Global Flows & Colliding Copyright Regimes, YouTube Diaries 4 of 6

In the last YouTube Diaries post, I discussed how companies leverage YouTube’s Content ID to siphon ad revenue from creators who may not have the knowledge or ability to dispute their bogus copyright claims. Though it’s unlikely that the claims are made actively, Content ID incentivizes large companies to simply dump their entire libraries into the system, regardless of whether they own complete rights to everything in those libraries, and this puts the onus on the small-time creators who cross their paths to basically fix their rights databases for them.

This time, I’ll continue on that theme with an even crazier claim that was made this year for a video I had uploaded ELEVEN YEARS AGO. Back then, I was a young college student who had only begun his Vietnamese music journey. Following my đàn bầu teacher’s lead, I used karaoke backing tracks purchased at retail from Vietnamese American music labels like Thúy Nga Productions and ASIA Entertainment, playing the melody over them instead of singing. One such cover was for the song Lúa Mùa Duyên Thắm by Trịnh Hưng, using the instrumental track from one of Thúy Nga Productions’ karaoke music DVDs:

So young. So impressionable. *wistful sigh* Anyway, this new claim came from POPS Worldwide, a music distributor based in Vietnam:

lua_mua_duyen_tham.PNG

And this was the track that they insisted I had copied:

Notice anything? They were using the exact same karaoke track that I had! In 2016, this company from Vietnam had jacked the same karaoke track from Thúy Nga Productions’ “Paris By Night” DVDs that 22 year old SoulGook had used, remade the music video in practically the same way as the original (a duet by a male and female singer taking place in a rice field), and they had the audacity to say *I* was infringing on *their* copyright.

If anyone had a claim against me, it would have been Thúy Nga themselves, not POPS Worldwide, and frankly, they had a bigger claim against POPS than against me, since (1) I at least did something different with the song and (2) my video was clearly not in a position to steal any revenue from the original version of the song.

As you can imagine, I immediately fired a dispute back at POPS and, just like the last time, their claim against me eventually expired without a peep (you can read my dispute with POPS in its entirety on Google Docs). As far as I can tell, these opportunistic claims are never worth the trouble of defending for the companies who make them; they just want to blanket as many videos with copyright claims as they can, and profit from the ones that stick because people are either too afraid or too busy to do anything about them. It’s the shotgun approach to profiting off intellectual property ambiguities across international boundaries.

Historical Context: South Vietnamese Music Pre-1975

However, if we take a step back from the instrumental track under dispute here, then there is also the question of the original song and the intellectual property regimes in which it has operated over the course of time…specifically, the copyright laws of war-era South Vietnam. I’m not certain when Trịnh Hưng wrote “Lúa Mùa Duyên Thắm,” but the earliest recording of which I’m aware is on the record Tiếng Hat Quê Hương Hòa Bình by Ngọc Cẩm and Nguyễn Hữu Thiết released in April 1973.

The South Vietnamese entertainment industry was fairly robust even despite the conflict, and songwriters properly received royalties for their work, but the intellectual property framework was nowhere near as rigid as it is now. Often, they were just one-time payments that would give the artist the rights for unlimited use in perpetuity, and this is generally how many Vietnamese artists, both in Vietnam and overseas, still handle it (recently, in a dispute over whether he had rights to a song, a Vietnamese American artist simply posted to social media photos of the checks for the rights he had written). Additionally, some songs from the time were based on folk music and traditional repertoire, which  does not use an individual-based intellectual property framework at all, so many artists from this background didn’t engage modern copyright law. “Lúa Mùa Duyên Thắm” fits into this category at least in terms of musical style, since its primarily Vietnamese pentatonic scale places it squarely in the genre often referred to as “nhạc quê hương” (homeland music).

As a technical matter, when South Vietnam lost the war in 1975, cultural products from the south were burned and destroyed by the Northern forces as they took over, so this wiped out any copyright policies and records they had. From then until the “Đổi Mới” policies of economic revitalization in the 1990s, Vietnam barely had an entertainment industry to speak of beyond state-sponsored propaganda media. Consequently, while pre-1975 South Vietnamese music was most certainly still played privately, there was really no reason to maintain copyright documentation for songs that the government had banned.

