A work can be disseminated to the public in many different ways. However, in order for that work of art to be widely known to the public, it needs to be shown on popular music programs and platforms. A performance, in addition to the author’s composition, the performer must present that work on programs and social platforms with the support of phonogram and video recording producers and broadcasting organizations. What conditions must a performance show to be protected by law?
1. Performance definition
Art is a series of actions, characteristic of people and the products created by those activities. Performing arts activities are activities of creating artistic products shaped in the form of texts, sounds, images to communicate directly or indirectly through technical means to the public. This activity is expressed in the form of art performance, circulation of phonograms and video recordings with artistic performance content. Section 2 (3) of Decree 144/2020/ND-CP stipulating performance activities with the explanation “types of performing arts include theater art, music, dance and other forms of folk performances from traditional to modern of Vietnam and the world”.
According to Section 4 (3) of Intellectual Property Law 2005 (amended and supplemented in 2009, 2019, referred to as the Intellectual Property Law for short), rights related to copyright (hereinafter referred to as related rights) means the rights of organizations and individuals to encrypted performances, phonograms, video recordings, broadcasts, and program-carrying satellite signals. Thus, the performance is understood as theatrical art, music, dance and other forms of folk performance; communicated directly or indirectly through technical means to reach the public.
2. Conditions for a performance to be protected according to the law
However, not all performances are protected by the Law on Intellectual Property of Vietnam in particular and the law of Vietnam in general. Section 17 (1) Intellectual Property Law, in order for a performance to be protected, the following conditions must be met:
1. A performance is protected if it falls into one of the following cases:
a) Performances performed by Vietnamese citizens in Vietnam or abroad;
b) Performances performed by foreigners in Vietnam;
c) Performances fixed on phonograms or video recordings are protected under Section 30 of this Law;
d) Performances that have not been fixed on phonograms or video recordings that have been broadcast are protected under Section 31 of this Law;
dd) Performances protected under international treaties to which the Socialist Republic of Vietnam is a signatory.
According to the principle of territorial validity of copyright, the place where the performance is performed is also one of the conditions for the protection of the performance. The laws of each country generally only protect performances by their own nationals, performances performed within their national territory and other circumstances subject to bilateral or multilateral agreements on the relevant matter to which the State is a party or a signatory. In addition to the principles specified in international treaties such as the principle of citizen treatment, the principle of most-favored nation treatment (TRIPS Agreement), Section 17 (1) of the Law on Intellectual Property of Vietnam stipulates with Performances where the performers are Vietnamese citizens, whether performed in Vietnam or abroad, are protected by Vietnamese law. In addition, performances performed by foreigners in Vietnam are also protected under Vietnamese law and in a number of other specific cases as prescribed by law.
In addition, this performance must be guaranteed to be performed for the first time or fixed for the first time (conditions of form or performance). Related rights to the performance arise from the time the performance is fixed or performed without prejudice to the copyright.
According to Section 2 (c) of the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty (hereinafter referred to as the WPPT Treaty) to which Vietnam is a member, there is a fixed definition “as the expression of sounds sound, or this representation, from which sounds may be perceived, reproduced, or communicated through a device.” In Section 4 (5) of Decree No. 100/2006/ND-CP dated September 21, 2006 of the Government detailing and guiding a number of articles of the Civil Code and the Intellectual Property Law on copyright, related rights, fixation is understood as: “expression in writing, other characters, lines, shapes, layouts, colors, sounds, images or representations of sounds or images under definite physical form from which it can be recognized, reproduced or communicated”. Therefore, it can be understood that the performance through the performer’s own creative activity or a combination of a number of relevant elements such as color, composition, lines, shapes, sound to create a performance. In performance activities, the creativity of performers is an important factor to form their image, one of the important personal rights that the law protects for performers.
Thus, in addition to the legal basis specified in Section 17 (1) of the Intellectual Property Law, the performance must be fixed for the first time, expressing the creativity of the performer and not causing damage to the copyright. Then, the performance will be protected by related rights to the fullest extent.
Above is the article “What conditions must a performance meet to be protected?” Hope the article is useful to you.
