.. Aboriginal and Torres Strait Islander Arts Board, Australia Council PO Box 788 Strawberry Hills NSW 2012 Tel: (02) 9215 9065 Toll Free: 1800 226 912 Fax: (02) 9215 9061 Email: [email protected] www.ozco.gov.au cultures . SONG ..... Protocols for Producing Indigenous Australian Music

An initiative of the Aboriginal and Torres Strait

ISBN: 0 642 47239 4 Islander Arts Board of the Australia Council Song Cultures: Protocols for Producing Indigenous Australian Music Royalties and Indigenous music 17 contents Festivals, concerts and events 18 Continuing cultures 18 Introduction 1 Recognition and protection 18 Using the Song Cultures guide 2 Resources 19 What are protocols? 2 Who’s Who in the development What is Indigenous music? 3 of musical works 20 Special nature of Indigenous music 4 Copyright 21 Indigenous heritage 5 What is copyright? 21 Current protection of heritage 6 How does copyright protect music? 21 Principles and protocols 8 How is music reduced to material form? 21 Respect 8 Who owns copyright? 22 Acknowledgment of country 8 Copyright exceptions 22 Accepting diversity 8 How long does copyright last? 22 Representation 9 What rights do copyright owners have? 22 Living cultures 9 Collaborative works 23 Indigenous control 9 Communal ownership vs. joint ownership 23 Communication, consultation and consent 10 Copyright and performers rights 24 Performing and recording Performing a cover version of a song 24 communally owned music 10 Copyright and recording 24 What is the legal effect © Commonwealth of Australia 2002 Legal and customary law effects 10 Permission to use particular instruments 11 of making a sound recording? 24 The didgeridoo 11 What is the public domain? 25 What about sampling music What are moral rights? 25 that is already recorded? 11 Licensing use of music 26 Writer: Consenting to rearrange or Assigning copyright vs. licensing 26 Robynne Quiggin re-mix music 12 New technologies 26 Solicitor Festivals, concerts and events 12 Managing copyright to protect your interests 27 Terri Janke & Company Interpretation, integrity and authenticity 13 Copyright notice 27 Entertainment, Cultural Heritage Interpretation 13 Moral rights notice 28 and Media Lawyers and Consultants Integrity 13 When is copyright infringed? 28 Authenticity 13 Peer Review: Fair dealings provisions 28 Secrecy and confidentiality 14 David Milroy - Artistic Director Crown use of artworks 29 Yirra Yaakin Noongar Theatre Secret and sacred material 14 Library copying 29 Design & Typesetting: Bull-roarer 14 Further copyright information 29 L&L Design & Production Use of life stories 14 Copyright collecting societies 29 Representation of deceased people 14 Artwork: joorroo, Darrell Sibosado, 2002 Follow up 32 Photography: Fiona Prince, 2002 Attribution 15 Applying the protocols 32 Recording contracts 15 Respect 32 Distribution, promotional material and cover artwork 16 Indigenous control 33 IMPORTANT NOTICE - The information included in this guide is current as at Sydney, May 2002. Proper returns 17 Communication, consultation and consent 33 This guide provides general advice only. It is not intended to be legal advice. If you have a particular legal Royalties 17 Interpretation, integrity and authenticity 34 issue, we recommend that you seek independent legal advice from a suitably qualified legal practitioner. Registration 17 Interpretation 34 Integrity 34 Authenticity 34 Secrecy and confidentiality 34 Attribution 35 Proper returns 35 Continuing cultures 35 Recognition and protection 35 Copyright 36 Musical works 36 Sound recordings 37 introduction Copyright infringement 37 ... References 38

Bibliography 40 As primary guardians and interpreters of their cultures, Indigenous people have well-established Contacts 42 protocols for interacting with their cultural material. New situations also require cultural protocols. Acknowledgments 45 Indigenous music is a voice that crosses Song Cultures guides the reader through many of boundaries. It is the true voice of this country these protocols. because it is linked to the land. It enriches this nation, and shows the nation’s true identity.1 Song Cultures is one in a series of five Indigenous David Milroy protocol guides published by the Australia Council’s Aboriginal and Torres Strait Islander Arts Board. Indigenous Australians, the Aboriginal and Torres The guides reflect the complexity of Indigenous Strait Islander people, are the original owners and Australian culture, and provide information and inhabitants of Australia. advice on respecting Indigenous cultural heritage. In Indigenous cultures the artist is a custodian of Although each of the guides address cultural culture, with obligations as well as privileges. protocols specific to an Indigenous artform, they are Indigenous people’s right to own and control their shaped by the same underlying principles – the cultural heritage is known as ‘Indigenous cultural backbone of the protocols. The five guides in the and intellectual property rights’. The term is used in series are: Our Culture: Our Future2 to refer to those rights as •Writing Cultures they are developing within international law. Since • Performing Cultures (Drama/Dance) 1998, when Our Culture: Our Future was first •Visual Cultures published, the term ‘Indigenous heritage rights’ has gained more favour in the international arena. In • Song Cultures the Song Cultures guide we use ‘Indigenous •New Media Cultures. heritage’ to refer to these rights. The Indigenous protocol guides will have relevance Indigenous heritage comprises all objects, sites for everyone working in or with the Indigenous arts and knowledge transmitted from generation to sector, including: generation. Indigenous people’s heritage is a living • Indigenous and non-Indigenous artists heritage. An Indigenous person’s connection with the land, water, animals, plants and other people is an • People working within related fields of expression of cultural heritage. Writing, performing, Indigenous artform practice song, the visual arts and more recently, new media, • Federal and state government departments are ways of transmitting Indigenous cultural heritage.

INTRODUCTION-1 ...

• Industry agencies and peak organisations planning of a music or song project. It also charts It is important to note the diversity and complexity of What is Indigenous music? • Galleries, museums and arts centres international initiatives for the protection of the many different Indigenous cultures in Australia. Indigenous music is an important part of Indigenous cultural and intellectual property rights. Ways of dealing with issues and cultural material • Educational and training institutions Indigenous culture. may differ from community to community. There are The key section, Principles and Protocols, presents Music 3 is about expressing cultural belonging. • Indigenous media and targeted also many different protocols across the diversity of nine principles we have developed to support the It is part of ceremony, storytelling, celebration, mainstream media. urban, rural and remote communities. protection of Indigenous cultural heritage. There is mourning, coming together and telling of the events We hope Indigenous people, and those working valuable information on protocols specific to the use While it is not possible to prescribe universal rules in Indigenous people’s lives, both past and present.3 with Indigenous people, will be inspired to use the of cultural heritage material in the context of music. for transacting with Indigenous musicians and their Indigenous music is not easily divided into principles as a framework for developing protocols A number of case studies and commentaries from communities, there are some fundamental principles categories of traditional and contemporary styles, appropriate to their specific projects, language Indigenous music practitioners identify pitfalls and within which to conduct respectful work. despite common perceptions. In Song Cultures, groups, regions, clans and communities. offer advice. The protocols outlined in Song Cultures are shaped ‘traditional’ refers to works that have drawn material We also hope the guides will spark debate and The Copyright section contains general information by nine fundamental principles. The protocols are, from a pre-existing cultural base. that additional protocols will be developed across and advice on the main law in Australia governing by definition, ways of actioning these principles. Indigenous music refers to artforms. Your comments and ideas can be the use and reproduction of arts and cultural For example, a cultural protocol to action the forwarded to [email protected] or expression. underlying principle of respect is to acknowledge • music and lyrics Director • instrumental pieces Follow Up provides a checklist of key points to the Indigenous custodians of country at the site of Aboriginal and Torres Strait Islander Arts • Indigenous rhythms and song cycles consider when developing appropriate protocols for each performance or event. Australia Council a music project. It offers different and more specific Song Cultures identifies many specific protocols that are created primarily by Indigenous Australian PO Box 788 information than the preceding sections. We which can be applied or adapted by Indigenous people, or based on the cultural property of Strawberry Hills NSW 2012 therefore suggest you use the points outlined in musicians, singers, songwriters, record companies, Indigenous Australian people. Using the Song Cultures guide Follow Up together with the Principles and event managers, arts organisations and others Indigenous music draws on and embraces the full Protocols and Copyright sections. working with Indigenous music. range of music styles and forms including pop, Song Cultures is written as a first point of reference country and western, disco, opera, rap, techno, in planning a work with Indigenous music Song Cultures also aims to formally identify issues What are protocols? and rhythm and blues. practitioners, or Indigenous cultural material. When arising from the interaction between Indigenous Protocols are appropriate ways of using Indigenous you need specific advice on the cultural issues of a cultural concerns and the law protecting the rights Similarly, Indigenous musicians use a range of music and cultural material, and interacting with particular group, we recommend that you either of artists. The Australian legal system incorporates instruments including the didgeridoo and clap sticks, Indigenous musicians and Indigenous communities. speak to people in authority, or engage an some but not all of these concerns. but also guitar, drums, piano and saxophone. Protocols encourage ethical conduct and promote Indigenous cultural consultant with relevant While protocols differ from legal obligations, In many instances music has developed as part interaction based on good faith and mutual respect. knowledge and experience. Song Cultures outlines the current copyright law of a collaborative process, created with Indigenous protocols arise from value systems and It is important to read all sections of this publication. framework. The process of following the protocols non-Indigenous people. cultural principles developed within and across supports the recognition of Indigenous heritage The Introduction defines protocols as used in this communities over time. rights. It encourages culturally appropriate working guide, and looks at the special nature of Responsible use of Indigenous cultural knowledge practices, and promotes communication between all Indigenous music. and expression will ensure that Indigenous cultures Australians with an interest in Indigenous music. The next section, Indigenous Heritage, is an are maintained and protected so they can be important overview of the issues that inform the passed on to future generations. development of Indigenous protocols. It looks at the complex web of relationships in Indigenous Australia, and how this might impact on the

2 -SONG CULTURES INTRODUCTION-3 Special nature of Indigenous music • Is the diversity of Indigenous music respected? For Indigenous cultures music and song are central In an era of new and emerging artists and to identity, place and belonging, and are an styles, many Indigenous musicians want to be expression of a unique and continuing tradition. recognised for their particular style and talent, rather than being subjected to stereotypes held Indigenous music has an important place in the by others. transmission and survival of Indigenous cultures. Some contemporary Indigenous musicians and Indigenous It has been a primary means of: composers have complained that record companies, •renewing and teaching law and culture keen to have Indigenous product, are requesting • ceremony them to perform what are described as ‘tribal style’ • storytelling or traditional songs. heritage •preserving language • entertainment They say that record companies show little interest in new works based on contemporary Indigenous ... • recording personal stories • recording stories of common Indigenous lifestyles. One record company returned a tape of Australian experience songs by an Indigenous performer, saying ‘These An Indigenous person’s connection with Indigenous • telling Indigenous experience to the are great – but could you sing something about heritage is expressed in contemporary life through his 5 wider community how the kookaburra got its laugh?’. or her relationship with land, waterways, animals and • celebrating • What can be done to further promote Indigenous music is an important means of plants, and his or her relationships with other people. • showcasing and sharing Indigenous experience and protect the rights of Indigenous people to expressing Indigenous heritage – past, present Aboriginal and Torres Strait Islander people have a through collaborative writing, performance own and control their Indigenous heritage within and future. Indigenous heritage, enshrined in well developed and complex web of relationships 6 recording the current legal framework? Indigenous cultural and intellectual rights, is based on family ties, clan belonging, language 7 • sharing Indigenous experience with audiences in • How is Indigenous music properly attributed? discussed at length in Our Culture: Our Future. group affiliations and community, organisation and Australia and overseas. • What about adaptations of Indigenous music, The music industry can adapt a ‘best practice’ government structures. A range of authority structures Music is created as a solo or collaborative such as remixing and re-recording? approach by encouraging respect for the cultures exists across urban, regional and remote endeavour. The nature of collaborative work raises of Indigenous Australians. It can do this by communities. It is important to acknowledge the There are many other important issues raised by many issues for Indigenous performers around the acknowledging their innate value, their difference complexity of Indigenous Australia when negotiating the development of Indigenous music and song. use of cultural property and appropriate production from other cultures, and by respecting Indigenous the use of Indigenous heritage for a music project. Song Cultures offers some ideas for dealing with of their work. Some issues of concern include: ownership and control of Indigenous heritage. these issues. Indigenous Australians are concerned that there is • Who has the right to use Indigenous All Indigenous artists are responsible for no respect for their Indigenous cultural knowledge, cultural material? safeguarding cultural knowledge. They need to stories and other cultural expression in the wider ensure that Indigenous cultures, both in the past and Australian cultural landscape. Concerns include • Who has the right to speak for the owners of today, are protected and maintained in their works. the current legal framework that does not promote Indigenous cultural material? In this way these cultures can be passed on to or protect the rights of Indigenous people – • What is the proper treatment of Indigenous future generations. particularly to own and control representation and cultural material such as creation stories, song There is not one, but many Aboriginal or Torres Strait dissemination of their stories, knowledge and other cycles, rhythms, language and other forms? 8 Islander cultures. These cultures have developed over cultural expression. ‘ ’ New musical styles – including world music and thousands of years and have been passed down The process of following the protocols not only ‘ ’ the technique of sampling Indigenous music, from generation to generation. Despite the enormous supports Indigenous heritage rights, but also originally recorded by ethnomusicologists and impact of the invasion in 1788, Indigenous cultures promotes diversity and new initiatives in Indigenous stored in archives or libraries – has caused distress have continued to develop. music, and culturally appropriate outcomes. to the Indigenous custodians who were never consulted about this use.4

