Performing arts Common issues The Garma website advises people wanting to take photographs of Yolgnu that they must obtain the permission of a senior Yolgnu elder first. Also, anyone who wishes to take photographs or make any other kind of recording at the Garma Festival must sign an agreement with the Yothu Yindi Foundation (YYF). The agreement sets out the conditions for recording. These conditions acknowledge the rights of the traditional owners over anything done at the festival including all their knowledge which is embodied in everything done at the festival. The person recording must agree not to use the recording for any purpose that might be detrimental to the traditional owners or inconsistent with their law and custom. The person making the recording must also agree not to try to get permission from individual traditional owners without the consent of the YYF. The person must agree to only use the recording for personal use. No use can be made of the recording without the prior permission of the YYF. The YYF must be given a high quality copy of the recording. The copyright in the recording will be held by the YYF for the benefit of the traditional owners. Anyone making a recording must follow the directions of the YYF staff. The YYF can use the recording for any purpose, as long as it credits the maker of the recording.106 Case study: Mornington Island Dancers In contracts with festivals we are often asked to assign limited recording and broadcast rights to our performances for promotion and other purposes closely related to the festival event. This has not been abused to 38 our knowledge, but seems not to recognise the special care and attention warranted by traditional owners. Often contracts need additional qualifications in this area so that control is not lost on traditional dance and song items.107 Issues of authenticity and integrity also arise in festival performances. We had problems negotiating the numbers of people to invite, because the dances and songs needed a particular amount of people for the presentation to maintain its cultural integrity. The festival budget couldn’t cater for the cultural needs of the groups, therefore the artistic and cultural integrity of the overall event was compromised on a daily basis.108 As well as encouraging respect for Indigenous cultural protocols, teaching of Indigenous performance, and the development of Indigenous contemporary dance, some people are working on assisting Indigenous people to record their performances. Case study: The National Recording Project for Indigenous Performance in Australia The National Recording Project for Indigenous Performance in Australia is using digital technology to record Indigenous performance. The project was conceived in 2002 by elders and academics at the Garma Festival. The aim of the project is to systematically record and document the ‘performance traditions of Indigenous Australia. Through this process, it will assist in the development of local knowledge centres and other digital archives as primary repositories for locally recorded and documented materials, and a secure national repository in which copies Performing arts Common issues of all data generated can be archived. Rather than being driven by conventional academic agendas, all localised recording and documentation operations will be directed by local elders and driven by local priorities. Primary responsibility for the management of archived data will reside in local knowledge centres and other digital archives with assistance from project partner organisations’.109 39 Copyright is a form of legal protection that provides the copyright owner with the rights to exclusively use and authorise others to use their copyright work and other subject matter. Copyright owners have the right to prevent others from using the work without their permission. The law refers to the copyright owner’s right to control the use of their work as the right to capitalise on his or her work. The Copyright Act provides that the author of a work is the copyright owner.111 Management and agency agreements Good management and a good agent are great assets for dancers, performers, writers, dramaturges and directors. They will often be required to sign an agreement with a manager or agent. It is important to review the agreement closely before signing. Legal advice should also be considered before signing. The author of a dramatic work may be the writer, or authorship may be shared between the writer(s), cultural advisors and the custodians of any Indigenous material used in the work.112 Performers have a different set of rights with only limited copyright ownership in certain circumstances: see the copyright and performers’ rights section of this guide. Creative Commons licensing Creative Commons is a concept that encourages copyright owners to allow people to use their copyright material without seeking prior permission or paying for it. A copyright owner can make his or her songs available on the internet through open content licensing protocols and thereby promote better identification, negotiation and reutilisation of content for the purposes of creativity and innovation. A number of Australian arts advocacy organisations, including APRA, have raised serious concerns about the licences, particularly that they may not effectively limit commercial or derivative uses.110 The Copyright Act is the main law in Australia that governs the use, production and dissemination of literary, artistic, dramatic and musical works. There are no special laws for the protection of Indigenous heritage. Copyright What is copyright? It is important for people working in the performing arts to develop an understanding of copyright so they can negotiate their rights. It is also important to keep track of changes to the laws that might affect those rights. This section provides some general copyright information and is intended as a guide only. For specific legal advice we recommend consulting a lawyer with specialist knowledge in copyright. How does copyright protect performance? Copyright is a form of legal protection that aims to provide copyright owners with the right to exploit or use the work, and to prevent others from exploiting it without the author’s permission. In the case of performing arts, copyright protection exists in the dramatic work. It may also exist in any literary work such as the text of the play, any musical work that is part of the performance, a recording of the work and any adaptation of the work.

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