Contents (1)
Please scroll down to see full table of contents.
By Australian Copyright Council
- Overview of copyright law
- Guide to copyright for Australian musicians and composers
- Copyright collecting societies
- Current issues
- What the Australian Copyright Council can do for you
- Australian Copyright Council
By APRA|AMCOS
- Who are APRA and AMCOS?
- Different rights granted under the Copyright Act
- When does copyright begin?
- What do APRA and AMCOS do?
- How is the money distributed?
- Production music
- Resources available on APRA’s website
Contributed by PPCA
iPods and Internet: Will the law ever catch up?
By Christopher J Chow (Simpsons Solicitors, Sydney)
- Introduction
- New protection for copyright owners
- Exceptions to copyright infringement
- Provisions affecting institutions and organisations
- Conclusion
By Australian Copyright Council
Last revised: 22 March 2007
Australian copyright law
Copyright law creates incentives for people to invest their time, talent and other resources in creating new material – particularly cultural and educational material. Copyright owners are entitled to control certain uses of their material, and on this basis are able to earn royalties, licensing fees and other payments. They are also generally able to control how other people use the material, and thereby protect their interests.
In Australia, copyright law is set out in the Copyright Act 1968 (Cth). This is federal legislation, and applies throughout Australia. In addition to dealing with copyright rights, the Act also deals with performers’ rights and the “moral rights” of individual creators.
Copyright protects specific categories of material – including literary, artistic, musical and dramatic works, audiovisual recordings and sound recordings. Copyright owners have the right to control certain uses of their material, including reproducing it, “communicating” it (for example by emailing or faxing it, putting it on websites or broadcasting it) and, for material such as music, song lyrics, sound recordings and films, performing in public.
There is no registration of copyright in Australia and no formalities are required in order to get copyright.
Copyright is a form of property. Copyright owners can sell (“assign”) or license any or all of their rights. This is the means by which copyright owners such as composers earn royalties and licensing fees.
Copyright generally lasts until 70 years from the end of the year the creator died. There are some important exceptions: for example, if the material was not published in the creator’s lifetime, it may continue to be protected indefinitely.
For more information about copyright generally, click here.
The international context
As a result of international treaties such as the Berne Convention, Australian copyright material is protected in most other countries, and material created in most other countries is protected by Australian law.
In order to become a party to the international copyright treaties, a country must legislate to achieve a minimum standard of copyright protection. In most cases, a country wanting to join an international copyright treaty must also give protection for copyright material from all the countries which are party to the treaty (“national treatment”). Most countries grant copyright protection to Australian material under international treaties.
Minimum standards of copyright protection ensure that there is a basic level of copyright protection in all member countries, although the ways in which the legislation is implemented need not be uniform.
International copyright treaties
Australia is a party to a number of international treaties dealing with copyright:
- Berne Convention for the Protection of Literary and Artistic Works (members are listed here);
- General Agreement on Tariffs and Trade or GATT, which includes the agreement on Trade Related Aspects of Intellectual Property Rights, or TRIPS (members of WTO are listed here);
- Universal Copyright Convention or UCC (members are listed by UNESCO – follow links to “culture”, “copyright” and “UCC”);
- International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, known as the Rome Convention (members are listed here); and
- Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, known as the Geneva Convention or Phonograms Convention (see list of members).
Two international treaties were adopted in Geneva on 20 December 1996, following the World Intellectual Property Organisation (WIPO) Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. The treaties are:
- the WIPO Copyright Treaty; and
- the WIPO Performances and Phonograms Treaty.
The Treaties supplement the provisions of both the Berne Convention and the Rome Convention by providing expanded rights for copyright owners, performers and phonogram producers, including a right of communication to the public to cover online transmissions of copyright material, such as over the internet, a right of “distribution” and moral rights for performers. Members of the treaties are listed at WIPO.
Both of the WIPO treaties are now in force. Australia has not yet signed or ratified either treaty, but is required to ratify the treaties under its Free Trade Agreements with the United States (AUSFTA) and Singapore. Legislation intended to bring Australia into compliance with the WIPO treaties was passed in 2004. Most of these amendments came into effect on 1 January 2005.
Click here for more information about copyright in other countries and internationally.
For detailed information on the issues in this section, go to the Australian Copyright Council’s website.
How copyright applies to music
Material is protected by copyright if it falls into one of the categories of material set out in the Copyright Act. The categories include musical works, literary works (including song lyrics) and sound recordings.
Sound recordings are separately protected by copyright. This copyright is additional to any copyrights in material on the recording. Thus in a CD there may be:
- a copyright in each musical work;
- a copyright in the lyrics to each song; and
- a copyright in the sound recording of the music and lyrics.
What is not protected by copyright?
Copyright does not protect:
- ideas, concepts, styles, techniques or information (in some cases, people using your ideas, information or styles without permission could be in breach of other laws);
- names, titles and slogans (in some cases other areas of law, such as trade marks, may be relevant);
- people and their appearance (in some cases, other areas of law such as defamation may be relevant).
How do you get copyright protection?
An original work which falls into one of the relevant categories is automatically protected as soon as it is recorded in some way (for example, written down, recorded on audio-tape, or saved in a digital file). A work is “original” for the purposes of copyright law if it has not merely been copied from another work, and it is the result of skill or labour on the part of its author.
