Protection of copyright in musical works in vietnam’s digital environment

In recent years, even though the government also promulgates a number of legal documents regulating the protection of digital musical works in terms of copyright, the application in prac

HO CHI MINH CITY UNIVERSITY OF LAW THE MANAGING BOARD OF SPECIAL TRAINING PROGRAMS

BACHELOR’S THESIS INTERNATIONAL LAW MAJOR

PROTECTION OF COPYRIGHT IN MUSICAL WORKS IN VIETNAM’S

DIGITAL ENVIRONMENT

STUDENT Nguyen Kim Trang STUDENT ID 0955020242

SUPERVISOR LL.M Le Tran Thu Nga

HO CHI MINH CITY

2013

Statutory Declaration

I hereby affirm that this thesis, submitted in fulfillment of the requirements for the bachelor thesis of the Faculty of International Law, Hochiminh City University of Law, is wholly my own work unless otherwise referenced or acknowledged All thoughts or quotations which were inferred from different sources are clearly cited as such

Nguyen Kim Trang

INTRODUCTION

1 Necessity of research

The development of information technology along with the establishment of the internet has created a popular e-commerce environment in the world, which is also known as digital environment Such environment does not only influence in every respect of life and society including the copyright in musical works, but it also leads to the arising of an urgent demand which is enforcement, amendment and update of legislation in digital copyright, in order to be adequate with the progress of the digital age

However, the copyright protection in digital environment is still an issue that is relatively new in Vietnam and does not attract the interest of society in proportion to its importance

It is undeniable true that the situation of violation of copyrighted music in the digital environment in Vietnam is a widespread phenomenon, as a result of several specific characteristics of digital technology From that point, this situation causes many negative effects in the creation of the artists, the sustainable development of economy, culture and society as well as the international integration of Vietnam In recent years, even though the government also promulgates a number of legal documents regulating the protection

of digital musical works in terms of copyright, the application in practice of such documents do not really effective enough to change and ameliorate the situation of copyright infringement of musical works Therefore, it is necessary to carry out the research on the protection of copyrighted music in the influence of the digital environment

For that reason, the topic “Protection of copyright in musical works in Vietnam’s digital

environment” is chosen for the writer’s graduation thesis All comments and advices are

always welcomed to assist the writer in completing this thesis as well as possible

2 Object and delimitation of thesis

The protected object in terms of copyright is fairly wide and diversified, including literary works, scientific works, textbooks, teaching courses, press works; stage works; cinematographic works; photographic works; architectural works; computer programs and so on However, in this thesis, the writer only focuses on researching the copyright in musical works Moreover, the copyrighted musical works will be researched in the limited range of digital environment only

Besides, although the related rights have the close relationship with the copyright because the activities of the related right holders are the act of using the copyrighted works, the related rights are not researched in this thesis, for they do not make any impacts on the protection of music copyright as well as do not mentioned in the topic of the thesis

3 Purposes of the thesis

The thesis concentrates mainly on analyzing and recapitulating the legislations of copyright protection in musical works in the digital environment as well as studying the use of digital music on the internet, the level of copyright violation of online musical works and the protection of copyright in digital works in practice

From that point, the writer can generally assess such issues and thence analyze the applications and implementation of such regulations in practice, in order to find out the problems, the reasons of these problems and the adequate solutions to solve them

In chapter 2, analytical and synthetic method was mainly utilized for analyzing the regulations of domestic law and international treaties in the digital music copyright Moreover, all methods were used to bring out the application in practice of such regulations as well as to compare them with the WCT and DMCA

In chapter 3, analytical and comparative methods help to point out the disadvantages, the reasons and the solutions

5 Scientific significance and the value of the thesis’s application

This thesis will be one of reference sources for all who want to look up all the regulations

on music copyright in the digital environment, which were filtered and synthesized from all legal documents, in opinion of the writer, relating to music copyright in the digital age On top of that, the thesis also gives a general view in the recent practice of music copyright in a digital environment, the disparities between regulation and application which have some reasons and suggestive solutions to solve

The writer hopes that the issues in respect of digital music copyright will be concerned more in proportion with its influence and importance Also, this thesis can distribute a small part in perfecting the legal frame as well as cleaning up the use and exploitation of music copyright in a digital environment

6 Structure of thesis

Beside Introduction and Conclusion, this thesis is divided into three chapters:

Chapter 1: An overview of theories and recent situations of protection of copyright

in musical works in the digital environment

This chapter introduces an overview of theories of copyright, copyright protection digital technology and the digital age like definition, feature, operative principle, history and development From that, it can point out the specific characteristics of digital environments affecting the music copyright In addition, this chapter also generalizes the real situation of music copyright in the digital environment, which together with the

specific characteristics of digital environment leads to the demand of copyright protection

Chapter 3: Suggestions in protection of music copyright in digital environment

This chapter brings out the back draws which analyzed in both previous chapter and this chapter for clearer, and suggestion in protection of music copyright in a digital environment

