Music Music Australia Council for the Arts 372 Elizabeth Street, Surry Hills NSW 2010 PO Box 788, Strawberry Hills NSW 2012 ABN 38 392 626 187
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2ND EDITION Protocols for producing Indigenous Australian music Music Australia Council for the Arts 372 Elizabeth Street, Surry Hills NSW 2010 PO Box 788, Strawberry Hills NSW 2012 ABN 38 392 626 187 Telephone +61 2 9215 9000 Toll-free 1800 226 912 Facsimile +61 2 9215 9111 Email [email protected] www.australiacouncil.gov.au Music 01 Contents Australia Council for the Arts Introduction 2 Communal ownership versus 372 Elizabeth Street, Surry Hills NSW 2010 joint ownership 24 Using this Guide 3 PO Box 788, Strawberry Hills NSW 2012 Performing a cover version of a song 24 What are protocols? 4 ABN 38 392 626 187 Recording contracts 24 What is Indigenous music? 4 Telephone +61 2 9215 9000 Copyright and recording 24 The special nature of Indigenous music 5 Toll-free 1800 226 912 Facsimile +61 2 9215 9111 What is the legal effect of making Indigenous heritage 6 Email [email protected] a sound recording? 25 Current protection of heritage 7 www.australiacouncil.gov.au Distribution, promotional material This publication is available online and cover artwork 25 at www.australiacouncil.gov.au Principles and protocols Lapse of copyright and the public domain 26 © Commonwealth of Australia 2007 1. Respect 10 What are moral rights? 26 First published 2002, edited and revised 2007. This work Acknowledgement of country 10 Indigenous communal moral rights 27 is copyright. Apart from any use as permitted under the Accepting diversity 11 Licensing use of music 29 Copyright Act 1968, no part may be reproduced by any Representation 11 process without prior written permission from the Australia Assigning copyright versus licensing 29 Council for the Arts. Requests and inquiries concerning 2. Indigenous control 11 Creative Commons caution 29 reproduction and rights should be addressed to the Engaging Indigenous contributors 12 Resolving disputes 30 Director Marketing and Communication, Australia Council Management and agency agreements 13 Using music in a film or video 31 for the Arts, PO Box 788, Strawberry Hills NSW 2012 3. Communication, consultation Australia or to [email protected]. Copyright of music on the internet 31 and consent 13 Using the internet to increase distribution 31 ISSN 978-1-920784-38-6 Performing and recording communally Managing copyright to protect Design Bright Red Oranges owned music 14 Print e2e managment pty ltd your interests 32 Cover Red Centre Dreaming, Northern Territory. Legal and customary law effects 14 Copyright notice 32 Image courtesy of Tourism NT Permission to use particular instruments 15 Moral rights notice 33 Indigenous design element: Sampling music that is already recorded 15 joorroo, Darrell Sibosado 2002 When is copyright infringed? 33 Consenting to rearrange or remix music 16 Further copyright information 34 Festivals, concerts and events 16 7. Proper returns and royalties 34 4. Interpretation, integrity and authenticity 17 Copyright collecting societies 34 Interpretation 17 Indigenous music and royalty exclusion 36 Integrity 18 Festivals, concerts and events 37 Authenticity 18 8. Continuing cultures 37 5. Secrecy and confidentiality 18 9. Recognition and protection 37 The Australia Council respects Indigenous Secret and sacred material 18 communities and culture. Readers should be Use of life stories 19 Implementation aware that this protocol guide may contain Representation of deceased people 19 1. Respect 39 references to members of the Indigenous 6. Attribution and copyright 19 2. Indigenous control 39 community who have passed away. What is copyright? 20 3. Communication, consultation How does copyright protect music? 20 and consent 40 How is music reduced to material form? 20 IMPORtant Notice 4. Interpretation, integrity and authenticity 41 The information included in this guide What kinds of copyright are there? 21 5. Secrecy and confidentiality 41 is current as at September 2007. This Who owns copyright? 21 document was first published under the 6. Attribution and copyright 41 Copyright exceptions 21 title ‘Song Cultures’ in 2002. This guide 7. Proper returns and royalties 42 How long does copyright last? 21 provides general advice only. It is not 8. Continuing cultures 43 What rights do copyright owners have? 22 intended to be legal advice. If you have 9. Recognition and protection 43 a particular legal issue, we recommend Performers’ rights 22 Bibliography and Resources 49 that you seek independent legal advice Copyright and performers’ rights 22 Contacts 50 from a suitably qualified legal practitioner. Collaborative works 23 Acknowledgements 54 Music 02 Music 03 Introduction Introduction Introduction The five guides in the suite are: land, water, animals, plants