Who Owns Music Copyright After a Songwriter or Singer Passes Away Under Vietnamese IP Law

Inheritance of Copyright and Related Rights upon the death of a songwriter or singer under Vietnam's Law on Intellectual Property

Disclaimer: This Article is for general informational purposes only and does not replace legal advice for specific situations.

TL;DR

When a songwriter passes away, the Copyright in their Musical Work does not disappear, nor does the work immediately belong to the public — it only becomes a work belonging to the public after the statutory term of protection ends. The economic rights and the right to publish the Musical Work are transferred to the heirs. However, the remaining moral rights cannot be inherited and continue to be protected for an indefinite term. Related Rights in the Performance and the Sound and Video Recording are likewise transferred to the heirs when the performer or the producer of the sound and video recording passes away, as analyzed in detail below.

Any individual or business seeking to use a song by a deceased songwriter or singer must exercise real caution in identifying the person with authority to license. Omitting a co-heir — or an entire layer of rights — may render the license agreement ineffective against the remaining right holders and give rise to liability for damages.

This article analyzes the structure of Copyright and Related Rights after the right holder passes away, and how music users identify the correct party from whom permission must be sought.

Which rights can be inherited, and which cannot?

COPYRIGHT IN MUSICAL WORKS

Copyright consists of two branches with different "legal fates" after the author passes away. Under Article 40 of the Law on Intellectual Property, organizations and individuals that inherit copyright in accordance with the law on inheritance are the owners of the rights provided for in Article 20 and Clause 3, Article 19 of this Law [1].

Thus, the heirs become the owner of Copyright with respect to the economic rights and the right to publish the work — but they never become the "author" and do not receive the moral rights attached to authorship, other than the right of publication mentioned above. The heirs have the right and obligation to request the competent State authorities to handle acts of infringement of the rights that the heirs enjoy under the law.

See more: "Ai sở hữu Bản quyền Âm nhạc"

RELATED RIGHTS IN PERFORMANCES AND SOUND AND VIDEO RECORDINGS

Related rights comprise rights in the Performance and in the Sound and Video Recording. When the right holder passes away, the heirs may become the owners of the corresponding economic rights within the scope of the inherited estate.

Thus, the "economic rights" portion in the Performance and the Sound and Video Recording can be transferred to the heirs for continued commercial exploitation. However, inheritance neither confers "performer" status on the heirs nor transfers the moral rights attached to that status. Although the term of protection of the performer's moral rights is limited, those rights remain attached to the very person who carried out the performance. [11]

Co-heirs of Copyright / Related Rights

Co-inheritance is the most common situation — and also the greatest source of risk — when exploiting the music of a deceased songwriter or singer. Where the songwriter or singer leaves no will, or the will divides the rights among several persons, the economic rights in the Musical Work — as well as the commercial exploitation rights in the Performance and the Sound and Video Recording — become property under the common ownership of the co-heirs.

Under the law on inheritance, an individual has the right to make a will to dispose of their property. In the absence of a valid will, the estate is divided at law among the heirs by order of inheritance — the first order of heirs comprising the spouse, biological parents, adoptive parents, biological children and adopted children of the deceased. [12]

This common-ownership structure entails important legal consequences:

• Licensing requires the agreement of all co-owners, including co-heirs where the original owner has passed away: Where a Work, Performance, or Sound and Video Recording has co-owners, the licensing of Copyright and Related Rights must have the agreement of all co-owners [13]. In practice, this is particularly important for Works, Performances, and Sound and Video Recordings created by several persons or inherited by several persons. Before signing any license agreement executed directly by an "heir", the licensee should identify all of the co-heirs, or verify the authorization or consent of each of them. If only one person signs the agreement without the valid consent of the others, the scope of the licensed rights may be disputed, exposing the licensee to the risk of having to cease exploitation or incurring liability to the other co-heirs.

• The principle applies to both layers of rights: A distinction must be drawn between Copyright in the Work and Related Rights in the Performance, the Sound and Video Recording, and the Broadcast. Where any of these subject matters is under common ownership, determining who has the authority to license must be carried out separately for each subject matter and each portion of rights. It cannot be assumed that the person holding rights in the Work also holds rights in the Sound and Video Recording, or vice versa. This is particularly important in music licensing transactions, because a single song may simultaneously contain multiple layers of rights held by different parties. For example, a song may have several co-authors, while the Sound Recording of that song is owned by an artist, a producer or another organization.

