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 6. Attribution and copyright 41 document was first published under the 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] In Our culture: our future3, Terri Janke The Implementation section summarises the ethical and moral considerations for the recommended significant changes to laws, some of the key points and provides a checklist use of Indigenous cultural material. They can Using this guide policy and procedures to protect Indigenous for applying protocols to a music project. help people do the right thing. These guides This guide is designed to be an initial point of cultural knowledge and expression. recognise that in Indigenous Australian reference in planning a work with Indigenous There is also a list of contacts and a The Australian Government has yet to communities the artist is a custodian of culture, music practitioners or using Indigenous cultural bibliography to use as starting points for make a determination on this matter. with obligations as well as privileges. material. When you need specific advice on accessing relevant people and information. In Australia, Indigenous heritage comprises all the cultural issues of a particular group, we objects, sites and knowledge transmitted from recommend you speak to people in authority, generation to generation. Indigenous people or engage an Indigenous cultural consultant have a living heritage. Their connection with the with relevant knowledge and experience. Music 04 Music 05 Introduction Introduction
What are protocols? The guide also aims to formally identify issues Indigenous music draws on and embraces the around the use of cultural property and Protocols are appropriate ways of using arising from the interaction between Indigenous full range of music styles and forms including appropriate production of their work. Indigenous music and cultural material, and cultural concerns and the law protecting the pop, hip hop, country and western, disco, opera, Some issues of concern include: interacting with Indigenous musicians and rights of artists. The Australian legal system rap, rhythm and blues, techno and others. • Who has the right to use Indigenous incorporates some but not all of these concerns. Indigenous communities. They encourage Similarly, Indigenous musicians use a range cultural material? ethical conduct and promote interaction based While protocols differ from legal obligations, of instruments including the didgeridoo and • Who has the right to speak for the owners of on good faith and mutual respect. Indigenous the guide outlines the current copyright law clap sticks, but also guitar, drums, piano and Indigenous cultural material? protocols arise from value systems and cultural framework. The process of following the saxophone. In many instances music has • What is the proper treatment of Indigenous principles developed within and across protocols supports the recognition of Indigenous developed as part of a collaborative process, cultural material such as creation stories, song communities over time. heritage rights. It encourages culturally created with non-Indigenous people. cycles, rhythms, language and other forms? Responsible use of Indigenous cultural appropriate working practices, and promotes New musical styles, including world music, and knowledge and expression will ensure that communication between all Australians with The special nature of the technique of ‘sampling’ Indigenous music, Indigenous cultures are maintained and protected an interest in Indigenous music. Indigenous music For Indigenous cultures music and song originally recorded by ethnomusicologists and so they can be passed on to future generations. These protocols are accepted and used by are central to identity, place and belonging, stored in archives or libraries, has caused It is important to recognise the diversity and many Indigenous musicians and organisations and are an expression of a unique and distress to the Indigenous custodians, who complexity of the many different Indigenous and have also been used for several Indigenous 5 continuing tradition. were never consulted about this use. cultures in Australia. Ways of dealing with music projects. Is the diversity of Indigenous music respected? issues and cultural material may differ from Indigenous music has an important place In an era of new and emerging artists and community to community. There are also What is Indigenous music? in the transmission and survival of Indigenous styles, many Indigenous musicians want to be many different protocols across the diversity Indigenous music is an important part of cultures. It has been a primary means of: recognised for their particular style and talent, of urban, rural and remote communities. Indigenous culture. • renewing and teaching law and culture rather than being subjected to stereotypes held While it is not possible to prescribe universal Music is about expressing cultural belonging. • ceremony by others. rules for engaging with Indigenous musicians It is part of ceremony, storytelling, celebration, • storytelling Some contemporary Indigenous musicians and and their communities, there are some mourning, coming together and telling of • preserving language composers have complained that record fundamental principles within which to conduct events in Indigenous people’s lives, both past 4 • entertainment companies, keen to have Indigenous product, respectful work. and present. • recording personal stories are asking them to perform what are described The protocols outlined in this guide are shaped Indigenous music is not easily divided into • recording stories of common Indigenous as ‘tribal style’ or traditional songs. by nine fundamental principles. The protocols categories of traditional and contemporary Australian experience They say that record companies show little are, by definition, ways of applying these styles, despite common perceptions. In this interest in new works based on contemporary principles. For example, a cultural protocol to guide, ‘traditional’ refers to works that have • telling Indigenous experience to the Indigenous lifestyles. One record company implement the underlying principle of respect drawn on material from a pre-existing wider community returned a tape of songs by an Indigenous is to acknowledge the Indigenous custodians cultural base. • celebrating performer, saying: ‘These are great – but could of country at the site of each performance • commenting on life, society and politics Indigenous music refers to: you sing something about how the kookaburra or event. • music and lyrics • showcasing and sharing Indigenous got its laugh?’6 The guide identifies many specific protocols experience through collaborative writing, • instrumental pieces Among important issues raised by the which can be applied or adapted by Indigenous performance recording • Indigenous rhythms and song cycles development of Indigenous music and song are musicians, singers, songwriters, record • sharing Indigenous experience with the following: companies, event managers, arts organisations that are created primarily by Indigenous audiences in Australia and overseas. and others working with Indigenous music. Australian people, or based on the cultural • What can be done to further promote and property of Indigenous Australian people. Music is created as a solo or collaborative protect Indigenous people’s rights to own endeavour. The nature of collaborative work and control their Indigenous heritage within raises many issues for Indigenous performers the current legal framework?7 Music 06 Music 07 Introduction Introduction
• How should Indigenous music be properly An Indigenous person’s connection with communal moral rights. In the absence of laws attributed? For instance, how should Indigenous heritage is expressed in Indigenous people’s heritage is a living that protect Indigenous cultural and intellectual performers and owners of traditional songs contemporary life through his or her relationship heritage and includes objects, knowledge, property, much of the rights recognition has be recognised? with land, waterways, animals and plants, and artistic, literary, musical and performance been done at an industry and practitioner level, • What about adaptations of Indigenous his or her relationships with other people. works which may be created now or in through the development of protocols and use the future, and is based on that heritage. music, such as remixing and re-recording? Aboriginal and Torres Strait Islander people of contracts to support the cultural rights of Indigenous people. • How can Indigenous cultural material be have a well-developed and complex web of Indigenous cultural and intellectual respected through all the different aspects relationships based on family ties, language property rights include the right to: Across the world, Indigenous people continue of music – from writing, to performance, group affiliations and community, organisational • own and control Indigenous cultural to call for rights at a national and international recording, production and distribution? and government structures. A range of and intellectual property level. Indigenous people are developing authority structures exists across urban, statements and declarations that assert their This guide offers some suggestions for dealing • ensure that any means of protecting regional and remote communities. It is ownership and associated rights to their with these issues. Indigenous cultural and intellectual important to acknowledge the complexity of property is based on the principle of cultural heritage. These statements and Indigenous heritage Indigenous Australia when negotiating the use self-determination declarations are a means of giving the world of Indigenous heritage for a music project. notice of the rights of Indigenous people. Indigenous music is an important means of • be recognised as the primary guardians They also set standards and develop an expressing Indigenous heritage – past, present Indigenous Australians are concerned that and interpreters of their cultures and future. Indigenous heritage, enshrined in there is no respect for their Indigenous cultural Indigenous discourse that will, over time, • authorise or refuse to authorise the ensure that Indigenous people’s cultural Indigenous cultural and intellectual rights, is knowledge, stories and other cultural commercial use of Indigenous cultural 8 heritage is respected and protected. discussed at length in Our culture: our future. expression in the wider Australian cultural and intellectual property, according to Under copyright laws these rights are not landscape. Concerns include the current legal Indigenous customary law These rights are given international recognition always protected and this is why we encourage framework that does not promote or protect in the United Nations Declaration of the Rights • maintain the secrecy of Indigenous the use of Indigenous protocols. the rights of Indigenous people – particularly of Indigenous Peoples.11. Article 31 states: knowledge and other cultural practices to own and control representation and 1. Indigenous peoples have the right to The music industry can adopt a ‘best practice’ • full and proper attribution approach by encouraging respect for the dissemination of their stories, knowledge maintain, control, protect and develop their 9 • control the recording of cultural customs cultures of Indigenous Australians. It can do and other cultural expression. cultural heritage, traditional knowledge and expressions, the particular language this by acknowledging their innate value and The process of following the protocols not and traditional cultural expressions, as well which may be intrinsic to cultural identity, their difference from other cultures, and by only supports Indigenous heritage rights, as the manifestations of their sciences, knowledge, skill and teaching of culture. respecting Indigenous ownership and control but also promotes diversity and new technologies and cultures, including human of Indigenous heritage. initiatives in Indigenous music, and culturally For a full list of rights see Our culture: our and genetic resources, seeds, medicines, future – Report on Australian Indigenous knowledge of the properties of fauna and All Indigenous artists (including musicians) are appropriate outcomes. cultural and intellectual property rights.10 flora, oral traditions, literatures, designs, responsible for safeguarding cultural knowledge. sports and traditional games and visual and They need to ensure that Indigenous cultures, Our culture: our future performing arts. They also have the right both in the past and today, are protected and Current protection of heritage Indigenous cultural and intellectual to maintain, control, protect and develop maintained in their works. In this way these Australia’s current legal framework provides property rights refer to Indigenous their intellectual property over such cultural cultures can be passed on to future generations. limited recognition and protection of Indigenous people’s cultural heritage. heritage rights. Our culture: our future heritage, traditional knowledge, and There are many Aboriginal and Torres Strait Heritage comprises all objects, sites and recommended significant changes to legislation, traditional cultural expressions. Islander cultures, not just one. These cultures knowledge – the nature or use of which policy and procedures. As yet there has been 2. In conjunction with Indigenous peoples, States have developed over thousands of years and has been transmitted or continues to be no formal response to these recommendations shall take effective measures to recognise have been passed down from generation to 12 transmitted from generation to generation, from the Australian Government. However, and protect the exercise of these rights. generation. Despite the enormous impact of and which is regarded as pertaining to a there are proposals to amend the Copyright the invasion in 1788, Indigenous cultures have The Mataatua Declaration on Indigenous particular Indigenous group or its territory. Act 1968 (Cth) to recognise Indigenous continued to develop. Cultural and Intellectual Property Rights urges Music 08 Music 09 Introduction Introduction
