Particular types of copyright material, Monash University copyright:FAQs

There are different levels of copyright in music. There is copyright in the musical notation, the lyrics, the published edition of the sheet music (that is the layout and look of the music) the sound recording. Performers have separate protection.

If the underlying music is still in copyright, permission will usually be required to perform the work in public and record the work. These permissions can be obtained through APRA/AMCOS if the composer and music publisher are members of that collecting society. If not, individual permissions will need to be obtained from the composer or the music publisher.

1. Rights in the underlying music performed - lyrics, written music and published edition copyright

Unless the staff member is performing a work that they have composed themselves, there will be some underlying copyright in the material they are performing and/or recording.

SONG LYRICS – translations also protected

There will be copyright in the words or lyrics to any song performed. These are protected as a literary work, separate to the copyright in the musical notation or the sound recording itself. This protection will last for the life of the lyric writer plus 70 years, unless the creator of the work died before 1 January 1955 in which case the material is no longer protected by copyright.

A translation of the lyrics would also create a new and separate copyright to that in the original words. This in turn would attract copyright protection for the period of life of the translator plus 70 years unless the translator died before 1 January 1955.

MUSICAL NOTATION – arrangements also protected

There will be copyright in the musical notation itself, lasting for the life of the composer plus 70 years, unless the creator of the work died before 1 January 1955 in which case the copyright has expired.

Each new arrangement will attract copyright protection for the person who made the arrangement, even where the original work is out of copyright. This protection will last for the life of the arranger plus 70 years. If the arranger died before 1 January 1955 the protection for that aspect of the work has ended.

PUBLISHED EDITION COPYRIGHT

Sheet music is protected by a separate copyright for the publisher’s physical layout of the information on the page.

If the academic is reproducing a facsimile of sheet music in their research, using a copy of a work that was published in hard copy less than 25 years ago, they will need permission from the publisher, to use that particular edition.

MULTIPLE AUTHORSHIP

Any song lyrics or words to a musical work, or the musical notation in the work, or translation or arrangement of that work could have been created by more than one composer or lyricist. Copyright protection then lasts for the lifetime of the last surviving author plus 70 years, unless the last surviving author died before 1 January 1955. Permission from all creators of the work would have to be obtained to reproduce the work.

FOLK OR TRADITIONAL MUSIC

Traditional or folk music may not be protected by copyright as it has been performed for a period longer than that of copyright protection. However laws on this may differ for different countries and legal advice should be sought in particular cases.

2. Rights in the sound recording.

There will be different copyright issues with a sound recording, depending on who made the recording and when and where it was made.

WHO OWNS THE RECORDING?

The owner of a sound recording is the maker of the recording, such as a recording company. From 1 January 2005 performers also have part ownership in the sound recording of their live performances. These rights can be assigned by contract. Most recording companies will ask performers to assign these rights.

Monash University claims copyright ownership for all sound recordings where the university has made a specific contribution of funding, resources, facilities or apparatus in its creation. It is possible the academic would have a licence from the university to use the performance for research purposes. If the recording is to be made available to the public or used for another purpose and the academic used Monash equipment or funding for the recording, the solicitors’ office should be consulted.

Note: If the recording of a performance took place outside Australia, the copyright law of the country where the recording was made would apply. This would require specialist advice.

MAKING A SOUND RECORDING AVAILABLE ONLINE - MADE BY RECORD COMPANY

If part of a sound recording made by a record company, is to be included on a website accessible to the public, permission will need to be sought from that company or a relevant industry body to communicate the recording online. ARIA are the industry body for recording companies and can be consulted about permission to re-record or copy sound recordings. PPCA are the collecting society for performance and online communication of sound recordings.

If the recording of the performance was outside Australia and the record company only remastered or reworked the recording, they would not be considered the makers of the recording. This is subject to any terms of a contract made with the recording company.

MAKING A SOUND RECORDING AVAILABLE ONLINE - MADE BY ACADEMIC STAFF

If an academic has recorded a performance in Australia, they would need to have obtained all the permissions for recording the underlying music and lyrics and obtained permission from the performers. Permission from performers is required for making the recording and for the manner in which the recording is being used. If the recording was of a performance made after 1 January 2005 the performers would be part owners of the recording. If these permissions were not obtained, then the recording could infringe copyright. Permissions should be obtained before the file is made available on a website accessible to the public.

Note: Normally the venue or concert organisers would arrange copyright licences for performance of the music and lyrics of the work, but if those were not obtained then the recording could be infringing because the original performance was unauthorised. Permissions should be obtained before the material is included on a website accessible to the public.

3. Performer's rights

Permission from performers is necessary when a recording is made of their performance. If consent is not obtained, the performer could object to any use of the sound recording, such as having it broadcast. It would be advisable to get this consent in writing.

Performers’ rights also include the conductor, even though they are not heard on a recording.

If the academic is performing and being recorded with any other performers, the permission of the other performers is needed for the sound recording to be made and for any future use of the recording, such as inclusion on a website accessible to the public.

