The article with the title: “Music copyright in the digital age” by our Lawyer Le Quang Vy – Partner of Phuoc & Partners and Lawyer Le Trong Them is published in Saigon Economic Time on 07/07/2017.
The digital age and Internet bring music works closer and faster to the general public. In the past, a music piece had to go through a time-consuming recording process before it reaches the public, but now the fact that a song goes viral is away from a mouse click. In this age, the public can enjoy music with ease and convenience, and copyright holders have opportunity to attain more career advantages including larger market share, many more users, and easier distribution. However, the risk of copyright infringement is higher accordingly.
With digital technology, beneficiaries may also be delivered when they can easily upload a song to a social network after downloading it, or simply use the “share” button to disseminate it. Copyright may be infringed by anyone who can access any piece of music. Therefore, the copyright protection in the internet environment is an existing dilemma not just in Vietnam. Nowadays, free trade agreements among countries always contain many regulations on digital copyright or even provide for stronger protection than the copyright in the digital environment.
What organizations collect copyright fees for music business on the Internet?
While moral rights allow a music composer to name or put his name to the music piece, announce and protect the integrity thereof, property rights and copyrights allow him to request organizations and individuals to apply for his permission and pay royalties, remunerations and other material benefits when they exploit or use the music piece by creating derivative works, performing a work to the public; copying it; distributing or importing the original or copies of the work; communicating the work to the public by wire or wireless means, electronic information network or any other technical means.
There are copyright-related rights, namely, those of performers, music producers and broadcasting organizations. Vietnam’s three different organizations now protect the rights of musicians, performers and music producers, including (1) Vietnam Center for Protection of Music Copyright (VCPMC) for composer copyrights, (2) Vietnam Association for Rights Protection of Music Performing Artists (APPA) for performer rights and (3) the Recording Industry Association of Vietnam (RIAV) for music producer rights. It is obvious that these organizations can only collect copyright fees for those who have authorized them to do so. In 2009, My Tam was the first singer in Vietnam to succeed in requesting music websites to pay remunerations for her performances in the music discs. Later, Le Quyen followed suit with the same success in 2014.
It is, however, impossible for a composer, singer or music producer to drop by each single coffee shop, restaurant, hotel, website etc. to check whether their works are being used for the purpose of seeking any payments for copyright fees. On the other hand, it is very hard for organizations and individuals to look for each single composer, singer and music producer to perform their copyright-related obligations. Therefore, it is a legitimate need for setting up organizations which collectively manage copyright and its related rights in keeping with the prevailing tendency of the world. This ensures protection of the benefits of copyright and its related rights. It is more appropriate for organizations and individuals doing music business to perform copyright-related obligations, and ultimately the public can enjoy music pieces of a transparent copyright source.
Article 33 of the Intellectual Property Law (IPL) 2005, amended and supplemented in 2009, prescribes that organizations and individuals who use published audio or visual recordings for commercial purposes must pay royalty fees to the composers, performers and producers who have their pieces in the recordings. Not only the music business on the Internet but also restaurants, hotels, supermarkets, postal and telecommunication services, the digital environment, tourist services, aviation, public traffic etc. must pay royalty fees to the said three subject groups when using recordings (Article 35 Decree 100/2006). Royalty fees will be collected by VCPMC, APPA and RIAV as authorized representatives of music composers, performers and producers.
Nevertheless, the collection of royalty fees in this digital age is faced with many difficulties because of: (i) user’s poor awareness of the fee paying obligation; (ii) serious violations in copying, communicating and distributing music pieces due to technological development; (iii) lack of a coordination among VCPMC, APPA and RIAV; (iv) multiple rampant inadequacies in the copyright protecting mechanism of state authorities; (v) such many limitations in the copyright law that local broadcasting and television stations, including the Voice of Vietnam Radio (VOV Traffic channel), constantly infringe copyrights when they only introduce names and performers of the songs without referring to their composers!
Are derivative works subject to protection by law?
Thanks to technology development, the access to a foreign music piece is no longer difficult like before. There are multiple foreign music pieces that are translated into or adapted to Vietnamese (referred to as derivative works). The IPL prescribes that creating derivative works is an exclusive right of the copyright holder. Accordingly, only the copyright holder has the right to create a derivative work based on his original one, or only the copyright holder has the right to permit others to do the same. In addition, Article 28 of the IPL also prescribes that the creation of derivative works without the copyright holder’s permission is an infringement of copyright.
Media outlets have recently released news about the case in which Singer My Tam infringed the copyright of the song “Anh thì không” (Toi Jamais – Author: Michel Mallory). This work has been adapted to Vietnamese by Mr. Vu Xuan Hung. My Tam was wrong in putting her music products on the market without mentioning the author’s name. The Vietnamese version will be protected by law only when Mr. Vu Xuan Hung is authorized by Michel Mallory to adapt his own song to Vietnamese. Please note that apart from asking for the permission of copyright holders, any creator of a derivative work must not prejudice the copyright of the original work.
In short, if the author of a derivative work wants his work to be protected by law and respected by others, above all, he must be the first to pay respect to the copyright of the original work.
The role of copyright in the cultural and economic development
In today’s world, technology has been revolutionizing economies and the creative industry has become an important one. That is why copyright protection should be developed to innovate the technology-based economy.
Copyright-based industries may include core copyright industries, interdependent copyright industries, partial copyright industries which refer to the industries that are based on the copyright system such as cultural industries and creative industries. All these industries contribute significantly to the GDP of each nation. Statistics show that copyright-based industries in South Korea grow more rapidly than others in the period of 2005 – 2009. In 2009, the copyright-based industries in South Korea attained an added value of 105,4 billion won, accounting for 9,89% of the national GDP; the number of workers in these industries makes up 6,24% of the workforce. In the United States, the creative industry contributes over 10% of GDP.
Vietnam has not shown any statistic about the contribution of copyright-based industries to the socio-economic development. However, it is clear that the prevailing copyright infringement on the Internet has triggered significant damage to the economy. Besides, the acts of copyright infringement are a barrier to social creativity. Thus, developing copyright-based industries is one of the social demands because once technology becomes global, copyright protection must be so.