Author: Editor VCD

Using musical works in performances entails the obligation to respect and fully comply with copyright. However, in reality, many performances are held before the obligation to pay royalties has been fulfilled. So, the question arises: Can a performance be held if royalties haven’t been paid? This article from VCD will help you.

 What is copyright and the obligation to pay royalties when performing?

According to Article 4 of the 2022 Intellectual Property Law: copyright is the right of an organization or individual to a work created or owned by them, including moral rights and property rights. For musical works, the right to perform the work publicly is one of the important property rights, as stipulated in Clause 1, Article 20 of the Intellectual Property Law.

The obligation to pay royalties rests with the organization or individual directly using and exploiting the work in performances, broadcasts, service businesses, or other forms of exploiting property rights. This entity is the beneficiary of the use of the work and therefore has the responsibility to pay royalties to the author or copyright owner, regardless of whether the author directly participates in the performance or not.

Does the licensing of artistic performances depend on the approval of the copyright owner?

According to Articles 8 and 10 of Decree 144/2020/ND-CP: Regulations on the conditions and documents for obtaining approval to organize artistic performances are as follows:

Conditions for organizing artistic performances:

• Being a public service unit with the function of performing arts, a professional association specializing in performing arts, or an organization or individual registered to conduct artistic performance business activities in accordance with the law.

• Meeting the requirements regarding security, social order and safety, environment, health, and fire prevention as stipulated.

• Having written approval from the competent state agency for organizing artistic performances.

• Documents required for obtaining written approval for organizing artistic performances:

• A written request to organize an artistic performance, using form No. 02 of this Decree, including basic information such as: program name, time of organization, location, etc.

• Script, list of works with authors, and the person responsible for the program content (for foreign works, a certified Vietnamese translation is required).

The procedure for applying for written approval to organize artistic performances is an administrative procedure. The licensing authority will assess and grant the license based on whether the organization meets the conditions and whether the application is valid, as per Article 10 of Decree 144/2020/ND-CP.

Therefore, individuals and organizations can still be granted approval even without written consent or proof of permission from the copyright owner to use the works to be performed, as there is no mandatory requirement. Copyright is an independent civil relationship governed by the Intellectual Property Law and is not a condition for obtaining performance approval.

Can a performance be held if royalties have not been paid?

According to copyright law, whether a performance is allowed to be held without paying royalties depends on the purpose of using the work and the target audience. Based on the current Intellectual Property Law, the use of performance works is divided into the following three main groups of cases:

Case 1: Using a work for a performance without permission or copyright fees

The law allows the use of a work for performance without permission and without paying copyright fees as stipulated in Article 25 of the Intellectual Property Law as follows:

“1. Cases of using published works without permission or copyright fees, but requiring information about the author’s name and the origin of the work, include:

a) Self-copying one copy for personal scientific research or study and not for commercial purposes. This regulation does not apply in the case of copying using copying equipment;

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3. The copying stipulated in Clause 1 of this Article does not apply to architectural works, fine art works, computer programs; the creation of collections and anthologies of works.

4. The Government shall regulate the This section states”

According to the above regulations, when using a work for the public interest, education, research, or information, and not for commercial purposes, and without affecting the normal exploitation of the work, no permission is required and no copyright fees must be paid. For example: Performing arts in schools, performances for propaganda or research purposes, without selling tickets, advertising, or collecting fees.

Therefore, in this case, the performance is permitted without permission and without paying copyright fees. However, the organizing unit must still clearly state the author’s name, the source of the work, and must not distort the content of the work.

Case 2: Using a work for a performance without permission but with copyright fees payable

According to Article 26 of the Intellectual Property Law, the cases in which a work can be used for a performance without permission but with copyright fees payable are stipulated as follows:

“1. Cases of using published works without permission but with copyright fees payable, and with information about the author’s name and the origin of the work, include:

a) Broadcasting organizations using published works, or works that have been permitted by the copyright owner to be recorded on sound or video recordings for commercial purposes, for broadcasting with sponsorship, advertising, or any form of revenue, do not need to ask for permission but must pay copyright fees to the copyright owner from the time of use.