You do not apply for copyright in Australia, and there is no system of registration here. You do not need to publish your work, put a copyright notice on it, or do anything else before your work is covered by copyright – the protection is free and automatic.
If a dispute about copyright ownership can’t be resolved by negotiation, it may need to be resolved by a court. This is rare. The court considers all the relevant evidence, which will usually include evidence from the songwriter about how the song was written, and perhaps evidence from friends and acquaintances, and evidence in drafts and early recordings.
For more information, see the Australian Copyright Council’s information sheet Protecting your copyright.
Things that DON’T give something copyright protection
There are many myths around about how you can give your work copyright protection. Some of the common ones are set out below.
- Sending a copy of the work to yourself by registered mail: Sending copies to yourself, whether by ordinary or registered post, has no legal effect whatever. At most, doing this may prove that the material existed at a particular date: it does not create copyright, and does not make you the copyright owner.
- Putting the “copyright notice” on material: A copyright notice does not alter the copyright status or legal ownership of the material. Material that meets the requirements for copyright protection is protected whether or not the copyright notice is used.
- Registering music with APRA: Many composers and songwriters are members of Australasian Performing Right Association (APRA) and are required to register their compositions with APRA. Such registration does not create copyright or change the copyright status of the material. Registration of the material allows APRA to collect licence fees for the public performance of the material, and to identify the people entitled to receive the payments. Normally, the copyright owner(s) will receive the fees, but this is not always the case. For example, it is common for bands to come to an arrangement about sharing APRA payments, even if not all members were involved in creating all the songs.
“Copyright notice”
Although not needed in order to get copyright protection, it is a good idea to use the “copyright notice” on your work. The most commonly used, and internationally accepted, way to write the notice is in the form © (or the word Copyright) followed by the name of the copyright owner and the year of creation or first publication – for example “© Dee Rummer 2006”. For sound recordings, the letter “P” (for phonogram) in a circle or in brackets is used instead of the “C” in a circle. You may put the copyright notice on your work yourself – there is no formal procedure. For example, you can hand write, type or stamp the copyright notice on music and lyrics that have been written down, and on recordings of the music (including on demo tapes).
The purpose of the notice is to let someone seeing it know that the material is protected by copyright, and that the person named claims to be the copyright owner. It can also be helpful if someone wants to use your work, as it gives them somewhere to start when they are trying to find the copyright owner.
Although it does not change the legal status of your material, if you use the copyright notice on your material this may make things easier if you need to take court action because of infringement of your copyright.
Who owns copyright?
Music and lyrics
If there has been an agreement about the commissioning of music, or about ownership, this agreement is the first place to look to work out who owns copyright.
If there has been no such agreement, the general rule is that the composer is the first owner of copyright in a musical work, and the lyricist is the first owner of copyright in lyrics; however, there are some important exceptions.
If you are on staff (as opposed to working freelance), your employer will usually own copyright in works you create as part of your employment duties.
Generally, if you are working on a freelance basis, a person who pays you to create a work does not own copyright, but will usually be entitled to use the work for the purpose for which it was commissioned. However, State, Territory and Commonwealth governments generally own copyright in works made for them, or first published by them, unless there is an agreement to the contrary.
The Copyright Act allows you to make an agreement with other people about who owns copyright if you create music in collaboration with other people (for example, with other members of a band). It is generally a good idea to make a written agreement about ownership if you create music in collaboration with other people, as it helps to avoid misunderstanding and disputes later on.
Sound recordings
Generally, the first owners of copyright in a sound recording of a live performance will be both the performer(s) and the person who owns the recording medium (such as the master tape).
The right of performers to own a share of copyright in the sound recording was introduced as a result of the Australia–US Free Trade Agreement (AUSFTA). However, performers have very limited rights in relation to recordings made before 1 January 2005, and are not entitled to exercise these rights where this would interfere with the rights of those who already owned copyright in those sound recordings.
Even for recordings made on or after 1 January 2005, performers’ rights are limited. In particular, performers will not own a share in the copyright in the sound recording if:
- the performance was in the course of their employment; or
- the recording was commissioned (for example, a record company engages a production studio to produce a master recording).
What are your rights as a copyright owner?
Owners of copyright in literary and musical “works” (such as music and song lyrics) have the exclusive right to:
- reproduce the work (including by photocopying, copying by hand, filming, recording and scanning);
- make the work public for the first time;
- communicate the work to the public (for example, via fax, email, broadcasting, cable or the internet);
- perform the work in public (this includes performing a work live, or playing a recording or showing a film containing the work, in a non-domestic situation);
- make an adaptation (for example, a translation or dramatised version of a literary work, a translation or “non-dramatic” version of a dramatic work, or an arrangement or transcription of a musical work).
Owners of copyright in films and sound recordings have the exclusive right to copy their material. In addition, there are rights relating to:
- showing films and playing recordings in public; and
- communicating films and sound recordings to the public using any form of technology (via email, broadcasting, cable or the internet, for example); and
- renting sound recordings.
In the music industry, the following terms are often used:
- mechanical right: refers to the right to record a song onto record, cassette or compact disc;
- synchronisation right: refers to the right to use music on a soundtrack of a film or video; and
- performing right: refers to the right to perform in public and to otherwise communicate the work to the public.
