..Aboriginal and Torres Strait Islander Arts Board, Australia CouncilPO Box 788Strawberry Hills NSW 2012Tel: (02) 9215 9065Toll Free: 1800 226 912Fax: (02) 9215 9061Email: atsia@ozco.gov.auwww.ozco.gov.au

ISBN: 0 642 47239 4 Song Cultures: Protocols for Producing Indigenous Australian Music

cultures. S O N G . . . . .Protocols for Producing Indigenous Australian

Music

An initiative of the Aboriginal and Torres Strait

Islander Arts Board of the Australia Council

contentsIntroduction 1

Using the Song Cultures guide 2What are protocols? 2What is Indigenous music? 3Special nature of Indigenous music 4

Indigenous heritage 5Current protection of heritage 6

Principles and protocols 8Respect 8

Acknowledgment of country 8Accepting diversity 8Representation 9Living cultures 9

Indigenous control 9Communication, consultation and consent 10

Performing and recording communally owned music 10Legal and customary law effects 10Permission to use particular instruments 11

The didgeridoo 11What about sampling music that is already recorded? 11Consenting to rearrange or re-mix music 12

Festivals, concerts and events 12Interpretation, integrity and authenticity 13

Interpretation 13Integrity 13Authenticity 13

Secrecy and confidentiality 14Secret and sacred material 14

Bull-roarer 14Use of life stories 14Representation of deceased people 14

Attribution 15Recording contracts 15Distribution, promotional materialand cover artwork 16

Proper returns 17Royalties 17Registration 17

Royalties and Indigenous music 17Festivals, concerts and events 18

Continuing cultures 18Recognition and protection 18Resources 19Who’s Who in the development of musical works 20

Copyright 21What is copyright? 21

How does copyright protect music? 21How is music reduced to material form? 21Who owns copyright? 22Copyright exceptions 22How long does copyright last? 22

What rights do copyright owners have? 22Collaborative works 23

Communal ownership vs. joint ownership 23Copyright and performers rights 24

Performing a cover version of a song 24Copyright and recording 24

What is the legal effect of making a sound recording? 24

What is the public domain? 25What are moral rights? 25 Licensing use of music 26

Assigning copyright vs. licensing 26New technologies 26Managing copyright to protect your interests 27

Copyright notice 27Moral rights notice 28

When is copyright infringed? 28Fair dealings provisions 28Crown use of artworks 29Library copying 29

Further copyright information 29Copyright collecting societies 29

Follow up 32Applying the protocols 32 Respect 32Indigenous control 33Communication, consultation and consent 33Interpretation, integrity and authenticity 34

Interpretation 34

IMPORTANT NOTICE - The information included in this guide is current as at Sydney, May 2002. This guide provides general advice only. It is not intended to be legal advice. If you have a particular legalissue, we recommend that you seek independent legal advice from a suitably qualified legal practitioner.

© Commonwealth of Australia 2002

Writer:Robynne QuigginSolicitorTerri Janke & CompanyEntertainment, Cultural Heritage and Media Lawyers and Consultants

Peer Review:David Milroy - Artistic DirectorYirra Yaakin Noongar Theatre

Design & Typesetting: L&L Design & Production

Artwork: joorroo, Darrell Sibosado, 2002Photography: Fiona Prince, 2002

Integrity 34Authenticity 34

Secrecy and confidentiality 34Attribution 35Proper returns 35Continuing cultures 35Recognition and protection 35Copyright 36

Musical works 36Sound recordings 37Copyright infringement 37

References 38

Bibliography 40

Contacts 42

Acknowledgments 45

I N T R O D U C T I O N - 1

Indigenous music is a voice that crossesboundaries. It is the true voice of this countrybecause it is linked to the land. It enriches thisnation, and shows the nation’s true identity.1

David Milroy

Indigenous Australians, the Aboriginal and TorresStrait Islander people, are the original owners andinhabitants of Australia.

In Indigenous cultures the artist is a custodian ofculture, with obligations as well as privileges.

Indigenous people’s right to own and control theircultural heritage is known as ‘Indigenous culturaland intellectual property rights’. The term is used inOur Culture: Our Future2 to refer to those rights asthey are developing within international law. Since1998, when Our Culture: Our Future was firstpublished, the term ‘Indigenous heritage rights’ hasgained more favour in the international arena. Inthe Song Cultures guide we use ‘Indigenousheritage’ to refer to these rights.