Indigenous people to ‘develop a code of ethics expressions/expressions of folklore; for traditional owners of traditional knowledge which external users must observe when Draft objectives and principles17 and expression of culture.20 The prior and recording (visual, audio, written) their traditional (ii) The protection of traditional knowledge; informed consent of the traditional owners is and customary knowledge’.13 Draft objectives and principles.18 required to: • reproduce or publish the traditional The Draft Principles and Guidelines for the The latest WIPO provisions for the protection of knowledge or expressions of culture Protection of the Heritage of Indigenous People traditional cultural expressions (TCEs) suggest (1993), adopted by the former Aboriginal and three layers of protection tailored to different • perform or display the traditional knowledge Torres Strait Islander Commission’s Indigenous forms of cultural expression. It says TCEs of or expressions of culture in public Reference Group in 1997,14 state: ‘Artists, particular religious and cultural significance • make available online or electronically writers and performers should refrain from should be noted in a public register so there transmit to the public (whether over a path or incorporating elements derived from Indigenous is certainty as to which are protected and for a combination of paths, or both) traditional heritage into their works without the informed whose benefit. The items in the register would knowledge or expression of culture consent of the Indigenous owners.’ be afforded a form of protection similar to that • use the traditional knowledge or expression In January 2002, the World Intellectual Property given by intellectual property rights legislation. of culture in any other form. Organisation’s (WIPO) International Forum, It recommends in Article 3, that when TCEs Intellectual Property and Traditional have been registered or notified, there shall be Knowledge: Our Identity, Our Future, held adequate and effective legal and practical in Muscat, Oman, adopted a declaration measures to ensure that the relevant community recognising that ‘traditional knowledge plays can prevent certain acts taking place without a vital role in building bridges between its free, prior and informed consent. civilisations and cultures, in creating wealth and in promoting the human dignity and With TCEs other than words, signs and names, cultural identity of traditional communities’.15 these acts include: • the reproduction, publication, adaptation and Internationally, WIPO has established an communication to the public and adaptation intergovernmental committee on intellectual of its traditional cultural expressions property and genetic resources, traditional knowledge and folklore to discuss intellectual • any use of traditional cultural expression property issues that arise in the context of: which does not acknowledge in an appropriate way the community as • access to genetic resources and the source benefit sharing • any distortions, mutilations or other • protection of traditional knowledge, modification of or inappropriate action in innovations and creativity relation to the traditional cultural expression 16 • protection of expressions of folklore. • the acquisition or exercise of intellectual Based on its extensive international, regional property rights over the traditional cultural and national experience and on input from expression adaptations of them.19 different countries, the WIPO intergovernmental Regionally, a model law for protecting committee developed two important traditional knowledge in the Pacific was documents, which outline policy options and drafted and completed in July 2002. The legal options for traditional cultural expression Pacific Regional Framework for the Protection and knowledge. These are: of Traditional Knowledge and Expression of (i) The protection of traditional cultural Culture establishes ‘traditional cultural rights’ Music 10 Music 11 Principles and protocols Principles and protocols
Principles and protocols who has lived in the area and contributed and owners of Indigenous music, to promote ways. This can also include cultural expression to the Indigenous community may also be and support greater understanding and based on particular Indigenous experience, The principles outlined below are a framework asked to acknowledge country if they appreciation of Indigenous music in Australia.’24 such as Archie Roach’s Took the Children for respecting Indigenous heritage: are not in a position to welcome to country. Away, Seaman Dan’s TI Blues and Marlene Accepting diversity 1. Respect Cummins’s Pension Day Blues. It includes It is respectful for others speaking officially to Indigenous musicians come from many different works that celebrate and commemorate 2. Indigenous control also acknowledge country and custodians at backgrounds, learn their art in many different Indigenous experience, like We Have Survived 3. Communication, consultation the site of the event. This could be done by the ways, and express their music in many different by No Fixed Address; that call for political and consent master of ceremonies making an introductory styles. It is important that Indigenous cultural action, as in Yothu Yindi’s Treaty Now; and that 4. Interpretation, integrity and authenticity acknowledgement to the traditional owners expression is celebrated instead of restricted. honour country and people, like My Land by 5. Secrecy and confidentiality of the land.21 Most artists feel the pressure to produce the Pigram Brothers or No More Whispering by 6. Attribution and copyright Seek advice from the Indigenous community work that will appeal to the commercial market. Glenn Skulthorpe. It may also include the use 7. Proper returns and royalties on the preferred manner of acknowledgement Indigenous musicians are often under the of Indigenous languages, rhythms, instruments 8. Continuing cultures and the relevant groups to be acknowledged. additional pressure to create music that fits and styles. It is important to respect the It is important to acknowledge country and stereotypical ideas about their work. Many 9. Recognition and protection. diversity of cultural expression in Indigenous custodians at the site of each performance or Indigenous musicians are tired of answering music, and appreciate its ongoing development In the following pages, under each of these event. In many instances it may not be questions about why they don’t play the through different styles and forms. principles, we have suggested protocols appropriate for every performer to acknowledge didgeridoo, or why they are not singing in their for using Indigenous cultural material, and country and the custodians. It will often be language, or why they want to compose songs 2. Indigenous control interacting with Indigenous artists and more appropriate for the master of ceremonies, about their feelings and personal experiences. Indigenous people have the right to self- Indigenous communities. or other spokesperson to acknowledge it on Other Indigenous musicians have also determination in their cultural affairs and the 22 behalf of performers and audience. Seek confirmed that racism is ‘alive and well in the expression of their cultural material. There are 1. Respect advice from the Indigenous community on the music industry’.25 An increase in the number many ways in which this right can be respected Respectful use of Indigenous cultural material preferred manner of acknowledgement.23 of Indigenous music publishers, managers in the composition, production and performance and information about life experience is a Museums and Galleries of New South Wales and promoters who can provide culturally of music. basic principle. has published a written ‘welcome to country’ appropriate advice and services will benefit the One significant way is to discuss how Indigenous Acknowledgment of country protocol, which is available from their website, music industry and Indigenous musicians.26 control over a project will be exercised. This Indigenous Australians, the Aboriginal and
For initial contacts we recommend the Authority (AICA) and the Central Aboriginal Management and agency agreements following directories: Australian Media Association (CAAMA Good management and a good agent are the project themselves, and to consult • The Black Book Directory 2005 – Music), and other Indigenous organisations great assets for songwriters and performers. with family and community members 29 Indigenous Arts & Media Directory, listed in the contacts section of this guide Musicians will often be required to sign an about each stage of the project. published by Blackfella Films and Australian • Torres Strait Regional Authority Island agreement with a manager or agent. It is Film Commission, available online at Coordinating Council important to consider the agreement closely Doreen Mellor outlines the importance of
seek permission from the relevant community should be considered before recording didgeridoo. There is a strong belief that in most owners of the music. communally owned music. of the music had been obtained, and no instances, women are not allowed to play royalties were paid to the owners. the instrument. Some Indigenous people feel Observing customary law means finding out There are two issues to consider: Terri Janke has commented: strongly that musicians should refer to the who can speak for that music, so the right • Copyright protection requires the work to The Indigenous performers of the songs original custodians of the yidaki or didgeridoo people are asked for permission to use the have an identifiable author. Some Indigenous complain that they have not received any for consent to play the instrument, particularly music. For instance, if a musician wanted to material is communally owned, and there is royalties from the sale of the album. They in view of widespread national and international use a rhythm or phrase from music belonging no single identifiable author or authors. were under the impression that the song sale and use. to a Torres Strait Island language group or • Copyright law protects works in ‘material family, it is essential to locate the correct was recorded to preserve the knowledge of Seeking permission shows respect for the form’. In this guide, this generally means the the song as part of a language maintenance language group or family group from the written form or a sound recording. So, once status of the original instrument owners and particular Island owning that song or music. program. They were not told that the respects their right to permit, deny or restrict an oral song is written or recorded, copyright recording would be sold for profit.32 Helen Anu says, ‘If you can’t find the correct in the song may belong to the company, the way the instrument is used. language group or family to ask permission, organisation or person who wrote or Permission should always be sought for playing, ’31 In the following case study, the custodians that’s a good reason not to use the music. recorded it, not the custodians of the song. performing or recording any yidaki or didgeridoo assert their ownership and state that their In order to obtain proper consent it is necessary to: Anyone considering participating in the song cycles belonging to language groups.34 consent was provided to create the CD. recording of communally owned cultural • provide adequate information The custodians also clearly state that no further Sampling music that is already recorded material is advised to consider the extent of • ask the right people use should be made without their consent. Sampling Indigenous traditional music has copyright protection, and the requirements caused problems for some Indigenous people, • consult fully of customary law. • be prepared that consent may be withheld. Case study: Transmitting traditional when the creators or custodians are not asked Because of these issues, proper knowledge for permission to use their traditional songs. In The right of prior informed consent requires communication and consultation means In a booklet accompanying the CD Jurtbirrk some instances, the music has been sampled that custodians be given full information about understanding and explaining these issues and love songs from North Western Arnhem from recordings collected by ethnomusicologists the proposed use or uses of the cultural all proposed uses of the work. This helps to Land is a custodian statement, which or anthropologists, and held in museums. material. The way in which a song is to be used ensure people are properly informed before informs listeners that permission needs to In these cases, the rights in customary and is important information for custodians. For giving their consent. be sought for any use of the CD or booklet. copyright law may be complex, and require instance, a songwriter may be composing an Customary law and cultural protocols should considerable consultation before any use. ad jingle or writing a score for a play, teaching This music CD and booklet contain be followed, and consultation should include by performance or writing music for a band to traditional knowledge of the Iwaidja people. Sampling can also occur using more recent discussion of proposed uses of the recording perform and record. If the songwriter hopes for They were created with the consent of the songs and recordings. Some musicians and the consequences of wide distribution. commercial release of the song he or she should custodians. Dealing with any part of the encourage sampling of their new musical make this clear to the owners of cultural material. The next case study shows the importance music CD or the texts of the booklet for works, and may use a Creative Commons 35 Also, if a number of different uses are proposed, of informing custodians and performers of the any purpose that has not been authorised licence to show others that they can use their each use should be discussed. Consent should proposed uses of a recording. by the custodians is a serious breach of the work without having to pay for it, on the terms be sought again if new uses are considered, customary laws of the Iwaidja people and of the licence. This might not be suitable for 33 Indigenous traditional music that may require for example, sale of the work or download from Case study: Recording communally may also breach the Copyright Act 1968. an internet site. consideration of each context for which it is owned music used. It is very important to get legal advice Permission to use particular instruments Legal and customary law effects During the 1970s a number of recordings before issuing a Creative Commons licence to Some Indigenous people feel there should be The legal and customary law consequences were made of traditional songs from Central work available online so you are very clear what restrictions on the use of particular instruments Australia for ethnographic purposes. you are allowing others to do with you work, in accordance with customary laws or practice. One such recording is now being sold and how it might influence your ability to control commercially through tourist shops, but no Opinions differ among Indigenous musicians the work in the future. Start by checking the proper consent for commercial exploitation on the issue of who can play a yidaki or Creative Commons section in this guide. Music 16 Music 17 Principles and protocols Principles and protocols