Making money from your copyright
Basically, copyright owners make money by assigning or licensing rights in return for payment. For example, composers and songwriters may assign or license certain rights to a music publisher (for example, mechanical, synchronisation and printing rights) in return for a share of the income. Most composers and songwriters also become members of the relevant copyright collecting society, such as APRA (which licenses public performance and communication of music and song lyrics). Performers will also generally join PPCA (which licenses the public playing and broadcasting of sound recordings and some communication, such as “music on hold” for telephone systems).
When is copyright infringed?
Generally, copyright is infringed if someone uses copyright material in one of the ways reserved to the copyright owner without permission. Using part of a work may infringe copyright if that part is important to the work. It need not be a large part of the work. For example, permission is generally needed to sample music.
There are, however, situations in which copyright material may be used without permission, under special exceptions in the Copyright Act. The special exceptions include fair dealing with copyright material for research or study, for criticism or review and for parody and satire. There are also special provisions which allow the recording of cover versions of works which have previously been commercially released (provided a royalty is paid), and special provisions for the use of copyright material by educational institutions, governments and libraries.
New exceptions were introduced into the Copyright Act in 2007 allowing certain “personal uses” of copyright material – including taping from TV and individuals copying recordings they own. These are very narrow and subject to specific limitations (see generally the Australian Copyright Council’s information sheet Copyright Amendment Act 2006).
For further information, click here.
Copyright collecting societies are not-for-profit organisations which license or administer certain uses of copyright material on behalf of their members. The licence fees collected are distributed to members.
Some collecting societies also collect and distribute fees under “statutory licences”. These are set up within the Copyright Act, and allow use of copyright material for certain special purposes – such as copying by educational institutions or governments.
Most of the collecting societies listed below have reciprocal relationships with collecting societies overseas. This means that an Australian collecting society is generally able to license the works of Australian copyright owners as well as the works of copyright owners who are members of, or affiliated with, overseas collecting societies with which it has agreements. Similarly, use of Australian music overseas is generally licensed by overseas collecting societies which pass on the fees to the appropriate Australian society.
When a song is played in public or broadcast, permission is needed from the copyright owner. Because it is impractical for each individual songwriter to be contacted every time a song is played, non-profit “collecting societies” have been set up in most countries to license the performance, broadcast and cable transmission of songs on behalf of the composers, songwriters and music publishers. In Australia, the relevant collecting society is APRA. APRA is also the first point of contact in relation to licensing the “communication” of music and lyrics over the internet (e.g. webcasting).
Composers, songwriters and music publishers join APRA, and APRA becomes the owner of the public performance, broadcast and cable transmission rights. There is no joining fee. APRA collects licence fees from broadcasters and from venues where songs are performed. APRA also licenses a variety of online uses of music and lyrics. The money collected is then paid to the copyright owners twice a year. APRA’s head office is in Sydney: Locked Bag 3665, St Leonards NSW 2065; phone (02) 9935 7900. It has branch offices in most capital cities.
AMCOS
AMCOS is the Australasian Mechanical Copyright Owners Society. Among other things, it administers a licence scheme for cover versions, and also offers various miscellaneous licenses which involve the reproduction of music and, in some cases, recordings. AMCOS’ reproduction licensing is administered by APRA.
For further information, see the article on APRA|AMCOS on this page.
The Phonographic Performance Company of Australia (PPCA) is an organisation of record companies which licenses the broadcast and public performance, and some forms of communication, of sound recordings on behalf of its members.
PPCA distributes most of the money it collects to record companies, but it also distributes some direct to the performers on the recordings. PPCA’s contact details are as follows: PO Box Q20, Queen Victoria Building, Sydney NSW 2000; phone (02) 8569 1100.
Christian music collecting societies
Many publishers of Christian music are not members of APRA, but instead are members of one of the following collecting societies:
Christian Copyright Licensing International (CCLI)
CCLI is an international organisation originating in the USA, which licenses rights over Christian music published by its members and provides a range of worship resources. Its Australian contact details are: CCL Asia-Pacific Pty Ltd, PO Box 6644, Baulkham Hills Business Centre NSW 2153; phone (02) 9894 5386; toll free 1800 635 474.
MediaCom is an Australia–New Zealand organisation which licenses rights over Christian music published by its members (LicenSing) and provides a range of worship resources. Its Australian contact details are: 14 Eton Rd Keswick SA 5035; phone (08) 8371 1399; toll free 1800 811 311.
Word of Life International is a copyright collection organisation for religious music. It operates in Australasia and the South Pacific. Its Australian contact details are: PO Box 345 Mirboo North VIC 3871; phone (03) 5664 9245.
Creative Commons and standardised licences
In recent years there has been a lot of publicity about free-use licences such as the standardised licences promoted by Creative Commons. While the hype can be very attractive, it is important to bear in mind the following points.
- The “human readable” summaries from CC concerning some of its licences are very misleading, so before offering your work under a CC licence, make sure you read and understand the full “legal code” which goes with each licence.
- A lot of the hype about CC licences may not apply to your circumstances – before adopting one, you need to make sure you understand what it can and can’t achieve for you.
- Putting a CC licence on your work will generally mean you won’t get paid for what you’ve created.
- Once you’ve used a CC licence on something you have created, you cannot change or revoke the licence for that work.
- Big companies and multinationals may have more to gain from creators using CC licences than creators do.
- CC licences are not the only way in which you can allow people to use your work for free. Other licensing approaches can more easily be tailored to your particular situation.