Indigenous heritage comprises all objects, sites and knowledge transmitted from generation togeneration. Indigenous people’s heritage is a livingheritage. An Indigenous person’s connection with theland, water, animals, plants and other people is anexpression of cultural heritage. Writing, performing,song, the visual arts and more recently, new media,are ways of transmitting Indigenous cultural heritage.

As primary guardians and interpreters of theircultures, Indigenous people have well-establishedprotocols for interacting with their cultural material.New situations also require cultural protocols. Song Cultures guides the reader through many ofthese protocols.

Song Cultures is one in a series of five Indigenousprotocol guides published by the Australia Council’sAboriginal and Torres Strait Islander Arts Board. The guides reflect the complexity of IndigenousAustralian culture, and provide information andadvice on respecting Indigenous cultural heritage.Although each of the guides address culturalprotocols specific to an Indigenous artform, they areshaped by the same underlying principles – thebackbone of the protocols. The five guides in theseries are:

• Writing Cultures

• Performing Cultures (Drama/Dance)

• Visual Cultures

• Song Cultures

• New Media Cultures.

The Indigenous protocol guides will have relevancefor everyone working in or with the Indigenous artssector, including:

• Indigenous and non-Indigenous artists

• People working within related fields ofIndigenous artform practice

• Federal and state government departments

. . .introduction

It is important to note the diversity and complexity ofthe many different Indigenous cultures in Australia.Ways of dealing with issues and cultural materialmay differ from community to community. There arealso many different protocols across the diversity ofurban, rural and remote communities.

While it is not possible to prescribe universal rulesfor transacting with Indigenous musicians and theircommunities, there are some fundamental principleswithin which to conduct respectful work.

The protocols outlined in Song Cultures are shapedby nine fundamental principles. The protocols are,by definition, ways of actioning these principles.For example, a cultural protocol to action theunderlying principle of respect is to acknowledgethe Indigenous custodians of country at the site ofeach performance or event.

Song Cultures identifies many specific protocolswhich can be applied or adapted by Indigenousmusicians, singers, songwriters, record companies,event managers, arts organisations and othersworking with Indigenous music.

Song Cultures also aims to formally identify issuesarising from the interaction between Indigenouscultural concerns and the law protecting the rightsof artists. The Australian legal system incorporatessome but not all of these concerns.

While protocols differ from legal obligations, Song Cultures outlines the current copyright lawframework. The process of following the protocolssupports the recognition of Indigenous heritagerights. It encourages culturally appropriate workingpractices, and promotes communication between allAustralians with an interest in Indigenous music.

What is Indigenous music?

Indigenous music is an important part of Indigenous culture.

Music 3 is about expressing cultural belonging. It is part of ceremony, storytelling, celebration,mourning, coming together and telling of the eventsin Indigenous people’s lives, both past and present.3

Indigenous music is not easily divided intocategories of traditional and contemporary styles,despite common perceptions. In Song Cultures,‘traditional’ refers to works that have drawn materialfrom a pre-existing cultural base.

Indigenous music refers to

• music and lyrics• instrumental pieces • Indigenous rhythms and song cycles

that are created primarily by Indigenous Australianpeople, or based on the cultural property ofIndigenous Australian people.

Indigenous music draws on and embraces the fullrange of music styles and forms including pop,country and western, disco, opera, rap, techno,and rhythm and blues.

Similarly, Indigenous musicians use a range ofinstruments including the didgeridoo and clap sticks,but also guitar, drums, piano and saxophone.

In many instances music has developed as part of a collaborative process, created with non-Indigenous people.

I N T R O D U C T I O N - 32 - S O N G C U L T U R E S

• Industry agencies and peak organisations

• Galleries, museums and arts centres

• Educational and training institutions

• Indigenous media and targeted mainstream media.

We hope Indigenous people, and those workingwith Indigenous people, will be inspired to use theprinciples as a framework for developing protocolsappropriate to their specific projects, languagegroups, regions, clans and communities.

We also hope the guides will spark debate andthat additional protocols will be developed acrossartforms. Your comments and ideas can beforwarded to atsia@ozco.gov.au or DirectorAboriginal and Torres Strait Islander ArtsAustralia CouncilPO Box 788Strawberry Hills NSW 2012

Using the Song Cultures guide

Song Cultures is written as a first point of referencein planning a work with Indigenous musicpractitioners, or Indigenous cultural material. Whenyou need specific advice on the cultural issues of aparticular group, we recommend that you eitherspeak to people in authority, or engage anIndigenous cultural consultant with relevantknowledge and experience.