Sampling musical works or recordings without Ebony Williams, formerly of the Australasian • Language should only be used where its the copyright owner’s permission may be an techno-dance rhythms. The band got Performing Right Association, explains that proper meaning is known and where it is infringement of copyright. access to the digital samples from the festivals can be very important, especially used in the proper context.41 recordists – ethnomusicologists who had for elders, who are concerned about how to If you want to sample a song and sound • Cultural material should always be used in worked with these groups and deposited engage young people in culture. For that recording you will generally require a copyright the appropriate context. the recordings in a cultural archive. reason, festival organisers have a strong clearance, in the form of a licence for use in • Observe gender restrictions – for instance, responsibility to follow protocols.39 a sound recording. Unauthorised use of a Permission was not sought from the groups the use of the yidaki or didgeridoo is substantial part36 of a sound recording may whose songs were recorded. Some of the generally thought to be restricted to men. 4. Interpretation, integrity infringe the rights of the copyright owners Indigenous musicians were not credited and authenticity • Check that the musical work does not reinforce under the Copyright Act.37 for their contribution. The US album cover negative stereotypes of Indigenous people. states that part of the proceeds were Indigenous musicians and their communities • Check that the musical work does not expose Copyright in old recordings often belongs to donated to the Pygmy Fund, a charity that should have control over how their cultural confidential, personal or sensitive material. the person who made the recording. Or if the provides support to the Efe people. But heritage is presented. The presentation recording is more than 70 years old, it may be according to one observer, the music of a musical work includes its interpretation, You should also consider whether the song is in the public domain. In that case, the archival sampled was not from the Efe people. integrity and authenticity. appropriate for your project. Nancia Guivarra, institution administers the recording of the music. Indigenous radio professional, recommends There is no other evidence of Indigenous Interpretation that when you are adding music to a new media Consultation and consent of Indigenous musicians being paid for use of their work Interpretation refers to how cultural material project, you choose culturally appropriate custodians or their descendants is an important on the album. Large profits were made with is interpreted and represented. This includes music that represents the geographic and part of respectful use of these recordings. no returns to Indigenous musicians. The the perspective given to the cultural heritage cultural content. Discussing the choice of There is a significant flow-on effect from the music was appropriated without consent or material and the language used. music for radio programming, she notes: disrespectful or unauthorised use of Indigenous attribution, and potential claims to copyright In the past, Indigenous cultural material has been music for sampling. When recorded music is were ignored. All rights to self-determination subjected to interpretation by non-Indigenous You need to be aware of the diversity of sampled without the consent of Indigenous were denied by these practices.38 people. Today, as Indigenous people seek to Indigenous music and should choose content owners, there is a breakdown in the reassert and re-claim control over their cultural that is culturally appropriate, for example, other principles. Consenting to rearrange or remix music heritage material, Indigenous interpretation of checking what the song is about with the artist or record label or management or your There is no: It is important to carefully consider the possible the material is a way of enhancing the cultural effects of consenting to the right of a recording significance of the work. interviewee and not just selecting the most • authority or control over the work well-known Aboriginal or Torres Strait Islander company to rearrange or re-mix music. Giving The context of the performance or recording is an • respect for the integrity or authenticity in the music because it sounds good, particularly consent may mean that the musician cannot do important consideration to ensure the music is use of the work when working with music in Aboriginal anything if he or she is unhappy with the result. not used in a disrespectful way. Helen Anu says, • respect for confidentiality or secrecy languages. There is plenty of Indigenous music ‘It is very important that when Indigenous people Festivals, concerts and events from just about every geographical area. When • proper return for its use are educating others – you have to get it right’.40 Festival and event organisers should consult with using music in a radio program, ask ‘Is this • proper attribution local communities for advice on cultural protocols For instance, an educational performance of music relevant to the person, community or • proper transmission of culture during a festival, concert or event. Consultations song or dance at a school should include a place this story is about?’ For example, a song • proper recognition under law. should be held to discuss involvement of the good background history of the music. It should by a Torres Strait performer may be more local community in the event, proper returns also be accurate and appropriate for children. appropriate for a story on the Torres Strait for the local community, a ‘welcome to country’ Case study: Asking permission from rather than using a didgeridoo track from if appropriate, and meetings between the Consider interpretation and context in the the right people a central Australian artist.42 community and invited guests or performers. presentation of musical works, such as: In 1992 the album Deep Forest was Local communities will advise on the cultural • Words or phrases from particular languages The way Indigenous music is interpreted can released. The album fused digital samples protocol for their area. should not be used just because they are in be important for musicians, producers and of Indigenous music from Ghana, the a different language. distributors working with Indigenous music. Solomon Islands and African Pygmies with Music 18 Music 19 Principles and protocols Principles and protocols
Authenticity • used for a particular purpose Case study: Producing Indigenous music Authenticity refers to the cultural provenance of • used at a particular time and community history projects, and Alice Haines is an Aboriginal musician and a musical work. This can be a complex question. endangered Indigenous language projects. producer. She says that a lot of Indigenous • information/material that can only be seen For the purposes of this guide, authenticity may Batchelor Press has published a CD called music does not get produced properly and heard by particular language group also refer to whether an Indigenous person Jurtbirrk love songs from North Western because producers don’t understand the members (such as men or women or people produced the musical work, and whether it was Arnhem Land. The CD contains 40 love distinctly Indigenous sounds. Haines says: with certain knowledge). produced with proper regard to Indigenous songs produced by the Jurtbirrk makers. Most material that is sacred has customary law There are new scales and new chords. customary laws, or cultural obligations To respect the mourning practices of restrictions on its use. The consultation process When you analyse Indigenous music it has associated with the work. Indigenous communities, the inside sleeve of should clearly state the proposed use and different structure and different rhythms Helen Anu suggests the following guidelines the CD contains the following statement: to non-Indigenous music. For example the observe any restrictions according to gender for the proper use of songs: Warning: This music CD and booklet contain rhythms from North Queensland are very or other customs. • Find out the meaning of the songs. voices and images of Iwaidja speakers intricate. Indigenous rhythms are like a Use of life stories from Minjilang in the Northern Territory of heartbeat. Unless a producer understands • Get a proper translation of the songs. If you are planning to depict an identifiable Australia. If someone shown in this booklet the rhythms they can’t produce • Get the context of the translation right. individual or community, ask the individual, or playing or singing on the CD has passed them properly.43 • It is important to ensure that the event or community or relatives of the individual for away, hearing their name or voice may venue at which the song will be performed permission, and check whether the details cause sadness or distress to some people. Integrity is appropriate for the song. For instance, are correct and appropriate. Before using this music CD and booklet, Integrity refers to the treatment of the original a political meeting may not be an appropriate It is important to avoid disclosing sensitive advice should be sought from Indigenous musical work and copies made of it. Under venue for a particular song. information. Confidential information must not Australian Community members regarding the Copyright Act, the moral right of protection She notes: ‘Performing the song at the wrong be disclosed without permission from all the use of these materials in the classroom, for integrity provides a right of protection community or public forum.45 for individual authors against inappropriate place can ridicule the song. The context must Indigenous people affected by the disclosure. be respected’.44 treatment of their work. For example, If you are planning to write lyrics about an unauthorised sampling of Indigenous music For information on Indigenous languages and individual’s life experiences, it is advisable to In some places, although the name and image may alter the original intention or meaning of usage contact the relevant Aboriginal language consult with that individual. There may be of the deceased person can be used, writing the work and infringe the author’s moral rights. centre or the Federation of Aboriginal and important cultural formalities to be observed or singing about people who have passed away will often be a very sensitive issue and Maintaining the integrity of a work is important Torres Strait Islander Languages at in telling the story in music or song. great care should be taken to consult with for the creators, but integrity of the musical
As songs and recordings may use material How does copyright protect music? protect their music unless it is reduced to Copyright exceptions from many different sources, it is respectful In general, copyright protects literary, artistic, material form. This is generally through writing There are some important exceptions to the practice to credit individuals, families, language musical and dramatic works that are ‘reduced the notes or making a recording of the music. general rule of copyright ownership. to material form’. This expression means that groups or communities who contributed to Styles of music are not protected by copyright. • Where a musical work is produced under a work must be in a permanent and tangible the work at any stage. It is the expression of the style, that is, a contract of employment, copyright will form.46 Copyright protects the written 48 What is copyright? the actual song or instrumental piece, belong to the employer. expression of words and music, and in the It is important for Indigenous musicians to that is protected. • Where a sound recording of a live case of recordings, the recorded form of the develop an understanding of copyright so they performance was made, and the performers sounds. Copyright does not protect ideas. What kinds of copyright are there? can negotiate rights to the use of their music. performed as part of their terms of Copyright only protects music when it is There are four main kinds of copyright: It is also important to keep track of changes employment, or pursuant to a contract of ‘reduced to material form’. to the laws that might affect those rights. • copyright of music employment or apprenticeship, the employer • copyright of words or lyrics is the maker, and therefore the copyright The purpose of copyright is to protect the How is music reduced to material form? Music is reduced to material form in a number owner and not the performers.49 creator’s, or copyright owner’s, rights to use • copyright of sound recordings of ways. A separate copyright exists in each or capitalise on their work. The Copyright Act • copyright of the performance (this is a new • Where a work is produced under the of the following forms: was drafted to achieve that aim. and limited right). direction or control of the Crown, copyright • written version of the music may belong to the Crown.50 A person’s ownership of copyright in music Who owns copyright? • written version of the lyrics • Where copyright has been assigned under depends on whether the person wrote the The nature of copyright ownership in music a written agreement, the agreement may words (lyricist), wrote the music (composer), • recording of the song depends on what each person contributes to specify who owns copyright. See ‘Assigning or made a sound recording of the music • published edition of the song, for example, the work or the sound recording. Copyright in Copyright Versus Licensing’ in this guide. (the Act calls this person the ‘maker’). sheet music. the music is owned by the person or people who compose the music. Copyright in the lyrics Copyright is a form of legal protection that Performers have a different set of rights How long does copyright last? belongs to the person or people who write the Copyright protects musical works and literary provides the copyright owners with the rights with only limited copyright ownership in words. Copyright in a sound recording is works during the lifetime of the creator and for to exclusively use and authorise others to use certain circumstances. owned by the maker of the sound recording.47 70 years after their death.51 The composer of their copyright works and other subject matter. Issues can arise for Indigenous cultural custodians This is generally the people or recording a musical work retains copyright for 70 years Copyright owners have the right to prevent where Indigenous traditional knowledge, dance, company who pay for the recording process. after his or her death. The lyricist of a song will others from using it without permission. designs and stories are passed on orally. For instance, the music and lyrics of the song retain copyright in the words until 70 years after The law refers to the copyright owner’s right This cultural material is not in material form Jewel of the North were written by Toni Janke. his or her death. After this time has expired, the to control the use of their work, as the right and is therefore not automatically protected Toni also recorded the song in 2004, trading work is said to be in the public domain. Once to capitalise on his or her work. under standard copyright laws. as Toni Janke Productions. She is the copyright a work of recording is in the public domain, the The Copyright Act is the main law in Australia It is important to consider making arrangements owner of the song’s music and lyrics, and law no longer prevents anyone from accessing, that governs the use, production and for copyright ownership when oral cultural the recording. copying or using it. dissemination of literary, artistic, dramatic and material is recorded, because generally the Copyright in a sound recording generally lasts musical works, sound recordings, television The copyright in sound recordings of live maker of the recording is the copyright owner for 70 years from the date the recording was broadcasts and films. There are no special laws performances is owned by the makers, and in in the recording. This can be altered by 52 some instances, the makers and the performers. made. After this time the sound recording is for the protection of Indigenous cultural and agreement. So, for example, a custodian of the The makers are generally the people who own in the public domain. intellectual property. cultural material could require an agreement the recording equipment, or the people who This section provides general copyright with the maker of the recording, which vests Copyright owners need to think about who commission the recording. In some cases, information for Indigenous musicians. copyright in the recording with the cultural will control their copyright and receive any performers, including the conductor will share For specific legal advice, we recommend custodian, before any information is provided. royalties that might be payable to their estate in ownership of recordings of live performances. after their death. consulting a lawyer with specialist knowledge Musicians who use techniques of improvisation on copyright. The Copyright Council website should also be aware that copyright does not is also a valuable source of information. Music 22 Music 23 Principles and protocols Principles and protocols