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5. Organizations and individuals who wish to exploit and use published works of Vietnamese organizations and individuals but cannot find or identify the copyright owner shall proceed as follows: According to government regulations.”

According to these regulations, the applicable subjects include:

• Organizations using published works, sound recordings, and video recordings for broadcasting with or without sponsorship, advertising, or any form of revenue collection.

• Organizations using published sound recordings and video recordings in business and commercial activities.

This shows that television programs with advertisements, ticketed concerts, or activities exploiting works for revenue generation all fall under the category of using works without prior permission but are required to pay royalties. In these cases, failure to pay royalties to the copyright owner is considered copyright infringement, because performing the work publicly is one of the property rights belonging to the owner according to point b, clause 1, Article 20 of the Intellectual Property Law.

Payment of royalties in the above cases is carried out in the following two ways:

• When the parties have reached an agreement: the fee amount and payment time will be mutually agreed upon by the parties. In other words, the two parties will negotiate and agree on the following: the amount to be paid, whether it will be paid upfront or later, in a single payment or in installments, and the timing.

• If the parties fail to reach an agreement, payment will be made according to the established formula and fee schedule as stipulated by the Government. Specifically, payment will be made through a collective rights representative organization as stipulated in Appendix I for organizations using works, sound recordings, and video recordings for broadcasting, and Appendix II of Decree 17/2023 for organizations using sound recordings for business and commercial activities.

Therefore, for cases where the use of a work does not require permission but requires payment of royalties according to Article 26 of the Intellectual Property Law, the payment of royalties is a mandatory legal obligation, to be made according to the agreement between the parties or according to the fee schedule stipulated by the Government. If this obligation has not been fulfilled, even if the performance has been licensed by the competent authority in accordance with regulations on artistic performances, the use of the work is still considered illegal in terms of copyright.

Case 3: Using a work for a performance requires both permission and payment of royalties

According to Clause 2, Article 20 of the Intellectual Property Law: the use of another person’s work must be with the permission of the copyright owner and the obligation to pay royalties must be fulfilled, except in cases where there is a different agreement or exceptions as prescribed by law.

Therefore, individuals and organizations using another person’s work to organize a performance must obtain permission and pay royalties, except in cases where permission is not required or where payment is required according to Articles 25 and 26 of the Intellectual Property Law.

If the organizing entity does not obtain permission, does not go through a collective rights representative organization, and does not have an agreement on royalty payment, then even if the competent authority has granted permission to organize the performance, this activity is still considered an infringement of copyright and is illegal in terms of copyright.

The above is the article “Is it permissible to hold a performance if the copyright fees have not been paid?” that VCD sent to you. We hope this article is helpful to you.

Sincerely,

FAQ

Many people mistakenly believe that copyright registration is necessary for a work to be legally protected. In reality, the Intellectual Property Law stipulates that copyright is established as soon as the work is created and expressed in a specific physical form. So, when is copyright officially protected, and what conditions must be met according to the law?

What is copyright?

According to Clause 2, Article 4 of the 2022 Intellectual Property Law: “Copyright is the right of an organization or individual to a work created or owned by them.” This right includes two basic groups of rights: moral rights and property rights, aiming to comprehensively protect the spiritual value and economic exploitation value of the work.

Moral rights:

• Naming the work; Author’s rights include:

• Publishing the work under one’s real name or pseudonym.

• Publishing the work or allowing others to publish it.

• Protecting the integrity of the work, preventing others from distorting, modifying, or abridging it in a way that affects the author’s honor and reputation.

Property rights:

• Allowing the author or owner to commercially exploit the work through activities such as creating derivative works.