It is important to read all sections of this publication.

The Introduction defines protocols as used in thisguide, and looks at the special nature of Indigenous music.

The next section, Indigenous Heritage, is animportant overview of the issues that inform thedevelopment of Indigenous protocols. It looks at thecomplex web of relationships in IndigenousAustralia, and how this might impact on the

planning of a music or song project. It also chartsinternational initiatives for the protection ofIndigenous cultural and intellectual property rights.

The key section, Principles and Protocols, presentsnine principles we have developed to support theprotection of Indigenous cultural heritage. There isvaluable information on protocols specific to the useof cultural heritage material in the context of music. A number of case studies and commentaries fromIndigenous music practitioners identify pitfalls andoffer advice.

The Copyright section contains general informationand advice on the main law in Australia governingthe use and reproduction of arts and culturalexpression.

Follow Up provides a checklist of key points toconsider when developing appropriate protocols fora music project. It offers different and more specificinformation than the preceding sections. Wetherefore suggest you use the points outlined inFollow Up together with the Principles andProtocols and Copyright sections.

What are protocols?

Protocols are appropriate ways of using Indigenousmusic and cultural material, and interacting withIndigenous musicians and Indigenous communities.Protocols encourage ethical conduct and promoteinteraction based on good faith and mutual respect.

Indigenous protocols arise from value systems andcultural principles developed within and acrosscommunities over time.

Responsible use of Indigenous cultural knowledgeand expression will ensure that Indigenous culturesare maintained and protected so they can bepassed on to future generations.

. . .

. . .

I N D I G E N O U S H E R I T A G E - 5

Indigenous music is an important means ofexpressing Indigenous heritage – past, present and future. Indigenous heritage, enshrined inIndigenous cultural and intellectual rights, isdiscussed at length in Our Culture: Our Future.7

The music industry can adapt a ‘best practice’approach by encouraging respect for the cultures of Indigenous Australians. It can do this byacknowledging their innate value, their differencefrom other cultures, and by respecting Indigenousownership and control of Indigenous heritage.

All Indigenous artists are responsible forsafeguarding cultural knowledge. They need toensure that Indigenous cultures, both in the past andtoday, are protected and maintained in their works.In this way these cultures can be passed on tofuture generations.

There is not one, but many Aboriginal or Torres StraitIslander cultures. These cultures have developed overthousands of years and have been passed downfrom generation to generation. Despite the enormousimpact of the invasion in 1788, Indigenous cultureshave continued to develop.

An Indigenous person’s connection with Indigenousheritage is expressed in contemporary life through hisor her relationship with land, waterways, animals andplants, and his or her relationships with other people.

Aboriginal and Torres Strait Islander people have awell developed and complex web of relationshipsbased on family ties, clan belonging, languagegroup affiliations and community, organisation andgovernment structures. A range of authority structuresexists across urban, regional and remotecommunities. It is important to acknowledge thecomplexity of Indigenous Australia when negotiatingthe use of Indigenous heritage for a music project.

Indigenous Australians are concerned that there isno respect for their Indigenous cultural knowledge,stories and other cultural expression in the widerAustralian cultural landscape. Concerns include the current legal framework that does not promoteor protect the rights of Indigenous people –particularly to own and control representation anddissemination of their stories, knowledge and othercultural expression.8

The process of following the protocols not onlysupports Indigenous heritage rights, but alsopromotes diversity and new initiatives in Indigenousmusic, and culturally appropriate outcomes.

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Indigenousheritage

Special nature of Indigenous music

For Indigenous cultures music and song are centralto identity, place and belonging, and are anexpression of a unique and continuing tradition.

Indigenous music has an important place in thetransmission and survival of Indigenous cultures. It has been a primary means of:

• renewing and teaching law and culture• ceremony• storytelling• preserving language• entertainment• recording personal stories • recording stories of common Indigenous

Australian experience• telling Indigenous experience to the

wider community • celebrating • showcasing and sharing Indigenous experience

through collaborative writing, performancerecording

• sharing Indigenous experience with audiences inAustralia and overseas.

Music is created as a solo or collaborativeendeavour. The nature of collaborative work raisesmany issues for Indigenous performers around theuse of cultural property and appropriate productionof their work. Some issues of concern include:

• Who has the right to use Indigenouscultural material?

• Who has the right to speak for the owners of Indigenous cultural material?