Another issue relates to controlling traditional • mechanical rights – the rights to record broadcasting it or putting it online. Once this in the music will belong to the composer and songs after the copyright period has expired. a song onto DVD, CD or cassette release was signed, performers received no copyright in the words will belong to the lyricist. Indigenous people want the right to control • synchronisation rights – the rights to use the further rights in relation to the work or the • In situations where two or more individuals their cultural songs in perpetuity. The duration music on the soundtrack of a film or video. recording of it unless they were entitled to have collaborated to create a musical work, of copyright does not reflect the duration of residuals or royalties as a result of their contract. and neither person’s contribution can be Performers’ rights Indigenous people’s rights and obligations in Since January 2005, performers have had new separated from the other, the work is one relation to their cultural material. To respect Performers have a different set of rights to rights in sound recordings.59 When a sound of ‘joint authorship’. Indigenous heritage, it may be necessary to get composers and lyricists. Performers’ rights are, recording of a live performance is made, the permission to use Indigenous stories and other in general, more limited than composers’ or The writer must contribute to the work by performers60 and the person/company who cultural expressions, even though legally they lyricists’ rights. Each performer’s permission way of effort, skill and labour. It is not enough paid for the recording are both regarded as are in the public domain. must be sought before recording a to inspire or make suggestions. copyright owners in the recording. Unless this performance (either by sound or film) and Each creator in a work of joint ownership What rights do copyright owners have? communicating a performance to the public. situation is altered by a contract the performer owns copyright in the resulting work.63 This Copyright owners have the exclusive right to Performers have other rights in relation to the will then have a right to make a copy of the means that each creator must obtain the authorise use and copying of their musical use of recordings of their performance, sound recording, perform it in pubic and consent of the others before exercising any works. For example, the copyright owner(s) including the right to say whether the recording communicate it to the public.61 of a musical work has the exclusive right to of their rights under copyright. For example, can be used as a soundtrack for a film. In practice, these new rights may be varied by do any or all of the following:53 if a composer or lyricist wants to license the Performances include live performances of: contracts, so they may not result in large gains rights to record a collaborative musical work, • reproduce all or a substantial part of the for performers. For instance, if a sound • a dramatic work55 he or she must get the consent of all the work in a material form, by writing out the recording of a live performance is made, and other copyright owners who participated in • musical work56 music or the words, or recording the music the performers are employed, the employer the collaboration. and words, or including the music and words • the reading, recitation or delivery of is the owner of the copyright unless this is in a soundtrack a literary work57 altered by agreement.62 This is a common situation for bands. APRA • perform the work in public, including recommends that band members draft a • a dance The rights of performers in audio recordings performing it live, playing a sound recording written agreement setting out proportional • a circus act or a variety act or any similar made before January 2005 have now changed. or screening a film which includes the music contributions to musical works. In this way presentation or show The performer may co-own copyright but and words in a non-domestic setting royalties can be distributed accurately, • an expression of folklore.58 they will not have any right to change the way especially in circumstances where the musical • communicate the work to the public, for the original copyright owner deals with the Performer’s rights will often be set out in work might outlast the life of the band. example by transmitting it online, uploading audio recording. it to a website, emailing digital files of music, employment contracts. Industry organisations Some Indigenous songs and themes have been or radio and television broadcasting should be consulted for industry standards Performers who may have a copyright interest passed down through many generations. In those for performers. These include the Media, in audio recordings of their live performances • make an adaptation of the work which may cases, it is not possible to say that one or even Entertainment and Arts Alliance (MEAA) and should register with Australasian Performing include new arrangements of the music a number of individuals created the song. And, the Musicians Union in each state or territory Right Association( APRA) and Phonographic many songs are owned or held by a group of • translate the lyrics54 of Australia. Performance Company of Australia (PPCA), people – they are owned communally, so it • perform in public and communicate the work which will collect royalties on their behalf. Copyright and performers’ rights is not possible to identify individual creators. to the public – known as a performing right. Until January 2005, there was no copyright in Collaborative works So far, the Copyright Act provides only for joint Music is reproduced in a number of ways a performance, but performers could grant In many instances songs are written by a number ownership – that is ownership by several including CD, film soundtracks, internet music or refuse permission to record and broadcast of people. In this case, copyright ownership individuals. It does not yet provide for group files and the incidental ‘on hold’ music their performances. This was generally done may be shared among the creators. There are ownership. Therefore, the communal ownership recorded for telephone message systems. by asking performers to sign a release two common ways where this might occur: or custodianship of Indigenous heritage, such as language group stories or knowledge, form which allowed for certain uses of the • Where one person has composed the music The rights to reproduce sound recordings of is not recognised by the Copyright Act. music in different media are described as: performance such as making the recording, and another has written the words, copyright Music 24 Music 25 Principles and protocols Principles and protocols
Identifying relevant language group or family royalties to the songwriter, composer or controls over its use. Consultation and consent owners can be a difficult task. Some Indigenous recording owner. processes should address any cultural and gives the company the proper form of attribution for the singer/songwriter. communities have begun compiling registers Songwriters and composers are strongly restrictions on the music in recorded form. and databases to keep records of ownership. But when the CD is produced the singer/ advised to register with APRA so their royalties What is the legal effect of making The Woomera Aboriginal Corporation, for songwriter is not credited. can be paid. a sound recording? instance, has developed a songs register that is When music is recorded a copyright is created. The singer/songwriter is offended and kept at Mornington Island. It assists with cultural In addition to the legal requirements, the The owner of copyright in a sound recording the performer is very upset that all his clearances, but also serves as a teaching customary law requirements for performing any is the person or company who pays for the instructions were not followed through. 64 traditional music should be observed. As a tool for passing on knowledge of songs. 67 courtesy, many Indigenous performers ask making of the sound recording. The copyright Since the introduction of the Moral Rights Communal ownership versus permission for use of songs, especially songs owner will have the rights to: Amendments to the Copyright Act in 2000, joint ownership about personal or community experiences. • copy the sound recording this mistake not only breaches cultural In Bulun Bulun & M* v R & T Textiles65, the protocol, it could also be the basis for legal Once permission is granted, the next step is to • play the sound recording in public court decided that traditional Indigenous works action against the owner of the copyright ensure that songwriters or custodians are given • communicate the sound recording to the containing ‘traditional ritual knowledge’, for failing to properly attribute the work to handed down through generations and proper acknowledgment and credit for their work. public using television, radio, the internet or telephone system. the composer. governed by Aboriginal laws, are not works Recording contracts Indigenous musicians might consider of joint ownership. Although under Aboriginal Before signing a recording contract, it is Musicians who receive Australia Council grants including cultural protocols in their laws the entire community may have an interest strongly advisable for Indigenous musicians to to record their music are in a strong position to recording contracts to ensure they are in the particular work, and the stories and get independent legal advice. The owner of retain copyright ownership in both the underlying carried through at all stages of production. knowledge within the work, copyright law does copyright in the recording will be the individual work and the recording. It is recommended that not recognise the group as the owners. or company who pays for it, unless varied by contracts be used for recording so all copyright Distribution, promotional material The individual author is recognised as the a term of the contract, so it is important to is held by the grant recipient/musician. Legal and cover artwork copyright owner and may have a special consider the contract carefully. advice should be sought about copyright that Songwriters who finance their own sound obligation to the language group to deal with may vest in performers when a live performance There are a number of other terms that recording will generally be the copyright owner the copyright in the music in ways that are is recorded. musicians may want to negotiate in a contract, of the recording.68 The copyright owner of the consistent with Indigenous law. Depending on Copyright clearances must also be obtained such as the length of time of the contract, who recording can authorise the manufacture and the circumstances, this obligation may be from other composers or lyricists whose songs is credited on the recording, what the artwork distribution of the recording. It is recommended enforceable in the courts. are recorded. If recording communally owned and promotional material will look like and who that written contracts are used and that legal songs, it is recommended that you seek Performing a cover version of a song has creative control. In addition to the standard advice is obtained before signing any contracts permission from the relevant groups or families. One of the exclusive rights of a copyright holder clauses, Indigenous musicians might want to for manufacture, distribution and promotion. is to perform his or her work in public. APRA include a clause that incorporates Indigenous musicians should be consulted and AMCOS act on behalf of music copyright cultural protocols.66 Hypothetical case: Attribution at the on the cover artwork and distribution of the owners to administer this right. They do this by Incorporating cultural protocols into recording recording stage recording. It is also important to talk about and licensing and collecting licence fees from music deals will assist in protecting Indigenous Imagine an Indigenous performer who is agree on appropriate promotional material users and distributing these fees as royalty musicians and Indigenous culture. recording his first CD and wishes to record before it is used. All photographers and visual payments to the copyright owners in the song his version of a song written by an artists should be properly attributed for any and sound recording. Copyright and recording Recording musical works creates a new set of Indigenous singer/songwriter he admires. cover artwork, or promotional material. Also, Venue owners should have a licence with Indigenous cultural obligations because: He follows all proper protocols, seeking if you want to crop or alter a photograph or APRA to play music. The venue owner will • a new copyright is created in the recording permission and asking her how she would artwork, it will often be essential to get the require musicians to provide song sheets listing consent of the photographer or artist to avoid • distribution of the recording creates wide like to be attributed on the CD. He tells the the songs played at the venue. The song lists recording company about this process infringing their right of integrity. are then given to APRA, which distributes exposure of the work and there are few Music 26 Music 27 Principles and protocols Principles and protocols
who made the recording or wrote the notation 2. The right not to have work or as the copyright exists. For example, the moral Case study: Community rights of the music. In most cases, copyright in performance falsely attributed right in the lyrics of a song will last for the and royalties recordings by anthropologists and to another musician author’s life plus 70 years. One exception to An Indigenous community recorded its ethnomusicologists belongs to the Musicians can take action against parties this rule is the moral right of integrity in a film.77 songs and approached a record company anthropologist or ethnomusicologist. Copyright who falsely attribute others as creators of Indigenous communal moral rights to distribute its CD. An agreement was in the music does not belong to the traditional their works. Existing moral rights are individual rights only. signed for distribution only. The record owners or performers of the music. 3. The right of integrity If the literary work is treated in an company put a copyright notice on the CD, A song writer can bring a legal action if a attributing copyright to the record company. Another problem arises because copyright inappropriate way, only the individual author only lasts for a set period of time. This can vary song is treated in a inappropriate manner, would have a remedy under moral rights. This was a false attribution as copyright causing harm to the song writer’s honour belonged to the community. However, a according to the type of material and who However, an Indigenous community, which is created it. In general, copyright in a musical or reputation.74 However, an action for the source of cultural material incorporated in notice of the community’s rights was not inappropriate treatment will not be available if published on the CD or cover. work lasts for 70 years after the death of the a literary work, does not have any moral rights author.70 Copyright in a sound recording generally the song writer agreed to the treatment of under the Copyright Act even though under The community was paid royalties for the lasts for 70 years after the recording was the work. For instance, if a musician agrees customary laws, the language group or its sale of the CDs. made.71 Once copyright expires, the work is in to a remix of the work and then objects to representative may be responsible for the remixed version, the original consent may The record company licensed the songs to the public domain with no copyright protection. safeguarding the cultural integrity of the story mean that he or she cannot bring an action embodied in the work. The moral rights a recording company in another country. No It should not be assumed that all rights to a for infringement of the right of integrity. framework under the Copyright Act also permission was sought from the community. song have lapsed because one recording of Whether the work has been treated in an excludes Indigenous persons with authority The songs were included in a compilation the song is in the public domain. More recent inappropriate manner is subject to reasonable other than the author (creator) from legally album that did not properly attribute the recordings and adaptations of traditional defence. For instance, the alleged infringer exercising moral rights over works embodying community as the source of the songs. The music by Indigenous musicians will be might argue that the treatment was reasonable 78 community successfully took action against traditional ritual knowledge. protected by copyright, and reproduction in all the circumstances.75 Performers can the record company for breach of copyright. may infringe copyright. object to treatment of their performance that In December 2003, the Australian Government drafted proposed amendments to the The company has since published an What are moral rights? demeans their reputations. 