourage all employees to promote scientific and technical creativity, strengthen the construction and development of the national economy, bolster national defence, and improve the social life’.Footnote ¹⁶³ For this reason, Vietnam's patent history differs significantly from that of the West, where patent acts were created to either give a monopoly to ‘the first and actual inventor’Footnote ¹⁶⁴ or to ‘promote the progress of science and useful arts’.Footnote ¹⁶⁵ By contrast, Vietnam's Decree 31-CP fostered collective ownership at the expense of sidestepping inventors’ interests.Footnote ¹⁶⁶ Collectivism rather than individualism dominated early regulations, as did societal rather than private interests. In line with socialist ideals, inventors' rights were not a private property for individual economic gain but existed for the benefit of society. To encourage learning, inventive ideas should be shared as widely as possible.

Socialists denounced capitalist patents as serving exploiters rather than inventors.Footnote ¹⁶⁷ Granted, there is some truth in this view. To fix what was perceived as a flawed capitalist system, the Soviets invented an alternative to a patent title: the inventor's certificate. Although both instruments bear fruit in protecting an invention, they differ like apples and oranges.

First, unlike a patent, which acknowledges the inventor's ownership, an inventor's certificate confers only moral rights (such as the right to be named as the inventor) with limited scope for financial reward. The most lucrative aspect, ownership – the right to transfer, assign, and license an invention, to make money out of it – stayed with the State. In the intermediate period before the advent of ‘pure Communism’, the State remained the exclusive owner of inventions and technological advances that formed an essential constituent of the industrial complex.Footnote ¹⁶⁸ The transfer of an exclusive right to the State through the inventor's certificate implemented the ‘liability rule’, meaning that the inventor could not prevent third parties from utilising the invention, but was entitled to compensation for its use.Footnote ¹⁶⁹ In contrast, patents operate under the ‘exclusivity rule’, which allows patent owners to prevent anyone from using their invention.

Second, an inventor's certificate could be converted into a patent title, but it was not reversible. As I explained when separating the concept of personal property from private property,Footnote ¹⁷⁰ the inventor's certificate preserved an invention as personal property but not as private property. Specifically, the inventor's certificate prevented inventors from turning the fruits of their labour into a source of revenue. In addition to their regular wages, inventors received a predetermined royalty from the State, as well as moral rewards such as medals and titles.Footnote ¹⁷¹ Royalties were also subject to a cap,Footnote ¹⁷² reflecting the principles of collectivism and equal distribution that were fundamental to a centrally planned economy. These principles were designed to reduce disparities in wealth. Soviet inventors, much like their counterparts in the realm of copyright, were essentially wage earners.

Third, while an inventor could choose between a patent and an inventor's certificate, only the latter was granted for inventions relating to national security, plant and animal varieties, and methods of treatment and diagnosis for humans, animals, and plants.Footnote ¹⁷³ In addition, a patent would never be granted if the inventor came up with new ideas while working for, or receiving ‘material aid’ from, the State.Footnote ¹⁷⁴ In a socialist country with no private sector, the government was the sole employer and, therefore, entitled to ownership. One way or another, an invention would eventually wind up in the leader's hands.

Lastly, Decree 31-CP abolished maintenance fees in order to encourage people to apply for the inventor's certificate. The rationale behind this policy was that since creators were already contributing to society by sharing their ideas in exchange for very limited financial rewards, they should not be burdened with additional fees. However, once someone started benefitting from the commercialisation of a patent, they had to pay fees.Footnote ¹⁷⁵ Although the waiver of the inventor's certificate fee was later abolished, the waiver scheme was reintroduced in the 2022 IP Law amendment as a form of compensation for pharmaceutical patent holders who experience delays in obtaining marketing authorisation.Footnote ¹⁷⁶

Decree 31-CP reflected the principle of collectivism by emphasising the communal value of inventions. As they amounted to public goods and belonged to the State, anyone could use an invention granted under the certificate as long as they informed the National Committee of Science and Technology and compensated the inventor with a prescribed fee.Footnote ¹⁷⁷ This allowed for a free flow of new ideas and knowledge. The Decree also established broad exceptions to patent rights, including the use of inventions for non-commercial purposes.Footnote ¹⁷⁸ Given the Communists’ abhorrence of capitalism as a social and moral Western decadence, however, it remained unthinkable for private companies to commercialise an inventive idea in a strictly communist country.