IFPI International Federation of the Phonographic Industry

IP Law Intellectual Property Law

RIAV Recording Industry Association of Vietnam

TRIPs Agreement on Trade-Related Aspects of Intellectual Property Rights VCPMC Vietnam Centre for Protection of Music Copyright

VNIC Vietnam Network Information Center

WIPO World Intellectual Property Organization

TABLE OF CONTENT INTRODUCTION

WORD INTERPRETATION

TABLE OF CONTENT

Chapter 1: An overview of theories and recent situations of protection of copyright

in musical works in the digital environment

Copyright in musical work

1.2.2 Characteristics of the digital environment affecting the copyright

1.2.3 Present situation of musical work in terms of copyright in digital age

1.2.3.1 Digital music

1.2.3.2 The general situation of copyright in musical work in digital age

Chapter 2: Regulation and application in protection of copyright in musical works in digital age

2.1 Kinds of protected musical works

2.1.1 International treaties

2.1.2 Domestic law

2.2 Subjects of copyright in musical works

2.2.1 International treaties

2.2.2.1 The author of copyright

2.2.2.2 The owner of copyright

2.3 Content of copyright in musical works in digital environment

2.5 Implementation of copyright in digital musical work

2.5.1 Regulation in implementation of copyright in digital musical work

a Protective measures of right holders

b Protective measures of related organizations and individuals

c Protective measures of enterprises providing intermediary service

d Protective measures of competent State body

 Civil remedies

 Administrative remedies

 Criminal remedies

 Authority of the competent State body in dealing with the infringements 2.5.4 Application of regulation in copyright in digital musical works

Chapter 3: Suggestions in protection of music copyright in digital environment 3.1 Suggestion in regulation on copyright in digital musical work

3.1.1 Perfecting the current regulations on copyright in digital musical work

3.1.2 Enforcing a legal document regulating the protection of music copyright in digital environment

3.1.3 Joining in WCT as soon as possible

3.2 Suggestion in implementation of copyright in digital musical work

3.2.1 Enhancing the effect of implementation of competent State bodies in protecting the copyrighted musical works in the digital environment

3.2.2 Improving the awareness of citizens in protecting their copyright in digital environment

3.3 Suggestion in international cooperation on protection of music copyright in digital

environment

CONCLUSION

REFERENCES

Chapter 1

An overview of theories and recent situations of protection of copyright in musical

works in the digital environment

1.1 Copyright in musical works

In the early days, people created the variety of products to satisfy human needs and facilitate the living These commodities were mainly tangible assets such as foods, clothes and work tools Eventually, the assets were overproduced and became surplus with the plentiful provide of the new invention of tools and equipment People started to build up their own assets and took possession of them as their personal properties However, such properties were visible entities, which people could physically steal or guard When human physical basic needs are fulfilled, they demand to satisfy the spiritual needs Many intangible products, are also called artworks, were created to actualize the spiritual needs These products, which were for example, music, literatures and paintings, formed a group of invisible property The visible assets get to be no longer the criterion to compare the economic status; the new motivation forming the prosperity

in recent society is intellectual property or invisible property1 Therefore, acknowledging and protecting the intellectual property has become one of the essential requirements in every era Consequently, the intellectual property rights were founded to fulfill that function In tradition, the intellectual property rights consist of (1) copyright and related rights, (2) industrial property rights This thesis will exclusively discuss the former in the music industry

1.1.1 Definition

1.1.1.1 Copyright

From the point of economic view, the International Federation of the Phonographic

Industry (IFPI), which represents the recording industry worldwide with some 1300

1

Kamil Idris, ―Intellectual Property- an efficient tool to develop the economy”, page 54 (Vietnamese version)

members in 66 countries and affiliated industry associations in 55 countries, defined

the meaning of copyright as:

―Copyright is the means by which a person or a business makes a living from creativity Copyright springs from a simple notion: the people that create, produce or invest in creative work should be the ones that decide how that work should be reproduced and made available to the public‖2

According to Article 4 (4) Intellectual Property Law 2005 (IP Law), it states that:

―Copyright means rights of an organization or individual to works which such organization or individual created or owns.‖

Generally, the copyright in musical works is a normative law system including a number

of legal rights, which belongs to the authors or the right holders of musical works An author who is directly uses their creation, effort, time and money to create the artworks

A right holder is who legally obtains the works property by transaction, inheritance, and transfer or by assigning the author the task to create the artworks The right holders deserve to possess the legitimate interests from their musical works as a compensation of their investments Moreover, they can also decide what to do with their works and/or how their works are going to be like, as a fundamental right of self-determination in a liberal and democratic society Therefore, the aims of copyright are to recognize and to protect

the rights of the owners to their musical works Hereinafter, the authors and right holders

of the musical works will be called as ―owners‖

In accordance with the rule of Article 18 IP Law, the copyright in musical works is divided into two components: moral rights and economic rights The former comprises four specific rights:

 Heading towards the spiritual elements of owners,

 Namely giving titles to their works,

2 IFPI, ―What is copyright?”, http://www.ifpi.org/content/section_views/what_is_copyright.html (accessed on

6/7/2013)

 Attaching their real names or pseudonyms to their works

 Publishing or authorizing other persons to publish their works and protecting the integrity of their works

Meanwhile, economic rights consist of several rights, which mainly emphasize the authority of the owners over the commercial and propertied benefits from their musical works Overall, the copyright is the rights of the owners to their own musical works in both physical perspective as well as moral perspective

1.1.1.2 Protection of copyright in musical works

According to the Article 3 of Decree No 100/2006/ND-CP, detailing and guiding the implementation of a number of articles about the civil code and the intellectual property law regarding the copyright and related rights, the protection of copyright and related rights were explained as follows:

―1 Protection of copyright means protection of the rights of authors to all types of literary, artistic and scientific works specified in Article 738 of the Civil Code and Articles 18, 19 and 20 of the Intellectual Property Law

2 Protection of related rights means protection of the rights of performers to their performances; the rights of producers of phonograms and video recordings to such phonograms and video recordings; the rights of broadcasting organizations to their broadcasts and encrypted program-carrying satellite signals specified in Articles 745,

746, 747 and 748 of the Civil Code and Articles 29, 30 and 31 of the Intellectual Property Law‖

As mentioned above, the copyright was formed to protect and admit the owners’ right to their works Therefore, the protection acts as a main role and essential function of copyright It can also say that the protection of copyright is a theoretic platform of the copyright’s generation

The manifestation of the protection of copyright is to provide and protect the economic foundation for creating and disseminating music, literatures, arts, films, software, and other forms of creative works Thence, talented people have the incentive to originate new ideas and products So the entrepreneurs also have some sort of the economic reasons to invest in them

1.1.2 Features

In order to comprehend the concept of the copyright and to deeply explore about it, there are following prominent features listed:

Firstly, the protection of copyright does not depend on the content and artistic value of

the art works No conditions in the tenor and merits of works required for the copyright to

be recognized and protected, as long as such works are founded and materialized by the creation of mental labor

Secondly, the copyright protects the presented form of artworks The intellectual property

law only protects the way to express the themes of the artworks In other words, it will not take any responsibility for the creative ideas of these artworks Therefore, an author can take the view of other’s work and generate later his own work having the same idea

of the former, in condition that his new work must be manifested in different manner.3

Thirdly, the protection of copyright is an automatic mechanism That means the license

procedure is not the compulsory formality to the copyright protected by the authorities Whenever the artworks are completely created and perform in a certain physical form, they will be immediately and automatically safeguarded according to the law

3

Dr Le Dinh Nghi – Dr Vu Thi Hai Yen, ―Textbook in intellectual property law”, page 23 - 24

1.2 Digital technology and the situation of musical work copyright in digital era 1.2.1 Digital technology

There were two big dreams of human that science and technology successfully satisfied

in the 20th century The first was to reproduce the natural phenomena that can be heard, seen and known by people The second was remote contact or telecommunication It was quite a shift from videocassette recorders playing mechanical discs and silent films with black and white colors, to modern displays of digital video discs with complex vaulted sound techniques and many channels of information, which are transmitted by fiber optic cable or satellites that can bring several hundred television broadcasts per time All such renovations would not be archived without the supporting of growing digital technique

1.2.1.1 Operational principle of digital technology

Before the appearance of digital applications, people used analogical technique to work The physicists simulated the natural phenomena by many alterable continuums, which unbrokenly change For instance, the sound of bird was recorded as a combination of a numerous string of sin - shaped movements, or the image of sky and white clouds in the videotape was also presented as many constant chains of sin - shaped signs They were the result of transforming the signs into a lot of upheaval or alternating electric current and thence storing it in the videotape That kind of technique was called ―catalogue‖, which was popular until the end of 70s

However, one day, the scientist figured out that the emotion of mankind is also influenced by the time They made an experiment as following description:

In a room which its outside is cold at 0 degree Celsius, a person has to warm by letting the electric current of 10 amperes running through a resistance wire to heat, for example the operation of an electric stove When he does not feel warm enough, he has to raise the current intensity up to 11 or event 13 amperes Hence, the running of electric current pushes up, and the calories will emit increasingly When the temperature of the outside

increases that means the weather is warmer, he will reduce the current intensity down to 9

or 8 amperes to heat These actions are harmonizing or making equable the temperature

to please his need depending on the outside conditions Thus, he is required to have the method to push up and down constantly the temperature according to his wish Eventually, this task will be impossible in case it only has one switch to break the current

So, how can do it?