69 Copyright Act 1968 for Indigenous Communal unreserved public apology. Moral rights are separate from the economic Before making any significant alterations to, Moral Rights. The Exposure Draft proposes the rights of copyright owners and may give or adaptations of a musical work, it is important introduction of Indigenous communal moral Lapse of copyright and the public domain Indigenous musicians avenues to challenge to get the consent of the copyright owner rights for copyright works and films. Once copyright lapses the music is said to be inappropriate treatment of Indigenous musical in writing. in the public domain where the law no longer works. Moral rights laws provide the following These Indigenous communal moral rights will The potential for moral rights to increase prevents anyone from accessing, copying and rights to authors of musical works and performers exist alongside individual moral rights, and will copyright protection for Indigenous musicians exploiting the music. Indigenous people’s right be exercisable independently of the individual 1. The right to be attributed as author has not been fully explored. author’s moral rights. It also exists separately to culture is not limited to the 70-year period, or performer One important point about moral rights is that to the copyright in the relevant material.79 and it may be necessary to get permission The author of a work has the right to be they are individuals’ rights. There is still no legal Ian McDonald to use Indigenous music even though legally, identified as the author where his or her recognition of communal ownership of it is in the public domain. work is reproduced in material form, The Indigenous communal morals rights Indigenous cultural material. However, individuals The operation of the Copyright Act creates published, performed, adapted, or would exist in a work for the duration of the who have created a song can bring legal action a number of problems when it comes to communicated to the public.72 Songwriters copyright period. if they are not properly attributed for their work, protecting Indigenous music. One example is can require their names to be clearly and if someone else is named as the creator, or if For there to be Indigenous communal moral copyright in Indigenous music recorded by prominently identified with their work.73 their work is treated in an inappropriate manner. rights in a copyright work, the following early anthropologists, now stored in archives Performers have the right to be named in requirements must be met before the first and libraries. Copyright belongs to the person connection with their performance. In general, moral rights last for the period of dealing of the work. copyright.76 The moral right will exist for as long Music 28 Music 29 Principles and protocols Principles and protocols
• Drawn from traditional base archives for instance, will not be liable for • Indigenous songwriters and musicians The work must be drawn from the ‘particular infringing these rights under these provisions. Case study: Local Knowledge – should be given the opportunity to consider body of traditions, observances, customs Blackfellas contracts and to obtain proper legal advice. While these proposals are not yet law, these and beliefs held in common by the On the sleeve of their CD Blackfellas, Local guidelines recommend that the principles of • The contract should be explained to Indigenous community’. A community is Knowledge writes: ‘Local Knowledge pay integrity and attribution should be extended Indigenous songwriters and musicians, defined loosely and can include an individual, respect to all the elders across our land and wherever possible to all uses of Indigenous and if necessary, a translator be used to family, language or community group. all the mob for supporting us.’ cultural and intellectual property, and where explain the major issues of the contract. • Voluntary agreement that communal appropriate, the rights of the community will They include family, extended family, • If the work is to be altered or adapted for moral rights exist also need to be discussed. organisations and particular individuals in mass production, songwriters and musicians A voluntary agreement must be entered into organisations. They say: ‘This is for all people should be given opportunity to approve or Attribution of Indigenous sources should between the creator of the work and the across our land stand up and represent reject the alteration or adaptation of their always be considered. Some practices in the Indigenous community. your culture, be proud of who you are… work. There should be scope for negotiating industry include: • Notice of association must be given to Copyright Local Knowledge 2005.’ with them on appropriate royalties for use. third parties • Indigenous artists listing their language group Assigning copyright versus licensing There must be acknowledgement of the affiliations after their own names Licensing use of music Copyright can also be assigned. This means Indigenous community’s association with • Giving significant credit as a collaborator Copyright is personal property and can be that you can give your copyright to someone the work.80 on the project to Indigenous custodians, licensed under agreement for a fee. A licence is else. They become the copyright owner contributors and relevant Indigenous • Consent from interest holders the grant of a right to use or deal with copyright and can authorise others to reproduce your organisations which have contributed Interest holders in the work (i.e., copyright in a work. You can put limits on the licence, musical work. owner/s) need to have consented to the resources and knowledge. including limitations of time, territory and Indigenous communal moral rights in purpose. For example, you can license the Copyright assignments must be in writing. the work. Case study: Jurtbirrk love songs from rights to reproduce your music through an Once copyright is assigned, the musician has no copyright interest in his or her musical work. An Indigenous community that has Indigenous North Western Arnhem Land airline’s in-flight audio network for a period of communal moral rights to a work may exercise Jurtbirrk is a collection of works by a number two years. The copyright in the musical work Where possible, Indigenous musicians should those rights only through an individual who is of composers and performers recorded remains with the copyright owner. keep the copyright in their works so they can during 2003–2004. The CD sleeve includes the authorised representative. This authorised It is a good idea to have a written agreement that maintain control over reproductions. a list of the composers and performers representative may be recognised by the includes certain terms, such as the fee for use, the It is important for Indigenous musicians to check who, in this case, are the copyright owners. community according to its cultural practices, purpose of the agreement, the nature of the rights agreements and make sure they are not assigning It also includes a Custodian Statement that or may be appointed by the community, granted and the period of time the agreement will their rights away forever instead of licensing states that the CD contains the traditional according to its decision-making processes.81 last. It is very important to read, understand and specific use of their work for a limited time. knowledge of the Iwaidja people, and that consider any written agreement before deciding The proposed regime incorporates defences the CD was created with their consent.82 It is a good idea to seek legal advice on copyright whether you agree to the terms and signing the and consents. However, it has been criticised licensing issues. as being overly legalistic and complex. The The production of music – especially a agreement. It is always a good idea to get legal operation of the proposed law will be limited if recording – goes through a lot of different advice on any agreement to ensure a full Creative Commons caution the rights arise only where there is a voluntary stages. It is respectful practice to credit understanding of all the terms before signing. Creative Commons is an American organisation individuals, families, language groups or that encourages creators to consider using less agreement. This does not counter the situations It should not be assumed that traditional communities who contributed to the work at restrictive copyright. where Indigenous knowledge and stories are Indigenous music is in the public domain. It is any stage. Some bands acknowledge and used without consent, as these stories can be necessary to consult with relevant Indigenous Creative Commons aspires to cultivate a thank the people and organisations that have still be appropriated by third parties, who may people for permission to use the music and if commons in which people can feel free to contributed to their work, while separately not agree that there are Indigenous communal agreed, some other points are: re-use not only ideas, but also words, images, asserting the copyright in their works. and music without asking permission – moral rights to the new copyright work. • Written contracts are preferred to because permission has already been Those who do not engage with Indigenous oral agreements. communities, and plunder their stories from granted to everyone.83 Music 30 Music 31 Principles and protocols Principles and protocols
Creative Commons has developed a series of your work that already exist under a Creative Resolving disputes downloaded by an internet user it is an exercise licences that creators can use for sharing their Commons licence from circulation, be they If you have a legal dispute, it might be suitable of the ‘right of communication to the public’. works. This might be useful for some people, verbatim copies, copies included in collective for mediation rather than litigation. The Arts This means that the copyright owner’s permission but it can mean giving up your rights to control works and/or adaptations of your work. So Law Centre of Australia has a panel of is required before sound recordings are placed or benefit financially from your work. A number you need to think carefully when choosing a mediators who may be able to help with on the internet, and made available for download. of Australian arts advocacy organisations have Creative Commons licence to make sure that mediating your dispute. Contact the Arts The new right of communication to the public raised serious concerns about the licences, you are happy for people to be using your Law Centre of Australia for more information also means that collecting societies, such as particularly that they may not effectively limit work consistent with the terms of the licence, (see the list of contacts in this guide). APRA,87 have the right to collect revenue for the 84 86 commercial or derivative uses. even if you later stop distributing your work. If you have a dispute with APRA, for example, use of copyright material in the digital domain. The Creative Commons licence use states over the terms of a licence, it has developed Using the internet to increase distribution ‘CC – some rights reserved’ rather than the Hypothetical case study: a process called an Expert Determination. There are two ways to distribute music on copyright © symbol used for standard Free website download The process involves a panel of former judges the internet. The first way is by selling CDs on copyright. Some Creative Commons music Hanna has written and recorded a song who will hear both sides and make a decision. the internet. CDs are sold by mail order, and licences allow for file sharing, downloading and that includes some verses in her language. Contact APRA for more details of this service. a percentage of the sale price is retained by the She wants to distribute it on a friend’s distributing company. performance of the entire work. Others allow Using music in a film or video website because she is hoping for the commercial uses and allow the music to be Many Indigenous organisations make The other way is digital download. This means widest distribution of her music. Her friend used for sampling. In general all Creative educational videos and DVDs. It is very that entire songs can be downloaded from the encourages her to make the whole song Commons licences require that the author or important to properly license music and sound internet. Making music available on the internet 85 available on the site and sign a Creative person granting the licence be attributed. recordings used in a film or video. This will certainly increases exposure and distribution Commons licence that will allow anyone options for music. It can also increase the risk Creative Commons licences may not require require obtaining a licence to use the music to download the music for free, to use of copyright infringement and reduce control you to give up your copyright. However by or sound recording and paying any necessary the work for sampling and to make over cultural material. signing a Creative Commons licence you may fees to use the music or sound recording. commercial uses of the music. Hanna allow such wide use of your music that you A licence may be required from the composer, Online music stores generally require musicians finds that someone has downloaded her lose a lot of control over the way your work is lyricist, maker of the sound recording and or recording labels to sign an agreement that song from the website, and used it in their used. This could also cause serious problems performers with a copyright interest. Using allows them to provide music over the internet new music. Hanna is very unhappy with if you later want to enter into a recording music and sound recordings in a film or video on certain terms. In both cases most distributors the way the verses in language have been or publishing agreement, because you no without clearing these rights, may result in will require part of a song to be available for used. She also feels that her original song promotional purposes. longer have control of the rights a recording copyright infringement. It is best to get legal has been ripped off. company may need. advice before using music or sound recordings Some companies use technology called Hanna can remove her song from the as a soundtrack on a video or DVD. Technological Protection Measures (TPM) to It is very important to take some time to think website, but she cannot stop the uses that limit the way music can be used. The Attorney- about whether a Creative Commons licence Copyright of music on the internet have already happened. She may be able General’s department describes TPMs as suits you, and it is a good idea to get legal The Copyright Act was amended by the Digital to take legal action for breach of her moral ‘technical locks copyright owners use to stop advice. Creative Commons provides this advice: Agenda Act 2000. The amendments introduce rights, but there is no guarantee of success. their copyright material from being copied or Creative Commons licences are non- a ‘right of communication to the public’ to cover accessed (e.g. passwords, encryption software revocable. This means that you cannot stop A year later Hanna is negotiating a copyright material in the digital domain. and access codes). TPMs are used by copyright recording contract, but she is unable to someone, who has obtained your work The right allows for the copyright owner to control owners to support business models for include this song in the deal because under a Creative Commons licence, from digital transmissions or dealings with copyright distributing materials such as films and music she has given up so many aspects of her 88 using the work according to that licence. material in the digital domain. The right applies online and self-protect against increased piracy.’ copyright that the recording company You can stop distributing your work under a to the internet and other forms of digital media, won’t include it in the deal. Processes that utilise all the mechanisms Creative Commons licence at any time you as well as new forms being developed for the available such as TPMs, copyright licensing wish; but this will not withdraw any copies of future. Whenever material on a website is and copyright societies are called Digital Rights Music 32 Music 33 Principles and protocols Principles and protocols