If you are a professional creator, you will almost certainly be better off with a licence crafted to meet your concerns and situation than a Creative Commons licence, even if you are licensing your material for free.
For more information, see the Australian Copyright Council’s information sheet Creative Commons licences.
Private copying
As a result of the 2006 amendments to the Copyright Act, there are now limited provisions allowing people to make copies for private use. The provisions permit:
- “time-shifting” (recording from TV and radio for watching or listening at a more convenient time) – provided the recording is not sold, rented or lent to anyone outside the family or household of the person who made the recording, nor played or shown in public nor broadcast;
- “space-shifting” (copying a sound recording from a CD you own to play on a device you own, such as an iPod or car CD player) – provided the copy is not made from a pirate CD, a download from the internet of a radio broadcast or similar program, an unauthorised download or other infringing copy, and provided the copy is not sold, rented or lent to anyone outside the family or household of the person who owns the CD, nor played or shown in public nor broadcast; and
- “format-shifting” (copying a book, photograph or video you own into another format, such as a digital file) – provided that no more than one copy is made in that format, the copy is not sold, rented or lent to anyone outside the family or household of the person who owns the original, no copies are made for other people and the owner of the original does not give it away.
For more information on the amendments, see the Australian Copyright Council’s information sheet Copyright Amendment Act 2006.
Broadcast royalty cap
The fees payable by broadcasters to owners of copyright in sound recordings (usually record companies) for broadcasting sound recordings are currently subject to a “cap”: 1% of the gross earnings of the broadcaster. In practice, the amount is much less than 1%, as royalties are not payable to record companies for the broadcasting of recorded music from a number of countries, including the US. The government has stated that it proposes to remove the 1% cap, and replace it with an obligation to pay “equitable remuneration” and that, if broadcasters and copyright owners could not agree on “equitable remuneration”, the matter would be decided by the Copyright Tribunal.
The proposal would not affect the separate royalties payable to APRA for broadcasting music. Those royalties are not subject to the cap provision (and are payable for US recordings of music within APRA’s repertoire or the repertoire of APRA’s international affiliates). A discussion paper is available from the Attorney-General’s website.
The Australian Copyright Council is an independent not-for-profit organisation. We provide information, advice and training about copyright in Australia. Our publications include practical guides and discussion papers. We also do research, and make submissions on copyright policy issues.
Click here for further information about music and copyright, and here for a huge range of online information about copyright.
If you are a creator (such as a composer or songwriter) and have a specific question about copyright, you may be eligible for legal advice from the Copyright Council. Please read the relevant information sheet before contacting us, as these answer most common questions. For information about our advice service, and to contact us, click here.
The Australian Copyright Council is a non-profit organisation whose objectives are to:
- assist creators and other copyright owners to exercise their rights effectively;
- raise awareness in the community about the importance of copyright;
- identify and research areas of copyright law which are inadequate or unfair;
- seek changes to law and practice to enhance the effectiveness and fairness of copyright;
- foster co-operation amongst bodies representing creators and owners of copyright.
By APRA|AMCOS
Last revised: 28 March 2007
APRA
Founded in 1926, APRA (the Australasian Performing Right Association), is the oldest copyright society in Australia. APRA represents over 47,000 composers, lyricists and music publishers in Australia and New Zealand and licenses the public performance and communication rights on their behalf.
AMCOS
AMCOS (the Australasian Mechanical Copyright Owners Society) represents both composers and music publishers for the mechanical right – ie. the right to license the reproduction of musical works (in audio format) and the limited right to license the reproduction of musical works in print form (ie. the AMCOS schools’ photocopying licence – only available to primary and secondary schools in Australia.)
Since 1997, APRA has managed the day-to-day operations of the AMCOS business, although each has their own board of directors elected from and by their own membership.
APRA and AMCOS’ joint objective is to secure the fairest and highest level of payments for our members, provide the strongest possible defence of their rights and the best customer service for both our members and our licensees.
To understand the role of AMCOS and APRA it is important to look at the rights that are granted under the Australian Copyright Act (1968) to a creator of an original work. Under section 31 of the Act, the creator of an original musical, artistic, literary or dramatic work is granted a ‘bundle of rights’ to control their work in certain ways. These include the right to:
- reproduce the work (includes photocopying, making recordings)
- communicate the work (formerly the rights of transmission and broadcast)
- publish the work
- publicly perform the work
- adapt the work.
Reproduction of music involves making a copy of the work, such as in a CD recording, in a video or DVD, as a mobile phone ring tone, as a digital download, as production music or in audiovisual and broadcast material.
Communication of music covers music used for music on hold, accessed over the internet or by broadcast by television or radio broadcasters.
Public performances of music include music played in pubs, clubs, fitness centres, shops, cinemas, festivals, whether it’s performed live, from a CD or even just from the radio or television.
In Australia, these rights are administered on behalf of creators by four different organisations:
In relation to the above chart:
- If you wanted to make an audio recording eg. a CD of copyright music (other than your own originals), you will need to apply for an AMCOS manufacture licence.
- If you wanted to copy an existing commercial recording (eg. to copy a CD), you would need both the permission of the record company (who own the copyright in the sound recording) – contact ARIA in the first instance www.aria.com.au and a manufacture licence for the copying of the musical works from AMCOS (see 1.) (Please note that there is no guarantee that the record companies will grant such permission.)