4 -SONG CULTURES INDIGENOUS HERITAGE-5 ...

The Draft Declaration on the Rights of Indigenous Internationally, the World Intellectual Property Our Culture: Our Future • control the recording of cultural Peoples states, in Article 29: Organisation has established an intergovernmental customs and expressions, the Indigenous peoples are entitled to the committee on intellectual property and genetic Indigenous cultural and intellectual particular language which may be resources, traditional knowledge and folklore to property rights refers to Indigenous recognition of the full ownership, control and intrinsic to cultural identity, discuss intellectual property issues that arise in the ’ protection of their cultural and intellectual people s cultural heritage. knowledge, skill and teaching of property. They have the right to special context of: Heritage comprises all objects, sites and the culture. knowledge – the written nature or use measures to control, develop and protect their • access to genetic resources and benefit-sharing For a full list of rights see sciences, technologies and cultural which has been transmitted or continues Our Culture: Our Future9 •protection of traditional knowledge, innovations to be transmitted from generation to manifestations, including human and other and creativity generation, and which is regarded as genetic resources, seeds, medicines, •protection of expressions of folklore.14 pertaining to a particular Indigenous knowledge of the properties of fauna and group or its territory. Current protection of heritage flora, oral traditions, literatures, designs and Regionally, a model law for protecting traditional 10 knowledge in the Pacific was drafted and Indigenous people’s heritage is a living Australia’s current legal framework provides limited visual and performing arts. heritage and includes objects, completed in July 2002. The Pacific Regional recognition and protection of these rights. The Mataatua Declaration on Indigenous Cultural knowledge, artistic literary, musical Framework for the Protection of Traditional Our Culture: Our Future recommended significant and Intellectual Property Rights, in Article 8, urges and performance works which may be Knowledge and Expression of Culture establishes changes to legislation, policy and procedures. Indigenous people to ‘develop a code of ethics created now or in the future, and based ‘traditional cultural rights’ for traditional owners of As yet there has been no formal response to these on that heritage. which external users must observe when recording traditional knowledge and expression of culture.15 recommendations from the Australian government. (visual, audio, written) their traditional and Indigenous cultural and intellectual The prior and informed consent of the traditional Much of the rights recognition has been done at customary knowledge’.11 property rights include the right to: owners is required to: an industry and practitioner level, through the Draft Principles and Guidelines for the Protection of • own and control Indigenous cultural development of protocols and use of contracts to •reproduce or publish the traditional knowledge the Heritage of Indigenous People (1993) were and intellectual property support the cultural rights of Indigenous people. or expressions of culture adopted by ATSIC’s Indigenous Reference Group • ensure that any means of protecting • perform or display the traditional knowledge or Across the world, Indigenous people continue to in1997.12 Article 39 states: Indigenous cultural and intellectual call for rights at a national and international level. expressions of culture in public property is based on the principle of Artists, writers and performers should refrain Indigenous people are developing statements and • make available online or electronically transmit self-determination from incorporating elements derived from declarations which assert their ownership and to the public (whether over a path or a Indigenous heritage into their works without the • be recognised as the primary associated rights to Indigenous cultural heritage. combination of paths, or both) traditional guardians and interpreters of informed consent of the Indigenous owners. These statements and declarations are a means of knowledge or expression of culture their cultures giving the world notice of the rights of Indigenous In January 2002, the World Intellectual Property • use the traditional knowledge or expression of • authorise or refuse to authorise the people. They also set standards and develop an Organisation’s International Forum, Intellectual culture in any other form. commercial use of Indigenous Indigenous discourse that will, over time, ensure that Property and Traditional Knowledge: Our Identity, cultural and intellectual property, Indigenous people’s cultural heritage is respected Our Future, held in Muscat, Oman, adopted a according to Indigenous customary law and protected. Declaration recognising that ‘traditional knowledge • maintain the secrecy of plays a vital role in building bridges between Indigenous knowledge and other civilisations and cultures, in creating wealth and in cultural practices promoting the human dignity and cultural identity of • full and proper attribution traditional communities’.13

6 -SONG CULTURES INDIGENOUS HERITAGE-7 Representation people with authority to speak for specific Derogatory or outdated perspectives and Indigenous cultural material. terminology should be avoided. For initial contacts we recommend the following directories. Living cultures • National Directory of Aboriginal and Torres Indigenous cultures are living and evolving entities, Strait Islander Organisations. Published for principles and not simply historical phenomena. ATSIC and available from Crown Content on Indigenous musicians draw upon their pre-existing (03) 9329 9800 or www.crowncontent.com cultural base in many different ways. • The Black Book Directory 2000 – Indigenous protocols This may include cultural expression based on Arts & Media Directory. Published by Blackfella particular Indigenous experience such as Archie Films and available from AIATSIS on ... Roach’s ‘Took the Children Away’, Seaman Dan’s (02) 6261 4200 or www.aiatsis.gov.au ‘TI Blues’ and Marlene Cummins ‘Pension Day If your project involves a visit to Aboriginal lands or Blues’. It includes works like ‘We Have Survived’ outer Torres Strait Islands, permission must be When organising a performance or event, it is by No Fixed Address, calls for political action as in obtained from the local Land Council or Trust, or the respectful to seek the consent of the Indigenous Yothu Yindi’s ‘Treaty Now’, and comments on ways relevant Community Councils. For a list of Indigenous owners of the land. of life found in the work of the Pigram Brothers. authorities consult the National Directory of The principles outlined below are a framework for If consent is given, it is important to acknowledge It is important to respect the diversity of cultural Aboriginal and Torres Strait Islander Organisations. respecting Indigenous heritage: country and custodians at the site of each festival, expression in Indigenous music, and acknowledge Some other useful starting points for • Respect concert or public performance. Seek advice from its ongoing development through different styles inquiries include: the Indigenous community on the preferred manner and forms. • Aboriginal Land Councils • Indigenous control of acknowledgment. • Communication, consultation and consent Indigenous control • Aboriginal and Torres Strait Islander Commission • Interpretation, integrity and authenticity Accepting diversity •Torres Strait Regional Authority • Secrecy and confidentiality Indigenous musicians come from many different Indigenous people have the right to self-determination • Island Coordinating Council backgrounds, learn their art in many different ways, in their cultural affairs and the expression of their • Attribution • Australian Institute of Aboriginal and Torres Strait and express their music in many different styles. cultural material. There are many ways in which this Islander Studies •Proper returns It is important that Indigenous cultural expression is right can be respected in the composition, production • Continuing cultures. celebrated instead of restricted. and performance of music. •relevant individuals or family members In the following pages, under each of these Most artists feel the pressure to produce work that One significant way is to discuss how Indigenous • elders and custodians of relevant Indigenous principles, we have suggested protocols for using will appeal to the commercial market. Indigenous control over a project will be exercised. This raises clans and groups Indigenous cultural material, and interacting with musicians are often under the additional pressure to the issue of who can represent clans and who can • Indigenous language centres Indigenous artists and Indigenous communities. create music that fits stereotypical ideas. give clearances of traditionally and collectively • Indigenous curatorial staff at local keeping Indigenous musicians are tired of answering questions owned material. places, state and national galleries, museums Respect about why they don’t play the didgeridoo, or why To consult effectively and gain consent for use of and libraries they are not singing in their language, or why Indigenous cultural material in a particular project, • State and territory government arts departments Respectful use of Indigenous cultural material and they want to compose songs about their feelings the Indigenous people with authority for specific in NSW, WA, QLD, SA, TAS and NT information about life experience is a basic principle. and personal experiences. stories, geographic locations, rhythms, song cycles which have staff dedicated to Indigenous and instruments need to be identified. Acknowledgment of country Indigenous musicians have also confirmed that arts programs. racism is ‘alive and well in the music industry’.16 Speaking to the right people is very important. Indigenous Australians, the Aboriginal and Torres Indigenous people have formed organisations and An increase in Indigenous music publishers, Indigenous communities, whether regional, urban or Strait Islander people, are the original inhabitants companies to represent their interests in the music managers and promoters who can provide culturally remote, have an infrastructure of organisations and of Australia. industry. See the Contacts section in this guide for appropriate advice and services will benefit the individuals who can advise on a range of issues further information. music industry and Indigenous musicians.17 – including guidance about locating Indigenous

8 -SONG CULTURES PRINCIPLES AND PROTOCOLS-9 ...