Management (DRM). TPMs and DRMs include to register copyright. However, certain Buenos Aires Copyright Convention it may Moral rights notice technological security measures, which prevent precautionary practices can show copyright be advisable. If you think your songs will first If your work is to be distributed in New Zealand unauthorised use of the music. They work in many belongs to you should there ever be a contest be published overseas, seek advice from a and the UK, it is also a good idea to include different ways. For example, they may encode or case relating to infringement of your work. suitable practitioner on appropriate wording. a notice asserting your moral rights, as follows: the digital music, which is available on the internet Some people believe they need to mail the The following is an example of a copyright The creator(s) assert their moral rights. to limit the number of times it can be burned to recording and the written song to themselves notice for a song: When is copyright infringed? a CD, or copied to portable players. Other before copyright protects their songs. This is All songs written and performed by Terri It is an infringement of copyright to copy mechanisms encode ‘the terms and conditions not true, although it might be useful for evidence. Janke. © Terri Janke, 1999* a musical work without the consent of the under which works can be used, embedding If there is a competing claim to the song, you *The date of creation or the date the song copyright owner. them in the file and allowing use of the material can show you own copyright as at the date of was first published. only when the conditions are met. Typically, the postmark on the unopened envelope A person will infringe copyright in a musical the embedded information includes Rights enclosing your music. Although a creative idea, The following is an example of a copyright work if he or she reproduces the work in Management Information (RMI) about the object this is not necessary. The contest of copyright notice for collaborations: material form, publishes, performs the work such as author, title, copyright and links to a will involve a range of inquiries including whether Island way (Reprise/Kapa Roa’ia Se Laloga) in public, communicates the work to the public, key required to unscramble the information.’89 or not the first original song is substantially Album: Seaman Dan, Island Way or makes an adaptation of the work without similar to the second alleged song copy. Performed by: Seaman Dan permission from the copyright owner.91 Downloading music from the internet also Words: © Seaman Dan & Karl Neuenfeldt It is important to keep good records and clearly It is also an infringement to copy a substantial often requires particular software and portable Music: © Ernest Ahwang label reproductions of your songs. It is also part of a musical work. A ‘substantial’ part of a players to operate the downloaded music. Hot Music/control a good idea to record the song (it does not work does not necessarily refer to a large part It is important to check the terms and matter if it is not of a professional broadcast The following is an example of a copyright of the work. The court will look for striking conditions of use before agreeing to place quality), and write down the lyrics as well. notice for a recording: similarities between the original song and the music on the internet for download. It is also Label all reproductions of the song, tape and 2006 Steady Steady Music. All rights infringing copy, and assess the quality of what important to check the terms and conditions CD clearly with the following information: reserved. Unauthorised public performance, was taken. of use before downloading music. broadcasting, leasing and copying of this • title of the song It is also an infringement of copyright to import disc is prohibited. Technical measures are useful ways to exercise • songwriters copies of a copyright infringing recording into some control of music, but do not guarantee • performers The following is an example of labelling a new Australia for sale or hire. that copyright will not be infringed. So while the recording of a language group-owned • date created Some exceptions to infringement are rights exist, musicians need to be aware of the traditional song: described below. limits of technology once their musical works • copyright owners. Traditional song: Torres Strait Islands. are available through the internet. When authorising others to reproduce your This arrangement: © A. Murray, 2002. Fair dealing provisions The development of technological measures songs make sure you use written agreements This recording may not be reproduced in any Copyright in the work is not infringed if a copy and the laws that will govern them have and keep records of the rights you have form without the permission of the performer is made or it is performed and it is used for: undergone rapid progress and are regularly granted. Ask for copies of compilations. and the language group concerned. • research or private study purposes92 changing. While the law provides rights to Copyright notice Sometimes a warning is included: • criticism or review, whether of that work or musicians, it can be difficult to enforce because You should also include a copyright notice. WARNING: Copyright subsists in this of another work, and a sufficient of the global nature of the internet. It is A copyright notice provides information about recording. Any unauthorised rental, hire, acknowledgement of the work is made93 advisable to seek industry and legal advice acceptable uses and includes details about broadcasting, public performance or • for the purpose of parody or satire94 contacting the copyright owner for consent before signing contracts or allowing music to re-recording in any manner whatsoever will be downloaded from the internet. to use in other material. • the purpose of, or associated with the constitute an infringement of copyright. reporting of news in a newspaper or Some recordings use the words ‘All Rights Managing copyright to protect For more information on recommended magazine and a sufficient acknowledgement Reserved’. This is not necessary in Australia, your interests of the work is made; or for the purpose of, but if you are publishing in some South copyright wording for publications, see the As copyright exists as soon as a work is Style manual for authors, editors and printers.90 or associated with the reporting of news by created, it is not a legal requirement in Australia American countries that are members of the Music 34 Music 35 Principles and protocols Principles and protocols
means of a communication (including administrative fee or a share of the royalties. For more information about APRA|AMCOS Screenrights television, radio and the internet) or in a Some of them, such as Screenrights, have visit
background music suppliers. The royalties • Indigenous people have not known about promoter’s licence, and a fee to be paid and generated from ARIA licences are collected and copyright collecting societies and their distributed to the copyright owners. Organisers They say: then distributed to copyright owners, usually the functions, and generally, are not members. are asked to collect song sheets from performers, Musically we are breaking new grounds and have discovered parts of ourselves record companies. It plays a role in protecting The next case study shows how failure to seek prior to the event, so the royalties can be 98 101 we never knew existed. By having an copyright and the fight against music piracy. the consent of traditional owners and attribute calculated. This applies even if the event is Indigenous producer we now only have to More information about ARIA can be found at their work to them, denied the copyright not producing a profit. If sound recordings, answer to ourselves and not be confined
It is important to understand these laws and how the Entertainment Industry Act regulates Implementation • Local cultural protocols and protocols cultural material might be protected under them. managers’ commissions and provides for a associated with a work should always be See the attribution and copyright section of this compulsory licensing system.107 It is a good Protocols are about people’s value systems respected and observed. and their cultural beliefs guide for further information. idea to get legal advice before entering into • Indigenous world views, lifestyles and D Mellor108 There are currently no special laws dealing with a management agreement. customary laws should be respected in Indigenous cultural material. The Copyright Act Music publisher – The music publisher is The protocols in this guide are flexible. You contemporary artistic and cultural life. has been criticised for not recognising the the person or company who administers the can use them to further develop protocols communal ownership of heritage material and copyright in the musical work and/or the for your music project, program or practice, 2. Indigenous control the continuing right of heritage custodians to published edition, on behalf of the composer and particular language group, region or Indigenous people have the right to control the use of this material. and songwriter. The music publisher will community. This section tells you how to determine how their cultural property will be implement the protocols. used. They have the right to own and control The increasing level of non-Indigenous arrange licensing, sale, publication and promotion of music, on behalf of the musician, It provides a checklist of points to consider their heritage; including Indigenous body appropriation of Indigenous cultural material painting, stories, songs, dances and other has compelled Indigenous people to seek when it is to be used by a recording company, when developing protocols for a song or music film producer or a publisher of sheet music. project, or in your own practice. It summarises forms of cultural expression. When working greater protection of Indigenous culture, with Indigenous people: including the call for new legislation recognising Music publishers provide these services for the preceding sections and also offers some • Try to identify appropriate Indigenous communal rights to culture. a fee. Legal advice should be sought before different and more specific information. signing an agreement. information and authority structures with whom Who’s who in the development 1. Respect you can consult about particular projects. of musical works Producer – A producer oversees artistic direction and management of a recording. A producer People working in the music industry are • Discuss your ideas for development of music Arranger – Arrangers may do a number of tasks. encouraged to respect that: projects with the relevant people in Indigenous Generally, an arranger checks the structure may be an individual or a company. A producer • Indigenous Australians, the Aboriginal and music companies and associations, of a song and adds choruses, verses, chord may or may not provide financial investment. Torres Strait Islander people, are the original and Indigenous media organisations. progressions or other changes to enhance or A producer may be paid a fee for services that can include overseeing the hiring of session inhabitants of Australia. • The current practice of the Australia Council develop the song.105 An arranger may also adapt musicians, arrangers, recording studios, and requires all Indigenous participants to provide a musical work from one musical medium to • Acknowledgement should be given to the administrative tasks such as organising a letter of support confirming their Aboriginal another – for example, an electronic arrangement Indigenous groups where projects are copyright clearances from session musicians. or Torres Strait Islander identity from an from a classical composition. The copyright located. incorporated Indigenous organisation. owner must give permission for such an Sound engineer – A sound engineer balances • Indigenous music is produced by Aboriginal arrangement. To avoid any confusion about and manipulates the music during the and Torres Strait Islander people. • When engaging Indigenous contributors to copyright ownership over arrangements, performance and/or recording. • Indigenous cultures are living cultures. participate in a project, most organisations 106 use the Australian Government’s definition it is best to use a written agreement. • Indigenous culture is diverse. Culture varies of Aboriginal or Torres Strait Islander identity from Indigenous country to country and from Composer – Author of the music. as a guide. language groups. Copyright owner, maker and author – • Keep appropriate and relevant Indigenous • Indigenous cultural expression is diverse. The person wrote the words (lyricist), people informed and advised, and where the music (composer) or made a sound • Indigenous people have the right to be possible, provide regular updates. represented by people of their choice and recording of the music. • Care should be taken when considering in a manner which they approve. Lyricist – Author of the lyrics. a Creative Commons licence as it can limit • The cultural contribution to a performance a musician or community’s rights to require Manager – A manager administers the career by Indigenous people should be valued, consent before future uses. of an artist by providing advice and organising acknowledged and remunerated. the business aspects of their work. The • Consider getting legal advice before entering manager charges the musician a fee in the into management or agent agreements. form of a commission. In New South Wales, Music 40 Music 41 Implementation Implementation