• What is the proper treatment of Indigenouscultural material such as creation stories, songcycles, rhythms, language and other forms?

New musical styles – including ‘world music’ andthe technique of ‘sampling’ Indigenous music,originally recorded by ethnomusicologists andstored in archives or libraries – has caused distressto the Indigenous custodians who were neverconsulted about this use.4

• Is the diversity of Indigenous music respected?In an era of new and emerging artists andstyles, many Indigenous musicians want to berecognised for their particular style and talent,rather than being subjected to stereotypes heldby others.

Some contemporary Indigenous musicians andcomposers have complained that record companies,keen to have Indigenous product, are requestingthem to perform what are described as ‘tribal style’or traditional songs.

They say that record companies show little interestin new works based on contemporary Indigenouslifestyles. One record company returned a tape ofsongs by an Indigenous performer, saying ‘Theseare great – but could you sing something abouthow the kookaburra got its laugh? ’.5

• What can be done to further promoteand protect the rights of Indigenous people toown and control their Indigenous heritage withinthe current legal framework? 6

• How is Indigenous music properly attributed?

• What about adaptations of Indigenous music,such as remixing and re-recording?

There are many other important issues raised by the development of Indigenous music and song. Song Cultures offers some ideas for dealing withthese issues.

I N D I G E N O U S H E R I T A G E - 76 - S O N G C U L T U R E S

Our Culture: Our FutureIndigenous cultural and intellectualproperty rights refers to Indigenouspeople’s cultural heritage.

Heritage comprises all objects, sites andknowledge – the written nature or usewhich has been transmitted or continuesto be transmitted from generation togeneration, and which is regarded aspertaining to a particular Indigenousgroup or its territory.

Indigenous people’s heritage is a livingheritage and includes objects,knowledge, artistic literary, musical and performance works which may becreated now or in the future, and basedon that heritage.

Indigenous cultural and intellectualproperty rights include the right to:

• own and control Indigenous culturaland intellectual property

• ensure that any means of protectingIndigenous cultural and intellectual property is based on the principle of self-determination

• be recognised as the primaryguardians and interpreters oftheir cultures

• authorise or refuse to authorise thecommercial use of Indigenouscultural and intellectual property,according to Indigenous customary law

• maintain the secrecy of Indigenous knowledge and othercultural practices

• full and proper attribution

• control the recording of culturalcustoms and expressions, theparticular language which may beintrinsic to cultural identity,knowledge, skill and teaching of the culture.

For a full list of rights see Our Culture: Our Future9

Current protection of heritage

Australia’s current legal framework provides limitedrecognition and protection of these rights. Our Culture: Our Future recommended significantchanges to legislation, policy and procedures. As yet there has been no formal response to theserecommendations from the Australian government.Much of the rights recognition has been done at an industry and practitioner level, through thedevelopment of protocols and use of contracts tosupport the cultural rights of Indigenous people.

Across the world, Indigenous people continue tocall for rights at a national and international level.Indigenous people are developing statements anddeclarations which assert their ownership andassociated rights to Indigenous cultural heritage.These statements and declarations are a means ofgiving the world notice of the rights of Indigenouspeople. They also set standards and develop anIndigenous discourse that will, over time, ensure thatIndigenous people’s cultural heritage is respectedand protected.

The Draft Declaration on the Rights of IndigenousPeoples states, in Article 29:

Indigenous peoples are entitled to therecognition of the full ownership, control andprotection of their cultural and intellectualproperty. They have the right to specialmeasures to control, develop and protect theirsciences, technologies and culturalmanifestations, including human and othergenetic resources, seeds, medicines,knowledge of the properties of fauna andflora, oral traditions, literatures, designs andvisual and performing arts.10

The Mataatua Declaration on Indigenous Culturaland Intellectual Property Rights, in Article 8, urgesIndigenous people to ‘develop a code of ethicswhich external users must observe when recording(visual, audio, written) their traditional andcustomary knowledge’.11

Draft Principles and Guidelines for the Protection ofthe Heritage of Indigenous People (1993) wereadopted by ATSIC’s Indigenous Reference Groupin1997.12 Article 39 states:

Artists, writers and performers should refrainfrom incorporating elements derived fromIndigenous heritage into their works without theinformed consent of the Indigenous owners.