- Any public performance of a musical work requires an appropriate APRA licence (unless an exception applies.) http://www.apra.com.au/music-users/events/events.asp; similarly, the playing of music within a business will in most cases require a licence.
- Playing sound recordings of music in public requires both an APRA licence (for the playing of the musical work) and a PPCA licence (for the public performance of the sound recording.
As soon as an original work is written down and recorded in a ‘material form’, the work has automatic legal protection under the Copyright Act. Composers then need to decide if they will administer their copyright themselves or assign the rights to someone else to administer. If they have a music publisher, they may choose may choose to assign some or all of the above rights to a music publisher to administer on their behalf. If they don’t have a publisher, they may choose to appoint APRA and AMCOS to administer their performing, communication and reproduction rights.
A composer who has written a new song and who can demonstrate that their work is being publicly performed can choose to join APRA and AMCOS. They can choose to have APRA and AMCOS administer, on their behalf, their:
- Performing right
- Communication right
- Reproduction right
As the diagram below demonstrates, at the time of their application, the composer chooses to assign their performing and communication right to APRA. They can also decide if they want AMCOS to administer their reproduction right (excluding print music) and, if so, for what purposes.
(click to enlarge)
Why an assignment of performing and communication rights is important
Collecting societies such as APRA and AMCOS certain rights on behalf of their members in circumstances where it is difficult or impossible to license the copyright on an individual basis. By acting as a link between the users and creators of copyright material, collecting societies can provide a simple means of helping users comply with their copyright obligations and ensuring copyright owners are paid for the use of their work.
APRA and AMCOS offer worldwide coverage
APRA and AMCOS have reciprocal agreements with overseas performing and mechanical reproduction right societies. That means our licences can cover the performance, communication or reproduction of pretty much any work, worldwide.
Who do APRA & AMCOS represent?
Both APRA and AMCOS represent more than 47,000 composer and music publisher members, and by agreement many millions of copyright owners throughout the world. This means that the available ‘repertoire’ to record, broadcast, perform is vast, under our licences.
How do APRA|AMCOS treat their different types of members?
APRA|AMCOS represent a great diversity of writers. We do not differentiate nor discriminate, but treat all members equally. APRA ensures that it maintains a good link to its Indigenous writers: in 2004, APRA appointed an Indigenous Project Officer, Ebony Williams. Since Ebony’s appointment, APRA|AMCOS has been commissioned by the Australia Council for the Arts to undertake an audit of support infrastructure for Indigenous music in Australia.
The objective of the scoping project is to provide comprehensive, integrated and up to date information about Indigenous music in Australia. The outcome of the project will be used to guide the Australia Council and other agencies with policy development and funding responsibilities for Indigenous music.
This important project will focus on factors affecting the economic circumstances and professional practice of Indigenous musicians in Australia.
How much money does APRA|AMCOS collect and distribute?
For the 2005/2006 financial year APRA’s gross revenue collection was $127.2 million (net of management fees) and AMCOS collected $41 million. APRA distributed over $110.3 million during the year whilst AMCOS distributed a total of $35 million to composers and music publishers. APRA|AMCOS also achieved its lowest ever expense to revenue ratio (12.8% of gross revenue).
Performing and Communication Right Licences
APRA|AMCOS collects licence fees and then pays royalties for performing and communication rights to its members throughout the year. Licence fees collected from domestic sources, including; TV and radio stations, nightclubs, hotels, restaurants, fitness centres, cinemas and retailers; are paid as royalties twice a year in May and November; overseas royalties are paid as they accrue.
Once APRA|AMCOS has collected the performing and communication right licence fees, it painstakingly researches the copyright ownership of works that have been communicated or performed, in order to distribute the royalties to the correct copyright owners. In order to work out how these royalties should be allocated, APRA|AMCOS monitors what music is performed or communicated, and how often. As part of their licence agreements, our clients provide detailed reports of their music use, either by keeping full records or by taking part in a survey system. The aim is to obtain as accurate a picture of music use as possible, with as low administrative overheads as possible.
The majority of television and radio stations in Australia are obliged under the relevant licences to keep full details of music broadcast as part of their programmes. These works are researched and the licence fees allocated to particular pools and distributed.
Concert promoters are also obliged to send full details to APRA|AMCOS about works performed, to ensure that the copyright owners of these works are being paid for the performance of the specific works.
Further detailed information about how licence fees are distributed may be found here.
Reproduction or Mechanical Right Licences
APRA|AMCOS collects licence fees for the reproduction of musical works from a number of sources, the major ones being record companies, television stations, Screenrights, video makers, schools and dance schools, and anyone who reproduces music for their business or pleasure.
In many cases, the reproduction right licence is on a pay per use basis, with the money being allocated directly to the copyright owner (for example the band’s manufacture licence in the example above).Where a blanket licence is issued, for example to a television station, a revenue pool is created for each licensee or group of licensees.
Online music, downloading & music copyright
In the online world there has been a misconception that music downloaded over the Internet is somehow ‘free’. The problem however is that ‘free’ music means songwriters and artists do not get paid.
New technologies such as the internet and mobile phone applications are opening up new distribution avenues for songwriters. These new avenues include: digital downloads as full length songs; mobile phone ringtones; webcasting (i.e. online radio stations); and on-demand streaming (i.e. services which permit users to access and experience music over the net at a time and place convenient to the user).