3. Communication, consultation • Consult the community and performers 4. Interpretation, integrity • Have you checked the Federation of and consent about any cultural considerations that and authenticity Aboriginal and Torres Strait Islander When performing, recording, publishing or need to be taken into account for the festival Be responsible for your representations of Languages (FATSIL) Protocol and otherwise dealing with Indigenous songs and or concert. Indigenous cultures. The following are some Agreements? music, consider the following checklist. • If recording communally owned songs questions that need to be answered. • Ask consent of relevant Indigenous people, and music, advise Indigenous custodians • Does your composition, performance and 5. Secrecy and confidentiality including composers, songwriters (or next of and other people in authority, and seek recording empower Indigenous people? • The right of Indigenous people to keep secret and sacred their cultural knowledge kin if deceased) and custodians of the music. permission for recording. • Does your music expose confidential, should be respected. Sacred and secret • Supply Indigenous custodians with all the • Recording companies and collecting sensitive or personal material? material refers to information that is restricted relevant information before considering societies should not assume that Indigenous • Does it reinforce negative stereotypes? under customary law. consent. This information might include: music is in the public domain. • Is there any adaptation which needs • Indigenous people have the right to maintain – The proposed uses, particularly if these • Consult and get permission from relevant to be discussed with relevant traditional confidentiality about their personal and involve adaptation and alteration. Indigenous people to distribute recordings. custodians? cultural affairs. – Whether you intend to perform or record If agreed, recording companies and collecting • Have you discussed this and the work, what instruments you intend societies should negotiate with Indigenous • Ensure the music does not expose obtained consent? using, and who will be performing or people on appropriate royalties for use. confidential or sensitive material. • Will the individual or community who is recording the work. • Provide notices to users of CDs, publications • Be aware that the inclusion of personal the subject of the work get an opportunity – Proposed digital or broadcast media: or recordings that the community requires material may be sensitive. If family or to hear the work prior to public release? for example, is the work going to be that it should be consulted for permission language group representatives objected Have their suggestions been incorporated? broadcast, or communicated to the public before any future uses are made. This notice then leave it out. through the internet? should be in a place where users can easily • Is the material suitable for the • If mentioning deceased people, seek • Allow sufficient time for consultation. see it. intended audience? permission from the family or language • Find out if the particular song or music is • Consent and acknowledgement should • Have you consulted with the musician and group representatives. Discuss issues acceptable for wider use and recording. be considered before playing the yidaki other Indigenous people to check the cultural of interpretation and authenticity. If unsure, discuss with Indigenous people, or didgeridoo. appropriateness of the image when selecting • Put a warning notice on your CD, publication illustrations or photos for the cover or composers and songwriters. • Care should be taken when considering or other recording if it contains recordings promotional material? • Advise the elders or people of authority of a Creative Commons licence, as it can limit or images of deceased people. the perceived risks and benefits from the a musician or community’s rights to require • Have you exercised care when permitting • It is a good idea to speak to elders and/or wider use and reproduction of their songs. consent before future uses. a remix or rearrangement of a work? other Indigenous people in authority to A new copyright might also be created in • Seek advice on the correct cultural context • Sampling Indigenous music without the identify sensitivities, sacred material or the adaptation. If the owner is unhappy with for the material. Ask about any restrictions permission of the copyright holder and the religious issues relevant to the music. the result, there may be no legal remedy on the material and the instrument, and traditional owner, can breach customary because of the consent. establish the exact meaning of any words law and copyright law. 6. Attribution and copyright • Have you checked the status of the work Copyright protects specific categories of in language if unsure. • Indigenous musicians should consider under the proposed Indigenous Communal material. The material must be original and • If you are writing lyrics about an individual any cultural obligations before negotiating Moral Rights regime?109 must be reduced to material form. To be or community, advise the relevant people, a recording contract, or entering into original, for the purpose of copyright protection, family or community. Seek their permission agreements relating to the publication and • Are you using instruments and music in the author or authors must have applied as you may be touching on sensitive issues, dissemination of the music. For example, a manner that respects gender and sufficient skill, labour and judgment to create such as mentioning the names of people website publication may expose the songs cultural restrictions? the work. In the case of music this will normally who are deceased. to greater appropriation. • Do you have a translation of the work you mean that the author has composed the work, are using? Are you using language in the • Consultation should be seen as ongoing for or adapted or arranged the musical work. the life of the musical work or recording. correct context? Music 42 Music 43 Implementation Implementation
To be ‘reduced to material form’ means that • The copyright owner of a sound recording is • Proper credit and appropriate 9. Recognition and Protection the musical work must have been written or generally the individual or recording company acknowledgement may include a copyright Australian laws and policies should be recorded. When reproducing musical works or which pays the costs of recording. However, notice and payment of royalties for the use developed and implemented to respect and sound recordings it is necessary to get copyright this can be varied under written agreement. of Indigenous cultural material. protect the rights of Indigenous people and clearance from the copyright owners. • Recipients of Australia Council grants should • Find out whether benefits other than royalties communities to their cultural heritage. Attribution seek legal advice on the copyright issues are sought by Indigenous people. • Be sure to attribute the musical work to all relating to their recording projects. Where • Try to make sure that relevant Indigenous Indigenous custodians, composers, lyricists possible, written contracts should be used. people share in the benefits from any and session musicians who contributed to • Recording companies should provide written commercialisation of their cultural material. the work at any stage. agreements for musicians. Indigenous • If you are a performer on an audio recording, • Ask for correct wording of how the person musicians should be given the opportunity check whether you might have a copyright or community wishes to be attributed with to consider contracts and obtain proper interest in the recording and registered for ownership of the musical work. legal advice. any royalties. • The work of composers, musicians and • Ask performers to sign clearance forms custodians should be attributed at all stages, if their work is to be recorded at a festival 8. Continuing cultures from consultation to distribution, including or concert. Indigenous cultures are dynamic and evolving, use of the copyright notice and attribution • Statutory exceptions to copyright and the protocols within each group and of a language group. infringement include the purposes of community will also change. Consultation criticism or review, and incidental filming. is therefore an ongoing process. Copyright • Be aware that Indigenous people have a • Seek copyright protection for all works. 7. Proper returns and royalties responsibility to ensure that the practice • Identify all the owners of copyright in a work. • Copyright owners are generally entitled to and transmission of Indigenous cultural • Discuss the issue of copyright ownership a licence fee or royalties for the use of their expression is continued for the benefit of with Indigenous representatives upfront. work. Make sure you are registered with future generations. • Indigenous creators who incorporate associations like APRA, AMCOS and PPCA • Think of ways of maintaining relationships traditional ritual knowledge into their musical so that you benefit from royalties. for future consultation. work have a special obligation to the language • Check that all other rights holders are • Consider future uses of the music that were group when exercising copyright in the work. acknowledged in that registration. not contemplated at the initial consultation. • In collaborative works, copyright may be • Experts recommend that you use written • Incorporate cultural protocols in any future shared with the collaborating authors. If all agreements when licensing musical works plans for the musical work, including licence band members collaborate in writing a song, for commercial purposes. agreements. the members will generally be the joint authors. • When using Indigenous material, negotiate • Written releases and contracts are the best • Anyone intending to perform a work that is fees or other benefits with the musicians, way of ensuring that rights are cleared for protected by copyright should seek advice composers, songwriters and custodians. proposed and intended uses. The Arts Law to ensure they are not infringing copyright. • Ensure that the cultural value of the work Centre of Australia has draft agreements • Under the educational statutory licensing is recognised in financial returns. available for members. It is a good idea to schemes, authors may be entitled to royalties • Acknowledge and properly remunerate seek independent legal advice on written for use of their music and sound recordings Indigenous cultural advisors for their releases and contracts. in formal teaching and learning situations. contribution. The relevant collecting agencies, APRA, AMCOS and PPCA, collect and distribute these royalties to members. Music 44 Music 45 References References
References 12 United Nations General Assembly, Draft Folklore, The protection of traditional 29 M Grose, Skinny Fish Music, Declaration on the Rights of Indigenous knowledge; Draft objectives and telephone consultation with R Quiggin 1 D Milroy, consultation interview, Peoples, United Nations Documents, principles, WIPO/GRTKF/IC/10/5, of Vincent-Quiggin Consulting, 2006. 11 October 2001. Human Rights Council, A/HRC/1/l/3, 2 October 2006. 30 D Mellor & T Janke, (ed), Valuing art, 23 June 2006. 2 United Nations General Assembly, United 19 World Intellectual Property Organisation, respecting culture, op. cit., p44. Nations Declaration on the Rights of 13 The Mataatua Declaration was developed Intergovernmental Committee on 31 H Anu, consultation interview with Indigenous Peoples, United Nations at the First International Conference on the Intellectual Property and Genetic R Quiggin, Terri Janke and Company, Documents, Human Rights Council, Cultural and Intellectual Property Rights Resources, Traditional Knowledge and 14 August 2001, Sydney. A/HRC/1/l/3 29 June 2006. of Indigenous Peoples, 12–18 June 1993, Folklore, The protection of traditional 3 T Janke, M Frankel & Company, Our at Whakatane, Aotearoa, New Zealand. cultural expression/expression of folklore; 32 T Janke, ‘Deep forest…’, op. cit., p27. culture: our future – report on Australian A full text of the declaration is available Draft objectives and principles, 33 Jurtbirrk, Love songs from North Western Indigenous cultural and intellectual online at http://aotearoa.wellington.net.nz/ WIPO/GRTKF/IC/10/4, Article 3, p19. Arnhem Land, inside sleeve, Batchelor imp/mat.htm. property rights, Australian Institute of 20 Section 6 of the Model Law for the Press, 2005. Aboriginal and Torres Strait Islander 14 Erica Irene Daes, Final report on the Protection of Traditional Knowledge and 34 This issue was identified as a concern by a Studies and the Aboriginal and Torres protection of the heritage of Indigenous Expressions of Culture, South Pacific number of musicians and industry Strait Islander Commission, Sydney, 1999. peoples, United Nations Document E/ Community, Noumea, 2002. participants. CN.4/Sub.2/1995/26. The full text, as 4 The Music guide uses the terms ‘music’ 21 D Mellor & T Janke, (ed), Valuing art, adopted and elaborated on by ATSIC’s 35 Available from Creative Commons, and ‘songs’ interchangeably. respecting culture: protocols for working Indigenous Reference Group, is cited in www.creativecommons.org, viewed 5 Many ethnomusicologists now seek to with the Australian Indigenous visual arts T Janke, Our culture: our future, op. cit., 30 May 2007. make agreements that vest copyright in and craft sector, National Association for pp. 273–7. See also EI Daes, Study of the 36 Section 14 of the Copyright Act 1968. the Indigenous owners. Linda Barwick, the Visual Arts (NAVA), Sydney, 2001, p13. protection of the cultural and intellectual consultation interview, 14 June 2001. 37 M Easton, ‘Music sampling’, Art + Law, property of indigenous peoples, United 22 D Milroy, Telephone consultation with no. 3, September 2000. 6 T Janke, ‘Deep forest and the commercial Nations Economic and Social Council, R Quiggin of Vincent-Quiggin Consulting, exploitation of Indigenous music’, Music Geneva, 1993. 20 January 2006. 38 T Janke, ‘Deep forest…’, op. cit., 27. Forum: Journal of the Music Council of 15 See the World Intellectual Property 23 ibid, p14. 39 E Williams, Indigenous project officer and Australia, vol. 3, no. 6, Aug-Sept 1997, Organisation’s website, www.wipo.int/ musician, Australasian Performing Right p27. 24 E MacKinlay & S Wild, MSA Guidelines globalissues, for further information. for the Recognition of Indigenous Culture Association, Consultation interview with 7 T Janke, Our culture: our future, op. cit., R Quiggin of Vincent-Quiggin Consulting, 16 ibid. and Custodianship of Country at National see 4.4 Updated list of rights, p47. MSA Public Events, 1999, available at 2006. 17 World Intellectual Property Organisation, 8 ibid. www.msa.org.au/welcome. 40 H Anu, op. cit. Intergovernmental Committee on 9 ibid, p3. Intellectual Property and Genetic 25 A Kukoyi (Daki Budtcha), consultation 41 ibid. interview, 1 October 2001. 10 ibid, p47. Resources, Traditional Knowledge and 42 N Guivarra as cited in T Janke & N Folklore, The protection of traditional 26 See the Contacts section of this guide. Guivarra, Listen, learn and respect: 11 United Nations General Assembly, United cultural expressions/expressions of Indigenous cultural protocols and radio, Nations Declaration on the Rights of 27 A Haines, (Alice Haines Productions) folklore; Draft objectives and principles, Australian Film, Television and Radio Indigenous Peoples, United Nations consultation interview with R Quiggin of WIPO/GRTKF/IC/10/4. School, Sydney, 2006, published online Documents, Human Rights Council, Vincent-Quiggin Consulting, 21 April 2006. 18 World Intellectual Property Organisation, at
45 Jurtbirrk, op. cit. 61 The performer also has the right to enter 77 Section 195AM of the Copyright Act 1968 86 Creative Commons, (Cth).
