Distinction between “Sound recordings” and “Musical works” from the perspective of intellectual property law

1. Muscial work 

Musical work is a category of work protected by copyright under the prevailing intellectual property laws. Specifically, a musical work may be expressed in the form of musical notation in a score or other musical symbols, regardless of whether it has been performed or not. Accordingly, a musical work is protected from the moment it is fixed by the author in the form of a musical score, even though it has not yet been embodied in a sound recording or performed by an artist to form a complete song. 

The subjects entitled to copyright protection in respect of a musical work include two (02) principal parties: (i) the author and (ii) the copyright owner. The author is the person who directly creates the work. The copyright owner is defined as the individual or organization that holds the copyright in the protected work, which may be the author himself/herself or another entity to whom the copyright has been assigned. The copyright owner is the party holding the economic rights and the transferable moral rights (if any) in relation to the work, whereas the author is the person who holds the moral rights attached to the work. 

In practice, the author may concurrently be the copyright owner. In addition, in Vietnam, it is increasingly common that a management company holds the copyright ownership in a song, while the producer or artist is recognized as the author of that song. 

2. Sound recordings 

From a legal perspective, a sound recording is recognized as a legal object independent from a musical work, which may differ from the common understanding in practice. The term “sound recording” is used as a shorthand to refer to sound recordings and audiovisual recordings. Accordingly, sound recordings and audiovisual recordings are defined as fixations of sounds and/or images of a performance or other sounds and/or images, or fixations of the reproduction of sounds and/or images, provided that such fixations are not embodied in cinematographic works or works created by a similar process (hereinafter collectively referred to as the “Sound Recordings”). 

Sound recordings constitute protected subject matter under related rights (rights related to copyright). The party that fixes and produces a Sound Recording is entitled to the rights of a producer of sound recordings and audiovisual recordings as prescribed in Article 30 of the Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, and 2022. 

3. Distinction between Musical works and Sound recordings 

Based on the clarification of the above concepts, it can be seen that a musical work is an original creative product of the author, independent of any technical fixation and capable of existing in the form of written musical notation. By contrast, a sound recording arises from the process of fixing the sounds of a musical work by technical means, in the form of audio or audiovisual recordings. It is precisely this difference in nature and protection mechanisms that makes the distinction between musical works and sound recordings a key factor in determining legal rights and obligations when applying for licenses for use. 

Where a third party wishes to use a sound recording or audiovisual recording for commercial purposes, such as incorporating the sound recording of a song into short videos uploaded to social media platforms for commercial exploitation, the third party must obtain the consent of both the producer of the sound recording or audiovisual recording and the copyright owner, and must fulfill the obligation to pay royalties to the relevant right holders. In practice, the parties may agree that either the producer of the sound recording or audiovisual recording or the copyright owner will act as a representative to receive and distribute the royalty payments to the other party. 

Conversely, where a third party intends to modify, edit, or otherwise alter a sound recording in any form, such use not only involves rights in the sound recording but also directly affects the content of the musical work. In such cases, the third party must obtain authorization from the copyright owner to create a derivative work in accordance with Article 20.1 of the Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, and 2022. 

From the foregoing analysis, the theoretical significance of distinguishing between musical works and sound recordings becomes evident. This distinction enables the correct identification of the relevant right holders for each subject matter and facilitates proper licensing procedures. Confusing or conflating these two subject matters may result in incomplete licensing, thereby giving rise to legal risks and disputes in the practical use of music. 

Disclaimers:

This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.

For issues related to the content or intellectual property rights of the article, please email cs@apolatlegal.vn.

Apolat Legal is a law firm in Vietnam with experience and capacity to provide consulting services related to Intellectual Property Rights and contact our team of lawyers in Vietnam via email info@apolatlegal.com.

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