• Performing it publicly; copying it in any form; distributing, selling, or transferring copies of the work.

• Broadcasting or communicating it to the public through technical means.

• Renting the original or copies of cinematographic works, computer programs, and other forms of exploitation.

In short, copyright is the right of a person who has invested intellectual effort to create a work bearing their unique personal imprint, regardless of the form of expression of the work.

When is copyright protected?

This is a common misconception, with many believing that copyright protection only applies to works after registration. However, Vietnamese law is quite different.

According to Clause 1, Article 6 of the 2022 Intellectual Property Law: “Copyright arises from the moment a work is created and expressed in a tangible form, regardless of its content, quality, form, medium, language, whether it has been published or not, or whether it has been registered or not.”

This means that as soon as you finish writing a poem, preparing a lecture, taking a photograph, designing a drawing, or programming software… copyright automatically arises without any administrative procedures, without the need to submit documents, or without seeking confirmation.

However, not every work is protected; it must meet the following two conditions:

Condition 1: The work must be created directly by the author.

The work must be the result of the author’s intellectual labor and not copied from others.

Condition 2: The work must be expressed in a tangible form.

Ideas in one’s mind are not protected. But when those ideas are expressed in written form, soft files, audio recordings, images, drawings, program source code, etc., copyright arises.

This is very important in copyright disputes because whoever can prove they created the work first has a legal advantage.

In short, copyright is protected from the moment the work is created and expressed in a specific tangible form, regardless of whether or not it has been registered. As long as a work is the result of intellectual labor directly created by the author and has been “materialized” into text, images, sounds, drawings, digital data, or any other form of storage, copyright automatically arises and is protected by law.

Is copyright registration mandatory?

Many people mistakenly believe that copyright registration is mandatory for legal protection. However, the Intellectual Property Law clearly stipulates that registration is not a condition for copyright to arise. From the moment a work is created and expressed in a certain physical form, copyright is automatically established.

This is affirmed in Clause 2, Article 49 of the 2022 Intellectual Property Law: “Submitting an application for a Certificate of Copyright Registration or a Certificate of Related Rights Registration is not a mandatory procedure to enjoy copyright or related rights as prescribed by this Law.” This means that even if you have never registered your work, it is still fully protected by law.

However, the law still encourages copyright registration because of the significant legal evidence it provides. Essentially, copyright registration is a way to create solid evidence to prove ownership in case of disputes.

A copyright registration certificate is an important legal basis for determining: who is the author, who is the owner, and when the work was created. When disputes arise regarding copying or copyright infringement, the registered author only needs to present the certificate, while the unregistered author will have to spend more effort proving their rights with manuscripts, original files, email exchanges, witnesses, data creation dates, etc.

The above article answers the question “When is copyright protected?”. Understanding this regulation correctly will help individuals and organizations be more proactive in protecting their creative work and minimizing legal risks in case of disputes.

FAQ

The duration of copyright protection is a matter of great concern to many individuals and organizations when exploiting and using works in practice. Many cases of legal violations stem from misunderstanding or not knowing the protection period for each group of rights. So, how many years is copyright protection and how is this period calculated? Let’s find out with VCD in the article below!

What is copyright?

According to Clause 2, Article 4 of the 2022 Intellectual Property Law, copyright is defined as follows:

“Copyright is the right of an organization or individual to a work created or owned by them.” This right includes two basic groups of rights: moral rights and property rights, aiming to comprehensively protect the spiritual value and economic exploitation value of the work.”

Regarding moral rights, authors are legally guaranteed rights such as: naming their work; using their real name or pseudonym when the work is published or used; deciding whether to publish the work or permit others to publish it; and protecting the integrity of the work’s content, preventing others from distorting, modifying, or abridging it in a way that affects their honor and reputation.