It will be possible to harmonize the temperature if the scientists add the temporal factor Using only one switch, they will connect the current in 10 minutes, and then interrupt it

in 1 minute so as to warm up or shut the current in 1 minute then cut it in 10 minutes in order to warm down Consequently, the rise or fall of temperature depends on the gaps between the interruption and the connection of the electric current As a result, the scientist can intentionally control the temperature based on shutting and breaking the current Such methodology is the theoretical basis of digital technique in which the two levels of play or circuit breaker were known as two levels of logic (0 and 1).4

Similarly, the natural sound of bird will also be analyzed incoherently in the fullness of

time The scientists divide the chain of birdsong notation into tiny pieces as much as possible over time, and each piece will be symbolized by a string of numbers 0 and 1 that presents the high or low level of volume and the pitch of timbre In a certain moment, the more pieces they divide into, the more high quality of musical reproduction that they get

For the image, they also split it into many pieces over time by applying the technique

scanning the image into dozens of lines/streams, which are continuously divided into informational pieces of light and dark color The piece was signed by a peal including the numbers of 0 and 1 that contains the information about color appropriately Furthermore,

the movement of movies is caused by the unbroken appearance of a set of many single

pictures

4 KTS (2008), ―What is the digital technique?”, http://tgkythuatso.wordpress.com/category/ky-thuat-so-la-gi/

(accessed on 6/7/2013)

be recorded and saved in the magnetic environment, as well as can be transmitted and read by electrons at the speed of lights, to wit 300,000 kilometers of a second.6

1.2.1.3 Application of digital technique

After describing the natural phenomenon by the periodic series of the digits (0 and 1), the scientists began to invest the numerous useful applications that made the digital technique become preeminent

The first is simpler storage Instead of recording complexly sound and images by multiple levels of magnetic tape such as videotapes, cassette tapes, they were recorded by perforating the holes signed to the logic of 0 and 1 For example, the compact disc (CD), video compact disc (VCD) and digital videodisc (DVD) were used according to such principle Then they punched the holes and radiated the laser through it to read the data again

The second is telecommunication The broadcasting only had to transmit to two levels of

0 and 1, which created easier transmission while retaining the original images and

sounds It is better than dealing with signals at multiple levels, which might distort, muffle the voices, and distribute the wrong colors.7

The third is evolution The chain of logic of 0 and 1 are easily handled and transformed

or evolved immensely by the mathematicians The circuits of numeral filter engendered the surround sounds containing full of hearing styles, which were very attractive and majestic The processing of digital images produced a multitude of collages and the high

televisual techniques that analog signals were impossible to do

1.2.1.4 Development

As a result of preeminent applications in every field, the digital technique has gradually developed and perfected and caused a great revolutionary movement in the economy along with the society of the human history - the Digital Revolution; and thence opened

up the Digital Age

The Digital Revolution took place at a miracle speed Namely, the first electronic general-purpose computer known as Electronic Numerical Integrator and Computer (ENIAC for short) was born in 1946 It was worth several million dollars but had the size

of 4-5 compartments and could only perform 5000 commands in a second Whereas, fifty years later, the usual personal electronic computer (PC) only had a desktop size, cost approximately 1000 dollars and could perform over 400 million commands in a second (anticipating that will reach 1000 million commands in 2012) by using chip allowing on-off many million times of a second Moreover, supercomputers (differ from PCs) are currently expected to have the speed of 1000 billion commands in a second For example, the US Department of Defense ordered IBM to manufacture a supercomputer that is currently used to transform the nuclear experiments into mock-up forms Besides, during the Digital Age the modern media also developed at the same pace The invention of fiber

7 KTS (2008), What is the digital technique?, http://tgkythuatso.wordpress.com/category/ky-thuat-so-la-gi/

(accessed on 6/7/2013)

optic cable, slender as a strand of hair, has allowed the transmission of the amount of information as large as 90,000 encyclopedic dictionaries per second International envelopment of the telecommunication system and the global positioning system by satellites also played important roles in this global movement Because of digital development in which the total capacity of computers continuously doubles every 18 months, computing and communication gradually occupy a high density in the economy

of many countries This led to the manifestation of the ―computerized social life‖ period, which explored and rapidly switched to the period of globalization after the forming of internet.8

1.2.1.5 Characteristics of digital environment affecting the copyright

The digital environment is a place where has technological applications used to carry out the storage and transfer of copyright Hence, its characteristics are able to harm the copyright and to be used against the protection of copyright Such characteristics are listed as follows:

The first is easy to copy A musical work that has been digitized can be copied easily and

fast with low cost and the guarantee of quality Each copy is continuously transcribed into the other versions, which still retain the original quality Hence, only one such copy alone can meet the needs of millions of people We have witnessed how a CD record from the 80's or 90’s could be copied into billions of duplicates and became popular on the internet in recent years

The second is easy to spread Global digital network allows the dissemination of works in

digital form quickly around the world As broadcasting, digital network permits to broadcast from a center to millions of individuals (although there is a difference that the digital compositions are unnecessary to come to all receivers at the same time) Moreover, the digital network also allows each individual to become the subject of