Whenever music is downloaded or streamed over the internet, there are a number of rights which are exploited. These include:
- the reproduction of a musical work; and
- the communication to the public of a musical work.
The reproduction of a musical work occurs in the process of operating a streaming, on-demand or download service – i.e. uploading a work onto a licensee’s central server and/or downloading onto a user’s hard drive.
Online licences offered by APRA|AMCOS
We can offer a reproduction licence on behalf of our music publisher members for certain rights associated with the reproduction of musical works in an online context. In most cases, a communication licence will also be necessary for the work to be communicated in an online context.
A communication occurs when music is made available – which would include online streaming and digital download services and mobile applications such as ringtones and caller tunes.
The reproduction and communication to the public of a sound recording is a separate right and may need a separate licence (usually from a record company) if an original sound recording is used.
To find out more about these licences, click on the link relevant:
Webcasters
Includes licences for Net Radio and Simulcasts.
On-Demand Music and Other Services
Includes websites that use looped background music, discrete music mixes – ie. DJ mix sets, on-demand songs, clips and music videos.
Digital Downloads
Where consumers purchase and download a full-length song or album, via legitimate Digital Service Providers (DSPs).
Mobile Phone Ringtones
Includes downloading of popular music to customise a ringtone and caller tune services.
If you would like more information or are uncertain as to which licence is relevant to your service, please contact us on 02 9935 7900 and ask to speak to someone from Online in the Mechanical Licensing Department, or email.
APRA|AMCOS-controlled Production Music (PM) is music specifically written and recorded for inclusion in all forms of audio and audiovisual productions including adverts, films, DVDs, TV & radio programmes, websites, online games, music-on-hold and ringtones etc. It is available for convenient synchronisation or dubbing, and can provide an administratively simple and cost effective answer to your music needs.
Using commercial (aka “published”) music in productions usually involves seeking clearances in two separate copyrights (the musical works and the sound recording). A licence for APRA|AMCOS-controlled PM covers both the music (musical work) and the recording (sound recording) with the one rate. See PM Rate Cards.
Music database
In many situations, you may need to work out if a piece of music is in copyright and if so, may need to seek permission from the copyright owner to copy it, arrange it etc. or may need a licence from APRA|AMCOS to perform or record it.
APRA|AMCOS has an online database which permits users to access information from its vast musical database. It has a search facility which enables you to look up a work and if it is in our database, it will list it together with relevant reference numbers (if you need further information from APRA|AMCOS as to its exact copyright ownership by a music publisher or composer.)
(It is important to note that just because a work may not be listed in the database, it does not necessarily mean that the work is out of copyright, as it may be a copyright work that has been written by a non-APRA|AMCOS affiliated writer.)
Helpful publications
APRA publishes a number of newsletters and journals for our members and our licensees. These keep you up to date with what’s happening at APRA and in the music industry generally.
Upbeat is published annually by APRA’s General Licensing Department: Client Services, Upbeat gives APRA licensees up to date information on services and activities.
Music Copyright for Schools: A practical guide to the use of music in schools, including detailed information on the licences and useful contacts.
A Practical Guide to the Use of Print Music is for private music teachers, music students, music administrators, community choirs, orchestras, eisteddfodau, conductors and composers.
Music in Your Church: This brochure addresses your church’s copyright obligations in relation to the use of music.
Music in Your Business: This brochure addresses your business’s copyright obligations in relation to the use of music.
For further detail see music user publications on APRA’s website.
Contributed by PPCA
Last revised: 3 December 2007
PPCA (the Phonographic Performance Company of Australia) is a national, non government, non-profit organisation that represents the interests of Australian recording artists and record companies.
What does PPCA do?
PPCA is authorised by its licensors to issue blanket licences for the broadcast, communication and public performance of recorded music, music videos and music on hold. We currently license almost 50,000 venues Australia-wide, including clubs, hotels, bars, restaurants, fitness centres, cafes, shops, halls and dance studios, as well as radio and television stations.
Why do I need a licence?
Recorded music and music videos are the intellectual property of their creators and they are protected in Australia by the Copyright Act.
The Copyright Act specifies the rights granted to copyright owners. These include the right to allow their recordings to be heard in public (ie. played in a public place such as a retail store, restaurant, fitness centre, etc.). This is known as the ‘public performance right’ in recordings.
To avoid infringing copyright, any business that wants to:
- play protected sound recordings, other than by radio or television broadcast (eg. CDs, tapes) in a public place;
- exhibit music videos; or
- use sound recordings as music on hold;
should obtain a licence to do so from all of the copyright owners for each protected recording or video they play. To better understand which recordings are “protected” and in respect of which you will need a licence, please see the section headed “Are there any recordings for which I don’t need a licence?”.
What licences do I need?
It’s important to understand that there are at least two copyrights in each sound recording or music video.
- First, there’s the copyright in the composition (that’s the notes and lyrics) which is called the ‘musical work’; and
- Secondly, there’s the copyright in each recorded version of the composition, which is called the ‘sound recording’ and is usually produced by an artist and their record company.
To play a protected recording in your business, you will typically need two licences – one from the copyright owners in the ‘musical work’ and one from the copyright owners in the ‘sound recording’. If you choose to play music videos in your business, the copyright in the music video itself will also need to be licensed.
To obtain a licence for the ‘musical work’ copyright, you should contact APRA, the Australasian Performing Right Association. PPCA is not connected to APRA.
How do I obtain a sound recording licence?