In January 2002, the World Intellectual PropertyOrganisation’s International Forum, IntellectualProperty and Traditional Knowledge: Our Identity,Our Future, held in Muscat, Oman, adopted aDeclaration recognising that ‘traditional knowledgeplays a vital role in building bridges betweencivilisations and cultures, in creating wealth and inpromoting the human dignity and cultural identity oftraditional communities’.13

Internationally, the World Intellectual PropertyOrganisation has established an intergovernmentalcommittee on intellectual property and geneticresources, traditional knowledge and folklore todiscuss intellectual property issues that arise in thecontext of:

• access to genetic resources and benefit-sharing

• protection of traditional knowledge, innovationsand creativity

• protection of expressions of folklore.14

Regionally, a model law for protecting traditionalknowledge in the Pacific was drafted andcompleted in July 2002. The Pacific RegionalFramework for the Protection of TraditionalKnowledge and Expression of Culture establishes‘traditional cultural rights’ for traditional owners oftraditional knowledge and expression of culture.15

The prior and informed consent of the traditionalowners is required to:

• reproduce or publish the traditional knowledgeor expressions of culture

• perform or display the traditional knowledge orexpressions of culture in public

• make available online or electronically transmitto the public (whether over a path or acombination of paths, or both) traditionalknowledge or expression of culture

• use the traditional knowledge or expression ofculture in any other form.

. . .

P R I N C I P L E S A N D P R O T O C O L S - 9

. . .

8 - S O N G C U L T U R E S8 - S O N G C U L T U R E S

The principles outlined below are a framework forrespecting Indigenous heritage:

• Respect

• Indigenous control

• Communication, consultation and consent

• Interpretation, integrity and authenticity

• Secrecy and confidentiality

• Attribution

• Proper returns

• Continuing cultures.

In the following pages, under each of theseprinciples, we have suggested protocols for usingIndigenous cultural material, and interacting withIndigenous artists and Indigenous communities.

RespectRespectful use of Indigenous cultural material andinformation about life experience is a basic principle.

Acknowledgment of country

Indigenous Australians, the Aboriginal and TorresStrait Islander people, are the original inhabitants of Australia.

When organising a performance or event, it isrespectful to seek the consent of the Indigenousowners of the land.

If consent is given, it is important to acknowledgecountry and custodians at the site of each festival,concert or public performance. Seek advice fromthe Indigenous community on the preferred mannerof acknowledgment.

Accepting diversity

Indigenous musicians come from many differentbackgrounds, learn their art in many different ways,and express their music in many different styles. It is important that Indigenous cultural expression iscelebrated instead of restricted.

Most artists feel the pressure to produce work thatwill appeal to the commercial market. Indigenousmusicians are often under the additional pressure tocreate music that fits stereotypical ideas.

Indigenous musicians are tired of answering questionsabout why they don’t play the didgeridoo, or whythey are not singing in their language, or why they want to compose songs about their feelings and personal experiences.

Indigenous musicians have also confirmed thatracism is ‘alive and well in the music industry ’.16

An increase in Indigenous music publishers,managers and promoters who can provide culturallyappropriate advice and services will benefit themusic industry and Indigenous musicians.17

principles andprotocols

Representation

Derogatory or outdated perspectives andterminology should be avoided.

Living cultures

Indigenous cultures are living and evolving entities,not simply historical phenomena.

Indigenous musicians draw upon their pre-existingcultural base in many different ways.

This may include cultural expression based onparticular Indigenous experience such as ArchieRoach’s ‘Took the Children Away’, Seaman Dan’s ‘TI Blues’ and Marlene Cummins ‘Pension DayBlues’. It includes works like ‘We Have Survived’by No Fixed Address, calls for political action as inYothu Yindi’s ‘Treaty Now’, and comments on waysof life found in the work of the Pigram Brothers.

It is important to respect the diversity of culturalexpression in Indigenous music, and acknowledgeits ongoing development through different styles and forms.

Indigenous controlIndigenous people have the right to self-determinationin their cultural affairs and the expression of theircultural material. There are many ways in which thisright can be respected in the composition, productionand performance of music.

One significant way is to discuss how Indigenouscontrol over a project will be exercised. This raisesthe issue of who can represent clans and who cangive clearances of traditionally and collectivelyowned material.

To consult effectively and gain consent for use ofIndigenous cultural material in a particular project,the Indigenous people with authority for specificstories, geographic locations, rhythms, song cyclesand instruments need to be identified.

Speaking to the right people is very important.Indigenous communities, whether regional, urban orremote, have an infrastructure of organisations andindividuals who can advise on a range of issues – including guidance about locating Indigenous

people with authority to speak for specificIndigenous cultural material.