Communication, The right of prior informed consent requires that The next case study shows the importance of The didgeridoo consultation and consent custodians be given full information about the informing custodians and performers of the There is diversity of opinion among Indigenous proposed use of the material. For instance, a proposed uses of a recording. In this case there musicians on the issue of who can play a Yothu Yindi describes the importance of this songwriter may be composing an ad jingle or was no proper consent to commercial exploitation didgeridoo. There is a strong belief that in most principle as: writing a score for a play, teaching by performance of the music and no royalties were paid to instances, women are not allowed to play the or writing music for a band to perform and record. the owners. The band’s approach to its career is deeply instrument. Some Indigenous people feel strongly If the songwriter hopes for widespread commercial rooted in traditional decision making that musicians should refer to the original custodians exploitation, he or she should make this clear to the processes, so all traditional songs that have of the didgeridoo for consent to play the instrument, owners of cultural material. been performed or released have been done case study particularly in view of widespread national and international sale and use of the didgeridoo. so as a result of substantial consultation with Legal and customary law effects Recording communally clan leaders and traditional lawmakers.18 owned music Seeking permission shows respect for the status of The legal and customary law consequences should the original instrument owners and respects their Indigenous people should be consulted on the use be considered before recording communally During the 1970s a number of recordings were made of traditional right to permit, deny or restrict the way the and representation of their Indigenous heritage, owned music. and be informed about the implications of consent. songs from Central Australia for instrument is used. There are two issues to consider. ethnographic purposes. One such Consultation should address the communal nature Permission should always be sought for playing, Copyright protection requires the work to have an recording is now being sold commercially performing or recording any didgeridoo song of Indigenous cultural expression. through tourist shops at Sydney’s identifiable author. Some Indigenous material is cycles belonging to clan groups.21 Darling Harbour. ‘ The Indigenous Performing and recording communally owned, and there is no single performers of the songs complain that communally owned music identifiable author(s) as such. What about sampling music that is they have not received any royalties already recorded? When performing or recording communally owned Copyright law protects works in ‘material form’. from the sale of the album. They were musical works, it is important to seek permission In song cultures this generally means the written under the impression that the song was Sampling Indigenous music from records held in from the relevant community owners of the music. form or a sound recording. So, once an oral song recorded to preserve the knowledge archives and incorporating the music in a new is written or recorded, copyright in the song may of the song as part of a language recording has become common. The use of music Observing customary law means finding out who belong to the company or person who wrote or maintenance program. They were not recorded in the past by ethnomusicologists or can speak for that music, so the right people are recorded it, not the custodians of the song. Anyone told that the recording would be sold anthropologists, and stored in archival institutions, asked for permission to use the music. 20 considering participating in the recording of for profit.’ has caused problems for some Indigenous people. For instance, if a musician wanted to use a rhythm communally owned cultural material is advised to or phrase from music belonging to a Torres Strait Sampling will generally require a copyright consider the extent of copyright protection, and the Island clan or family, it is essential to locate the clearance, in the form of a licence for use in requirements of customary law. correct clan or family group from the particular Permission to use particular a sound recording. Unauthorised use of a 22 Island owning that song or music. Because of these issues, proper communication and instruments substantial part of a sound recording may infringe consultation means understanding and explaining the rights of the copyright owners under the If you can’t find the correct clan or family to Some Indigenous people feel there should be these issues and all proposed uses of the work. Copyright Act 1968 23. ask permission, that ’s a good reason not to restrictions on the use of particular instruments This helps to ensure people are properly informed use the music.19 in accordance with customary laws or practice. Copyright in these old recordings often belongs to before giving their consent. Use of the bull-roarer, for instance, is subject to the person who made the recording. Or if the In order to obtain proper consent it is necessary to: Customary law and cultural protocols should be ceremonial restrictions: see the Secrecy and recording is more than 50 years old, it may be in •provide adequate information followed, and consultation should include discussion the public domain. In that case, the archival • ask the right people confidentiality section. Communication, consultation of proposed uses of the recording and the and consent are essential. institution administers the recording of the music. • consult fully consequences of wide distribution. • be prepared that consent may be withheld.

10 -SONG CULTURES PRINCIPLES AND PROTOCOLS-11 ...

Consultation and consent with Indigenous Interpretation, integrity • Language should only be used where its proper custodians or their descendants is an important part Pygmy Fund, a charity that provides meaning is known and where it is used in the of respectful use of these recordings. support to the Efe people. But according and authenticity proper context.26 There is a significant flow-on effect from the to one observer, the music sampled was Indigenous musicians and their communities should • Cultural material should always be used in the not from the Efe people. unauthorised use of Indigenous music for sampling. have control over how their cultural heritage is appropriate context. There is no other evidence of Indigenous When recorded music is sampled without the presented. The presentation of a musical work • Observe gender restrictions. For instance, the musicians being paid for use of their consent of Indigenous owners, there is a breakdown includes its interpretation, integrity and authenticity. use of the didgeridoo is generally thought to be work on the album. Large profits were in the other principles. restricted to men. made with no returns to Indigenous Interpretation There is no: musicians. The music was appropriated • Check that the musical work does not reinforce Interpretation refers to how cultural material is • authority or control over the work without consent or attribution, and negative stereotypes of Indigenous people. potential claims to copyright were interpreted and represented. This includes the •respect for the integrity or authenticity in the use • Check that the musical work does not expose ignored. All rights to self-determination perspective given to the cultural heritage material of the work confidential, personal or sensitive material. 24 and the language used. •respect for confidentiality or secrecy were denied by these practices. •proper return for its use In the past, Indigenous cultural material has been Integrity subjected to interpretation by non-Indigenous •proper attribution Integrity refers to the treatment of the original musical people. Today, as Indigenous people seek to •proper transmission of culture Consenting to rearrange or re-mix music work and copies made of it. Under the Copyright Act •proper recognition under law. reassert and re-claim control over their cultural It is adjustable to carefully consider the possible 1968, the moral right of protection for integrity heritage material, Indigenous interpretation of the effects of consenting to the right of a recording provides a right of protection for individual authors material is a way of enhancing the cultural company to rearrange or re-mix music. If the against ‘derogatory’ treatment of their work. significance of the work. case study musician is unhappy with the result, consent may For example, unauthorised sampling of Indigenous The context of the performance or recording is an Asking permission – and asking mean he or she cannot complain that the re-mix or music may alter the original intention or meaning of important consideration to ensure the music is not the right people. rearrangement is a breach of the musician’s moral the work and infringe the author’s moral rights. right of integrity. This is the right not to have the used in a disrespectful way. In 1992 the album Deep Forest was Maintaining the integrity of a work is important for It is very important that when Indigenous people released. The album fused digital work treated in a derogatory manner. It may also the authors, but integrity of the work is also very 25 samples of Indigenous music from create a new copyright in the adaptation. are educating others – you have to get it right. important for the Indigenous communities where the Ghana, the Solomon Islands and work originates. Unfortunately, there is no legal Festivals, concerts and events For instance, an educational performance of song African Pygmies with techno-dance and dance, at a school, should include a good remedy yet for a community as a whole if a work is rhythms. The band got access to the Festival and event organisers should consult with background history of the music and be: subjected to derogatory treatment. But the individual digital samples from the recordists local communities for advice on cultural protocols authors can exercise their legal rights. – ethnomusicologists who had worked during a festival, concert or event. Consultations • accurate with these groups and deposited the should be held to discuss involvement of the local • appropriate for children. Authenticity recordings in a cultural archive. community in the event, proper returns for the local Consider interpretation and context in the Authenticity refers to the cultural provenance of a Permission was not sought from the community, a welcome to country if appropriate, presentation of musical works: musical work. This can be a complex question. groups whose songs were recorded. and meetings between the community and invited For the purposes of this guide, authenticity may also Some of the Indigenous musicians were •Words or phrases from particular languages guests or performers. Local communities will advise refer to whether an Indigenous person produced the not credited for their contribution. should not be used just because they are on the cultural protocol for their area. musical work; and whether it was produced with The US album cover states that part ‘language words’. proper regard to Indigenous customary laws, or of the proceeds were donated to the cultural obligations associated with the work.

12 -SONG CULTURES PRINCIPLES AND PROTOCOLS-13 ...

Most material that is sacred has customary law Attribution Recording contracts Helen Anu suggests the following restrictions on its use. The consultation process It is strongly advisable to get independent legal guidelines for the proper use of songs: should clearly state the proposed use and observe Indigenous people should be attributed for the use advice before signing a recording contract. 1. Find out the meaning of the songs. any restrictions according to gender or other customs. of their cultural heritage material in musical works. The owner of copyright in the recording will be the Under the moral rights provisions of the Copyright individual or company who pays for it, unless 2. Get a proper translation of the songs. Bull-roarer Act, the right of attribution is recognised for 3. Get the context of the translation right. varied by a term of the contract, so it is important The bull-roarer is used in a very restricted manner individual creators. The production of music to consider the contract carefully. 4. It is important to ensure that the by men, and only in ceremony. Although not strictly – especially a recording – goes through a lot of event or venue at which the song There are a number of other terms that musicians may a musical instrument, the bull-roarer has been different stages. It is respectful practice to credit will be performed is appropriate for want to negotiate in a contract, such as the length of incorporated into sound recordings. Musicians individuals, families, clans or communities who the song. For instance, a political time of the contract, who is credited on the recording, working in styles such as ‘world music’ are advised meeting may not be an appropriate contributed to the work at any stage. what the artwork and promotional material will look to exercise extra vigilance when it comes to venue for a particular song. It is important to consult on the form of attribution like, who has creative control and many other issues. consultation and consent for any proposed use. Performing the song at the wrong people may want such as proper wording and In addition to the standard clauses, Indigenous place can ridicule the song. Use of life stories spelling of names. musicians might want to include a clause that 27 The context must be respected. This next case study shows the importance of giving incorporates cultural protocols. Are you planning to depict an identifiable individual credit to all the people who collaborated on the or community? If so ask the individual, community Incorporating cultural protocols into recording deals creation of a song. By attributing all the contributors or relatives of the individual for permission. will assist in protecting Indigenous musicians and to the song, copyright is shared among them. Secrecy and confidentiality Observe close consultation and consent throughout Indigenous culture. the process. Some Indigenous cultural material is not suitable for It is important to avoid disclosing sensitive wide dissemination on the grounds of secrecy and case study information without discussion and consent. confidentiality. It is the responsibility of those putting ’ ‘ ’ Confidential information must not be disclosed Yothu Yindi s Treaty together music projects to discuss any restrictions on without permission from all Indigenous people – Treaty Mah! use with the relevant Indigenous groups. affected by the disclosure. Disclosure about a person ‘The songwriters and copyright owners listed on the sleeve of the recording are Secret and sacred material who has passed away will be very sensitive. Mandawuy Yunupingu, Paul Kelly, The reproduction of secret and sacred music may If a composer or lyricist uses details about an Galarrwuy Yunipingu, Milkayngu be a transgression of Indigenous laws. individual’s life experiences, it is advisable to Munnungurr, Stuart Kellaway, consult with that individual. There may be important 28 ‘Secret and sacred’ refers to information or material Cal Williams and Gurrmul Yunupingu. cultural formalities to be observed in telling the story that, under customary laws, is: The song primarily comprises of two in music or song. parts, the contemporary rock/dance • made available only to the initiated section and the traditional/manakayi • used for a particular purpose Representation of deceased people section.29 All of the above songwriters had a hand in the writing of the rock • used at a particular time In many Indigenous communities, the reproduction of names and images of deceased Indigenous section of the song. The traditional section, • information/material that can only be seen and people is not permitted. If music or cover artwork I understand, is an Arnhem Land courting heard by particular clan members (such as men song, Djat’pangarri, which would have a is to represent a deceased person, surviving or women or people with certain knowledge). number of identifiable traditional owners, family members should be consulted and their including the Yolgnu band.’ 30 wishes observed.

14 -SONG CULTURES PRINCIPLES AND PROTOCOLS-15 ...

