Performing arts
Implementation
• C
heck for proposed Indigenous Communal
Moral Rights legislation that may introduce
legal obligations for attribution of community
input to literary, musical, dramatic and artistic
works and films.
Copyright
• Seek copyright protection for all works.
• Identify all the owners of copyright in a work.
• Discuss the issue of copyright ownership
with Indigenous representatives upfront.
• Indigenous creators who incorporate
traditional knowledge into their work have a
special obligation to the language group
when exercising copyright in the work.
• In collaborative works copyright may be
shared with the collaborating authors.
• Anyone intending to perform a work that is
protected by copyright should seek advice
to ensure they are not infringing copyright.
• Under the educational statutory licensing
schemes, authors may be entitled to royalties
for use of their work in formal teaching and
learning situations. The relevant collecting
agencies collect and distribute these
royalties to members.
• The copyright owner of a sound or film
recording is generally the individual who
pays the costs of recording. However,
this can be underwritten by agreement.
• Ask performers to sign clearance forms
if their work is to be recorded at a festival
or concert.
• Statutory exceptions to copyright infringement
include the purposes of criticism or review or
incidental filming.
7. Proper returns and royalties
Indigenous people have the right to be paid for
their contribution and for use of their Indigenous
heritage. Consider the following:
• Have fees or other benefits been negotiated
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with the writers, performers, choreographers,
directors, cultural advisors and traditional
custodians?
Is the cultural value of their work recognised
in financial returns?
Have Indigenous cultural advisors been
acknowledged and properly remunerated for
their contribution?
Has registration with APRA and PPCA been
completed? Are all other holders of rights
acknowledged in that registration?
Will Indigenous custodians share in the
benefits from any commercialisation of their
cultural material?
Have you checked whether Indigenous people
also seek benefits other than royalties, such
as branding of a work or sharing of skills?
If you are the recipient of an Australia Council
grant, have you used written contracts and
sought legal advice?
Are the correct wages being paid, and
proper working conditions provided,
including insurances and superannuation?
Are the correct taxes being paid?
8. Continuing cultures
Indigenous people have a responsibility to
ensure that the practice and transmission
of Indigenous cultural expression is continued
for the benefit of future generations.
• The use of cultural protocols is an important
aspect of continuing Indigenous culture and
should be adopted and followed.
• New and emerging styles of dance and
performance are an important aspect of
continuing cultures.
• Consider including cultural protocols in any
future licensing agreements for use of a work.
Performing arts
Implementation
9. Recognition and protection
Australian laws and policies should be
developed and implemented to respect and
protect the rights of Indigenous people and
communities and their cultural heritage.
• Ensure copyright protection for a work has
been sought.
• Identify the owners of copyright in a work.
• If you are an Indigenous theatre or dance
company, consider ways of branding your
work to ensure it is always recognised as the
source company.
• Written releases and contracts are the best
way of ensuring that rights are cleared for
intended use. The Arts Law Centre of Australia
has draft agreements available for members.
It is a good idea to seek independent legal
advice on written releases and contracts.
Common issues
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• T
he copyright owner is generally the author of
the literary, musical or dramatic work. There
are exceptions to this rule, including an author
who is an employee under a contract of service.
• Authors do not need to register for
copyright protection.
• Copyright in a literary, musical or dramatic
work lasts for 70 years after the death of
the author.
• The author of a literary, musical or dramatic
work has the exclusive right to:
– reproduce the work in a material form
– publish the work
– perform the work in public
– communicate the work to the public
– make an adaptation of the work
– do any of the above in relation to an
adapted work.
• W
hen any of these rights are exercised the
copyright owner is generally entitled to a
licence fee or royalties for the use of their work.
• Styles of drama and dance are not protected
by copyright. It is the expression of the style in
the dramatic or dance work that is protected.
• The author has moral rights to his or her
work and films, and performers have moral
rights in their performances. Moral rights
include the right of integrity, the right against
false attribution and the right of attribution.
• There are proposals to introduce Indigenous
communal moral rights into the Copyright
Act 1968. Processes for recognising
attribution and integrity issues for works
that draw from a traditional base should
be considered.
• In collaborative works, copyright may be
shared with the collaborating authors.
Dramatic and dance works
If company members collaborate to create
• Writers, composers, choreographers,
a dramatic or dance work, the members
dramaturges and other contributors are
will generally be the joint authors.
referred to as ‘authors’ in a copyright context.
Festival performances
• Is it appropriate to film, photograph or record
the performance?
• Have performers been advised and consulted
on uses of any recordings of a festival
performance?
• Do you have a policy on filming, photography
or recording?
• How will you notify people about your policy
on filming, photography or recording?
• Would it be useful to adopt a process to
authorise filming, photography or recording
in certain circumstances?
• Have written clearances from performers
been sought?
• Are there any cultural considerations
necessary for the scheduled performances?