Vietnamese Businesses Position

VCCI Letter to the US Trade Representative on IP issue in TPP negotiations

In the frame work of VCCI advocacy program on the Trans-pacific Partnership (TPP) Negotiations, basing on the VCCI Recommendation on the TPP Intellectual Properties (IP) Chapter, VCCI has sent a Letter to the US Trade Representative about recommendations of Vietnam business community and other concerned groups on IP issue in TPP negotiations.

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Hanoi, August 31, 2012

Ambassador Ron Kirk

600 17th Street, N.W

Washington, DC 20508

Regarding Intellectual Properties Chapter in TPP

Dear Ambassador Kirk,

The Vietnam Chamber of Commerce and Industry (VCCI) would like to express our sincere thanks   and high appreciation of your goodwill and contribution to the impressive development of Vietnam - United States bilateral trade relation in recent time.

As a non-governmental organization representing Vietnam business community, with the support of many other interest groups (47 entities representing more than 43,000 companies, cooperatives, patient groups, etc.), we write regarding the ongoing Trans-Pacific Partnership (TPP) negotiations on Intellectual Properties (IP) Chapter.

Being the first entity in Vietnam raising the voice and urging Vietnam Government to make affirmative decision on the full membership of TPP negotiations in 2010, we do understand and expect much on TPP potential opportunities that could reasonably benefit Vietnam’s businesses, farmers and the whole population.

However, on receipt of leaked Intellectual Properties (IP) Chapter Draft, we suddenly learnt that this TPP could impose challenges that might not be overcome and thus cause adverse and terrible impacts on a considerable and fragile part of Vietnam’s population. Presumed to bring in further benefits to only a few IP right holders, the current Draft could also harm American consumers, although their incomes and living-standards are much higher than Vietnamese’s.

The current IP Chapter Draft in TPP will, thus, be the main factor undermining quality of life, limiting incomes of poor people, aggravate social gaps and instability. We believe this is the most concern of TPP negotiating partners, and thus only by approaching this Chapter in a different way and revising the proposed provisions accordingly the TPP negotiations may be finally concluded.

Risks caused by current IP Chapter Draft

While fully aware of the necessity and benefits of IP rights protection in promoting innovation and economic development, and thus, in favor of reasonable IP protection in Vietnam as well as Vietnam’s participation to WIPO Treaties by appropriate schedules, we are seriously concerned that:

-        The enhancement of IP right holders’ protection level and/or lowering IP rights eligible conditions (TRIPS+), especially in Patent and Data exclusivity regarding Pharmaceuticals, shall prevent any efforts in increasing access to this kind of products that are crucial in protecting human health and life in Vietnam as well as other countries

At least for Vietnam, this perspective is unacceptable both from moral and legal points of views. According to a WHO report, in Vietnam, patients actually pay 46.58 times the international reference prices for innovator brands and 11.41 times for the lowest priced generics, while Vietnam has just “graduated” from the low-income country. Too-high-priced medicines is the main reason leading to too-low percentage of access-to-medicine in Vietnam, with only 20% in general and 13% for maternal-child medicines. If the current IP Chapter Draft is passed, all chances for reducing medicines’ price in Vietnam shall be killed, and the situation shall thus be worse. With the fact that a large part of patients are or about in working-age, businesses and the whole society will adversely affected then;

-        TRIPS+ in Patent and Data exclusivity regarding Agrichemicals, Geographical indications (GI) and Copyrights, shall draw back Vietnam’s productions in general and agriculture in particular

As Vietnam is a backward agricultural country which has undergone a long and difficult period of war and embargo, millions of Vietnam farmers are still spending a large part of production costs on fertilizers, plant protection chemicals and veterinary products. Higher protections on Patent and Data exclusivity means raising agrichemicals’ price, preventing any possibility to lower agricultural production costs and thus crushing all chances to ameliorate incomes of 69.4% Vietnamese population who are living on agricultural production at household size.

In Vietnam, most of GIs belong to poor countryside communities. Protecting GI by Trademark or Trademark-similar mechanisms shall absolutely give tools to bad guys to rob important properties that link to income, culture and life of many weak and limited-awareness communities in Vietnam countryside.

Similarly, TRIPS+ in Patent and Copyrights shall deprive many industries in Vietnam from the opportunity to modernize their current backward production because of too high-priced technologies;

-        TRIPS+ might worsen the IP rights violation situation in Vietnam, and thus do more harm to right holders

Vietnam has been facing with difficulties in implementing TRIPS standards (which are already high, as proposed by developed countries, including the US). So, any attempt to heighten current IP standards (TRIPS+) might be disabled in spite of Vietnam Government’s goodwill. In this context, US right holders’ benefits shall definitely be damaged. Thus, concentrating on proposals to enhance the enforcement of IP rights in Vietnam will be the best solution.

Recommended proposals for IP Chapter Negotiations

With those deep concerns, we would like that you and your TPP Negotiating Delegation take into account the following proposals:

-        NO enlargement of patentability scope to new items (especially new uses, plants, animals), NO extension for patent life span and NO lowering patent eligibility conditions: With severe consequences on prices of those items essential to people income, life and health, the proposed measures in the Draft go against the world tendency where Governments are seeking hard to renegotiate for a lower protection of IP right holders regarding pharmaceuticals and agrichemicals. These measures conflict also to the TRIPS exceptions that the US itself agreed to, according to which patent is used to protect only real innovations that are meaningful and contributable to the development of human kind and the society but not to unreasonably prevent such development;

-        NO protection of GI under trademark or trademark-similar mechanisms: GI has been a specific IP right, characterized by the fact that this kind of IP property does not belong to an individual person (natural or legal person) but the community as a whole, and that it is crucial not only to income but also to the communities’ spiritual and social life. Protecting GIs under trademark or trademark-similar mechanisms (especially with their main principal of “first to file”) shall nullify this core character of GIs at the detriment of fragile community living on these GIs;

-        NO extension of copyright terms nor copyright protection scope (to technological protection measures – TPMs): Drafted measures seeking for copyright term extension shall on one hand adversely and directly affect the cost and knowledge-access of the public, and do harm to individual freedom (of people using legally copyrighted items) in any countries on the other hand. In Vietnam, a backward developping country with high demand for the world diversed knowledge to develop, these impacts cannot be negliged.

We do believe that the income, life and health of millions Vietnamese and also American will depend on the negotiations and commitments in TPP IP Chapter. And we also strongly believe that you and your Delegation will take into account all those facts and proposals during TPP negotiations.

Thank you very much for your consideration and taking into account of our views, and we look forward to your response on these crucial issues.

Best regards,

Vu Tien Loc (signed) 

President and Chairman of Vietnam Chamber of Commerce and Industry

Member of Vietnam National Assembly

 

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