Regarding property rights, authors or copyright owners have the right to commercially exploit their work through various forms such as: creating derivative works; performing them publicly; copying the work in any form; distributing and transferring copies of the work; broadcasting and communicating the work to the public through technical means; renting the original or copies for cinematographic works, computer programs, and other legitimate forms of exploitation.

In short, copyright is a set of legal rights granted to the creator or owner of a work, ensuring recognition of intellectual labor and providing a basis for… for the purpose of exploiting the economic value of the work, regardless of its specific form of expression.

How many years is copyright protection?

According to Article 27 of the 2022 Intellectual Property Law, the term of copyright protection is stipulated as follows:

The term of protection for moral rights is indefinite, except for the right to publish the work or to allow others to publish the work.

In that case, the term of protection for the right to publish will be similar to property rights, but the protection term will differ for each type of work as follows:

• Cinematographic works, photographic works, applied art works, and anonymous works have a protection term of 75 years from the date of first publication;

• Cinematographic works, photographic works, and applied art works that have not been published within 25 years from the date of their creation have a protection term of 100 years from the date of their creation;

• In the case of anonymous works, when information about If the author or the work does not fall under the above categories, the protection period is calculated for the author’s lifetime and 50 years after the author’s death; in the case of a work with co-authors, the protection period ends in the fiftieth year after the death of the last remaining co-author.

Note: This protection period ends at 24:00 on December 31st of the year the copyright protection period expires.

Example:

Author A created a book (which has been published) and passed away in 2020. According to regulations, the property rights to this work are protected for the author’s lifetime and 50 years after the author’s death.

Therefore, the protection period will be calculated from 2020 to the end of 2070 and will end at 24:00 on December 31st, 2070. From January 1st, 2071, this work falls under the scope of copyright protection. The public and all organizations and individuals can use the work without permission or royalties (but the author’s name must still be credited according to regulations on moral rights).

Important note when using works after their protection period has expired

Many people believe that once a work’s protection period has expired, it can be used freely in any way. However, this understanding is not entirely accurate. In reality, even though property rights have ended and the work belongs to the public domain, the author’s moral rights are still protected indefinitely by law.

Therefore, when exploiting or using works whose protection period has expired, individuals and organizations need to pay special attention to the following issues:

First, the author’s name must still be credited when using the work.

Even without permission or royalties, crediting the author is a mandatory obligation to respect the creative work of the person who created the work.

Second, it is not permitted to distort, modify, or cut the work. Trimming the content of the work.

The work may be freely exploited, but its original content and meaning must not be distorted, or used in a way that affects the author’s honor and reputation.

Third, the work must not be used in negative or offensive contexts.

Introducing the work into inappropriate environments or content may be considered a violation of the right to protect the integrity of the work.

Fourth, it is necessary to accurately determine whether the work’s protection period has actually expired.

Before using a work, it’s crucial to carefully check the expiration date of the protection period as stipulated by law to avoid violations due to misunderstandings about the timeframe.

It’s clear that the expiration of protection doesn’t automatically mean the author has the right to use the work arbitrarily. Respecting the author’s moral rights remains a mandatory principle when exploiting works in the public domain.

The above is an article titled “How many years is copyright protection?“. Understanding the protection period not only helps authors and owners protect their rights but also helps individuals and organizations use works in accordance with regulations, avoiding the risk of legal violations during exploitation and use.

Sincerely,

FAQ

When copyright and related rights are infringed, initiating a civil lawsuit is one of the important legal measures to protect the legitimate rights and interests of the rights holder. However, not every infringement case can be immediately prosecuted; it must meet all the conditions stipulated by civil procedural law and intellectual property law. This article will clarify the conditions for initiating a civil lawsuit regarding copyright and related rights.