While obtaining a patent seemed theoretically feasible, the command-and-control economy would not tolerate it. The law allowed a patent owner to license, transfer, and assign his patent to a third party,Footnote ¹⁷⁹ but this did not translate into reality. There were no private companies; export-import remained a state monopoly; and all organisations were state-owned, which meant that every inventor ultimately faced the same entity: the State.

In such circumstances, it would be nothing short of a miracle if patents had flourished in Vietnam in the 1980s. Between 1981 and 1989, the Patent Office issued 453 inventor's certificates but only seven patents, all to foreigners.Footnote ¹⁸⁰ The meagre number of patents was due not only to the law's prejudice, but also to the US trade embargo, which prevented Vietnam from trading with other countries, leaving communist countries as its predominant trading partners. With almost two decades of the embargo in place (1975–1994), there was little foreign direct investment, resulting in fewer patent applications.Footnote ¹⁸¹

The Soviet patent system was transplanted to Vietnam not only through legislation but also through the exchange of patent data. In the 1980s, the Vietnam Inventions Office needed patent information to support substantive examination, as well as research, development, production, and business activities in the country.Footnote ¹⁸² However, importing such documents was challenging due to financial constraints, necessitating reliance on the Soviet Union. In 1982, the Inventions Office received 10,000 patent documents from the German Democratic Republic, and in 1985, it obtained millions of them from the USSR State Patent Committee.Footnote ¹⁸³

By the mid-1980s, Soviet influence was waning, and Vietnam realised that it could no longer rely on Soviet financial aid. As external support dwindled, internal conditions deteriorated, leading to a lack of incentives to work in the highly centralised economy. Unfortunately, the inventor's certificate failed to motivate innovators who lost their reasons to innovate.

When Vietnam opened its economy in 1986, legislative changes followed. The first step was the abolition of the inventor's certificate through the 1989 Ordinance. Perhaps not surprisingly, the number of patent applications has soared since then. The country has evolved into a modern IP framework, as exemplified by the 1995 Civil Code and the 2005 IP Law. As technology has grown more sophisticated, the underlying need for innovation has become more pressing, and the previous framework did not provide adequate protection.

As Vietnam's patent policy evolved, foreign patents flooded the NOIP. From only seven foreign patents granted between 1981 and 1988, international applications increased in 1995, skyrocketed in 2005, and have dominated the market ever since (see Figure 2).

Figure 2. Annual number of patent applications in Vietnam (1981–2022)Footnote ¹⁸⁴

Compared to copyright, the Soviet legacy has largely faded from Vietnam's patent system, although its effects can still be seen in how the NOIP interprets and applies the law.Footnote ¹⁸⁵ The decreasing influence is due to the fact that patents in science and technology are much less subject to censorship because of their largely ideological neutrality, a significant difference from other creative works. As a result, the State cannot govern patents in the same way that it governs copyright, especially as Vietnam has long sought to industrialise its economy. Moreover, the government has recognised that patents have not yet made a significant contribution to the country's socio-economic development or to the promotion of science, technology, and innovation. There is a substantial disparity between domestic and international patent applications, which the government hopes to narrow. As a result, given the critical role of patents, Vietnam is reluctant to implement measures that could negatively impact the current situation.

In 2019, a significant milestone was reached in the field of IP when the Prime Minister of Vietnam for the first time set out a national IP Strategy for the next decade.Footnote ¹⁸⁶ This strategy reiterates the significance of IP as a tool to promote innovation, enhance national competitiveness, and contribute to economic, cultural, and social development. Most importantly, the strategy targets an average annual increase of 16–18% in the number of patent applications and grants, the highest of any other IP category. This compares with an increase of 6–8% for industrial design applications, 8–10% for trademark applications, and 12–14% for plant varieties.

The strategy strongly emphasises the significance of updating the legal frameworks to address emerging issues in IP rights, in particular for those related to science and technology, and aims to ensure that protection measures reflect the civil nature of IP rights. This approach highlights the growing influence of legal, economic, and social perspectives, rather than the Party's ideology, in shaping patent policies.

