Is it permissible to hold a performance if the copyright fees have not been paid?

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