Distribution, promotional material Indigenous musicians should be consulted on the Royalties and Indigenous music hypothetical and cover artwork cover artwork and distribution of the recording. There are a number of reasons why Indigenous Artists should be properly attributed for any cover musicians, songwriters and custodians of music are Attribution at the recording stage Songwriters who finance their own sound recording will generally be the copyright owner of the artwork. Similarly, Indigenous musicians should vulnerable to exclusion from the royalty system. Imagine an Indigenous performer who recording.31 The copyright owner of the recording have creative control over material used in the is recording his first CD and wishes to Some of the reasons are: can authorise the manufacture and distribution of promotion of performances and the recording. record his version of a song written by • The Copyright Act 1968 does not adequately the recording. It is recommended that written an Indigenous singer/songwriter he protect Indigenous heritage because it does not contracts are used and that legal advice is really admires. Proper returns meet the legal requirements of originality, obtained before signing any contracts for He follows all proper protocols, seeking material form and identifiable author. manufacture, distribution and promotion. Royalties permission and asking her how she •Some past recordings of Indigenous music have would like to be attributed on the CD. Royalties are one important form of return for resulted in copyright belonging to the person He tells the recording company about musicians. Copyright owners are entitled to receive making the recording. this process and gives the company the case study royalties for broadcasts (radio, television and the • Past recordings of Indigenous music were made proper form of attribution for the Distribution Internet) and public performances of their songs. so long ago that the music is now in the public singer/songwriter. But when the CD Collecting societies have been established to monitor is produced the singer/songwriter is An Indigenous community recorded its domain and is not protected by copyright. songs and approached a record company use, and collect and distribute fees or royalties owing not credited. • Appropriation of Indigenous music has occurred to distribute its CD. An agreement was to songwriters, composers and recording owners The singer/songwriter is offended and without consent or attribution, therefore owners signed for distribution only. The record who are copyright owners. This system means that the performer is very upset that all his company put a copyright notice on copyright owners are not individually trying to chase are not recognised as copyright holders. instructions were not followed through. the CD, attributing copyright to the up their royalty payments. • Indigenous people have not known about Since the introduction of moral rights record company. This was a false The Australasian Performing Rights Association copyright collecting societies and their functions, law in 2000, this mistake not only attribution as copyright belonged to the (APRA) is a collecting society which distributes and generally, are not members. breaches cultural protocol. It could be community. However, a notice of the performance and broadcast royalties to its This next case study shows how the failure to seek the basis for legal action for failing to community’s rights was not published composer and songwriter members. The other properly attribute the composer. on the CD or cover. consent of traditional owners and attribute them for relevant collecting societies include AMCOS, their work, denied the owners of royalties from an Indigenous musicians might consider The community was paid royalties for PPCCA and Screenrights. You will find descriptions extremely successful commercial song. including cultural protocols in their the sale of the CDs. recording contracts to ensure they of each of these societies at the end of the The record company licensed the songs are carried through at all stages Copyright section. to a recording company in another of production. country. No permission was sought from Registration the community. The songs were Royalties are available to copyright owners who included in a compilation album that did not properly attribute the are registered with the collecting societies. Unless community as the source of the songs. the music copyright owner is registered with APRA, The community successfully took action for instance, he or she cannot be paid royalties on against the record company for breach the public performance or broadcast of his or her of copyright. songs – so it is important to join and keep APRA The company has since published an updated on your repertoire. unreserved public apology.32

16 -SONG CULTURES PRINCIPLES AND PROTOCOLS-17 ...

license, and a fee to be paid and distributed to the It is important to understand these laws and •Terri Janke, Our Culture: Our Future – Report on case study copyright owners. Organisers are asked to collect how cultural material might be protected under Australian Indigenous Cultural and Intellectual song sheets from performers, prior to the event, them. The Copyright section provides some Property Rights, Michael Frankel & Company, The Ami in Taiwan so the royalties can be calculated.34 This applies general information. Solicitors, for the Australian Institute of Aboriginal In 1999, an Ami couple from Taiwan even if the event is not producing a profit. There are currently no special laws dealing with and Torres Strait Islander Studies and the settled their copyright infringement Indigenous cultural material. The Copyright Act Aboriginal and Torres Strait Islander dispute against the band Enigma and has been criticised for not recognising the Commission, Sydney, 1998. Virgin Records America. The couple’s Continuing cultures performance of a traditional song, communal ownership of heritage material and the • The Musicological Society of Australia (MSA) ‘Jubilant Drinking Song’, was Indigenous people have responsibility to ensure continuing right of heritage custodians to control has adopted Guidelines for the Recognition of appropriated by Enigma in their song the practice and transmission of Indigenous the use of this material. Indigenous Culture and Custodianship of ‘Return to Innocence’, used as the cultural expression is continued for the benefit of The increasing level of non-Indigenous Country at National MSA Public Events, theme song of the 1996 Olympic future generations. appropriation of Indigenous cultural material has including a Welcome to Country policy which Games in Atlanta. Cultures are dynamic and evolving, and protocols compelled Indigenous people to seek greater states in part: ‘It is the policy of MSA to The Kuos had not consented to this use within each group and community will also change. protection of Indigenous culture, including the call recognise the Indigenous custodianship of and were not credited for their music. country where MSA public events are held, and Consultation is an ongoing process, and thought for new legislation recognising communal rights The original Kuos version of the music acknowledge the continuing significance of should be given to ways of maintaining relationships to culture. See Current protection of heritage in the had been recorded and stored by an Indigenous Heritage section of this guide. Indigenous culture in Australia.’ ethnomusicologist. This recording had for future consultation. This might include The Society recently amended its Constitution been used without consent or consultation, at a later date, for further uses of the so that Article II (f) states: ‘The purpose of the attribution in the Enigma song. music not envisaged at the initial consultation. Resources MSA shall be, in collaboration with the The Kuos settlement included: A number of protocol documents have been performers and owners of Indigenous music, to •a written credit to be given on all Recognition and protection produced in recent years to meet the needs of promote and support greater understanding and future releases of the Enigma song appreciation of Indigenous music in Australia.’ Australian law and policies should be developed particular communities, organisations, industries and •a platinum copy of the album on and implemented to respect and protect Indigenous situations. The following are selected as useful • Taking the Time – Museums and Galleries, which the song appears heritage rights. guides for people working in the music sector. Cultural Protocols and Communities, A Resource • other confidential terms of settlement.33 Guide, Museums Australia Inc. (Qld), 1998. It is important for Indigenous musicians to • Lester Bostock, The Greater Perspective: Protocol Postscript: Difang Kuos went on to establish cultural protocols – but they must also and Guidelines for the production of Film and • Previous Possessions, New Obligations, a policy record three albums of Ami music. know their legal rights with copyright and Television on Aboriginal and Torres Strait Islander document produced by Museums Australia in The first, Circle of Life, made it to the Communities, Special Broadcasting Services, 1994 provides a way for museums to approach top of the World Music Chart in Tokyo. contracts. Make sure your songs are registered Sydney,1997. Indigenous cultures. A plain English version with He passed away in March 2002. with APRA so that you receive your due income from public performance. When writing songs • Indigenous Arts Protocol: A Guide, Indigenous case studies has been published. with another person, have an agreement for Arts Reference Group, New South Wales • Aboriginal and Torres Strait Islander Protocols for sharing royalties. Ministry for the Arts, Sydney, 1998.35 Libraries, Archives and Information Services, Festivals, concerts and events Grant Hansen, Songlines Music •Terri Janke, Doing It Our Way: Contemporary compiled by Alex Byrne, Alana Garwood, When organising a concert or other event, it is Heather Moorcroft and Alan Barries for the The Indigenous musician owns copyright in his Indigenous Cultural Expression in New South good practice to contact APRA who will arrange for Aboriginal and Torres Strait Islander Library and or her songs. This means that he or she can Wales, Indigenous Arts Reference Group, the songwriters to be paid royalties for the Information Resources Network. control the reproduction and dissemination of his New South Wales Ministry for the Arts, performance of their work. If tickets are sold to the or her music. Such rights are granted under the Sydney, 2002. concert, APRA will arrange a concert promoter’s Copyright Act.

18 -SONG CULTURES PRINCIPLES AND PROTOCOLS-19 Who’s Who in the development Producer - A producer oversees artistic of musical works direction and management of a recording. A producer may be an ARIA - The Australian Record Industry individual or a company. A producer Association represents recording may or may not provide financial companies in the industry. investment. A producer may be paid Arranger - Arrangers may do a a fee for services that can include number of tasks. Generally, an arranger overseeing the hiring of session checks the structure of a song and adds musicians, arrangers, recording studios, choruses, verses, chord progressions or and administrative tasks such as other changes to enhance or develop the organising copyright clearances from 36 copyright song. An arranger may also adapt a session musicians. musical work from one musical medium Sound Engineer - A sound engineer ... to another – for example, a techno balances and manipulates the music piece from a classical composition.37 during the performance and/or recording. The copyright owner must give The Copyright Act 1968 (Cth) is the main law in permission for such an arrangement. Australia that governs the use, production and To avoid any confusion about copyright dissemination of literary, artistic, dramatic ownership over arrangements it is best and musical works. There are no special laws for to use a written agreement. It is important for Indigenous musicians to develop the protection of Indigenous cultural and Composer - Author of the music an understanding of copyright so they can intellectual property. Lyricist - Author of the lyrics negotiate rights to their music under licence. Manager - A manager administers the Songwriters and musicians retain copyright in their How does copyright protect music? career of an artist by providing advice music for 50 years after their death. Copyright in The purpose of copyright is to protect the author’s and organising the business aspects of musical recordings lasts for 50 years after the rights to exploit their work. The Copyright Act is their work. The manager charges the recording is made. Composers and lyricists can drafted to achieve that aim. musician a fee in the form of a license other people to reproduce their work under commission. In New South Wales the In general, copyright protects literary, artistic, an agreement. The agreement will include certain Entertainment Industry Act regulates musical and dramatic works that are reduced to managers’ commissions and provides terms such as the fee for use, the purpose of the material form. This means a work must be in a for a compulsory licensing system.38 It is agreement, the nature of the rights granted and the permanent and tangible form.39 Copyright protects a good idea to get legal advice before period of time the agreement will last. the written expression, or in the case of recordings, entering into a management agreement. Copyright owners need to think about who will the recorded form. Copyright protects the expression Music publisher - The music publisher control their copyright after their death. Another but not the idea. is the person or company who issue to consider is who will continue to receive administers the copyright in the musical any royalties. How is music reduced to work and/or the published edition, on material form? This section provides general copyright information behalf of the composer and songwriter. for Indigenous musicians. For specific legal advice Music is reduced to material form in a number of The music publisher will arrange we recommend consulting a lawyer. ways. Separate copyright exists in each of the licensing, sale, publication and following forms: promotion of music, on behalf of the musician, when it is to be used by a What is copyright? • written version of the music recording company, film producer or a • written version of the lyrics publisher of sheet music. Music Copyright is a form of legal protection that provides • recording of the song publishers provide these services for a the creator of a work the right to exploit or utilise fee. Legal advice should be sought the work, and prevent others from exploiting it • published edition of the song, for example, before signing an agreement. without his or her permission. sheet music.

20 -SONG CULTURES COPYRIGHT-21 ...

