GV Lawyers would like to introduce the article by a Lawyer Le Quang Vy and Paralegal Nguyen Thong Cam Tu titled “Vietnamese National Anthem seen from Intellectual Property Law to practical application” posted on The Sai Gon Times Issue No. 52-2021 (1,619) dated 23 December 2021.
The work “Tien Quan Ca” by Van Cao as a composer is the national anthem of Vietnam. It is known that the family of the late composer Van Cao donated this song to the State. This has proved that the State is the owner of the copyright of Tien Quan ca, the National Anthem.
Recently, Next Media’s silence during the singing of the National Anthem in the match between Vietnam and Laos has sparked many “storms” on newspapers and forums. So how does the Intellectual Property Law govern this story?
Is the owner’s right to the national anthem background music protected by law?
According to Article 6.2 of the Intellectual Property Law 2005 (Law on Intellectual Property) as amended and supplemented, related rights arise since the performance, phonogram or video recording is conducted without prejudice to any copyright. Thus, the related rights of the owners of phonograms and video recordings of the National Anthem will be established and protected for 50 years since such phonogram or video recording is made, provided that such performance does not infringe on the copyright.
In addition, the compilation and arrangement of the background music for the National Anthem is considered an act of creating derivative works. According to Articles 20.3 and 14.2 of the Intellectual Property Law, the creation of derivative works must be authorized by the original copyright owner, and the derivative work can only be protected by law if it does not harm the copyright for the works used to make derivative works.
Thus, the IP Law only protects the relevant rights holders of the National Anthem background music recording in case the background music recording is permitted by the copyright owner, i.e. the State. And if it is a legal recording of the National Anthem background music, protected by law, any individual or organization using this recording must have a copyright obligation to the relevant right holder (except for the cases specified in article 32 of the IP Law, such as arbitrarily copying a copy for the purposes of personal scientific research, teaching; reasonable citation to provide information).
However, also keep in mind, if the family of the late composer Van Cao donates not only to the State but also to people, then this work will belong to the general population and to the producers of phonograms and recordings that are entitled to use this work without permission provided that the moral rights of the author are respected (correctly noting down the work name, the author’s name, ensuring the integrity of the work, failure to alter, mutilate or otherwise misrepresent the work).
Referring to the use of the National Anthem background music in some countries
In fact, countries such as Canada, Singapore, Australia and some others have invested in making standard recordings for their National Anthem. Recently in 2019, Singapore released a new record to replace its 2001 record.
Currently, countries around the world still recognize and protect related rights for owners who are organizations and individuals investing in the performance of national anthem recordings. As in the U.S., the U.S. National Football League (NFL) as well as American professional sports competitions have recorded the National Anthem by themselves to use for their tournaments. Individuals and organizations in the United States have the right to sing and perform their National Anthem anywhere, on all different social platforms, but may not use the recordings of the NFL or other organizations without asking for permission and payment.
In Australia, on the official website of its government, it is stated that in cases of commercial use of the National Anthem, it is required to obtain permission and approval from the government ().
And concerning Vietnam, as stated, the relevant rights holders are protected and at their own discretion, distribute audio recordings and video recordings of the National Anthem to the general population through sale, rental or distribution by any technical means and enjoy material benefits from such distribution (article 30 of the IP Law).
However, if we look objectively at the fact that Next Media interrupted the National Anthem music in the recent Vietnam – Laos match, this is the story of the whole country, the whole nation, and also an opportunity for us to work toward the new actions and plans for Vietnam’s national anthem. Accordingly, state management agencies need to further improve the position of the Vietnamese National Anthem in the eyes of the world, without leaving the story centered upon just one or two related units and organizations. In one respect, it is advisable for organizations and individuals to invest in making recordings of the National Anthem with better quality and techniques for closer distribution to the general population, and in addition, they deserve having their rights protected in connection with such audio-visual recordings.
It is known that, in furtherance of the direction of the Minister of Culture, Sports and Tourism, on 09/12/ 2021, the General Department of Physical Training and Sports issued Official Letter 783/TCTDTT-VP on the use of the official National Anthem recording in the sports activities under management of the General Department of Physical Training and Sports, which is a recording posted on the website of the Government and the General Department of Physical Training and Sports. However, it is time for the State to more carefully invest in sound, harmony, arrangement and technique to have a better standard version when used at major domestic and international events. In addition, it is thought that there should be clear policies and regulations on the use of the National Anthem so that all individuals and organizations can implement, comply, and avoid confusion and controversy as happened.