Performing arts Common issues What rights do copyright owners have? Copyright owners have the exclusive right to authorise use and copying of their work. The copyright owner also has the exclusive right to earn money from the use, reproduction and publication of the work. The copyright owner of a dramatic work, such as the playwright, can do all or any of the following acts: • reproduce the work in a material form • publish the work • perform the work in public • communicate the work to the public (this includes broadcasting and the internet) • make an adaptation of the work133 • m  ake an adaptation of the original dramatic work and then reproduce, publish, perform in public, or communicate to the public this adaptation.134 An important exercise of these rights is the right of copyright owners to negotiate a licence agreement allowing others to use the work in one or more of these ways. For instance, a theatre company may negotiate a licence with a producer for the exclusive right to perform a dramatic work for a number of years. Performers have a more limited set of rights as detailed below. Performers’ rights Performers’ rights are different to rights accorded to copyright owners. Performers’ rights are, in general, more limited than a playwright or choreographer’s rights. Each performer’s permission must be obtained before recording a performance (either by sound or film) and communicating a performance to the public (by broadcast or transmission over the internet). Performers have other rights in relation to the use of recordings of their performance, including the right to say whether the recording can be used as a soundtrack for a film. 42 Performances include live performances of: • a dramatic work135 • a musical work136 • the reading, recitation or delivery of a literary work137 • a dance • a circus act or a variety act or any similar presentation or show • an expression of folklore.138 Performers’ rights will often be set out in employment contracts. Industry organisations such as MEAA should be consulted about industry standards and for advice on Australian workplace agreements. The following activities are not regarded as performances by the Copyright Act.139 • performances of works for educational purposes; this means performance by a teacher or student where no box office fee is charged140 • reading, reciting or delivering the news • performing a sporting activity • participation as part of an audience. Copyright and performers’ rights Until January 2005, there was no copyright in a performance, but performers could grant or refuse permission to record and broadcast their performances. This was generally done by asking performers to sign a release form which allowed for certain uses of the performance such as making the recording, broadcasting it or putting it online. Once this release was signed, performers received no further rights in relation to the work or the recording of it unless they were entitled to residuals or royalties as a result of their contract. Since January 2005, performers have new rights in audio recordings.141 When a sound recording of a live performance is made, the performers142 and the person/company who Performing arts Common issues paid for the recording are both regarded as copyright owners in the recording. Unless this situation is altered by a contract, the performer will then have a right to make a copy of the sound recording, perform it in public and communicate it to the public.143 In practice these new rights may be varied by contracts so they may not result in large gains for performers. For instance, if a sound recording of a live performance is made, and the performers are employed, the employer is the owner of the copyright unless this is altered by agreement.144 The rights of performers in audio recordings made before January 2005 are also now different. The performer may co-own copyright but they will not have any right to change the way the original copyright owner deals with the audio recording. Performers who may have a copyright interest in audio recordings of their live performances should register with APRA and Phonographic Performance Company of Australia. Collaborative works In many instances dramatic works have more than one contributor. For example, a play is often workshopped by writers, actors, directors, dramaturges and others. Copyright will protect the work of the author, who is generally the playwright, but will not allocate any rights to other people whose ideas were drawn upon. If the collaborators want to share in the copyright as joint owners, they will need to make an agreement with the playwright. The agreement should be in writing to avoid any future misunderstandings. Under the Copyright Act, a ‘work of joint ownership’ refers to a work produced by the collaboration of two or more creators, where each creator’s collaboration is not separate from the contribution of the other creator(s). 43 The creator must contribute to the work by way of effort, skill and labour. It is not enough to inspire or make suggestions. Each creator in a work of joint ownership owns copyright in the resulting work. This means that each creator must obtain the consent of the others before exercising any of their rights under copyright. Where more than one person collaborates and contributes to a work, copyright may be held by these people jointly, as tenants in common. This means that if one of the contributing creators dies, his or her interest passes to his or her beneficiaries rather than to the other collaborator(s). One collaborating creator cannot authorise use of a jointly produced work without the permission of the co-owner(s). It is very important to understand the way copyright law operates when working collaboratively. In the performing arts, there are often many collaborators on a particular work. Writers, performers, directors, dramaturges, designers and others may all feel they have made a substantial contribution to the dramatic work. However, it must be remembered that copyright is generally understood to belong to the playwright or choreographer. To avoid any future disagreements, the participating creators should discuss copyright and proposed use of the work prior to commencement of the project. Where there is a dispute over the rights in a work, legal actions other than copyright, such as breach of confidence and passing-off laws, may provide some protection from copying of elements depicted in a work. It is very important to understand the way that copyright law operates when working with Indigenous cultural material. The custodians of cultural images are generally not recognised as the legal copyright owners of an Indigenous artwork that depicts a language group’s cultural images. For example, if an Indigenous playwright uses a story that belongs to his or her

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