In recent years, as the entertainment economy has developed rapidly, the market for buying and selling copyright and related rights of songs has become more vibrant and has raised many controversies, especially the issue of song exclusivity. Therefore, how are “song exclusivity ” and violation of “song exclusivity ” understood? In this article, we will clarify the issues surrounding the exclusive exploitation and use of songs, the issue of violating the rights of the owner, and the rights of those who are transferred the right to use and exploit the copyright. products and sanctions for violations mentioned above.
1. Understand what is correct about “song monopoly” from the perspective of Intellectual Property Law
Songs are one of the subjects of copyright protection, a type of musical work (According to Article 14, Clause 1 of the Intellectual Property Law). According to Article 10 of Decree 22/2018/ND-CP, a musical work is a work expressed in the form of musical notes in sheet music or other musical characters or shaped on audio or video recordings with or without lyrics, regardless of performance or non-performance. Copyright and related rights to songs are important intellectual property of each author and copyright owner.
According to Article 20, Clause 2 of the Intellectual Property Law, authors, and copyright owners have the exclusive right to exercise or allow other organizations and individuals to exercise property rights and the right to publish works. When organizations and individuals exploit and use one or several or all of the property rights and the right to publish a work, they must obtain permission from the copyright owner and pay royalties and other rights. Other material benefits (if any) to the copyright owner, except for exceptions for non-commercial purposes prescribed by law, such as properly citing the work without misrepresenting the author’s intention. to comment, introduce or illustrate in your work, copy a copy for scientific research, personal study and not for commercial purposes, etc.
Thus, “song monopoly” can be understood as the fact that only a single individual, group of individuals, or organization holds one, some, or all of the property rights, and the right to publish the song. sing for a certain period, regardless of non-commercial exceptions specified in the law. The holder of the “exclusive rights to a song” can be the author, the copyright owner of the song, the copyright or related rights to the song, or individuals and organizations that are authorized to do so. Transfer of rights with an agreement that only that individual or organization has the right to use one or more copyrights and related rights for a certain period.
2. Common acts considered copyright infringement of songs
The nature of the act of “infringing the exclusive rights of a song” is an infringement of the copyright of individuals and organizations that hold the exclusive right to exploit and use that song, that is, the individual or organization is not the author or copyright owner, do not have the right to exploit or use or are not allowed to arbitrarily exploit and use copyright rights during the protected period, affecting to the legitimate rights and interests of the author and owner. Some common acts of infringement of “song monopoly” rights today are mentioned as follows:
- Using the work without the copyright owner’s permission, not paying royalties, remunerations, and other material benefits as prescribed by law: The singer does not use the song for the right performance purpose. Initial performance with permission from the author and copyright owner and without payment of royalties to the author and copyright owner; Individuals and organizations record and video their songs and post them on video and broadcast platforms such as Youtube (often called “cover” songs), and self-broadcast live (“Livestream”) as well as like singing songs on social networking sites and making profits without the permission of the musicians.
- Production of copies, distribution, or communication of songs to the public: Many websites have posted copies of audio and video recordings of songs and allowed others to download those copies for income while not asking for permission to post the work, without paying the author and owner of copyright and related rights of those audio and video recordings.
- The act of arbitrarily mutilating or modifying works is also a common violation. If individuals or organizations modify or change the lyrics of a song without the permission of the song’s composer, that action is also considered an infringement of the right to protect the integrity of the work.
- In addition, it should be noted that the author, the copyright owner of the song has transferred the exclusive right to use the song to artist A for a while and has terminated the contract; then the author, the copyright owner, transfers the copyright or the exclusive right to use the song to singer B, then if artist A continues to use and perform that song in other songs, performance for commercial purposes, artist A will be considered to have committed an act of infringement of copyright and related rights of the author, copyright owner and singer B.
3. Sanctions for violations of “song monopoly”
According to the provisions of the Intellectual Property Law, any individual or organization that violates intellectual property rights, including infringing on the exclusive rights to exploit and use songs, may be prosecuted and be handled by civil, administrative, or criminal sanctions based on the nature and severity of the infringement.
- Civil sanctions
When there is an act of infringement of the exclusive right to exploit and use a song, the author or copyright owner can use the case in Court and request the competent Court to apply civil measures such as : (i) forcing the violator to stop the infringement behavior; (ii) forced public apology and correction; (iii) forced to perform civil obligations; (iv) forcing compensation for damages; (v) forced destruction; (vi) forced distribution or use for non-commercial purposes, without affecting the ability of intellectual property rights holders to exploit their rights.
- Administrative sanctions
When there is a request from the rights holder, or from other organizations or individuals that have discovered or suffered damage due to an infringement of the exclusive right to exploit and use the song, or when the infringement is detected by competent authorities, such violations will be subject to administrative sanctions according to regulations. Individuals and organizations that commit administrative acts of “violating song monopoly” may be punished according to the provisions of Article 12, Article 17, Article 24, Article 25 to Article 31, Article 33 and Article 34 of Decree No. 131/2013/ND-CP and being forced to take remedial measures such as being forced to correct the author’s full name, name of the work and name of the performer; removal of copies of infringing works in electronic form, on the network and technical environment (“removal of copies of work”); Force to return to the copyright owner the royalties, remunerations, and other material benefits obtained from the performance of such infringing acts.
- Criminal sanctions
When a violation has elements that constitute a crime, the individual or legal entity that commits the violation will be prosecuted for criminal liability. Specifically, according to the provisions of Article 225 of the Criminal Code 2015, amended and supplemented in 2017, if an individual does not have the permission of the copyright holder but intentionally copies a work or distributes copies to the public. of works that infringe on copyrights protected in Vietnam on a commercial scale or gain illegal profits of 50,000,000 VND or more or cause damage to the copyright holder of 100,000,000 VND or more or Violated goods worth 100,000,000 VND or more shall be subject to fine, non-custodial reform or imprisonment. Commercial legal entities that violate will be fined or have their operations suspended for a certain period, or be banned from doing business, operating in certain fields, or raising capital for a certain period of time.
The copyright rights to a musician’s song will be legally protected by IP law even if the musician does not apply for a Copyright Registration Certificate because copyright arises as soon as the song is written. Songs are created and expressed in a certain material form, regardless of content, quality, form, medium, language, published or unpublished, registered or unregistered sign.
However, to ensure musicians’ rights are protected according to regulations, musicians can register the copyright with the Copyright and Related Rights Registration Office, Copyright Department in Hanoi, Da Nang, and Ho Chi Minh City. Musicians being granted a Copyright Registration Certificate will help strengthen their ability to protect their interests and prove their rights when disputes arise.
Above is the article “ Infringement of Song Exclusivity and Sanctions”. We hope this article is useful to you.