The Nation of Judicial Sceptics

Vietnam (and other Asian countries) are known for their preference for non-adversarial methods of resolving disputes, which contrasts with the Western practice of using litigation.Footnote ¹⁸⁷ The Vietnamese tend to favour less confrontational techniques, such as negotiation and mediation, and are less inclined to file a lawsuit to seek redress. A popular saying that reflects the Vietnamese public's attitude towards the courtroom is ‘vô phúc đáo tụng đình’, which can be roughly translated as ‘only the unlucky and ignorant resort to lawsuits.’ This aversion to the courtroom can be attributed to factors beyond Soviet influence, with deeper roots in Confucianism and feudalism. As briefly mentioned in my summary of the history of Vietnam, Vietnam's culture has evolved within the framework of Confucianism, which emphasises social harmony and prioritises ‘sensibility’ (or feeling) over ‘sense’ (or reason). Consequently, society has developed a culture of conflict resolution that prioritises saving the face of all parties involved, even if it does not fully uphold the letter of the law.

In 1942, Tran Thanh Mai, a literary critic, published a critique of the works of the late, highly respected poet Han Mac Tu. Quach Tan, authorised by Han before his death, filed a lawsuit against Tran, alleging that Tran had quoted too many poems and prose, sometimes copying entire poems. The judge, a prominent writer named Nguyen Tien Lang, ruled that while Quach's lawsuit was not about personal gain but the exclusive right to print Han's poetry, Tran had never intended to profit. The judge advised Tran to share the royalties with Han's family to settle the case.Footnote ¹⁸⁸ This was the first copyright case that was publicly recorded in a Vietnamese newspaper when the concept of ‘copyright’ was still unknown. Although this may not be a typical example, the judge's verdict demonstrated the importance of saving face and maintaining social harmony in the courts.

Having lived under a feudal system, then colonialism, and then an Orwellian state, the public has nurtured a belief that courts serve the affluent, the colonisers, and the ruling party, rather than ordinary citizens. People perceive the law as an enemy, not as an essential instrument of impartiality. Going to court is seen as a harmful act that ruins one's reputation and causes emotional distress. A popular proverb captures this sentiment: ‘một đời kiện chín đời thù [a lifetime of trial, nine lifetimes of hatred]’. These beliefs have been passed down through generations and continue to lead many to believe that private disputes are best resolved outside the court system, and that legal proceedings rarely result in a fair verdict. Accordingly, many people have little respect for the law and hesitate to take legal action.

Since the court system was reorganised on the Soviet model, judicial independence – the principle that courts and judges must perform their duties free from influence or control by other actors – remains limited. The public has little confidence in the rule of law. And one can hardly blame the public for that, considering that Vietnam's Law on the Organisation of the People's Courts authorises the court to safeguard ‘the socialist regime’.Footnote ¹⁸⁹

A guidebook for judges explicitly states:

Moreover, judges in Vietnam are only allowed to execute the law and must limit their interpretation of the law to a decoding of its ‘inherent’ meaning. Accordingly, ‘hyperpositivism’Footnote ¹⁹¹ rather than a legal practice based on the rule of law is used to settle disputes. Moreover, laws are often vague and need to be amended right after they are passed. This is particularly true in the case of IP rights, where emerging technologies such as the internet, online intermediaries and AI continue to push the boundaries of the existing legal framework. Even the Supreme Court has acknowledged that judges lack a deep understanding of IP rights, making it difficult to determine whether an infringement has occurred.Footnote ¹⁹²

As a result, the Court frequently relies on the findings of other state agencies, such as the NOIP, which oversees industrial property, and the Copyright Office, which administers copyrighted works, to assess whether an IP rights violation has occurred.Footnote ¹⁹³ Such dependency creates a conflict of interest when these agencies become involved in an IP dispute. The Supreme Court admits that ‘while the law protects IP rights, they remain theoretical without effective enforcement, rendering them essentially “nil rights” [hư quyền].’Footnote ¹⁹⁴

The public's deep-rooted scepticism towards judicial institutions continues to have a significant impact on their attitudes. While amicable out-of-court settlements remain the preferred option, sometimes escalating a dispute through the legal system is the only recourse. Once the Rubicon has been crossed, IP disputes can get very ugly indeed. The Supreme Court summarised the problem as follows:

The negative publicity and notoriety generated by litigation serve to further discourage people from participating in the legal process.