  Therefore, the licensee should correctly identify the subject matter of rights, the corresponding owner, and the scope of the rights granted before exploitation.

• Authorization granted to a Collective Management Organization or a private rights management entity: The death of the right owner does not mean that the rights management authorization automatically terminates. If, before passing away, the owner signed an authorization contract with a collective management organization or a private rights management entity, the contract should be reviewed to determine the scope of the authorized rights, the duration of the authorization, and the mechanism applicable upon the right holder's death. Where the "economic rights" are transferred to multiple heirs, it is further necessary to determine who holds the portion of rights previously authorized and whether the prior authorization continues to apply to the inherited portion of rights. If the co-heirs become co-owners, the continuation, amendment or termination of the authorization should be considered in line with the new ownership structure.

• Where co-heirs are in dispute, every transaction is risky: When the co-heirs have not reached agreement on ownership or the scope of exploitation, one person unilaterally signing a license agreement may lead to disputes over the validity and scope of the transaction. Even a licensee that has signed the agreement and paid in full still faces the risk of other co-heirs objecting to the exploitation, demanding cessation of use, or claiming payment or compensation based on their rights. Accordingly, it is not sufficient to check only the signature of the representative or the person directly managing the work. Where there are signs of an inheritance dispute, the licensee should clearly establish the state of ownership, the consensus of the co-heirs, and the scope of rights that the signatory can actually convey before commencing exploitation.

What happens when there is "no" heir?

If the owner of Copyright or Related Rights (or all co-owners of the rights) passes away while the subject matter of the rights is still within its term of protection and there is no heir, those rights do not automatically terminate, nor do they become property that may be freely exploited.

Under Article 42 of the Law on Intellectual Property, the State is the representative of the owner of Copyright and Related Rights where the owner passes away without an heir; this also applies where the heirs renounce the inheritance or are not entitled to inherit. Therefore, the fact that no relatives can be found, or that no heir can be identified, does not mean that the work becomes "free music" that anyone may use.

In practice, if a business wishes to exploit a song falling within this situation, it should identify the State body representing and managing the rights and follow the permission procedure applicable to State-held rights under the implementing regulations. Only when the term of protection ends do the Work and the Sound and Video Recording of that song belong to the public and become usable in accordance with law — while the moral rights that remain protected by law must still be respected.

See more: "Khi nào Tác phẩm âm nhạc thuộc về công chúng?"

See more: "Tìm hiểu về cấp phép sử dụng Tác phẩm âm nhạc và Bản ghi âm"

See more: "Ai cấp phép sử dụng âm nhạc?"

Conclusion

The death of a songwriter or singer does not mean that the copyright in their music comes to an end. The rights may be transferred to the heirs, continue to be managed through an authorized organization or entity, or — where there is no heir — be represented by the State in accordance with law.

Therefore, before using a Work or a Sound Recording of a deceased artist, what matters is not only determining "who is the heir?", but also determining who currently owns the rights, which portions of rights were inherited, and who has the authority to license.

For the exploiting party, fully verifying the chain of ownership and representation before signing the agreement is a critical step to avoid a situation that appears to have been duly licensed but is later disputed by co-heirs or other right holders.

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REFERENCES

[1] Article 40 of the Law on Intellectual Property;

[2] Article 19 of the Law on Intellectual Property;

[3] Clause 1, Article 20 of the Law on Intellectual Property;

[4] Clause 1, Article 27 of the Law on Intellectual Property;

[5] Point b, Clause 2, Article 27 of the Law on Intellectual Property;

[6] Clause 2, Article 29 of the Law on Intellectual Property;

[7] Clause 3, Article 29 of the Law on Intellectual Property;

[8] Clause 1, Article 30 of the Law on Intellectual Property;

[9] Clause 1, Article 34 of the Law on Intellectual Property;

[10] Clause 2, Article 34 of the Law on Intellectual Property;

[11] Clause 4, Article 44 of the Law on Intellectual Property;

[12] Articles 650 and 651 of the Civil Code 2015;

[13] Clause 3, Article 47 of the Law on Intellectual Property.