Performers are considered the makers of their sound recordings along with the owners of the master recording - according to changes to performers’ rights from 1 January 2005. A separate licence would be needed from the performer, as the part owner of the sound recording, to include the sound recording on a website accessible to the public. This would be in addition to the performers rights over their performance.

MORAL RIGHTS FOR PERFORMERS

Performers in sound recordings also have moral rights protection under the World Copyright Treaty. Australia signed the treaty 26 April 2007 and protection will come into place on 26 July 2007. This means that all performers on a recording will need to be listed. Performers will also have the right to object to any derogatory treatment of their performance.

B. Dramatic works: Recordings of performances

There are different levels of copyright in a recording of a dramatic work. There is copyright in the script, the stage directions and choreography if written down, any music and lyrics and in any sound recordings or films used in the performance.

If the dramatic work, which is the script, is still in copyright, permission will be required to perform the work in public and record the work. These permissions would be obtained through a publisher or literary agent.

The copyright owner of the dramatic work may give permission for performance of the work on the condition that no recording of the performance is made. There is no relevant exception in the Copyright Act that would allow such a recording to be made for inclusion on a public access website.

Performers’ rights

If permission for the recording was obtained, you would need permission from all performers to make such a recording and to make the recording available on a website accessible to the public.

However performers do not have ownership rights in audio-visual recordings of their live performances, only in sound recordings. So the copyright owner of the audio-visual recording of the dramatic work would be the maker of the recording. Performers do not have moral rights in audio-visual material, only sound recordings.

C. Artistic works including installations and photos

An artistic work includes paintings, sculptures, drawings, photos, buildings or models of buildings and works of artistic craftsmanship – such as tapestries or mosaics. They do not have to be of artistic merit to be protected by copyright. Each image is a separate copyright work in itself.

Photos

Photos are protected by copyright and the copyright owner is generally the photographer, unless the image was taken by an employee. Then copyright is generally owned by the employer. Photos commissioned for a particular purpose can be used for that purpose. However copyright remains with the photographer, not the commissioning agent, unless there is a provision in the contract to the contrary.

If an academic takes a photo of an artwork, unless the artwork is out of copyright, they would need permission from the copyright owner of the artwork to reproduce the photo online on a website accessible to the public.

There are exceptions in the Copyright Act where photos are taken of buildings, models of buildings, sculptures and works of artistic craftsmanship permanently located in a public place. No copyright permission is required to take photos of these artworks.

Using artistic works in research material

Artistic works may include references or extracts from other works. For example a collage might use parts of photographs or a video installation might include extracts from films or TV. The use and communication online of this third party copyright material might require permission from the copyright owners of that material. Even an artistic work in the same style as another could be an infringement if there were substantial similarities between the works. Recently the modification of the Google logo in slight ways to be reflective of the art of Joan Miro was the subject of a cease and desist letter by the artists estate.

It would depend on the amount used from another work, whether it was insignificant or unrecognisable. This may need to be looked at on a case by case basis.

If an artist died before 1 January 1955, their work should be in the public domain. This is why parodies or pastiches of the Mona Lisa are not infringements because copyright protection for the original painting has expired.

Moral rights for artistic works

When reproducing a substantial amount of another work, the original artist needs to be credited in some way. Any major changes to their work could be an infringement of the moral right of integrity in the work.

D. Broadcasts

If academics want to place recordings taken from broadcasts of radio, television or cable on a website accessible to the public, they would need permission of the broadcaster to make a recording of the broadcast for inclusion on a website accessible to the public. Examples would be a recording on the ABC of an interview with them about their research speciality or a performance of their musical composition performed on SBS.

If research material contains any third party material that is a broadcast, for example images from a television show changed and mixed in a multimedia work, the academic would need permission from the broadcaster to use the images in this way, as well as the underlying literary, dramatic and musical works in the broadcast.

E. Film

Film includes TV programs, cinema and animation and their accompanying sounds. A computer game was considered a film in one Australian case.

There are separate levels of copyright in films. There is the script or screenplay, the visual images, the soundtrack and the underlying musical work.

If an artistic work is included in a piece of film that is displayed on a website accessible to the public, but the artistic work is not the subject of the film and is only included as part of the background, there is an exception for ‘incidental’ copying of artistic works in a film.

Sculptures, buildings, models of buildings and works of artistic craftsmanship which are permanently located in public places may also be filmed without seeking permission from the copyright owners.

If material includes footage taken from a film that was created by a third party, permission would be required to include that material. The copyright owner of the film is usually the producer or studio that made the film. However there may be a different copyright owner for the script or for the music played in the soundtrack. Permission would need to be obtained from all copyright owners to place the film on a website accessible to the public.

F. Multimedia works

Multimedia works may contain several types of copyright works. If a multimedia work includes substantial or significant parts of copyright material created by others, such as famous cartoon characters or music that was not composed by the creator of the multimedia work, permission would be required from the owners of that third party material before it could be placed on a website accessible to the public.

Particular types of copyright material

A. Music: Recordings of performances