100 N Guivarra, ‘Singing the unsung’, Music 110 Federation of Aboriginal and Torres Strait Bibliography Wales, Indigenous Arts Reference Group, New Forum: Journal of the Music Council Islander Languages (FATSIL), www.fatsil. South Wales Ministry for the Arts, Sydney, 2002. of Australia, vol. 6, no. 5, June 2000, org/guides.htm, viewed 30 May 2007. and resources Janke, T, ‘A moral issue: moral rights and pp18–19. 111 Museums Australia, The document revises A number of documents have been Indigenous people’s cultural rights’, NIAAA 101 See Australasian Performing Right Previous possessions: new obligations. produced in recent years to meet the needs Newsletter, Autumn, 2001. Association (APRA), ‘Event licences’, at It was authored by Jane Dolan, and of particular communities, organisations, Janke, T, ‘Deep forest and the commercial
Contacts Arts Queensland – Regional Office Department of Culture and the Arts Copyright collecting societies PO Box 5300 PO Box 8349 Australian Mechanical Copyright Cairns Qld 4870 Perth Business Centre WA 6849 Owners Society Tel: (08) 9224 7300 Arts policy and funding Tel: (07) 4048 1411 Locked Bag 3665 Fax: (07) 4048 1410 Fax: (08) 9224 7301 Australia Council for the Arts – Aboriginal St Leonards NSW 1590 Email: [email protected] Email: [email protected] and Torres Strait Islander arts board Tel: (02) 9935 7900 Web: www.arts.qld.gov.au Web: www.dca.wa.gov.au PO Box 788 Fax: (02) 9935 7999 Email: [email protected] Strawberry Hills NSW 2012 Arts NSW Arts SA Web: www.amcos.com.au Tel: (02) 9215 9065 GPO Box 2308 PO Box A226 Toll free: 1800 226 912 Sydney South NSW 1235 Adelaide SA 5001 Australasian Performing Right Fax: (02) 9215 9061 Tel: (02) 9228 5533 Tel: (08) 8463 5444 Association Toll free (NSW): 1800 358 594 Email: [email protected] Fax: (08) 8463 5420 Locked Bag 3665 Fax: (02) 9228 4722 Web: www.australiacouncil.gov.au St Leonards NSW 1590 Email: [email protected] Email: [email protected] Tel: (02) 9935 7900 Web: www.arts.sa.gov.au Web: www.arts.nsw.gov.au Fax: (02) 9935 7999 State and territory arts bodies Arts Tasmania (Hobart Office) Email: [email protected] Arts NT (Darwin and the Top End) GPO Box 771 Copyright and legal Web: www.apra.com.au GPO Box 1774 Hobart TAS 7001 Darwin NT 0801 Tel: (03) 6233 7308 Arts Law Centre of Australia Copyright Agency Limited The Gunnery Tel: (08) 8999 8981 Toll free: 1800 247 308 Level 15, 233 Castlereagh Street 43 – 51 Cowper Wharf Road Fax: (08) 8999 8949 Fax: (03) 6233 5555 Sydney NSW 2000 Woolloomooloo NSW 2011 Tel: (02) 9394 7600 Toll Free: 1800 678 237 Email: [email protected] Tel: (02) 9356 2566 Fax: (02) 9394 7601 Email: [email protected] Web: www.arts.tas.gov.au Toll Free: 1800 221 457 Email: [email protected] Web: www.nt.gov.au Fax: (02) 9358 6475 Web: www.copyright.com.au Arts Tasmania (Launceston Office) Email: [email protected] Arts NT (Central Australia and the Barkly) PO Box 1186 Web: www.artslaw.com.au Phonographic Performance PO Box 3521 Launceston TAS 7250 Company of Australia Alice Springs NT 0871 Tel: (03) 6336 2349 Australian Copyright Council PO Box Q20 Tel: (08) 8951 1190 Fax: (03) 6334 1131 PO Box 1986 Queen Victoria Building Fax: (08) 8951 1161 Email: [email protected] Strawberry Hills NSW 2012 Sydney NSW 1230 Email: [email protected] Web: www.arts.tas.gov.au Tel: (02) 8815 9777 Tel: (02) 8569 1100 Web: www.nt.gov.au Fax: (02) 8815 9799 Fax: (02) 8569 1183 Arts Victoria Email: [email protected] Email: [email protected] Arts Queensland Private Bag No 1 Web: www.copyright.org.au Web: www.ppca.com.au GPO Box 1436 South Melbourne VIC 3205 Brisbane QLD 4001 Tel: (03) 9954 5000 Viscopy Screenrights Tel: (07) 3224 4896 Toll Free: 1800 134 894 45 Crown Street PO Box 1248 Toll free: 1800 175 531 Fax: (03) 9686 6186 Woolloomooloo NSW 2011 Neutral Bay NSW 2089 Fax: (07) 3224 4077 Email: [email protected] Tel: (02) 9368 0933 Tel: (02) 9904 0133 Email: [email protected] Web: www.arts.vic.gov.au Fax: (02) 9368 0899 Fax: (02) 9904 0498 Web: www.arts.qld.gov.au Email: [email protected] Email: [email protected] Web: www.viscopy.com.au Web: www.screenrights.org Music 52 Music 53 Contacts Contacts
Export Indigenous organisations Torres Strait Islander Media Association Austrade Australian Institute for Aboriginal PO Box 385 Level 23 Aon Tower and Torres Strait Islander Studies Thursday Island QLD 4875 201 Kent Street GPO Box 553 Tel: (07) 4069 1524 Sydney NSW 2000 Canberra ACT 2601 Fax: (07) 4069 8144 Tel: 13 28 78 Tel: (02) 6246 1111 Email: [email protected] Fax: (02) 9390 2024 Fax: (02) 6261 4285 Web: www.austrade.gov.au Email: [email protected] Torres Strait Regional Authority Web: www.aiatsis.gov.au PO Box 261 Thursday Island QLD 4875 Indigenous music organisations Federation of Aboriginal and Tel: (07) 4069 0700 Torres Strait Islander Languages Central Australian Aboriginal Toll free: 1800 079 093 295 King St Music Association Fax: (07) 4069 1879 Melbourne VIC 3000 PO Box 2608 Email: [email protected] Phone: (03) 9602 4700 Alice Springs NT 0871 Web: www.tsra.gov.au Tel: (08) 8951 9777 Fax: (03) 9602 4770 Email: [email protected] Fax: (08) 8951 9717 Vibe Australia Web: www.fatsil.org.au Email: [email protected] 26 & 28 Burton Street Web: www.caama.com.au Darlinghurst NSW 2010 Gadigal Information Service Tel: (02) 9361 0140 PO Box 966 Daki Budtcha Fax: (02) 9361 5850 Strawberry Hills NSW 2012 PO Box 3261 Email: [email protected] Tel: (02) 9564 5090 South Brisbane QLD 4101 Web: www.vibe.com.au Tel: (07) 3846 7722 Fax: (02) 9564 5450 Fax: (07) 3846 7020 Email: [email protected] Email: [email protected] Web: www.gadigal.org.au Music industry organisations Web: www.dakibudtcha.com.au Goolarri Media Enterprises Australian Record Industry Association PO Box Q20 Songlines Music Aboriginal Corporation PO Box 2708 Queen Victoria Building PO Box 574 Broome WA 6725 Sydney NSW 1230 Port Melbourne VIC 3207 Tel: (08) 9192 1325 Tel: (02) 8569 1144 Tel: (03) 9696 2022 Fax: (08) 9193 6407 Fax: (02) 8569 1183 Fax: (03) 9696 2183 Email: [email protected] Email: [email protected] Email: songline@vicnet.net.au Web: www.gme.com.au Web: www.aria.com.au Web: www.songlines.com.au Island Coordinating Council Music Council of Australia Yothu Yindi Foundation PO Box 501 MBE 148/45 Glenferrie Rd GPO Box 2727 Thursday Island Qld 4875 Malvern VIC 3144 Darwin NT 0801 Tel: (07) 4069 1446 Tel: (03) 9507 2315 Ph: (08) 8941 2900 Fax: (07) 4069 1868 Fax: (03) 9507 2316 Fax: (08) 8941 1088 Email: [email protected] Email: [email protected] Web: www.mca.org.au Web: www.garma.telstra.com Music 54 55 Acknowledgements
Acknowledegments Notes Terri Janke and Company would like to acknowledge David Milroy in developing this document and for the input and guidance as his role as peer reviewer of the revision of the guide in 2006. The edit of the 2007 guide was undertaken by Terri Janke of Terri Janke and Company and Robynne Quiggin of Vincent-Quiggin Consulting was commissioned for the 2007 edit of the content update. Helen Zilko we thank whose contribution as editor assisted in bringing the five protocol guides into a complementary set in the 2002 edition. We also acknowledge the contribution of the following people to the Music guide: • Alice Haines, Alice Haines Productions • Scot Morris, APRA • Ebony Williams, formerly APRA • Ade Kukoyi, Daki Budtcha • Rose Pearce, Music NSW • Dooreen Mellor, National Library of Australia • Lola Forester SBS • Mark Grose, Skinny Fish Music • Michael Hohnen, Skinny Fish Music • Grant Hanson, Songline Music • Anastasia Charles, Terri Janke and Company • Sonia Cooper, Terri Janke and Company • Michael Hutchings, Whichway Indigenous music development program, Music NSW • Peter Cleary, Woomera Aboriginal Corporation • David Milroy, Yirra Yaakin Noongar Theatre • Helen Anu, singer and performer • Linda Barwick, musicologist • Nancia Guivarra, arts journalist and producer • Toni Janke, singer • Karl Neuenfeldt, musician and producer • Charles Trindall, musician • Ben Woodley, composer, performer, producer • Past and present members and staff of the Australia Council’s Aboriginal and Torres Strait Islander arts board 56
Notes