Now that Vietnam’s music and entertainment industries have boomed, these songs have begun re-entering Vietnam’s pop cultural consciousness in dribs and drabs for the past decade or so, where nostalgic audiences clamor for Saigon’s music from the 1950s – 1970s. Though some songs are still banned (especially those that refer explicitly to the war), many are now officially recognized by the government and sung by Vietnam’s most popular stars like Đàm Vĩnh Hưng and Lệ Quyên, which also requires that the music re-enterVietnam’s intellectual property regime. And with many of the original creators living overseas as refugees from the war, it’s often open season on the rights, which are maintained by an agency in Vietnam’s Ministry of Culture, Sport, and Tourism. Đàm Vĩnh Hưng famously included a song on one album originally by Vietnamese American songwriter Trúc Hồ without his permission, using a different name in the credits (and presumably in his declaration to the copyright agency). Incidentally, much of Trúc Hồ’s music continues to be officially banned in Vietnam.

In another recent case, the copyright of the song “Nỗi Lòng Người Đi” by the songwriter Anh Bằng, a beloved figure in the overseas Vietnamese musical community, was apparently taken as part of a propaganda campaign. A musician named Khúc Ngoc Chân claimed a copyright for a song entitled “Tôi Xa Hà Nội” (the first line of Anh Bằng’s song), with slightly different lyrics, insisting that he had a lover who had emigrated south in 1954 (when Vietnam became North and South Vietnam) at the age of 16, and he had given her a written copy of the song. She, as he claimed, went around singing this song everywhere until her untimely death at the age of 30, insinuating that Anh Bằng had heard her singing it and stolen his work. In the Vietnamese government’s ongoing conflict with parts of the Vietnamese diaspora, control over copyright is just another tool in its propaganda campaigns.

Trịnh Hưng finally moved to France in 1990 after having spent years in jail for anti-government songs spurred on by the death of his son at the hands of government officials. However, as a legal matter, did the rights to his songs actually follow him? When a company in Vietnam claims the rights to his music, who actually receives that money?

Profiting Off Ambiguity

Being a sovereign nation, the Vietnamese government has jurisdiction over the copyright of songs produced in Vietnam. However, does this apply to music originally produced by overseas Vietnamese music labels? Alternately, are there any protections for overseas Vietnamese music labels when Vietnamese companies steal their instrumental tracks? It’s all quite a mess, but it’s clear who profits off the messiness.

With all the pre-1975 music of South Vietnam coming back into favor in Vietnam after many of the musicians who created that music immigrated overseas and the intellectual property framework of that era was obliterated, there is a huge black hole concerning the rights to this music. All the while, it is being performed in official venues and media in Vietnam more and more every day, which leaves room for opportunists to release versions of these songs, the copyright statuses of which are largely non-existent. In turn, they get first dibs at having a version in copyright databases like YouTube’s Content ID, and they then claim the copyrights and accompanying royalties for themselves.

I don’t think that all of this activity is deliberate in the sense that record labels in Vietnam are all going out of their way to grab all the unlicensed old South Vietnamese music they can (though a few definitely are) but I’m most concerned by the way in which databases and algorithmic controls like YouTube’s Content ID makes this activity the path of least resistance. Arguably, the 22-year-old me and POPS are equally infringers on the “Lúa Mùa Duyên Thắm” instrumental track from Thúy Nga Productions, but the former was just a kid making music in his dorm room to share with a Vietnamese Student Association, and the latter is a music label with global aspirations and in it purely for the money.

On top of that, POPS has not only profited off of its own music video that steals intellectual property from others, but also leveraged Content ID to passively route the revenue from ALL videos that use this instrumental track to themselves until the opposing parties dispute them, on a case-by-case basis.

One possible action I could take that might have broader effects beyond me would be to raise a claim against POPS themselves, though this would, again, require additional labor from the lowest person on the totem pole. I’m considering taking that step anyway just to see what consequences there might be for this sort of opportunistic claim, but (a) the burden shouldn’t be on me to do so and (b) I’m not holding my breath for a good result.

Thanks for reading all the way to the end! Please comment with your thoughts and share it with others who might be interested. Next week, we discuss the strange situation of cover songs of cover songs. See you then!

Update 2017-09-18: A few weeks ago, POPS filed a second YouTube claim against my video when they released a new recording of the song with exactly the same backing track but just with new singers. In my dispute, I copied my original message and also directly referred to this post. They promptly (in a matter of days) withdrew the claim.

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