8

Ministry of Commerce, Electric Commerce, page 36-37

transmitting This makes the amount of distributions increase exponentially and is sometimes called viral effect Thus, this issue, together with the ability to easily copy, means that a digital copy of a work may be reproduced hundreds or thousand times in just

a few hours When being delivered by the high-speed links such as coaxial cable network

or even cable line, such process will be even faster and harder to control.9

The last is easy to store Computers can store a large amount of digital information and

such size was extended greatly years after years; hereby, human has never been able to store such enormous amount of information ever since and this ability will continue to expand in the future In the early 90's, CDs owning the capacities of 600 megabytes were using widely by the wrongdoers, who made fake tapes and gained the profits amount to millions of dollars Meanwhile, now, a portable music device having the size of only two fingers can contain a 70 times larger the previously mentioned amount of information (about 10,000 songs)

1.2.2 Situation of musical work copyright in digital environment

1.2.2.1 Digital music

According to the report NetCitizens Vietnam 2011 of Cimigo (a market research and providing international consulting services Company), 31% of Vietnamese have accessed internet, and approximate 2-3 million people additionally access the internet each year.10 Moreover, Vietnam Network Information Center (VNIC) said that the number of internet users in Vietnam have gradually grown from 748,000 in 2003 to 31.3 million in 2012, accounting for 35.58% of the population.11

9 Marybeth Peter, ―The challenge of copyright in digital age”,

http://sachtructuyen.info/02-59808-Chuyen_de_ve_quyen_so_huu_tri_tue_Thach_thuc_ve_van_de_ban_quyen_trong_thoi_dai_ky_thuat_so_.htm (accessed on 6/7/2013)

10 T.Huyen (2011), ―Vietnam takes the lead in the development of internet”,

http://nld.com.vn/20110501094547393p0c1014/viet-nam-dan-dau-tang-truong-internet.htm (accessed on 6/7/2013)

11 Minh Tri (2013), ―Measuring the effectiveness of online marketing”,

http://sohoa.vnexpress.net/tin-tuc/doi-song-so/do-luong-hieu-qua-tiep-thi-truc-tuyen-2807166.html (accessed on 6/7/2013)

Vietnam is also one of the countries having the fastest speed of internet development in the world

(Viet Nam is the fastest growing Internet market in the region and belongs to the highest

group in the world – Source: Cimigo Netcitizens.)

Also, the statistic of comScore (in 4/2013) showed that one user spends an average of 90 minutes per day accessing internet11 in order to read the news, search for information and seek for entertainment such as watching the high-definition (HD) movies, listening to audio books, reading online books and especially, listening to online music which are the products of digital technology According to the report of Cimigo NetCitizens, almost 80% of internet users listen to the online music and two thirds of them download digital music from the internet, as the following chart:12

12

Cimigo NetCitizens (2012), Vietnam NetCitizens Report 2012

Thus, using the internet for the purpose of listening digital music is also becoming a trend gradually as well as is becoming the most popular amusement in Vietnam

The main activity related to entertainment is listening to music, which more than half of internet users do on a regular basis 60% have downloaded music from the Internet and 40% do it at least once a week

In 2009, it seems that, for entertainment, the share of internet users that download music has increased by 9% since 2007, which is able to show the speed of increment in usage of digital music in Vietnam in recent times

One more evidence is provided by Zing MP3, a website that tops the online music market with 10 million users They estimate that a daily average number of 7.1 million songs, 1.95 million videos and 1.85 million albums are being heard/ watched every day.13

Indeed, thanks to the digital technique, it is able to compress the enormous amount of digital music and store it into electronic devices such as computers Afterwards such music can be delivered, distributed and spread quickly through the internet As a result, it caused an eruption of the Vietnamese as well as the global music market which was digitalized and transmitted via the international network in the 21 century

Such explosion in digital music market will be demonstrated persuasively by some following figures of IFPI in 2013, which will outline the extraordinary speed of digital music development around the world They also give a prediction in the replacement of digital music for hard copies of music in the near future

- Global recorded music industry revenues increased by an estimated 0.3 per cent in 2012, the first year of industry growth since 1999, to US$16.5 billion

- Digital revenues increased by an estimated 9 percent to US$ 5.6 billion in

2012, now accounting for around 34 per cent of global industry revenues

- Download sales increased in volume by 12 percent globally in 2012 and represent around 70 per cent of overall digital music revenues

- Digital music consumption has become main stream, as shown by consumer research by Ipsos MediaCT across nine markets in four continents Two-thirds

of internet users (62%) have used a licensed digital music service in the past six months Among younger consumers (aged 16-24) this figure jumps to 81 percent.14

Moreover, the explosion of digital music market also presents its edge in the globalization settings Digital technique allows songs to become well-known and popular not only in their mother country but also in other countries regardless of distances, languages and distinguishing cultures Herein, there are fascinating statistics of IFPI in the global being of digital music, which can estimate and prove the expansion of digital music:

- At the start of 2011 the biggest digital music services were present in 23 markets Now they are present in 58 markets

- iTunes opened for business in 28 new markets in 2011, including all members of the EU and 16 countries in Latin America