There is no copyright in a performance, although How long does copyright last? • mechanical right – the right to record a song copyright owners who participated in collaboration. there are some limited rights for performers: see Copyright protects musical, literary or dramatic onto DVD, CD or cassette. The Australasian Performing Rights Association (APRA) Copyright and performers rights in this section. works during the lifetime of the author and for 50 • synchronisation right – the right to use the recommends that band members draft a written Issues can arise from Indigenous traditional years after the death of the composer or lyricist.43 music on the soundtrack of a film or video. agreement setting out proportional contributions to knowledge, dance, designs and stories that are After this time has expired, the work is said to be in • performing rights 46 – the rights to perform the musical works. In this way royalties can be distributed orally or ephemerally transferred. These are not in the public domain. music in public ( for example, to sing a song at a accurately, especially in circumstances where the material form and are not automatically protected Copyright in a sound recording generally lasts for concert or to play recorded music between sets at musical work might outlast the life of the band. under standard copyright laws. 50 years from the date of the recording.44 a concert ) and to otherwise communicate the work Some songs and themes have been passed down to the public (any method of communicating music through many generations, meaning that an Who owns copyright? Once in the public domain, the law no longer prevents anyone from accessing or exploiting to the public, including TV, radio, Internet, cable individual creator may not be able to be identified. In the case of a musical work, copyright belongs 47 the material. services and other media). Indeed, as much Indigenous cultural expression is to the person or people who created the musical communally owned, individual creators may not exist. Indigenous people’s right to culture exists in work. This is usually the person or people who As copyright, through the Copyright Act, belongs to perpetuity. To respect Indigenous heritage, Collaborative works wrote the music and lyrics. Copyright in a sound individuals as creators of works, the communal 40 it may be necessary to get permission to use recording is owned by the maker. The maker In many instances songs are written by a number of ownership of Indigenous heritage such as clan stories Indigenous stories and other cultural expressions, is the person or company that paid to produce people. In this case, copyright ownership may be or clan knowledge is not recognised. the recording. even though legally they are in the public domain. shared among the creators. There are two common Identifying relevant clan or family owners can be a For instance, the song ‘Hearts Speak Out’ was ways where this might occur. difficult task. Some Indigenous communities have written by Toni Janke in 1992 and recorded by her What rights do copyright •Where one person has composed the music begun compiling registers and databases to keep in 1994. Toni is the copyright owner of the song’s owners have? and another has written the words, copyright in records of ownership. The Woomera Aboriginal music and lyrics as well as the recording. the music will belong to the composer and Corporation, for instance, has developed a songs The copyright owner has the exclusive right to The copyright in the song and the CD is noted copyright in the words will belong to the lyricist. register which is kept at Mornington Island. It assists authorise use and copying of their musical works. as follows: • In situations where two or more individuals have with cultural clearances but also serves as a For example, the copyright owner of a musical 49 collaborated to create a musical work, teaching tool for passing on knowledge of songs. © Words and Music Toni Janke 1992 work has the exclusive right to do any or all of P Recording Toni Janke 1994. and neither person’s contribution can be the following: Communal ownership vs. separated from the other, the work is one of Copyright exceptions •reproduce the work in a material form ‘joint authorship’. joint ownership • publish the work 50 There are some significant exceptions to the general The writer must contribute to the work by way of In Bulun Bulun v R & T Textiles, the court decided • perform the work in public rule of copyright ownership. effort, skill and labour. It is not enough to inspire or that traditional Indigenous works containing • communicate the work to the public ‘traditional ritual knowledge’, handed down through • Where the work is produced under a make suggestions. • make an adaptation of the work which may generations and governed by Aboriginal laws, contract of employment, copyright will belong to include new arrangements of the music and Each creator in a work of joint ownership owns 41 are not works of joint ownership. Although under the employer. 45 copyright in the resulting work.48 This means that translations of the lyrics. Aboriginal laws the entire community may have an each creator must obtain the consent of the others • Where a work is produced under the direction Music is reproduced in a number of ways. interest in the particular work, and the stories and before exercising any of their rights under copyright. or control of the Crown, copyright may belong Reproductions include CD, radio, film soundtracks, knowledge within the work, copyright does not 42 For example, if a composer or lyricist wants to to the Crown. Internet music files and the incidental ‘on hold’ recognise the group as the owners. license the rights to record a collaborative musical • Where copyright has been assigned under a music recorded for telephone message systems. work, he or she must get the consent of all the other written agreement, the agreement may specify The rights to use music in different media are who owns copyright. described as:

22 -SONG CULTURES COPYRIGHT-23 ...

The individual author is recognised as the copyright In addition to the legal requirements, the customary who worked on the recording. Copyright What are moral rights? owner and may have a special obligation to the law requirements for performing any traditional music clearances must also be obtained from other clan to deal with the copyright in the music, in should be observed. As a courtesy, many Indigenous composers or lyricists whose songs are recorded. The moral rights provisions of the Copyright Act ways that are consistent with Indigenous law. performers ask permission for use of songs, especially If recording communally owned songs, it is provide some new ways to challenge derogatory Depending on the circumstances, this obligation songs about personal or community experiences. recommended that you seek permission from the treatment of Indigenous musical works. Moral rights may be enforceable in the courts. Once permission is granted, the next step is to relevant groups or families. were introduced into the Copyright Act in ensure that songwriters or custodians are given December 2000. These new laws provide the Copyright and proper acknowledgment and credit for their work. What is the public domain? following rights to musicians: 1. The right to be attributed as author performers rights Once copyright lapses the music is said to be in the The author of a work has the right to be identified Copyright and recording public domain where the law no longer prevents There is no copyright in a performance, so as the author where his or her work is reproduced anyone from accessing and exploiting the music. performers do not have the same rights as the Recording musical works creates a new set of in material form, published, performed, adapted, Indigenous people’s right to culture is not limited to songwriter, composer or recording company. Indigenous cultural obligations because: or communicated to the public.52 Musicians can the 50 year period, and it may be necessary to get The performers must give permission for a recording •a new copyright is created in the recording require their names to be clearly and prominently permission to use Indigenous music even though or broadcast, but once permission is given, the identified with their work.53 • distribution of the recording creates wide legally, it is in the public domain. recording can be used in any way, except as a film exposure of the work and there are few controls 2. The right not to have work falsely attributed soundtrack. The recording can be used in a film if The operation of the Copyright Act creates a over its use. to another musician the performer consents at the time of recording. number of problems when it comes to protecting Musicians can take action against parties who Performers may be asked to sign release forms when Consultation and consent processes should address Indigenous music. any cultural restrictions on the music in recorded form. falsely attribute others as creators of their works. performing at concerts that are being filmed, or One example is copyright in Indigenous music 3. The right of integrity where the performance is included in a recording. What is the legal effect of making a recorded by early anthropologists, now stored in An author can bring a legal action if work is sound recording? archives and libraries. Copyright belongs to the Performing a cover version person who made the recording or wrote the treated in a derogatory manner, causing harm 54 of a song When music is recorded a copyright is created. notation of the music. In most cases, copyright in to the author’s honour or reputation. One of the exclusive rights of a copyright holder is The owner of copyright in a sound recording is the recordings by anthropologists and ethnomusicologists A musician cannot bring an action against to perform his or her work in public. APRA and person or company who pays for the making of the belongs to the anthropologist or ethnomusicologist. derogatory treatment if he or she agreed to the 51 AMCOS act on behalf of music copyright owners sound recording. The copyright owner will have Copyright in the music does not belong to the treatment of the work. For instance, if a musician to administer this right. They do this by licensing the rights to: traditional owners or performers of the music. agrees to a remix of the work and then objects to the remixed version, the original consent may and collecting licence fees from music users and • copy the sound recording Another problem arises because once copyright mean that he or she cannot bring an action for distributing these fees as royalty payments to the • play the sound recording in public expires after 50 years, the work is in the public copyright owners in the song and sound recording. infringement of the right of integrity. • communicate the sound recording to the public domain with no copyright protection. Recordings Whether or not the work has been treated in a Venue owners should have a licence with APRA to using TV, radio, the Internet or telephone system. made before 1952 are now in the public domain. derogatory manner is subject to reasonable play music. The venue owner will require musicians It should not be assumed that all rights to a song Musicians who receive Australia Council grants to defence. For instance, the alleged infringer to provide song sheets listing the songs played at have lapsed because one recording of the song is record their music are in a strong position to retain might argue that the treatment was reasonable the venue. The song lists are then given to APRA in the public domain. More recent recordings and copyright ownership in both the underlying work in all the circumstances.55 Prior to making any which distributes royalties to the songwriter, adaptations of traditional music by Indigenous and the recording. It is recommended that contracts significant alterations to, or adaptations of a composer or recording owner. musicians will be protected by copyright, and be used for recording so all copyright is held by the musical work, it is important to get the consent Songwriters and composers are strongly advised to reproduction may infringe copyright. grant recipient/musician. Clearances should be of the copyright owner in writing. register with APRA so their royalties can be paid. obtained from session musicians and technicians

24 -SONG CULTURES COPYRIGHT-25 ...

The Australian moral rights laws are new, and their • If the work is to be altered or adapted for mass The new right of communication to the public also It is important to keep good records and clearly potential to increase copyright protection for production, songwriters and musicians should be means that collecting societies such as APRA 56 have label reproductions of your songs. It is also a good Indigenous musicians has not been fully explored. given opportunity to approve or reject the the right to collect revenue for the use of copyright idea to record the song (it doesn’t matter if it’s not One important point about moral rights is that they alteration or adaptation of their work. material in the digital domain. However, many of of a professional broadcast quality), and write are individuals rights. There is still no legal the MP3 files and other musical works on the down the lyrics as well. Assigning copyright vs. licensing recognition of communal ownership of Indigenous Internet are unlicensed and used without permission Label all reproductions of the song, tape and CD cultural material. However, individuals who have Copyright can also be assigned. This means that of the copyright owners. Licensing of the Internet is clearly with the following information: created a song can bring legal action if they are you can give your copyright to someone else. in its infancy and there are many legal and 57 • title of the song not properly attributed for their work, if someone They become the copyright owner and can technological hurdles to be overcome. • songwriters else is named as the creator, or if their work is authorise others to reproduce your musical work. While the law provides these rights to musicians treated in a derogatory manner. Copyright is usually assigned under written and composers, it can be difficult to enforce • performers agreement. Once assigned, the musician because of the global nature of the Internet. • date created Licensing use of music relinquishes copyright in his or her musical work. Technology such as watermarking and encryption • copyright owners. now provide some protection – but further Where possible, Indigenous musicians should When authorising others to reproduce your songs Copyright is personal property and can be licensed developments are necessary before music can be retain the copyright in their works so they can make sure you use written agreements and keep under agreement for a fee. A licence is the grant of protected from downloading. So while the rights maintain control over reproductions. records of the rights you have granted. Ask for a right to use or deal with copyright in a work. You are there, musicians need to be aware of the limits It is important for Indigenous musicians to check copies of compilations. can put limits on the licence, including limitations of of technology once their musical works are agreements and make sure they are not assigning time, territory and purpose. For example, you can available through the Internet. their rights away instead of alternatively licensing Copyright notice license the rights to reproduce your music through use of their work. an airline’s inflight audio network for a period of Managing copyright to You should also include a copyright notice. two years. The copyright in the musical work It is a good idea to seek legal advice on copyright A copyright notice provides information about remains with the copyright owner. licensing issues. protect your interests acceptable uses and includes details about contacting the copyright owner for consent to use It should not be assumed that traditional Indigenous As copyright exists as soon as a work is created, in other material. music is in the public domain. It is necessary to New technologies it is not a legal requirement to register copyright. Some recordings use the words ‘All Rights consult with relevant Indigenous people for However, certain precautionary practices can show The Copyright Act was recently amended by the Reserved’. This is not necessary but if you are permission to use the music and if agreed, there copyright belongs to you should there ever be a Digital Agenda Act 2000. The amendments publishing in some South American countries it may should be scope for negotiating with Indigenous contest or case relating to infringement of your work. introduce a ‘right of communication to the public’ people on appropriate royalties for use. Some other be advisable. If you think your songs will first be to cover copyright material in the digital domain. Some people believe they need to mail the points are: published overseas, seek advice from a suitable recording and the written song to themselves before The right provides that digital transmissions or practitioner on appropriate wording. •Written contracts are preferred to oral agreements. copyright protects their songs. This is not true, dealings with copyright material in the digital The following is an example of a copyright notice • Indigenous songwriters and musicians should be although it might be useful for evidence. If there is a domain can be controlled by the copyright owner. for a song: competing claim to the song, you can show you given the opportunity to consider contracts and The right applies to the Internet and other forms of own copyright as at the date of the postmark on the All songs written and performed by Terri Janke. to obtain proper legal advice. digital media, as well as new forms being unopened envelope enclosing your music. Although © Terri Janke, 1999*. • The contract should be explained to Indigenous developed for the future. Whenever material on a a creative idea, this is not necessary. The contest of *The date of creation or the date the song was songwriters and musicians, and if necessary, website is downloaded by an Internet user it is an copyright will involve a range of inquiries including first published. a translator be used to explain the major issues exercise of the ‘right of communication to the public’. whether or not the first original song is substantially of the contract. similar to the second alleged song copy.

26 -SONG CULTURES COPYRIGHT-27 ...