Another by-product of the public's reluctance to use the judicial process is that few IP cases have reached the courtroom. IP precedents are a rare commodity in Vietnam's legal system. While attempts have been made to ascertain the number of IP disputes that have been heard, concrete figures remain elusive.Footnote ¹⁹⁶ Before the 1995 Civil Code, no IP cases were filed; between 1995 and 2000, only three lawsuits involving copyrights were brought to court.Footnote ¹⁹⁷ Between 2000 and 2005, the court received ninety-three complaints, but only thirty-three of them were heard, with eleven related to copyright and related rights.Footnote ¹⁹⁸ The remaining cases were either withdrawn or settled. From 2006 to 2009, 108 lawsuits were filed, with ninety related to copyrights.Footnote ¹⁹⁹ No further updates have been made available since then. The scarcity of legal precedents, coupled with the inconsistent publication of court rulings, has impeded scholarly research on Vietnam's IP system.

Public acceptance of the paternalistic role of the State, a legacy inherited from long-lasting Soviet influence, has led to a mindset that encourages government interference in purely civil relationships. This approach also discourages people from engaging in the often adversarial legal process of resolving private disputes, instead leading them to seek State intervention. This assertion is not an overstatement; rather, it can be substantiated by the following case studies.

Bureaucratic Directive from the State to the Citizen

In a football match between Vietnam and Laos in December 2021, the YouTube channel Next Sports muted the national anthem ‘Tiến Quân Ca [Moving Forward]’ during the flag-raising ceremony, citing copyright issues.Footnote ²⁰⁰ The channel's decision was met with strong criticism from the public.

‘Moving Forward’, composed by Văn Cao (1923–1995), has been the national anthem since 1946. In 2010, the late musician's widow gifted the work to the public, allowing anyone to use it free of charge. However, her gift did not waive the rights of those who record, perform, or broadcast the song, which fall under ‘neighbouring (or related) rights’.

Marco Polo Records, a US company, owns the exclusive rights to the recording of ‘Moving Forward’ performed during the football match. Anyone wishing to use their track must obtain permission, typically through a royalty payment. In order to avoid paying Marco Polo Records for the rights to broadcast the music, Next Sports chose to mute the recording during the flag-raising ceremony.

In November 2021, FPT, another YouTube channel, lost all of its revenue from broadcasting a football match between Vietnam and Saudi Arabia because the organisers of the match used Marco Polo's recording without the company's consent.Footnote ²⁰¹ Immediately after the incident, the spokesperson for Vietnam's Ministry of Foreign Affairs ordered all individuals and organisations not to interfere with the performance of the national anthem, but made no reference to any specific law.Footnote ²⁰² And just by that, the song was not hushed anymore. While this top-down order provided a swift solution, it exemplifies the leadership's disregard for legal norms.

Citizens Seek Parental Help from the State

Sconnect, a Vietnamese animation studio, owns the popular cartoon character Wolfoo, which is streamed globally on various online platforms. In 2022, EO, the owner of Peppa Pig, filed a claim against Sconnect in Russia and the United Kingdom, alleging multiple IP infringements.Footnote ²⁰³ In Vietnam, Sconnect took pre-emptive action by filing a lawsuit against EO for the unauthorised use of trademarks and images of Wolfoo characters. However, during the legal process, the company also resorted to asking the Vietnamese government for parental-like intervention.Footnote ²⁰⁴ In September 2022, it submitted written petitions to four Ministries seeking their assistance. Specifically, Sconnect requested the Ministry of Information and Communications to compel EO to cease its ‘unfair competition activities’ and to prevent online platforms from accepting EO's copyright claims until the UK High Court had delivered the judgment. Sconnect also asked the same Ministry to work with other state agencies to expedite the company's complaint to Vietnam's National Competition Commission.

Sconnect further appealed to the Ministry of Culture, Sports, and Tourism and suggested that it file petitions with the People's Court of Hanoi (which is currently handling the dispute), the National Competition Commission, and the Department of Competition and Consumer Protection to quickly resolve its trademark infringement claims.

Furthermore, the company approached the Ministry of Industry and Trade to demand that EO cease its alleged unfair competition practices and that the National Competition Commission expedite Sconnect's enforcement efforts.

Finally, the company asked the Ministry of Science and Technology to demand that EO respect Vietnam's IP laws and Sconnect's IP rights.

To summarise, Sconnect's relentless efforts involve leveraging various state agencies to pressure a foreign company to withdraw from the dispute. Such behaviour underlines the overprotective role of the State and shows that Sconnect favours a command-and-control approach, which contradicts the desired shift towards a more rule-based society.