Performing arts Common issues 40 A dramatic work is a work that is intended to be performed. The Copyright Act defines a dramatic work as a choreographic show, or other dumb show (mime, for example), or a scenario, a script for a film, but not the film itself.113 Film is protected under a separate part of the Act. has been copied. In deciding this question, the courts have considered evidence relating to the creation of the works and the question of originality of the work, particularly the ‘combination of the principal situations, singular events and basic characters’.116 The Copyright Act also provides that in some cases, where the author of a dramatic work is employed, the author’s employer will own the copyright in dramatic works. These are works that are produced under a contract of employment. It is possible to modify this arrangement by contract between the employer and the author, prior to the writing of the work.114 The court has held that: ‘In general there is no copyright in the central idea or theme of a story or play, however original it may be; copyright subsists in the combination of situations, events and scenes which constitute the particular working out or expression of the idea or theme. If these are totally different, the taking of the idea or theme does not constitute an infringement of copyright’.117 Authors who are commissioned to write a work should exercise care when negotiating an agreement to ensure they retain copyright in the completed work. If performance or dance companies enter agreements with a funding body for development of a work, the company is advised to check the contract and be certain about who owns the intellectual property in the work. Originality Copyright protects works that are original. In the past, it was thought that Indigenous works reproducing pre-existing themes were not ‘original’ because they were handed down through the generations. In the ‘Carpets case’,115 the judge recognised that each artist contributed his or her own skill, labour and effort to bring originality to his or her artwork. Hence, the artworks were protected by copyright. There is scope for this reasoning to be applied to dances and songs. Copyright protects the expression of an idea but not the underlying idea. Although copyright does not protect ideas, sometimes the difference between a mere ‘idea’ and the ‘written expression’ of the idea is not always clear-cut. Courts have considered a number of cases where a party alleges that their dramatic work How is performance reduced to material form? Copyright protects works that are recorded in some way. The work must be in a permanent and tangible form.118 This may be in the written word, sound recordings, video or other film recording. In the case of choreography, dance steps may be recorded using notation such as Labanotation, Benesh, Eshkol-Wachman Movement Notation or Sutton dance writing. This is described as being ‘reduced to a material form’. Issues can arise in Indigenous traditional knowledge, dance, designs and stories that are transferred orally or in an impermanent way. These are not in material form and are not automatically protected under copyright laws. It is important to consider making arrangements for copyright ownership when oral cultural material is recorded, because generally, the maker of the recording is the copyright owner in the recording. This can be altered by agreement. A custodian of the cultural material could make an agreement with the maker of the recording, which vests copyright in the recording with the cultural custodian, before any information is provided. Performing arts Common issues Who owns copyright? The owner of the copyright in a dramatic work is generally the author.119 • The author(s) of a play will be the playwright(s). • The author(s) of a dance will be the person or people who wrote the dance steps. • The author(s) of a script for a film will be the writer(s). The owner of copyright in a sound recording,120 a cinematographic film121 or a television broadcast122 is generally the maker. Copyright exceptions There are some important exceptions to the general rules about copyright ownership. • Where the work is produced under a contract of employment, copyright will belong to the employer.123 • Where a work is produced under the direction or control of the Crown, copyright may belong to the Crown.124 • Where copyright has been assigned under a written agreement, the agreement may specify who owns copyright. • Where a person or company makes an agreement and pays for the making of a sound recording125 or cinematographic film,126 the person or company that pays for the making is the copyright owner. How long does copyright last? Copyright protects dramatic works for a set period of time. Copyright in a play, script or written record of dance steps127 lasts for the lifetime of the creator and 70 years after their death.128 After this period has expired, the work is considered to be in the public domain. Once a work is in the public domain the law no longer prevents others from accessing, copying or using their work. Copyright owners might need to consider who they want to control the copyright and who will 41 benefit from any royalties during the 70 years of copyright after their death. There are slightly different rules for copyright to sound, film and television recordings. Copyright in a sound recording129 generally lasts for 70 years from the date of the making of recording. Copyright in a film130 lasts for 70 years after it was first published, and copyright in a television or sound broadcast lasts for 50 years after the broadcast was made.131 The operation of the Copyright Act creates a number of problems when it comes to protecting Indigenous performance. The duration of copyright does not reflect the Indigenous people’s right and obligations in relation to their cultural material. In order to respect Indigenous heritage it may be necessary to get permission to use Indigenous material from the traditional owners even though legally, the dramatic work is in the public domain. One example is sound recordings and films of Indigenous dance made by early anthropologists, and which are now stored in archives and libraries. Seventy years after a recording is made or a film is published, the copyright expires and the work is in the public domain. It no longer has any copyright protection. For example, recordings made before 1937 are now in the public domain. It should not be assumed that all rights of Indigenous people to the recorded performance have lapsed just because one recording of it is in the public domain. More recent recordings of traditional performances by Indigenous actors or dancers, and recordings of adaptations of Indigenous performance will be protected by copyright, and reproduction may infringe copyright. Woomera Aboriginal Corporation records its cultural material so it holds contemporary versions in material form.132

Select target paragraph3