The following is an example of a copyright notice When is copyright infringed? Crown use of artworks for collaborations: The Crown may use a copyright work without APRA – Performing rights It is an infringement of copyright to copy a ‘Circle of Sand’ permission of the copyright owner where the use for composers Performed by: Terri Janke and Justin Meleo musical work without the consent of the made is ‘for the services of the Crown’. The artist is copyright owner. The Australasian Performing Rights Lyrics: © Terri Janke, 1999 still entitled to payment for use and the government Association (APRA) administers the Music: © Justin Meleo, 1999 A person will infringe copyright in a musical work if must contact him or her as soon as possible to performing rights in the music of This song is copyright. Apart from the uses he or she reproduces the work in material form, negotiate this. composers, songwriters and publishers permitted under the Copyright Act 1968, no publishes, performs the work in public, in Australia and New Zealand. These Library copying reproduction of this song is authorised without communicates the work to the public, or makes an are the rights of performance in public the consent of the copyright owners. adaption of the work without permission from the Libraries and archives can make copies of and communication to the public. 59 copyright owner. copyright works under certain circumstances in The following is an example of a copyright notice The rights of performance in public accordance with statutory procedures.64 occur mostly when music is played on for a recording: It is also an infringement to copy a substantial part of a musical work. A ‘substantial’ part of a work radio, television, in music venues and P TJ Records, 1999. does not necessarily refer to a large part of the Further copyright other venues that play music (including The following is an example of labelling a new work. The court will look for striking similarities incidental music), and businesses (including online businesses) which recording of a clan owned traditional song: between the original song and the infringing copy, information use music. Traditional song: Torres Strait Islands and assess the quality of what was taken. For further information on copyright laws see the The right of communication to the This arrangement: © A. Murray, 2002. This It is also an infringement of copyright to import public includes any method of recording may not be reproduced in any form following websites: copies of a copyright infringing recording into communicating music to the public without the permission of the performer and the • Australian Copyright Council Australia for sale or hire. including television, radio, Internet, clans concerned. www.copyright.org.au Some exceptions to infringement are: cable services and other media. Sometimes a warning is included: •Arts Law Centre of Australia APRA also manages the reproduction WARNING: Copyright subsists in this recording. Fair dealings provisions www.artslaw.com.au rights’ licensing business of the Any unauthorised rental, hire, broadcasting, Copyright in the work is not infringed if it is Australasian Mechanical Copyright Copyright collecting societies public performance or re-recording in any used for: Owners Society (AMCOS). Most copyright owners lack the time and necessary manner whatsoever will constitute an • research or private study purposes 60 For more information about APRA visit infringement of copyright. bargaining power to manage and exploit their its website www.apra.com.au • criticism or review, whether of that work or of copyright works. Several collecting societies have For more information on recommended copyright another work, and a sufficient acknowledgment been established in Australia to administer wording for publications, see the Style Manual for 61 of the work is made copyright. These collecting societies manage the Authors, Editors and Printers.58 • the purpose of, or associated with the reporting rights of its members for an administrative fee Moral rights notice of news in a newspaper or magazine and a or a share of the royalties. Some of them such as sufficient acknowledgment of the work is made; CAL and Screenrights have a legislative basis for If your work is to be distributed in New Zealand or for the purpose of, or associated with the collecting royalties. Others are voluntary and the UK, it is also a good idea to include a reporting of news by means of broadcasting or organisations which artists are required to join. notice asserting your moral rights, as follows: in a cinematograph film62 Details follow on the most relevant collecting The creator(s) assert their moral rights. • judicial proceedings or a report of judicial societies for musicians. proceedings, or for the purpose of the giving of professional advice by a legal practitioner.63

28 -SONG CULTURES COPYRIGHT-29 ...

AMCOS – Mechanical rights PPCA - Copyright in CAL – Copyright Agency Limited Screenrights The Australian Mechanical Copyright sound recordings The Copyright Agency Limited (CAL) Screenrights is a copyright collecting Owners Society (AMCOS) administers a The PPCA is the Phonographic is an Australian statutory collecting society for screenwriters, producers, broad range of reproduction licensing Performance Company of Australia. agency whose role is to provide a distributors, music copyright owners, schemes for musical works. The PPCA grants licenses on behalf of bridge between creators and users of copyright owners in artistic works and AMCOS can administer the mechanical record companies and recording artists copyright material. sound recordings, and other rights rights (the right to record a sound to venues such as hotels, shops, CAL collects and distributes fees on holders in film and television. onto record, CD or cassette) and the restaurants, and radio and TV stations behalf of authors, journalists, visual Screenrights manages rights on behalf synchronisation right (the right to use which play recorded music or music artists, photographers and publishers, of copyright owners in film and your music on a video or film videos. It also licenses online users of operating as a non-exclusive agent to television, licensing the use of their soundtrack). sound recordings. license the copying of works to the work in circumstances where it is AMCOS can administer the right to PPCA members are the owners of general community. difficult or impossible to do so on an reproduce written music, for example copyright in sound recordings. CAL administers licences for the copying individual basis. the original notation or lyrics for a They are mainly record companies. of print material by educational Screenrights also administers the song. The rights are assigned to a music For more information on the PPCA visit institutions, government agencies, educational copying license. This allows publisher and anyone who then wishes its website www.ppca.com.au corporations, associations, places of educational institutions to copy from to copy the work must seek permission worship and other organisations. radio and television, provided they pay of the music publisher and pay royalties Authors must register to receive monies a fee to copyright owners. Screenrights for that use. Exceptions include directly from CAL. If not registered, the monitors copying, collects money educational purposes. monies may go the publisher who is and distributes this income to the When music is used in a film or then responsible for passing on the copyright owners. television program, composers should author’s share under terms of the In addition, Screenrights collects ensure the producer makes a cue sheet publishing contract. royalties being held by other societies listing the music on the soundtrack. For more information on CAL visit its administering rights in their territories. This list should then be submitted to website www.copyright.com.au All money collected is distributed to the APRA for royalty payment. copyright owners after deduction of APRA and AMCOS license people and administrative overheads. companies who want to use music, For more information on Screenrights and then distribute the license fees visit its website www.screen.org to members. Screenrights has also established a For more information on AMCOS visit website for educators at its website www.apra.com.au www.enhancetv.com.au. Enhancetv lets teachers know about upcoming programs relevant to their curriculum and provides teaching resources for using television and radio in educational contexts.

30 -SONG CULTURES COPYRIGHT-31 • Local cultural protocols and protocols associated • It is very important that the Indigenous with a work should always be respected custodians have all the relevant information prior and observed. to considering consent. This might include: • Indigenous worldviews, lifestyles and customary - proposed use, particularly if it involves laws should be respected in contemporary adaptation and alteration. artistic and cultural life. - whether you intend to perform or record the work, what instruments you intend using, and Indigenous control who will be performing or recording the work. Indigenous people have the right to determine how - proposed digital or broadcast media: is the follow up their cultural property will be used. work going to be broadcast, or communicated to the public through the Internet? • Indigenous people have the right to own and ... control their heritage, including Indigenous body • Has sufficient time been allowed for consultation? painting, stories, songs, dances and other forms • Is the particular song or music acceptable for wider use and recording? If unsure, discuss with • Secrecy and confidentiality of cultural expression. Indigenous people, composers and songwriters. • Attribution • Identify appropriate Indigenous information and authority structures. •Have you advised the elders or people of •Proper returns • Discuss your ideas for development of music authority of the perceived risks and benefits from • Continuing cultures Applying the protocols projects with the relevant people in Indigenous the wider use and reproduction of their songs? • Recognition and protection music companies and associations, and • Seek advice on the correct cultural context for the Protocols are about people’s value systems Indigenous media organisations. material. Ask about any restrictions on the material and their cultural beliefs.65 Respect • The current practice of the Australia Council and the instrument, and establish the exact The protocols in this guide are flexible. You can use requires all Indigenous participants to provide a meaning of any words in language if unsure. People working in the music industry are them to develop protocols for your music project, letter of support confirming their Aboriginal or • If you are writing lyrics about an individual or encouraged to respect that: program or practice, and language group, region, Torres Strait Islander identity from an community, advise the relevant people, family or clan or community. • Indigenous Australians, the Aboriginal and incorporated Indigenous organisation. community. Seek their permission as you may be Torres Strait Islander people, are the original It is important to read all the preceding sections of • When engaging Indigenous contributors to touching on sensitive issues, such as mentioning inhabitants of Australia. Song Cultures before applying the protocols. participate in a project the Aboriginal and the names of people who are deceased. Follow up can then be the main point of reference • Acknowledgment should be given to the Torres Strait Islander Commission (ATSIC) •Have the community and performers been when returning to the guide at a later date, or in Indigenous groups where projects are located. definition of Aboriginal identity can be used consulted on any cultural considerations to be the planning stage of a music project or program. • Indigenous music is produced by Aboriginal and as a guide. taken into account for the festival or concert? Follow up provides a checklist of key points to Torres Strait Islander people. • Keep appropriate and relevant Indigenous • If recording communally owned songs and consider when developing appropriate protocols for • Indigenous cultures are living cultures. people informed and advised, and where music, advise Indigenous custodians and a music project, or in your own music practice. It other people in authority, and seek permission • Indigenous culture is diverse. Culture varies possible, provide regular updates. offers different and more specific information than for recording. from Indigenous country to country and from the preceding sections. We therefore suggest you clan to clan. • Recording companies and collecting societies use the points outlined here together with the Communication, should not assume that Indigenous music is in Principles and Protocols and Copyright sections. • Indigenous cultural expression is diverse. consultation and consent the public domain. The following principles are a framework for • Indigenous people have the right to be When performing, recording, publishing or • It is necessary to consult with relevant Indigenous respecting Indigenous heritage: represented by Indigenous people of their otherwise dealing with Indigenous songs and people for permission to distribute recordings. choice and in a manner they approve. • Respect music, consider the following: If agreed, recording companies and collecting • The cultural contribution to a performance by • Indigenous control • Has the consent of relevant Indigenous people societies should negotiate with Indigenous Indigenous people should be valued, been obtained? This should include the consent people on appropriate royalties for use. • Communication, consultation and consent acknowledged and remunerated. of composers, songwriters (including next of kin • Interpretation, integrity and authenticity if deceased) and custodians of the music.

32 -SONG CULTURES FOLLOW UP-33 ...

• Indigenous musicians should consider any cultural • It is important to exercise care when permitting Attribution Continuing cultures obligations before negotiating a recording a re-mix or rearrangement of a work. A new contract, or entering into agreements relating to copyright might also be created in the • Be sure to attribute the musical work to all • Indigenous cultures are dynamic and evolving, the publication and dissemination of the music. adaptation. If the owner is unhappy with the Indigenous custodians, composers, lyricists and and the protocols within each group and For example website publication may expose the result, there may be no legal remedy because session musicians who contributed to the work at community will also change. songs to greater appropriation. of the consent. any stage. • Consultation is therefore an ongoing process. • Is consultation seen as an ongoing process for • Ask for correct wording of how the person or Authenticity • Have you given thought to ways of maintaining the life of the musical work or recording? community wishes to be attributed with relationships for future consultation? •Are you using instruments and music with respect ownership of the musical work. •Have future uses of the music that were not for gender and cultural restrictions? Interpretation, integrity • The composers, musicians and custodians should contemplated at the initial consultation • Do you have a translation of the work you be attributed at all stages, including use of the been considered? and authenticity are using? Are you using language in the copyright notice and attribution of a clan group. • Have cultural protocols been considered and correct context? Interpretation included in any future plans for the musical Proper returns work, including licence agreements? Be responsible for your representations of Secrecy and confidentiality Indigenous cultures. • Have fees or other benefits been negotiated • Indigenous people have a responsibility to • The right of Indigenous people to keep secret with the musicians, composers, songwriters ensure that the practice and transmission of • Does your composition, performance and and sacred their cultural knowledge should and custodians? Indigenous cultural expression is continued for recording empower Indigenous people? be respected. • Is the cultural value of the work recognised in the benefit of future generations. • Does your music expose confidential, sensitive • Sacred and secret material refers to information financial returns? or personal material? that is restricted under customary law. • Have Indigenous cultural advisors been Recognition and protection •Does it reinforce negative stereotypes? • Indigenous people have the right to maintain acknowledged and properly remunerated for • Has copyright protection for a work been sought? confidentiality about their personal and their contribution? Integrity • Have the owners of copyright in a work cultural affairs. • Is there any adaptation which needs to be • Has the issue of copyright ownership been been identified? • Does the music expose confidential or sensitive discussed upfront? discussed with relevant traditional custodians •Written releases and contracts are the best way material? from Indigenous country to country and from • Has registration with APRA, AMCOS and PPCA of ensuring that rights are cleared for proposed clan to clan? • Be aware that the inclusion of personal material been completed? and intended uses. The Arts Law Centre of • Have you discussed this and obtained consent? may be sensitive. If it is objected to by the •Are all other rights holders acknowledged in Australia has draft agreements available for family or clan representatives – leave it out. •Will the individual or community who is the that registration? members. It is a good idea to seek independent subject of the work get an opportunity to hear •If mentioning deceased people, seek permission •Proper credit and appropriate acknowledgment legal advice on written releases and contracts. the work prior to public release. Have their from the family or clan representatives. Discuss includes copyright and royalties for the use of suggestions been incorporated? issues of interpretation and authenticity. Indigenous cultural material. • Is the material suitable for the intended • It is a good idea to speak to elders and/or • Check whether benefits other than royalties are audience? other Indigenous people in authority to identify sought by Indigenous people. sensitivities, sacred material or religious issues • When selecting illustrations or photos for the •Are the relevant Indigenous people sharing in relevant to the music. cover or promotional material, consult with the the benefits from any commercialisation of their musician and other Indigenous people to check cultural material? the cultural appropriateness of the image.