You could go and get individual sound recording licences from each of the record companies whose protected recordings you want to play. However, since there are now hundreds of labels releasing records in Australia, getting licences from all of them to allow you to play any CD you want may be costly and time consuming!
There is an easier way to make sure you have the licences you need. PPCA represents the interests of Australian recording artists and record companies. It offers a comprehensive ‘blanket’ licence which covers the playing in public of CDs released by over 700 PPCA licensor record companies, including the majors. A PPCA licence covers all recordings from the catalogues of over 7,600 record labels controlled by our licensors.
In practical terms, this means that a PPCA licence will cover just about every sound recording you are likely to play in your business. Essentially, a PPCA blanket licence is an easy, cost effective way for you to satisfy your sound recording licensing obligations.
Sometimes business owners think that all they need to play recordings in their business is an APRA licence – that is often incorrect. APRA represents the interests of songwriters and publishers and issues licences in respect of the ‘musical work’ copyright, not the ‘sound recording’ copyright. For most businesses, it’s easier to obtain both an APRA licence and a PPCA licence to cover their sound recording copyright obligations.
How much does a licence cost?
Our licence fees are assessed under a standard set of tariffs, all of which are very moderate. Depending on the nature of your business and your use of recorded music and music videos, PPCA licence fees can start from as little as $1 a week. A full schedule of all tariffs and how they are calculated can be obtained from the PPCA website or you can telephone our licensing team to discuss the tariffs that apply to your business. Your right to play music in your business is also protected. Businesses in Australia have a statutory right under the Copyright Act to play sound recordings in their premises, provided they pay the agreed licence fees or give the copyright owners an undertaking that they will pay such fees as are set by the Copyright Tribunal. Where parties cannot agree on fees, either party can bring a case before the Copyright Tribunal, asking it to set the fee which should be paid by someone playing a sound recording in business premises.
Where do my licence fees go?
PPCA is a non-profit organisation. After deducting our administrative expenses, net licence fees are distributed directly to:
- the sound recording copyright holders (usually record labels);
- registered Australian recording artists; and
- the PPCA Performers Trust Foundation, which distributes grants for the encouragement of music and performing arts.
Are there any recordings for which I don’t need a licence?
Licences are required wherever the playing of recordings in a business is protected by the Copyright Act. These are often referred to as ‘protected recordings’.
There are some recordings released in Australia that are not protected recordings, and for which you do not need a licence. However, working out whether or not a recording can be played in public without a licence requires the application of complex provisions of the Copyright Act, which involve considering:
- the country where the recording was made;
- the nationality and residence of everyone performing on the recording (including all session musicians);
- the country where the recording was first released;
- the date and place of first release of the recording; and
- the age of the recording.
As a general statement, recordings made in countries such as Australia, New Zealand, the UK, all European countries and Canada are usually protected under the Copyright Act and a public performance licence will be required if you want to play them in your business.
Recordings made in the US may also require a licence, depending on the details of the recording and the application of the international copyright laws. All music videos are protected and, when they are used as music on hold, all sound recordings are protected.
The benefit of a PPCA blanket licence is that it allows your business to play all of its recorded music regardless of whether or not you can determine if it is protected. A PPCA licence eliminates the risk of copyright infringement in relation to the vast catalogues of recordings covered by such a licence.
How can I obtain a PPCA licence?
Simply contact our licensing department by phone, fax or email. Alternatively, you can fill complete a licence application form on-line or download a licence application form from our website and post it to us. On-line payments can also be lodged at the PPCA website.
Where can I get more information about PPCA and music licensing?
For more information about PPCA, music licensing and copyright, visit the PPCA website or contact our licensing team on 02 8569 1111. If you are a member of an industry association or representative group, like the Australian Hotels Association, Restaurant and Catering Association or Clubs groups, you may wish to contact them as PPCA regularly provides them with up to date information.
Independent information on PPCA and the Copyright Act is available from the Australian Copyright Council, or by telephoning 02 9318 1788, and if you want legal advice about playing sound recordings in your business, you should consult your lawyer.
What is the Copyright Collecting Society Code of Conduct?
PPCA and a number of Australian collecting societies comply with a voluntary Code of Conduct. This Code aims to promote awareness of copyright and collecting societies, set service standards and to ensure that accessible and fair procedures are available for the handling of complaints and the resolution of disputes. Each year PPCA’s compliance with the Code is assessed by an independent reviewer. For more information or to obtain a copy of the Code, go to the PPCA website or contact our licensing team.
iPods and Internet: Will the Law Ever Catch Up?
By Christopher J Chow (Simpsons Solicitors, Sydney)
Last revised: 27 March 2007
Ever wonder what could happen if you got caught downloading illegal songs? Whether you may copy a CD onto your computer? Or whether you may give your friends a copy of your favourite CD? Well, the laws are changing and those changes could affect you.
Introduction
For years people have been transferring CDs to their computers and from their computers to MP3 players, but it’s always been illegal. Just recently the law was changed in an attempt to keep up with changing technology. Although these changes were a step in the right direction, the law still doesn’t deal with many ways people may legitimately need to use sound files and written music every day. The changes include the introduction of new criminal offences, enhanced rights for copyright owners and new exceptions allowing people, institutions and organisations to use music and recordings more flexibly. Almost everyone is affected by these new changes.
