In the context of opening up for integration and international exchanges taking place more and more widely, Vietnam’s music market has become vibrant with developing a series of young musicians, new singers, performance companies and performance organizations. The renewal of the popular song or remake (also known as a “cover”) the most favorite song also become “prevailing.” A young person needs to have a good voice, choose a famous song/music in the past or present, remix and sing in their creative way and post it on music service website, social networking website… This is a fast way to enter the music field. Moreover, the introduction from Chinese and Korean music and loving this music made many Chinese and Korean music translated or written new lyrics and re-presented. In music, it is not uncommon for many people to perform the same song at the same time. It is not bad to “cover” a song/music and “cover” a song/music to help the song be more widely spread in the music market. However, “cover” does not mean that the “cover” organization or individual can do whatever they want, even for non-commercial purposes, but that “covering” a song/music must respect the copyright of the original work and comply with the provisions of the laws.
When is a song/music protected by copyright?
A musical work (or a song/music) is the subject of copyright protection. According to the provisions of the Intellectual Property Laws, a musical work is a work expressed in the form of musical notes in a piece of music or other musical characters or fixed on phonograms or video recordings with or without lyrics, regardless of performance or non-performance. The copyright of a musical work arises since the work is created and expressed in a certain physical form, regardless of content, quality, form, medium, language, published or unpublished, registered or unregistered.
Thus, a song/music is protected by copyright as soon as the author composes it without copyright registration. Accordingly, the authors and copyright owners will have the rights as prescribed by laws: moral rights (the right to name the work, to put real or pseudonyms on the work; to have real names or a pseudonym when the work is published and used; to publish the work or allow others to publish the work; to protect the integrity of the work, not allow others to modify, mutilate or misrepresent the work in any way any form that is detrimental to the honor and reputation of the author …) and property rights (the right to do derivative works; public performance of works, reproduction of works; distribution, importation of the original works. or copies of the work; to communicate the work to the public by wire, radio, electronic information networks, or any other technical means; rent the original or copy the cinematographic work, program computer program…).
Some notes when performing or “covering” a song/music
According to the reality happening in the music market, we can divide the “cover” of a song/music into two forms as follows (i) “Cover” a song/music without making any changes to the content and tone of the original work; (ii) “Cover” the song/music but fundamentally changing the melody/lyrics of the original work or translating or writing new lyrics and re-presented based on Chinese and Korean music.
The form of “covering” a song/music without changing the content and melody of the original work is the re-presentation of the original work and the use of different alternative instruments such as guitar, piano. …. Then, they will upload the covered version to music services or social networking websites. This is the act of “public performance of the work” – an exclusive right of the work’s property rights granted by-laws to the copyright owner. Accordingly, the copyright owner has the exclusive right to perform or permit others to perform the performance of the work directly or through sound recordings, video recordings or any other technical devices accessible by the public. When organizations and individuals exploit and use this right, they must ask for permission and pay royalties and remunerations to copyright owners. Therefore, performing “cover” and downloading “cover” on music services or social networking websites, “cover” performers must obtain permission and pay royalties and remunerations to copyright owners. At the same time, they must ensure not to damage the honor and reputation of the authors.
For the form of “covering” a song/music but having a fundamental change in the melody/lyrics of the original work or translating or writing new lyrics and re-presented based on Chinese and Korean music. This can be seen as performing a “derivative work,” an act permitted by laws. However, when doing derivative works, the performer needs to meet some conditions as follows:
- The permission of the authors, the copyright owners;
- Without prejudice to the copyright of the original works;
- Paying royalties, remuneration and other material benefits to the copyright owners.
In addition, the cover works in this form will be protected by copyright in the form of derivative works of the covered work if they fully comply with the conditions prescribed by laws.
Besides, individuals and organizations performing a “cover” of a song/music are not required to ask permission of the authors or copyright owners and do not have to pay remuneration, royalties, etc. to the copyright owners in some cases as follows:
- Translating works into braille or other languages for the visually impaired;
- Using for scientific research, personal teaching, or performance in cultural activities, propaganda and promotion without collecting money in any form;
- The original work has become a work of the public (after the expiration of the term of protection of the work, which is 50 years from the date of the authors’ death).
However, even when performing “cover,” using in any case, the performer needs to ensure that it does not affect the normal exploitation of the song/music of the copyright owners; does not infringe upon the rights of the authors, the copyright owners and must fully state the author’s name, origin, and origin of the song/music.
Music is a creative artistic activity. Each song/music will have its style of musicians and singers. Vietnamese music can affirm its position and achieve outstanding achievements in the world music market. Respecting copyrights and respecting authors’ creativity is one of the most critical factors. Before performing “cover,” using or acting related to copyright in particular and intellectual property rights in general, we must consider whether our act requires permission from the authors, whether royalties are required to be paid to the copyright owners or any intellectual property rights are infringed. We can take reasonable actions to ensure compliance and respect for the authors’ creative spirit, the copyright owners’ effort and money, who created the works.
If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.
This article is for general information only and is not a substitute for legal advice.