34 -SONG CULTURES FOLLOW UP-35 ...

Copyright • When any of these rights are exercised the Sound recordings Copyright infringement copyright owner is generally entitled to a license • The copyright owner of a sound recording is the •A person will infringe copyright in a work if he Copyright protects specific categories of material. fee or royalties for the use of their work. maker of the sound recording. The maker is or she reproduces the work in material form, The material must be original and must be reduced • It is strongly recommended to use written generally the individual or recording company publishes the work, performs the work in public, to material form. agreements when licensing musical works for who pays the costs of recording. However, this communicates the work to the public, or makes To be original, for the purpose of copyright commercial purposes. can be varied under written agreement. an adaptation of the work without the protection, the author or authors must have applied • The author has moral rights to his or her work. • Copyright in a sound recording lasts for 50 permission of copyright owner. sufficient skill, labour and judgment to create the This includes the right of integrity and attribution. years after the date on which the sound • Statutory exceptions to copyright infringement work. In the case of music this will normally mean recording was made. include the purposes of criticism or review, and that the author has composed the work, or adapted • The Indigenous author who incorporates incidental filming. or arranged the musical work. traditional ritual knowledge in his or her musical • The copyright owner of a sound recording has work has a special obligation to the clan when the exclusive right to: To be ‘reduced to material form’ means that the exercising copyright in the work. musical work must have been written or recorded. (i) make a copy of the sound recording • In collaborative works, copyright may be shared When reproducing musical works or sound (ii) cause the recording to be heard in public with the collaborating authors. If all band recordings it is necessary to get copyright clearance (iii) communicate the recording to the public members collaborate to write a song, the from the copyright owners. members will generally be the joint authors. • When any of these rights are exercised, the copyright owner is generally entitled to a license Musical works • Styles of music are not protected by copyright. fee or royalties for the use of their work. It is the expression of the style, that is, the actual • Composers, lyricists and arrangers are referred song or instrumental piece that is protected. • Recipients of Australia Council grants are to as ‘authors’ in a copyright context. encouraged to seek legal advice on written • Public performance of a work can include any • The copyright owner is generally the author of contracts for recording. performance that is not domestic or private, the musical work. There are exceptions to this even if no fee is charged. So anyone intending • Recording companies should provide written rule, including an author who is an employee to perform a work that is protected by copyright agreements for musicians. Indigenous musicians under a contract of service. should seek advice to ensure they are not should be given the opportunity to consider • Authors do not need to register for copyright infringing copyright. Check the Contacts section contracts and obtain proper legal advice. protection. in this guide for copyright advice referrals. • Has APRA been contacted to ensure royalties • Copyright in a musical work lasts for 50 years • Under the educational statutory licensing are paid on work performed? after the death of the author. schemes authors may be entitled to royalties for • Have performers signed clearance forms if their • The copyright owner of a musical work has the use of their music and sound recordings in work is to be recorded at a festival or concert? exclusive right to: formal teaching and learning situations. - reproduce the work in a material form The relevant collecting agencies, APRA, AMCOS and PPCA, collect and distribute these - publish the work royalties to members. - perform the work in public - communicate the work to the public - make an adaptation of the work - do any of the above in relation to an adapted work.

36 -SONG CULTURES FOLLOW UP-37 25 Helen Anu, consultation interview, 14 August 2001, Sydney. 47 See Australian Copyright Council, Information Sheet G12, ‘Music and Copyright’, page 2. 26 Helen Anu, consultation interview, 14 August 2001, Sydney. 48 Section 35, Copyright Act 1968 (Cth). 27 Helen Anu, consultation interview, 14 August 2001, Sydney. 49 Peter Cleary, consultation interview, 11 September 2001. 28 The original release included accreditation to Peter Garrett who, the author believes, relinquished his share to members of Yothu 50 Bulun Bulun & M* v R & T Textiles Pty Ltd (1998), 41 Intellectual Yindi. Martin Hardie, Treaty Mah! But Who Owns the Property Reports 513. The M* refers to a deceased person and Copyright?, unpublished paper in possession of the author, that is how the cultural protocol advises speaking of him. Darwin, 1996, page 10. 51 Section 97, Copyright Act 1968 (Cth). 29 The author states that subsequent remixes have blurred this 52 distinction. Martin Hardie, Treaty Mah! But Who Owns the Section 194(1), Copyright Act 1968 (Cth). references Copyright?, unpublished paper in possession of the author, 53 Section 194AA, Copyright Act 1968 (Cth). Darwin, 1996, page 10. 54 195AJ, 195AK and 195 AL, Copyright Act 1968 (Cth). 30 Martin Hardie, Treaty Mah! But Who Owns the Copyright?, ... 55 unpublished paper in possession of the author, Darwin, 1996. Section 195AS, Copyright Act 1968 (Cth).

31 This includes finance through grants from the Australia Council 56 See the Australasian Performing Rights Association website, 12 Erica Irene Daes, Final Report on the Protection of the Heritage for the Arts. http://www.apra.com.au, for further information. of Indigenous Peoples, United Nations Document E/CN.4/Sub.2/1995/26. The full text, as adopted and 32 Peter Cleary, consultation interview, 11 September 2001. 57 Scot Morris, Director of International Relations, APRA, elaborated on by ATSIC’s Indigenous Reference Group, is cited correspondence dated 30 November 2001. 33 Nancia Guivarra, ‘Singing the Unsung’, Music Forum: Journal of 1 in Terri Janke, Our Culture: Our Future, pages 273–277. See David Milroy, consultation interview, 11 October 2001. 58 also Erica Irene Daes, Study of the Protection of the Cultural and the Music Council of Australia, vol. 6, no. 5, June 2000, Style Manual for Authors, Editors and Printers, 6th edn, 2 Terri Janke, Our Culture: Our Future – Report on Australian Intellectual Property of Indigenous Peoples, United Nations pages 18–19. Commonwealth of Australia, Canberra, 2002, page 413. Indigenous Cultural and Intellectual Property Rights, Michael Economic and Social Council, Geneva, 1993. 34 See Australasian Performing Rights Association, ‘Event Licenses’, 59 Section 36, Copyright Act 1968 (Cth). Frankel & Company, written and published under commission by 13 See the World Intellectual Property Organisation’s website, at http://www.apra.com.au the Australian Institute of Aboriginal Studies and the Aboriginal 60 Section 65, Copyright Act 1986 (Cth). http://www.wipo.int/globalissues, for further information. and Torres Strait Islander Commission, Sydney, 1999. 35 NSW Ministry for the Arts, Guidelines 2001–2002, Sydney, 61 Section 41, Copyright Act 1968 (Cth). 14 See the World Intellectual Property Organisation’s website, 2000, pages 103–104. 3 Song Cultures uses the terms ‘music’ and ‘songs’ interchangeably. 62 http://www.wipo.int/globalissues, for further information. 36 Section 42, Copyright Act 1968 (Cth). Milroy, David, consultation interview, 11 October 2001. 4 Many ethnomusicologists now seek to make agreements that vest 15 63 Section 6, Model Law for the Protection of Traditional 37 Section 43, Copyright Act 1968 (Cth). copyright in the Indigenous owners. Linda Barwick, consultation Staniforth Ricketson, The Law of Intellectual Property, Law Book Knowledge and Expressions of Culture, South Pacific interview, 14 June 2001. Company, Sydney, 2001. 64 Community, Noumea, 2002. Section 49, Copyright Act 1968 (Cth).

5 38 Terri Janke, ‘Deep Forest and the Commercial Exploitation of See Arts Law Centre of Australia, ‘Music Management 65 16 Ade Kukoyi (Daki Budtcha), consultation interview, Doreen Mellor, telephone consultation, 31 May 2002. Indigenous Music’, Music Forum: Journal of the Music Council of Checklist’, at 1 October 2001. Australia, vol. 3, no. 6, Aug-Sept 1997, page 27. http://www.artslaw.com.au/documents/artpluslaw/music/ 17 See the Contacts section in this guide. 6 Terri Janke, Our Culture: Our Future. 39 Sections 31(1)(a)(i) and (b)(i), Copyright Act 1968 (Cth). 18 Yothu Yindi, ‘Our Homeland’, 7 Terri Janke, Our Culture: Our Future. 40 Section 22(3)(b), Copyright Act 1968 (Cth). http://www.yothuyindi.com/ourhome.html 8 Terri Janke, Our Culture: Our Future, page 3. 41 Section 35(6) of the Copyright Act 1968 (Cth) states that where 19 Helen Anu, consultation interview, 14 August 2001, Sydney. the work is ‘made in by the author in pursuance of the terms of 9 Terri Janke, Our Culture: Our Future. 20 Terri Janke, ‘Deep Forest and the Commercial Exploitation of his or her employment by another person under contract of 10 Report of the Sub-Commission on Prevention of Discrimination Indigenous Music’, Music Forum: Journal of the Music Council of service or apprenticeship, that the other person is the owner of and Protection of Minorities, 46th session, Draft Declaration on Australia, vol. 3 no. 6, August–September, 1997. any copyright subsisting in the work’.

the Rights of Indigenous Peoples, United Nations Documents, 42 21 This issue was identified as a concern by a number of musicians Section 176(1), Copyright Act 1968 (Cth). E/CN.4/1995/2 and E/CN.4/Sub 2/1994/56. and industry participants. 43 Section 33, Copyright Act 1968 (Cth). 11 The Mataatua Declaration was developed at the First 22 Section 14, Copyright Act 1968 (Cth). International Conference on the Cultural and Intellectual Property 44 Section 93, Copyright Act 1968 (Cth). Rights of Indigenous Peoples, 12–18 June 1993, at 23 Michael Easton, ‘Music Sampling’, Art + Law, no. 3, September 45 Section 31, Copyright Act 1968 (Cth). Whakatane, Aotearoa, New Zealand. A full text of the 2000. Available from the Arts Law Centre of Australia website, Declaration is cited in Terri Janke, Our Culture: Our Future, http://artslaw.com.au/reference/003music_sampling/ 46 These are different to the rights of performers who do not own pages 306–310. copyright in the work or sound recording. For performers rights 24 Terri Janke, ‘Deep Forest and the Commercial Exploitation of see Copyright and performers rights in the Copyright section Indigenous Music’, Music Forum: Journal of the Music Council of of this guide. Australia, vol. 3 no. 6, August–September, 1997.

