Performing arts
Common issues
language group in a play, the playwright will own
the copyright in his or her version of the story,
but the language group will have no copyright
interest in the play unless the playwright assigns
copyright to them, either as joint owners or as
owners outright.145
Communal ownership versus
joint ownership
In Bulun Bulun & M* v R & T Textiles,146 the court
considered that traditional Indigenous works
containing ‘traditional ritual knowledge’, handed
down through generations and governed by
Aboriginal laws, are not works of joint ownership.
Although under Aboriginal laws the entire
community may have an interest in the particular
work and its knowledge and expression, copyright
does not recognise the group as the owners.
The individual author is recognised as the
copyright owner and may have a special
obligation to the language group to reinterpret
the copyright in the art, in ways that are
consistent with Indigenous law. Depending on
the circumstances, this obligation can be
enforceable in the courts.
Case study: Woomera Aboriginal
Corporation
A song may be dreamt by one person but
others may have strong associated rights
according to the subject matter of the song
or country, story or place associated with
the dreaming. Individual ownership is not
practically carried on beyond the death of
the originator but songmen of the language
group may have a strong say over the
songs of their forebears. There seems to
be acceptance of old songs as belonging
to a form of collective Lardil ownership.147
Recording performances
It is important to have and check agreements
for recordings of dramatic and dance works.
44
Prior to signing any clearance agreements for
the recording, performers should consider
any limits they may want to put on the use
of recordings of their work. If performers fail
to specify limits on use they will not be able
to prevent unlimited broadcast and changes
o the recording being made.
If a performer wants the recording to be
broadcast only once, or only to a particular
audience, they must specify those terms
in the clearance agreement.
It is advisable for individuals and performance
companies to check their entitlement to royalties
under the agreement to record, and to check
whether there are any protocols they wish to be
respected for recording or broadcast.
The following issues should be considered
prior to making a recording:
• If recording communally owned
performance, advise traditional custodians
and other people in authority and seek
permission for recording.
• It should not be assumed that traditional
Indigenous music or performance is in
the public domain. It is necessary to consult
with relevant Indigenous people for
permission to use or distribute recordings.
Royalties should be paid.
• Performers, writers, choreographers,
directors and traditional custodians should
be attributed at all stages, including use
of the copyright notice and attribution of
a language group.
• Indigenous performers should be provided
an opportunity to consider any cultural
obligations before negotiating a contract
or entering into agreements relating to the
performance. For example, website
publication of a performance may expose the
work to greater appropriation.
• Where possible, cultural obligations should
be included in an agreement.
Performing arts
Common issues
45
• W
hen entering into an arrangement for the
commercial recording of Indigenous
performance, it is recommended that there
be a written contract outlining the terms
of the arrangement and obligations of the
parties. Indigenous performers should be
given the opportunity to consider contracts
and obtain proper legal advice.
• When selecting illustrations or photos for
promotional material, consult with the writer,
choreographer, performer or director and
other Indigenous people to check cultural
appropriateness of the image.
performed without permission, in a manner that
is harmful to the reputation of the creators or
authors of the dance, the creator may have an
action for infringement of his or her moral right
of integrity. It is important to note that if the
author of the dramatic work consents to the
use of the work, they cannot bring an action.152
Also, if the person who subjected the work
to inappropriate treatment can show that
the treatment was reasonable in all the
circumstances, then it is not an infringement.153
Performers can object to treatment of their
performance that demeans their reputations.
What are moral rights?
Moral rights are separate from the economic
rights of copyright owners and may give
Indigenous creators avenues to challenge
inappropriate treatment of their work. Moral
rights laws provide the following rights to
authors of artistic, musical, dramatic and
literary works; films and performers:
The Copyright Act only allows moral rights to
be held by individuals. There is still no legal
recognition of communal ownership of
Indigenous cultural material. The potential of
moral rights to increase copyright protection
for Indigenous performance has not been fully
explored, but it is hoped that it may provide
some additional protection.
1. The right to attribution for the author of the
work and performers148 – The author of
a work has the right to be identified as the
author where his or her work is reproduced
in material form, published, performed,
adapted, or communicated to the public.
Performers have the right to be named in
connection with their performance.
Indigenous communal moral rights
If a literary work were treated inappropriately,
only the individual author would have a remedy
under moral rights. However, an Indigenous
community which is the source of cultural
material incorporated in a literary work does
not have any moral rights under the Copyright
Act even though under their customary laws,
the language group or a person on behalf of
the language group may have responsibility
to safeguard the cultural integrity of the story
embodied in the work. The moral rights
framework under the Copyright Act also
excludes Indigenous persons with authority
other than the author (creator) from legally
exercising moral rights over works embodying
traditional ritual knowledge.154
2. The right not to have authorship or
performership falsely attributed149 – For
example, if someone other than the author
is attributed as the author or performer,
the true author or performer may take action
for infringement of moral rights.
3. The right of the author to integrity of
authorship or performership150 – The author
has the right to bring legal action if a work is
treated in an inappropriate manner, resulting
in a material alteration of the work that
prejudices the author’s reputation.151 For
example, if a dance or other dramatic work is
In December 2003, the Australian Government
drafted proposed amendments to the Copyright
Act for Indigenous Communal Moral Rights.
The Exposure Draft proposed the introduction