Copyright issues upon covering a song

Song covering is known as a prevailing behavior now, especially in the digital environment. However, the act of covering other people’s songs also carries risks of copyright infringement subject to various different sanctions. This article named “Copyright issues upon covering a song” aims to provide the most general information about legal issues that may arise upon covering a song without the permission of the original songwriter or copyright holder.

1. Intellectual property rights to musical works.

Songs, or “musical works” as a legal term, are included in 12 types of works protected by copyright specified in Article 14 of the current Law on Intellectual Property.

Accordingly, a song consists of two groups of rights: moral rights (of the author) and economic rights (of the copyright holder).

– Moral rights (specified in Article 19 the Law on Intellectual Property) include the rights as follows:

(i) To title their works; 

(ii) To attach their real names or pseudonyms to their works; to have their real names or pseudonyms acknowledged when their works are published or used; 

 (iii) To protect the integrity of their works, and to prevent other persons from modifying, mutilating or distorting their works in whatever form prejudicial to their honor and reputation. 

(iv) To publish their works or authorize other persons to publish their works (this right may be transferred to the copyright holder). 

– Economic rights (specified in Article 20 of the Law on Intellectual Property) include the rights as follows:

(i) To make derivative works; 

(ii) To display their works to the public;

(iii) To reproduce their works; 

(iv) To distribute or import original works or copies thereof; 

(v) To communicate their works to the public by wire or wireless means, electronic information networks or any other technical means; 

(vi) To lease original cinematographic works and computer programs or copies thereof. 

Moral rights are attached to the original songwriter and guaranteed in any case for an indefinite term. Economic rights, meanwhile, refer to the exclusive rights of owners. Organizations and individuals, when exercising one, several or all of the above-mentioned economic rights, must ask for permission of and pay royalties, remunerations and other material benefits to copyright holders.

2. Legal copyright issues upon covering a song

Song cover is construed as a new performance of previously-published works. The performance (cover) is the use of musical works accompanied by the following acts (specified in Article 21 of Decree 22/2018):

– to perform works through phonograms or video recordings;

– to perform works before the public (either directly or through phonograms or video recordings or with whatever technical devices accessible by the public).

– to communicate works to the public (by wire or wireless means, electronic information networks or any other technical means to make their works or copies thereof available to the public, in such a way that members of the public may access such works from a place and at a time they themselves select).

The cover or use of songs must ensure that it does not infringe the copyright (the moral rights of authors and the economic rights of copyright holders). Specifically as follows:

– Moral rights: ensuring the authors’ right to have their real names or pseudonyms acknowledged when their works are published or used; ensuring the integrity of the works;

– Economic rights: The use of any right included in the group of economic rights must ask for permission of and pay royalties, remunerations and other material benefits to copyright holders, unless otherwise prescribed by laws.

3. Sanctions imposed on copyright infringement

If exercising a work without obtaining permission and paying royalties as well as  remunerations, the user may be imposed any of the following sanctions:

3.1. Handling of copyright infringement by civil measures – Compensation for damage:

Intellectual property right holders may request organizations or individuals that commit acts of infringing upon intellectual property rights to terminate their infringing acts, make public apologies or rectifications and pay damages, or initiate lawsuits at courts or arbitration centers to protect their legitimate rights and interests in accordance with Article 198 of the current Law on Intellectual Property.

Accordingly, if a person covering a song fails to comply with the law provisions, infringes the copyright and causes damage to the copyright holder, this person is obliged to compensate for the damage. The copyright holder also has the right to initiate lawsuits at courts to protect his/her legitimate rights and interests.

If the parties reach an agreement on payment of remunerations and royalties, problems are solved. If the dispute is brought to a competent court/arbitration and the plaintiff can prove damages, then the court shall decide on the compensation level for copyright infringement based on the reasonable bases provided by the plaintiff (For example, total material damage calculated in an amount of money plus profit gained by the defendant as a result of an act of infringing upon intellectual property rights, etc.). Where it is impossible to determine the level of compensation for material damage on the bases, such compensation level shall be set by the court, depending on the damage extent, but must not exceed VND 500 million; attorney fees and compensation for mental damage (in accordance with Articles 204 and 205 of the current Law on Intellectual Property).

3.2. Sanctions imposed on copyright infringement by administrative measures

Sanctions for administrative violations shall be imposed on organizations and individuals that commit one of the acts of copyright infringement, causing damage to authors, copyright holders, consumers or society (as specified in Article 211 of the Law on Intellectual Property). Specifically as follows:

(i) Copyright infringement regarding moral rights:

– Using a work without indicating the real name or pseudonym of its author or its title, or incorrectly indicating the name of of its author or its title on phonograms or video recordings: A fine of between VND 2,000,000 and VND 3,000,000 and forcible correction publicly on means of mass media ; (as specified in Article 9, Decree 131/2013/ND-CP)

– A fine of between VND 3,000,000 and VND 5,000,000 shall be imposed for arbitrarily modifying or mutilating a work causing damage to honor and prestige of the author; A fine of between VND 5,000,000 and VND 10,000,000 shall be imposed for distorting a work causing damage to honor and prestige of the author. Remedial measures include forcible correction publicly on means of mass media and forcible removal of copies of the work which is infringed, in electronic form or on internet (as specified in Article 10, Decree 131/2013/ND-CP)

(ii) Copyright infringement regarding economic rights

– Acts of performing a work to the public without permission of the copyright holder: (1) a fine of between VND 5,000,000 and VND 10,000,000 shall be imposed for live performance of the work; (2) a fine of between VND 10,000,000 and VND 15,000,000 shall be imposed for performance through audio- or video-recorded programs or whatever technical means accessible by the public. The remedial measure may be forcible removal of copies of infringed phonogram and video recording (as specified in Article 13, Decree 131/2013/ND-CP)

– A fine of between VND 15,000,000 and VND 30,000,000 shall be imposed for communicating a work to the public by wire or wireless means, electronic information network or any technical means without permission of the copyright holder. The remedial measure may be forcible removal of infringing copies of phonograms and video recordings. (as specified in Article 17, Decree 131/2013/ND-CP)

Hopefully, the above article has provided basic information about the provisions of intellectual property rights law related to the act of covering songs. For any further advice, please contact Apolat Legal via hotline (+84) 911 357 447 or email info@apolatlegal.com.

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