New Protection for Copyright Owners
New Criminal Offences
You can actually go to jail if you copy CDs and sound files under certain circumstances. Not only that, you can also be fined up to $60,500. Worse still, if your company does the same thing it can get fined up to $302,500. These new punishments not only cover making illegal copies of sound recordings, but also cover selling, distributing, importing, recording, exhibiting, publishing and, in some cases, even possessing illegal sound recordings. But don’t be too worried, many of these offences only relate to commercial activity. Even so, these new punishments have created a very real reason not to deal with illegal sound files.
Technological Protection Measures (TPM)
Sometimes it doesn’t work when you try to copy a CD. It could be because the CD has a TPM. A TPM is similar to a security system that controls access to digital material such as sound files. The data on the CD might be scrambled and must be decoded before it can be copied; this scrambling technology is a good example of a TPM. It’s illegal to sidestep a TPM and you can be fined for doing it. Of course, there are many types of TPMs and with the change of the law came a wider range of technologies and devices that could be considered TPMs. This has given copyright owners more protection over their copyright work in digital format.
Exceptions to Copyright Infringement
Recording the Radio and TV
It used to be common to record the radio in order to listen to it at a more convenient time and everyone still records the TV for the same reasons. This is now legal provided the recording is made for “private and domestic use” and is not recorded from the Internet. It’s also clear that you can lend the recordings to your family or household for their “private and domestic use”. There are still problems regarding the meaning of “private and domestic use” and the way in which you can use the recording, but it’s pretty safe to say that you can use those recordings at least once for private use in your home or can lend them to your family or household for the same use (It appears though, that you cannot create a home library by keeping the recordings indefinitely).
Copying Sound Recordings
How many people do you know have copied their legitimately purchased music CD onto their computer? How many people do you know have copied that music onto an iPod? Though record companies never took issue with it, every time people did this they were breaking the law – amazing, isn’t it? Well, the law finally caught up a notch. If you own a sound recording you may now make copies of it for “private and domestic use”. For example, you are allowed to copy your music CD onto your computer and copy that music onto your iPod or MP3 player, so long as the originals are legitimate and the copies are made for “private and domestic use”. Once again, as with recordings of the radio and TV, the meaning of “private and domestic use” is unclear.
Use for the Purpose of Parody or Satire
This is a big one. Basically, if all you intend to do is satirise or parody a piece of music, its words, a recording of it or even its cover art, you don’t need the copyright owner’s consent. It’s hard to say how far you will be able to push the boundary of this defence, but taking the broad definitions of “parody” and “satire” it appears that the exception will be far reaching. However, there is at least one limiting factor; it seems that the parody or satire must be “fair”. Again, this word does not provide a lot of guidance, but the amount of copyright material used, the context and the commercial nature of the material being used will probably be taken into account.
Copying for Research or Study
Many people photocopy books or music when they want to give a copy to, say, a member of their band or ensemble, but generally it is illegal. One occasion in which you may make photocopies is if you are making them for the purpose of research or study. Even if you’re making copies for one of those purposes there may still be limits on the amount that you may photocopy. Generally speaking, you will not be breaking the law if you only reproduce: 1) 10% of the number of pages included in the item you are copying (provided there are more than 10 pages); or 2) 1 chapter of an item that is divided into chapters.
Provisions Affecting Institutions and Organisations
Caching for Educational Purposes
Most universities, TAFEs and schools use caching, but only recently has it been made clear that this is allowed. Simply put, caching is used by computer systems to help speed access to, say, the Internet. Very basically, what happens is this: 1) you visit a website containing certain data; 2) the computer system automatically copies some of that data; 3) when you go to that website again the computer “remembers” so, to speed things up, it uses some of the copied data instead of downloading it again. Because this process involves the copying of data, it is questionable as to whether it’s legal. The changes in the law ensure that automatic caching (as described above) can be used by educational institutions, but unfortunately does not help anyone else who uses a computer system.
Further Changes Affecting Institutions and Organisations
Many further changes to the law regarding musical works and sound recordings have little effect on the majority of copyright owners. Suffice to say that:
- Government libraries and archives can now make up to 3 copies of musical works and sound recordings kept in their collections if those works and recordings are of historical or cultural significance to Australia;
- Musical work can be performed and a sound recording can be played in a classroom, for educational purposes, even if authority has not been obtained from the copyright owner;
- Copyright Tribunal of Australia (CT) has the power to determine the amount payable for certain uses of copyright material administered by copyright collecting societies (such as APRA and AMCOS) and how such amounts are to be distributed; and
- New guidelines for alternative dispute resolution processes have been added. These help determine the steps that may be taken when certain copyright related disputes arise and applications are made to the CT to resolve such disputes.
Conclusion
The changes to copyright law significantly affect users and owners of music and recordings. The changes are widespread and, in some cases, their meaning is uncertain and still not equipped to cover the ever-expanding and changing music industry. As a result, it is difficult to predict their precise effect. However, these changes are a step in the right direction and at least attempt to reflect the developing markets, technologies and uses of the Internet, sound files and musical works in digital format. One thing that has been made clear from the recent changes to the law is the fact that copyright laws of Australia, and the world, are having a hard time keeping up with the continually advancing technology being introduced to the music industry day-by-day. Then again, this is a problem that copyright has always suffered and probably always will.
(1) Another important copyright-related paper in the knowledge base is Richard Letts, International free trade and the issues for music and music copyright.