- In Asia, South Korea remains the most successful digital music market, with

an estimated three million music subscribers In China a landmark partnership was announced in June 2011 between three major record companies – Sony, Universal and Warner - and internet search giant Baidu.15

Besides, digital music is one of the most important objects which can influence and drive the digital economy Record companies used digital form as the most effected way to make their artists together with their songs become famous, widespread or at least to be aware of, resulting from strategies which range from the social networks to devices, broadcaster and live performance For example, nine out of ten most watched videos of

all time on YouTube are music videos, led by PSY's Gangnam Style which has been

viewed more than 1.2 billion times The music video gained worldwide attention to PSY

as well as created many opportunities for him to perform live in many countries This all started from a click of the upload button Moreover, every year, the digital industry in

15 IFPI (2012), ―IFPI publishes Digital Music Report 2012 Key Facts and Figures”, page 1 - 2,

http://www.ifpi.org/content/library/DMR2012_key_facts_and_figures.pdf (accessed on 6/7/2013)

music invests 26 per cent of its trade revenues (US$4.5 billion) in developing and marketing talent16

In sum, the music market had a spectacular step forward in its development by evolving into digital form This led to an enormous link to social media and created streams of music listeners across borders Also, Vietnam does not stand alone in this trend

1.2.2.2 General situation of copyright in musical work in digital age

As above-mentioned, there are three features of digital music including the ease to spread, the ease to store and the ease to copy They ultimately transformed the musical industry along with need for entertainment with music of people However, the method of reproduction, copying and storing the digitized information including the copyright works is clearly a double-edged sword for the owners (both authors and holders) It creates more opportunities for criminals and illegal competitors to copy and consume the digital music without any authority or license

In accordance with the report of IFPI, the global state of infringement in the copyright of digital music looks very bad, namely:

- 28 per cent of internet users globally access unauthorized services on a monthly basis, according to IFPI Around half of these are using peer-to-peer (P2P) networks The other half is using other non-P2P unauthorized channels which are a fast-growing problem

- Illegal ―free‖ has a negative impact on sales Research by the NPD Group in the USin 2010 found that just 35 per cent of P2P users also pay for music downloads P2P users spent US$42 per year on music on average, compared with US$76 among those that pay to download and US$126 among those that pay to subscribe to a music service;

http://www.ifpi.org/content/section_resources/dmr2013.html (accessed on 6/7/2013)

- 60 per cent of e-book downloads in Germany are illegal, according to Börsenverein des Deutschen Buchhandels, the organization representing German publishers and booksellers17

For Vietnam, Mr Giles Cooper – an international lawyer of Duane Morris Vietnam Law

Firm, informed that: "Only about 1% of download and supply of products on the internet

in VN is copyrighted This means that 99% are not copyrighted The number of downloads and providing illegal products like this are just about 63% in the world"

Undeniably, it is the fact that the particular situation of protection of copyright in Vietnam is even worse than the world, which is inherently terrible Since the early 2000s, when the trend of digital music flourished and spread around the world as well as Vietnam, a series of sharing website are opened which created the door for domestic audience to access easily with the abundant musical resources satisfying almost tastes Over time, the digital music improves in both quantity and quality whereas almost Vietnamese auditors constantly download them free regardless of the authors’ copyright According to the recent statistics, a quarter of Vietnamese population (20 million people) regularly accesses the internet and downloads online music However, only 5% of them pay for the copyright, 85% do not pay and 10% waver between paying and not paying Also from this statistics, Vietnam now has over 150 websites doing business in piratical digital music; most of these sites are not licensed for users to download the musical products18 In recent years, the recording industry of Vietnam is seriously damaged, because of the situation of downloading free music on the internet without the license This leads to the tape production of Vietnam Recording Association declining over 80%

in the last 5 years The producers cannot continue to invest in new musical projects, because their losses will happen surely

In conclusion, there is the prompt development of digital technology which leads to the large increase in the number of online music as well as copyright violation in digital music market Hence, challenges in term of copyright in digital Age are how to protect the rights of copyright holders in the digital environment This requires the development

of new technology and juridical framework to fight illegal competitors and digital piracy

be the subject matters of such convention; and that these kinds of works have been fixed

in some material form Therefore, we can infer that every kind of musical works satisfies the definition of an artistic work under Article 2 (1) BC, and hence is adjusted and protected in the sphere of copyright providing that it is expressed in whatever material appearance

From such foundation of BC, the later WIPO Copyright Treaty (WCT) was born to regulate particularly for the protection of copyright in the internet environment, which is declared evidently in the opening, namely: ―Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works‖ This term ―information and communication technologies‖ can be understood to include the digital technology which creates the innovation on progress of accessing and transferring informative resources involving literatures, arts, music and so on

For that reason, the musical works which are presented in digital form also lie under the protection and adjustment of international intellectual property law

Accordingly, because of its combination of several or more musical notes and characters, digital music is definitely a kind of music works which is manifested in a special form differing from traditional ones; however, the values and efforts that creators put into them still are the same and undeniable Thus, the appearance of music cannot influence the rights to the works of the owners or become a crucial condition to be protected in term of copyright Such theory is confirmed in Article 4 (7) IP Law:

―7 Work means a creation of the mind in the literary, artistic or scientific sector, expressed in any mode or form.‖

Also, Article 737 CC states that:

―Objects of copyright shall include all works created in the literary, artistic or scientific field and expressed in any form and by any means, regardless of their contents and value, and without depending on any procedures‖

Therefore, regardless of the ways in which music composition is presented, for instance, digital song, it would be deemed as a musical work, one of the protected objects of the copyright stated under Article 14 (1) (d) IP Law

In brief, as long as a digital musical work can meet the essential conditions to be a work

as provided in Article 4, it will be an object protected with respect to copyright, which is

stipulated in both domestic law and international treaties that Vietnam is a party to and is bound by

It will be a shortcoming if the derivative digital musical work is not mentioned as a kind

of digital music works protected by the law of intellectual property Such digital musical works will also be protected in case of satisfying two conditions stated under Article 14 (2) and (3) IP Law as follows:

o Do not ham the copyrights in respect of the digital works used to make derivative works

o To be created directly by author’s intelligence without reproducing others’ works

3.5 Subjects of copyright in musical works

3.5.1 International treaties

The Article 2 (6) BC announced that the protection of copyright shall operate for the benefit of the author and his successors in title in all countries of the Union of BC Also, according to Article 3 (1) BC, such author has to be a national of one of the countries of the Union, or he/she is not a national of one of the countries of the Union, but their works were firstly published in one of those countries, or simultaneously in a country outside the Union and in a country of the Union

3.5.2 Domestic law

Article 60 of the Constitution of the Socialist Republic of Vietnam rules that:

“Citizens have the right to undertake scientific and technical research and discovery,

invention, innovations, technical improvements, rationalization of production, and to

engage in literary, artistic creation and criticism and other cultural activities Copyright and the right to industrial ownership are protected by the State‖

So, the first fundamental issue which has to be affirmed is that the State encourages and protects all the legal rights of the owners of the copyright in their artistic creations, including the musical works in digital form

In accordance with Article 13 (1) IP Law, the subjects of copyright, or individuals or organizations that own the copyright consist of the authors and the copyright holders of musical works, namely:

―Organizations and individuals having works which are protected by copyright comprise persons who directly create such works and copyright holders stipulated from Article 37

to 42 inclusive of this Law.‖

3.5.2.1 The author of copyright

Stating in the Article 736 Civil Code, the author means:

―1 A person who has created a literary, artistic or scientific work (hereinafter referred collectively to as works) is the author of such work.‖

Apart from proving their direct creation, the author, who composed the digital music, has

to satisfy one of the following conditions (complying with Article 13 (2) IP Law):

o Be a Vietnamese who has the Vietnamese nationality

o Be a foreigner who has the musical works published for the first time in Vietnam and not yet published in any other country, or the musical works simultaneously published in Vietnam within thirty days after publication for the first time in another country

o Be a foreign individual owning the musical works which are protected in Vietnam pursuant to an international treaty on copyright of which the Socialist Republic of Vietnam is a member (This issue will be mentioned in detail hereafter)

o And one other supplementary condition under Article 8 (1) (b) Decree 100/2006,

which is not mentioned in IP Law, is that being foreign individuals who have works created and expressed in whatever material forms in Vietnam

Besides, in case of existing more than one author who jointly founded the digital music, all of them will be seemed as co-authors and each of them also is bound by the above conditions to become a legal author The division of rights of co-authors is ruled in Article

38 (1) IP Law:

―Co-authors who use their time, finance and material or technical facilities to jointly create works shall share the rights to such works stipulated in articles 19 and 20 of this Law.‖

Hence, if one co-author expects to implement his/her rights to the digital musical work such as transfer, license someone to sing, use or release the work, he/she has to have the approval from the other co-authors However, if it only involves the defining parts of the whole musical works belonging to the creation of each co-author; hence, each such co-author will have the personal responsibility to his/her parts as well as the plenary power

to determine the destiny of his/her parts And of course, they do not have the authority to interfere in the parts of others as stipulating in Article 38 (2) IP Law:

―A co-author as defined in clause 1 of this article who has jointly created a work, a separate part of which is detachable for independent use without prejudice to the parts of the work of the other co-authors, shall have the rights to such separate part stipulated in articles 19 and 20 of this Law‖

Moreover, as mentioned above, derivative musical work in digital form also an object of copyright researched in this thesis, therefore, the persons who have created derivative works from other persons' musical works, including works translated from one language into another, recreated, transformed, adapted, compiled, annotated or selected works, will also be the authors of such derivative works according to the law

3.5.2.2 The owner of copyright

The author or the birth father of the digital music absolutely has the rights to his/her work; as a result of using his/her own time, finance and material or technical facilities to create such work Nevertheless, there are some exceptions in this matter

Article 36 IP Law states that:

―Owner means an organization or individual who holds one, several or all of the economic rights stipulated in article 20 of this Law‖

Hence, the authors always have the moral rights of their work which are inherent in the antecedents of the authors If they want to gain fully economic rights of such work, they have to also be the owners In brief, the concept of owner only puts forward when the person holding the economic rights of copyright is separate from the author There are some cases that the author and the owner are not the same person, namely:

o Owners are the organizations who assign tasks of creating a work to the authors belonging to such organization, or are the organizations and individuals who enter into contracts with the authors

o Owners are contractual assignees of rights or the organizations or individuals that are managing an anonymous work

o Owners are heirs who inherit copyright in accordance with the law on inheritance Similar to the author, the owner also has to respond one of the below conditions to be protected in terms of copyright as the regulation under Article 27 Decree 100/2006:

o Be the Vietnamese organizations and individuals;

o Be the foreign organizations and individuals that have works created and expressed in whatever material forms in Vietnam;

o Be the foreign organizations and individuals that have works first published in Vietnam;

o Be the foreign organizations and individuals that have works protected in Vietnam under international conventions on copyright to which Vietnam is a contracting party

Both BC and Vietnamese law concerns about three factors which are the nationality, the

time of publishing and the place, where the work is created and expressed in whatever

material forms regardless of the nationality of its author, so as to determine the author

status Thus, the scope of subject in terms of copyright under Vietnamese law is similar to

“(a) In the case of works first published in a country of the Union, that country; in the

case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;

(b) In the case of works published simultaneously in a country outside the Union and in a

country of the Union, the latter country;

(c) In the case of unpublished works or of works first published in a country outside the

Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:

(i) When these are cinematographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and

(ii) When these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country.‖

For the protection in the country of origin, the principle of national treatment is regulated under Article 5 (1) (3) BC That means the Unions, which are not the countries of origin, shall grant the protection in respect of copyright to the foreign authors, whose works meet the conditions to be protected by their respective laws, as well as their nationals Also, in the case of protection outside the country of origin, BC states that the authors shall be enjoyed in the countries of the Union other than the country of origin the rights which are similar to the ones of their nationals Additionally, such enjoyment and such exercise shall be independent of the existence of protection in the country of origin as well as any formality Moreover, Article 19 BC also encourages the benefit of any greater protection which is granted by legislation of a country of the Union

BC grants the authors of musical works several rights such as the moral rights including the right to claim authorship of the work, the right to object to any distortion, mutilation

or other modification of, or other derogatory action (Article 6 bis (1) BC) and the

economic rights including the right of reproduction (Article 9 BC), the right of public

performance, the right of communication to the public of a performance (Article 11 BC) and the right of authorizing the other to publish in the ways relating to broadcasting

(Article 11 bis BC) On the other hand, WCT supplements to BC some other rights such

as right of distribution (Article 6 WCT) and right of rental (Article 7 WCT)

However, even though BC stipulate fairly clearly about the rights of the authors to their works, especially the right to publish, it just mentions in the publication by broadcasting, wireless communication, loudspeaker or analogous instruments but by uploading on the internet as the digital form

The copyright divides into moral rights and economic rights As above-mentioned, the moral rights shall include four rights, which are:

o The right to give titles to their musical works;

o The right to attach their real names or pseudonyms to their musical works, to have their real names or pseudonyms acknowledged when their musical works are published or used;

o The right to publish their musical works or to authorize other persons to publish their musical works;

o And the right to protect the integrity of their musical works and to forbid other persons to modify or edit or distort their musical works in whatever form, causing harm

to the honor and reputation of the author

The content and value of the musical work closely connect to the prestige as well as build the reputation of its author; moreover, the author also has to take the responsibility for the tenor of his/her works As a result, among such rights, the right to publish or authorize the other to publish his/her work is the only right which is transferable, inheritable and limited whereas the three others cannot be transferred, inherited and licensed to the other

in accordance with Article 40, 45 (2) and 47 (2) IP Law That means the moral rights (except the right to publish) only belong to the author who directly creates the work

which can be counted as his/her mental child and also contain the personal mark of him/her in many cases

The economic rights in musical works, which mainly emphasize the authority of the owners over the commercial and propertied benefits from their works, comprise the rights:

o To make derivative musical works;

o To display their musical works to the public;

o To reproduce their musical works;

o To distribute or import the original or copies of their musical works;

o To communicate their musical works to the public by wireless or landline means, electronic information networks or other technical means;

Differing from the moral rights, such rights can be inherited, transferred and licensed to the other persons as well as brought authors and copyright holders the payments of royalties, remuneration or other material benefits The royalties of copyright are fixed as

a price list by the VCPMC that base on the real conditions of Vietnam and the referential materials of CISAC. 19 There are some examples to illustrate such royalties:

 For the musical website, the formula for calculating the money by using digital music works as follows:

The amount of money = Subscription money +

Unit price x downloading time (300 VND/time)

In there:

The money of subscription equal:

Number of musical works Unit price (works/month)