38 -SONG CULTURES REFERENCES-39 Shane Simpson, Music Copyright – Some Basics, Ausmusic, Spring Masterclass Series, 30 October 1989.

Sherylle Mills, ‘Indigenous Music and the Law: An Analysis of National and International Legislation’, Yearbook for Traditional Music, vol. 27, 1996.

bibliography Staniforth Ricketson, The Law of Intellectual Property: Copyright, Design and Confidential ... Information, Lawbook Company, Sydney, 2001.

Maroochy Barambah and Ade Kukoyi, ‘Protocols Terri Janke, ‘Deep Forest and the Commercial for the Use of Indigenous Cultural Material’, Exploitation of Indigenous Music’, Music Forum: in A Fitzgerald, B Fitzgerald, C Cifuentes, Journal of the Music Council of Australia, vol. 3 no. P Cook (eds), Going Digital 2000: Legal Issues for 6, August–September 1997. Ade Kukoyi, ‘Daki Budtcha Submission: Response E-Commerce, Software and the Internet, Prospect to Discussion Paper, Our Culture, Media, Sydney, 2000. Terri Janke, ‘Issues of Indigenous Music and Our Future’, Sydney, 1997. Copyright’, Paper for the Fifth Annual Conference Martin Hardie, Treaty Mah! But Who Owns the of the International Association for the Study of Chris Gibson, ‘We Sing Our Home, We Dance Copyright? Unpublished paper in possession of the Popular Music, Sites and Sounds, Popular Music in Our Land: Indigenous Self-Determination and author, Darwin, 1996. the Age of the Internet, Sydney, 21 July 1997. Contemporary Geopolitics’, Australian Popular Music, vol. 16, 1988, pages 163–184. Michael Easton, ‘Music Sampling’, Art+Law, no. 3, Terri Janke, Our Culture: Our Future – Report on September 2000. Available from the Arts Law Australian Indigenous Cultural and Intellectual Clinton Walker, Buried Country: The Story of Centre of Australia website, viewed 10 April 2002, Property Rights, Michael Frankel & Company, Aboriginal Country Music, Pluto Press, http://artslaw.com.au/reference/003music_sampling/ written and published under commission by the Sydney, 2000. Australian Institute of Aboriginal Studies and the Aboriginal and Torres Strait Islander Commission, Ian McDonald, ‘Cross-fertilisation or Cultural Music Council of Australia, MCA Directory of Sydney, 1999. Imperialism?’, Sounds Australia, vol. 15, no. 50, National Music Organisations, Music Council 1997. of Australia, Sydney, viewed 10 October 2002, http://www.mca.org.au/dnmo.htm

‘Indigenous Arts Protocol: A Guide’, Guidelines 2001-2002, NSW Ministry for the Arts, 2001. Nancia Guivarra, ‘Singing the Unsung’, Music Forum: Journal of the Music Council of Australia, vol. 6, no. 5, June 2000, pages 18–19. Karl Neuenfeldt, ‘The Quest for a Magical Island: The Convergence of the Didjeridu, Aboriginal Culture, Healing and Cultural Politics Scot Morris, Director of International Relations, in New Age Discourse’, Social Analysis, no. 42, APRA, correspondence dated 30 November 2001. July 1998.

40 -SONG CULTURES BIBLIOGRAPHY-41 Copyright and legal Copyright Agency Central Australian Aboriginal Limited - CAL Music Association – CAAMA Arts Law Centre of Australia Level 19, 157 Liverpool Street PO Box 2608 The Gunnery Sydney NSW 2000 Alice Springs NT 0871 43 – 51 Cowper Wharf Road Tel: (02) 9394 7600 Email: [email protected] Woolloomooloo NSW 2011 Fax: (02) 9394 7601 Web: www.caama.com.au Tel: (02) 9356 2566 Email: [email protected] Toll Free: 1800 221 457 Web: www.copyright.com.au Daki Budtcha Fax: (02) 9358 6475 PO Box 3261 Phonographic Performance Email: [email protected] South Brisbane QLD 4101 Company of Australia – PPCA contacts Web: www.artslaw.com.au Tel: (07) 3846 7722 PO Box Q20 Fax: (07) 3846 7020 Australian Copyright Council Queen Victoria Building Email: [email protected] ... PO Box 1986 Sydney NSW 1230 Web: www.dakibudtcha.com.au Strawberry Hills NSW 2012 Tel: (02) 8263 1100 Arts Queensland – Aboriginal Arts WA Redfern NSW 2016 Fax: (02) 9264 5589 Songlines Music Tel: (02) 9318 1788 Email: [email protected] Aboriginal Corporation and Torres Strait Islander Unit PO Box 8349 Fax: (02) 9698 3536 Web: www.ppca.com.au PO Box 5300 Perth Business Centre WA 6849 PO Box 574 Email: [email protected] Cairns Mail Centre Qld 4870 Tel: (08) 9224 7310 Port Melbourne VIC 3207 Arts policy and funding Web: www.copyright.org.au Screenrights Tel: (07) 4048 1411 Toll Free (WA): 1800 199 090 Tel: (02) 9696 2022 PO Box 1248 Fax: (07) 4048 1410 Fax: (08) 9224 7311 Fax: (02) 9696 2183 Aboriginal and Torres Indigenous Cultural and Neutral Bay NSW 2089 Strait Islander Arts Board, Email: [email protected] Email: [email protected] Email: [email protected] Intellectual Property website Tel: (02) 9904 0133 Australia Council Web: www.arts.qld.gov.au Web: http://hosted.at. Web: www.songlines.com.au Web: www.icip.lawnet.com.au Fax: (02) 9904 0498 imago.com.au/artswa/ PO Box 788 Arts SA Email: [email protected] Yothu Yindi Foundation Strawberry Hills NSW 2012 Copyright collecting GPO Box 2308 Department of Web: www.screen.org 1st Floor, 16 Bennet Street Tel: (02) 9215 9065 societies Adelaide SA 5001 Communications, Darwin NT 0800 Toll Free: 1800 226 912 Export Tel: (08) 8463 5444 Information Technology Ph: (08) 8941 0202 Fax: (02) 9215 9061 Australian Mechanical Fax: (08) 8463 5420 and the Arts Fax: (08) 8941 1088 Email: [email protected] Copyright Owners Austrade Email: [email protected] GPO Box 2154 Email: [email protected] Web: www.ozco.gov.au Society – AMCOS GPO Box 2449 Web: www.arts.sa.gov.au Canberra ACT 2601 Web: www.garma.telstra.com Locked Bag 3665 Darwin NT 0801 Arts NT Tel: (02) 6271 1000 Arts Tasmania St Leonards NSW 2065 Tel: (08) 8981 8686 Indigenous Fax: (02) 6271 1901 GPO Box 1774 GPO Box 646 Tel: (02) 9935 7900 Fax: (08) 8981 4349 organisations Email: [email protected] Darwin NT 0801 Hobart TAS 7001 Fax: (02) 9935 7999 Web: www.austrade.gov.au Web: www.dcita.gov.au Tel: (08) 8924 4400 Tel: (03) 6233 7308 Email: [email protected] Aboriginal and Torres Strait Indigenous music Islander Commission - ATSIC Fax: (08) 8924 4409 Fax: (03) 6233 8424 Web: www.amcos.com.au NSW Ministry for the Arts organisations Email: [email protected] Email: arts.tasmania PO Box 17 PO Box A226 Web: www.nt.gov.au/cdsa/dam @arts.tas.gov.au Australasian Performing Woden ACT 2606 Sydney South NSW 1235 Rights Association – APRA Broome Musicians Aboriginal Web: www.arts.tas.gov.au Tel: (02) 6121 4000 Arts Queensland Corporation – BMAC Tel: (02) 9228 5533 Locked Bag 3665 Toll Free: 1800 079 098 (NSW) PO Box 2708 GPO Box 1436 Arts Victoria Toll Free : 1800 358 594 St Leonards NSW 2065 Fax: (02) 6281 0722 Fax: (02) 9228 4869 Broome WA 6725 Brisbane QLD 4001 Private Bag No 1 Tel: (02) 9935 7900 Web: www.atsic.gov.au Email: [email protected] Tel: (08) 9192 1325 Tel: (07) 3224 4896 South Melbourne VIC 3205 Fax: (02) 9935 7999 Web: www.arts.nsw.gov.au Fax: (08) 9193 6407 Toll Free (Qld): 1800 175 531 Tel: (03) 9954 5000 Email: [email protected] Email: [email protected] Fax: (07) 3224 4077 Toll Free (Vic): 1800 134 894 Web: www.apra.com.au Web: www.goolarri.com.au Toll Free (Qld): 1800 175 532 Fax: (03) 9686 6186 Email: [email protected] Email: [email protected] Web: www.arts.qld.gov.au Web: www.arts.vic.gov.au

42 -SONG CULTURES CONTACTS-43 Australian Institute for Vibe Australia Aboriginal and Torres Strait 28 Burton Street Islander Studies - AIATSIS Darlinghurst NSW 2010 GPO Box 553 Tel: (02) 9361 0140 Canberra ACT 2601 Fax: (02) 9361 5850 Tel: (02) 6246 1111 Email: [email protected] Fax: (02) 6261 4286 Web: www.vibe.com.au Email: [email protected] Web: www.aiatsis.gov.au Music industry organisations Gadigal Information Service acknowledgments PO Box 966 ARIA – Australian Record Strawberry Hills NSW 2012 Industry Association Tel: (02) 9564 5090 ... PO Box Q20 Fax: (02) 9564 5450 Queen Victoria Building Email: [email protected] Sydney NSW 1230 Terri Janke & Company would like to Web: www.gadigal.org.au Tel: (02) 8263 1144 acknowledge the role of David Milroy in Fax: (02) 9267 7962 developing this document. Goolarri Media Enterprises Email: [email protected] We thank Helena Zilko whose contribution as editor PO Box 2708 Web: www.aria.com.au Broome WA 6725 assisted in bringing the five protocol guides into a Tel: (08) 9192 1325 Music Council of complementary set. Fax: (08) 9193 6407 Australia - MCA We also acknowledge the contribution of the Email: [email protected] PO Box 287 following people who provided comments on early Web: www.goolarri.com.au Double Bay NSW 2028 drafts. Their feedback was invaluable in the Tel: (02) 9251 3816 development of Song Cultures. Island Coordinating Council Fax: (02) 9251 3817 Helen Anu – Singer and performer PO Box 501 Email: [email protected] Thursday Island Qld 4875 Web: www.mca.org.au Linda Barwick – Musicologist Tel: (07) 4069 1446 Peter Cleary – Woomera Aboriginal Corporation Fax: (07) 4069 1868 Lola Forester – Actor, SBS broadcaster Torres Strait Islander Grant Hanson – Musician, Songlines Music Media Association Toni Janke – Singer PO Box 385 Ade Kukoyi – Daki Budtcha Thursday Island QLD 4875 Tel: (07) 4069 1524 David Milroy – Yirra Yaakin Noongar Theatre Fax: (07) 4069 1886 Scot Morris – Director, International Relations, APRA Email: [email protected] Rose Pearce – Music NSW Torres Strait Regional Karl Neuenfeldt – Producer, musician Authority and musicologist PO Box 261 Charles Trindall – Musician and arts advisor Thursday Island QLD 4875 Tel: (07) 4069 0700 Fax: (07) 4069 1879 Email: [email protected] Web: www.tsra.gov.au

44 -SONG CULTURES ACKNOWLEDGMENTS-45 46 -SONG CULTURES