Right to initiate civil lawsuits concerning copyright and related rights

Based on Article 56 of Decree 22/2018/ND-CP and inherited and updated in Decree 17/2023/ND-CP detailing the implementation of some articles of the Law on Intellectual Property concerning copyright and related rights (Decree 17/2023), the protection of copyright and related rights is carried out as follows:

The copyright owner and the owner of related rights may directly exercise their rights or authorize a collective copyright and related rights representative organization or another organization or individual to act on their behalf in protecting their rights. The authorized entity is responsible for publicly disclosing information so that organizations and individuals wishing to exploit or use the works, performances, sound recordings, video recordings, and broadcast programs can contact them to negotiate the use.

This content is also recorded in Section II.1 of Joint Circular 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL-BKH&CN-BTP when regulating the right to initiate civil lawsuits related to copyright and related rights.

Accordingly, the entities entitled to initiate lawsuits include:

• Authors; copyright owners, owners of related rights; legal heirs of the author or of the copyright owner, or owner of related rights; individuals and organizations to whom rights have been transferred from the copyright owner, or owner of related rights; individuals and organizations using the work under contract; performers; producers of sound and video recordings; broadcasting organizations.

• Collective copyright and related rights organizations; other organizations and individuals authorized by the copyright owner or owner of related rights to initiate lawsuits.

• State agencies and relevant organizations, within the scope of their duties and powers, have the right to initiate civil lawsuits to protect public interests or the interests of the State in the field of copyright and related rights.

Conditions for initiating a civil lawsuit regarding copyright and related rights

The conditions for initiating a civil lawsuit regarding copyright and related rights are stipulated in Clause 1, Section IIIA of Joint Circular 02/2008/TTLT-TANDTC-VKSNDTC-BVHTT&DL-BKH&CN-BTP, specifically as follows:

Condition 1: Copyright and related rights have arisen according to the provisions of law.

Copyright and related rights are established according to the provisions of Clauses 1 and 2, Article 6 of the 2022 Intellectual Property Law.

“1. Copyright arises from the moment the work is created and expressed in a certain physical form, regardless of content, quality, form, medium, language, whether published or unpublished, registered or unregistered.

2. Related rights arise from the moment a performance, sound recording, video recording, or broadcast program is presented.” “Waves and satellite signals carrying encoded programs are formed or performed without infringing on copyright.”

Accordingly, authors, copyright owners, and owners of related rights have the right to apply for a Certificate of Copyright Registration or a Certificate of Related Rights Registration under Article 49 of the 2022 Intellectual Property Law.

However, this registration is not a mandatory condition for legal recognition and protection of copyright and related rights.

In the event of a dispute and a party requests the Court to protect their legitimate rights and interests, the Court is still responsible for considering and resolving the case regardless of whether the plaintiff has been granted a registration certificate or has filed an application.

Condition 2: Copyright and related rights are still within the protection period.

Authors, copyright owners, and owners of related rights may only exercise their moral and property rights within the scope and duration of protection prescribed by law.

The protection period for copyright and related rights is determined according to:

• Articles 27 and 34 of the 2022 Intellectual Property Law;

• Article 26 of Decree 85/2011/ND-CP

When the protection period has expired (except for the moral rights stipulated in Clauses 1, 2, and 4 of Article 19 of the Intellectual Property Law), the rights of authors, copyright owners, and owners of related rights are no longer protected by law. Therefore, the Court will only accept and resolve cases when these rights are still within the protection period, except for rights for which the law does not specify a protection period.

The above is an article titled “Conditions for Initiating a Civil Lawsuit Regarding Copyright and Related Rights.” Hopefully, this information will help authors, copyright owners, and related organizations and individuals understand the legal basis and necessary conditions before initiating a lawsuit, thereby effectively protecting their legitimate rights and interests in accordance with the law.

Sincerely,

FAQ

Posting excerpts of works on websites and social media is quite common nowadays. However, many people still believe that as long as it’s not for profit, it won’t constitute copyright infringement. So, does posting free excerpts of works violate copyright? Let’s find out in the article below!

What is a work excerpt?

