Performing arts Common issues agreement before deciding whether you agree to the terms. It is always a good idea to get legal advice to ensure a full understanding of all the terms before signing any agreement. When working with Indigenous cultural material including stories, songs, dance steps or motifs, it is important not to assume that it is in the public domain. This is so even when the copyright period in sound recordings or films of the material has expired. It is always necessary to consult with relevant Indigenous people for permission to use the material and if agreed, there should be scope for negotiating with Indigenous people on appropriate royalties for use. Some other points are: • W  ritten contracts are preferred to oral agreements. • Everyone should have the opportunity to obtain independent and accessible legal advice. • If the work is to be altered or adapted, Indigenous cultural custodians should be given opportunity to approve or reject any alteration or adaptation of their work. Assigning copyright versus licensing Copyright can also be assigned. This means that you can give your copyright to someone else. They become the copyright owner and can authorise others to reproduce your dramatic work. Copyright assignments must be in writing. Once copyright is assigned, the playwright, scriptwriter, choreographer, performer or other copyright owner in a work has no copyright interest in his or her dramatic work. Wherever possible, Indigenous copyright owners should retain the copyright in their works so they can maintain control over reproductions. 48 It is important for Indigenous copyright owners and performers to check agreements and make sure they are not assigning away their rights instead of alternatively licensing use of their work. Always seek legal advice on copyright licensing issues. When is copyright infringed? It is an infringement of copyright to copy or deal with a copyright work without the consent of the copyright owner. A person will infringe copyright in a musical, dramatic, artistic and literary work if he or she reproduces it in material form, publishes it, performs the work in public or communicates the work to the public, without permission from the copyright owner.159 For musical, dramatic and artistic works, it is also an infringement to adapt the work without the copyright owner’s permission. It is not necessary to copy the whole of a work. It is also an infringement to copy a substantial part of a work. A substantial part of a musical work does not necessarily refer to a large part of the work. The court will look for striking similarities between the original work and the infringing copy, and assess the quality of what was taken. It is also an infringement of copyright to import copies of a copyright infringing recording into Australia for sale or hire. Exceptions to copyright infringement are detailed below. Fair dealings provisions The argument of fair dealings can be a defence to allegations of copyright infringement. It does not constitute an infringement of copyright in the work if it is used for: • research or private study purposes160 • criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made161 • for the purpose of parody or satire162 Performing arts Common issues • for the purpose of, or associated with the reporting of news in a newspaper or magazine and a sufficient acknowledgement of the work is made; or for the purpose of, or associated with the reporting of news by means of a communication (including television, radio and the internet) or in a cinematograph film163 • judicial proceedings or a report of judicial proceedings, or for the purpose of the giving of professional advice by a legal practitioner.164 Crown use of artworks The Crown may use a copyright work without permission of the copyright owner where it is used ‘for the services of the Crown’. The artist is still entitled to payment for use and the Government must contact him or her as soon as possible to negotiate this. Library copying Libraries and archives can make copies of copyright works under certain circumstances in accordance with statutory procedures.165 Educational copying Educational institutions such as schools and universities can make multiple copies of print material, and copy television and radio programs for educational purposes. They must pay statutory licence fees to the relevant collecting societies. Performing arts practitioners who are copyright owners should be aware of these schemes, as there may be royalties payable in certain circumstances. Contact APRA I AMCOS, Copyright Agency Limited, Screenrights or Viscopy where applicable. Further copyright information For general information on copyright laws, visit the following websites: • Australian Copyright Council www.copyright.org.au • Arts Law Centre of Australia www.artslaw.com.au 49 Creative Commons Creative Commons is an American organisation that encourages creators to consider using less restrictive copyright. This might be useful for some people, but it can mean giving up your rights to control or benefit financially from your work. A number of Australian arts advocacy organisations have raised serious concerns about the licences, particularly that they may not effectively limit commercial or derivative uses.166 The creative commons licence uses ‘CC – some rights reserved’ rather than the © symbol used by standard copyright. Some creative commons music licences allow for file sharing, downloading and performance of the entire work. Others allow commercial uses, and allow the music to be used for sampling. In general all creative commons licences require that the author or person granting the licence be attributed. 167 Some creative commons require you to give up aspects of your copyright. Others allow such wide use of your material that you lose a lot of control over the way your work is used. This could also cause serious problems if you later want to enter into a recording or publishing agreement, because you no longer have control of the rights a recording company may need. It is very important to take some time to think about whether a creative commons licence suits you, and it is a good idea to get legal advice. Creative commons licences are non-revocable. So, once you have allowed others the wide use of your material under a creative commons licence, you cannot change your mind about it. You will not be able to stop someone from using the work according to the creative commons licence, even if you withdraw your work from circulation.168

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