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.
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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
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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