Currently, the law does not provide a separate definition of “work excerpt”. However, it can be understood that an excerpt from a work is the use of a portion of the content of a copyrighted work (literature, art, science, etc.) in any form such as copying, publishing, sharing, or displaying.

Common types of excerpts from works include:

• Excerpts from books, stories, and articles

• Excerpts from song lyrics and musical pieces

• Excerpts from films and television programs

• Excerpts from research papers and textbooks

Whether short or long, and whether or not a fee is charged, the use of the work is an act of copyright usage.

General principles regarding copyright when using works:

According to Clause 2, Article 4 of the 2022 Intellectual Property Law: “Copyright is the right of an organization or individual to the work they have created or own.”

In principle, when an organization or individual uses another person’s work, they must obtain permission from the author/copyright owner and pay royalties, fees, and other material benefits (except in cases where the law provides exceptions).

Therefore, not charging fees for publishing or using a work does not equate to the freedom to use the work, nor does it exclude the risk of copyright infringement unless it falls under the legally defined exceptions.

Does posting excerpts from a work without charging a fee violate copyright?

Not all acts of publishing excerpts of a work without charging fees constitute copyright infringement. The law stipulates certain exceptions that allow the use of a work within a specific scope. Conversely, if it is outside that scope, it will be considered a violation and subject to penalties. Below are specific cases:

Cases where posting excerpts of a work without charge does not constitute a violation:

• Reasonable quotation for informational, commentary, or research purposes: According to point a, clause 1, Article 25 of the 2022 Intellectual Property Law: “Reasonable quotation of a work for commentary or illustration in one’s own work, provided that the author’s name and source of the work are clearly stated.” Thus, posting excerpts without charge will not violate if only a reasonable portion is quoted, not replacing the original work; the purpose is commentary, analysis, illustration, or research; the author’s name and source of the work are clearly stated; and it does not affect the normal exploitation of the work. Legitimate examples: quoting a short passage from a book for content analysis; quoting a portion of an article for commentary or critique; quoting a scientific research passage for teaching or learning.

• Using the work for non-commercial educational and teaching purposes: According to point d, clause 1, Article 25 of the Intellectual Property Law: “Using the work in teaching and learning activities not for commercial purposes.” In this case, since no fees are charged, the purpose is not commercial, and the content of the work is not altered or distorted, posting excerpts may not be considered a violation.

Cases where posting excerpts without charging fees still violates copyright:

Posting excerpts of a work “for free” is not always legally safe. Many cases are still considered copyright infringement, such as:

• Excerpts that are too long, replacing the original work: Posting multiple chapters of a book; posting the “best” or “climax” parts of a film or story; compiling excerpts long enough that viewers don’t need to access the original work.

• Not including the author’s name and source: By law, clearly stating the author’s name and source is a mandatory condition. Failure to meet this condition violates the author’s moral rights.

• Posting excerpts to attract traffic and indirect advertising: Websites that don’t charge for reading but include advertisements and sell products or services are considered indirect commercial purposes and still require permission and copyright fees.

Important notes when posting excerpts of works

To minimize legal risks and avoid copyright infringement, individuals and organizations posting excerpts of works should pay special attention to the following:

• Only quote within the necessary scope, appropriate to the purpose of use, and do not replace or affect the normal exploitation of the original work.

• Clearly state the author’s name and source of the work, ensuring full respect for the author’s personal rights as stipulated by law.

• Do not use excerpts for commercial purposes or to promote products or services without the author’s or copyright owner’s consent.

• Do not edit, cut, or distort the content of the work, or misrepresent the meaning and spirit of the original work.

• If you have any concerns about the scope of use, you should proactively seek written permission from the copyright owner to ensure legal safety.

The above is the article “Does posting excerpts from a work without charging a fee violate copyright?”. VCD hopes you will better understand the legal regulations on copyright, correctly identify cases where excerpts of a work are permitted, and recognize actions that may be considered violations.

Sincerely,