and other people Reading this guide from cover to cover is an Indigenous music is a voice that crosses • Media arts is an expression of cultural heritage. Writing, important and highly recommended first step. boundaries. It is the true voice of this country • Music performing, music, the visual arts, and media The introduction defines protocols as used in because it is linked to the land. It enriches this • Performing arts arts are ways of transmitting Indigenous this guide, and looks at the special characteristics nation, and shows the nation’s true identity.1 cultural heritage. • Visual arts of Australia’s Indigenous music. David Milroy • Writing. As primary guardians and interpreters of their The next section, Indigenous heritage, gives Australia’s unique Indigenous artistic and cultures, Indigenous people have well- They are relevant to anyone working in or with an overview of the issues that inform the cultural expression is rooted in thousands of established protocols for interacting with their the Indigenous arts sector, including: development of Indigenous protocols. It explores years of heritage and continuing practice. cultural material. New situations also require the complexity of Indigenous Australia and its • Indigenous and non-Indigenous artists cultural protocols. When the Musée du Quai Branly opened in potential impact on the planning of a music or • people working within related fields Paris in 2006, visitors were spellbound by Although each guide in the suite addresses song project. It also charts international initiatives of Indigenous artform practice the immense power of the vast collection of cultural protocols specific to an Indigenous for the protection of Indigenous cultural and Australian Indigenous art works, including • Australian and state government departments artform, the same underlying principles are intellectual property rights. special landmark commissions on the ceilings • industry agencies and peak organisations common to each. The key section, principles and protocols, and façade by eight of Australia’s best known • galleries, museums and arts centres We hope Indigenous people, and those examines the nine principles that support the Indigenous contemporary artists. In May 2007, • educational and training institutions working with them, will be inspired to use these protection of Indigenous cultural heritage. Emily Kngwarreye’s Earth’s Creation sold at • indigenous and targeted mainstream media. principles as a framework for developing It includes valuable information on protocols auction for more than $1 million, the highest protocols appropriate to their specific projects, specific to the use of cultural heritage material price ever for a painting by a female artist The protocol guides endorse Indigenous language groups, regions and communities. in music practice. A number of case studies in Australia. cultural and intellectual property rights – the and commentaries from Indigenous music rights of Indigenous people to own and control We also hope the guides will spark debate and While works by individual artists such as these practitioners identify pitfalls and offer readers their cultural heritage. These rights are that additional protocols will be developed are protected by copyright, there are often no valuable advice. confirmed in the United Nations Declaration of across artforms. legal rights around the broader reproduction the Rights of Indigenous Peoples,2 which says This guide also contains general information and use of Indigenous cultural heritage Send any comments about this guide or any Indigenous people have the right to practice and advice on the main laws in Australia material. Australia does not yet have a law that suggestions for improvement to the Australia and revitalise their cultural traditions and governing the use and reproduction of arts prevents alteration, distortion or misuse of Council for the Arts: customs. ‘This includes the right to maintain, and cultural expression. For this second traditional symbols, songs, dances, performances protect and develop the past, present and Executive Director edition, we have integrated copyright, licensing or rituals that may be part of the heritage of future manifestations of their cultures, such as Aboriginal and Torres Strait Islander arts and royalty information into the principles particular Indigenous language groups. archaeological and historical sites, artefacts, Australia Council and protocols section. So one section deals That is where the Australia Council for the Arts’ designs, ceremonies, technologies and visual PO Box 788 with attribution and copyright and another protocol guides come in. The five guides in and performing arts and literature.’ Strawberry Hills NSW 2012 with proper returns and royalties. the suite spell out clearly the legal as well as [email protected]