For initial contacts we recommend the following directories.

• National Directory of Aboriginal and TorresStrait Islander Organisations. Published forATSIC and available from Crown Content on (03) 9329 9800 or www.crowncontent.com

• The Black Book Directory 2000 – IndigenousArts & Media Directory. Published by BlackfellaFilms and available from AIATSIS on (02) 6261 4200 or www.aiatsis.gov.au

If your project involves a visit to Aboriginal lands orouter Torres Strait Islands, permission must beobtained from the local Land Council or Trust, or therelevant Community Councils. For a list of Indigenousauthorities consult the National Directory ofAboriginal and Torres Strait Islander Organisations.

Some other useful starting points forinquiries include:

• Aboriginal Land Councils

• Aboriginal and Torres Strait Islander Commission

• Torres Strait Regional Authority

• Island Coordinating Council

• Australian Institute of Aboriginal and Torres StraitIslander Studies

• relevant individuals or family members

• elders and custodians of relevant Indigenousclans and groups

• Indigenous language centres

• Indigenous curatorial staff at local keepingplaces, state and national galleries, museumsand libraries

• State and territory government arts departmentsin NSW, WA, QLD, SA, TAS and NT which have staff dedicated to Indigenous arts programs.

Indigenous people have formed organisations andcompanies to represent their interests in the musicindustry. See the Contacts section in this guide forfurther information.

The next case study shows the importance ofinforming custodians and performers of theproposed uses of a recording. In this case therewas no proper consent to commercial exploitationof the music and no royalties were paid to the owners.

case study

Recording communally owned music During the 1970s a number ofrecordings were made of traditionalsongs from Central Australia forethnographic purposes. One suchrecording is now being sold commerciallythrough tourist shops at Sydney’sDarling Harbour. ‘ The Indigenousperformers of the songs complain thatthey have not received any royaltiesfrom the sale of the album. They wereunder the impression that the song wasrecorded to preserve the knowledge of the song as part of a languagemaintenance program. They were nottold that the recording would be soldfor profit.’ 20

Permission to use particularinstruments

Some Indigenous people feel there should berestrictions on the use of particular instruments in accordance with customary laws or practice.

Use of the bull-roarer, for instance, is subject toceremonial restrictions: see the Secrecy andconfidentiality section. Communication, consultationand consent are essential.

The didgeridoo

There is diversity of opinion among Indigenousmusicians on the issue of who can play adidgeridoo. There is a strong belief that in mostinstances, women are not allowed to play theinstrument. Some Indigenous people feel stronglythat musicians should refer to the original custodiansof the didgeridoo for consent to play the instrument,particularly in view of widespread national andinternational sale and use of the didgeridoo.

Seeking permission shows respect for the status ofthe original instrument owners and respects theirright to permit, deny or restrict the way theinstrument is used.

Permission should always be sought for playing,performing or recording any didgeridoo songcycles belonging to clan groups.21

What about sampling music that isalready recorded?

Sampling Indigenous music from records held inarchives and incorporating the music in a newrecording has become common. The use of musicrecorded in the past by ethnomusicologists oranthropologists, and stored in archival institutions,has caused problems for some Indigenous people.

Sampling will generally require a copyrightclearance, in the form of a licence for use in a sound recording. Unauthorised use of asubstantial part 22 of a sound recording may infringethe rights of the copyright owners under theCopyright Act 1968 23.

Copyright in these old recordings often belongs tothe person who made the recording. Or if therecording is more than 50 years old, it may be inthe public domain. In that case, the archivalinstitution administers the recording of the music.

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Communication,consultation and consent Yothu Yindi describes the importance of this principle as:

The band ’s approach to its career is deeplyrooted in traditional decision makingprocesses, so all traditional songs that havebeen performed or released have been doneso as a result of substantial consultation withclan leaders and traditional lawmakers.18

Indigenous people should be consulted on the useand representation of their Indigenous heritage, and be informed about the implications of consent.

Consultation should address the communal nature of Indigenous cultural expression.

Performing and recordingcommunally owned musicWhen performing or recording communally ownedmusical works, it is important to seek permissionfrom the relevant community owners of the music.

Observing customary law means finding out whocan speak for that music, so the right people areasked for permission to use the music.

For instance, if a musician wanted to use a rhythmor phrase from music belonging to a Torres StraitIsland clan or family, it is essential to locate thecorrect clan or family group from the particularIsland owning that song or music.

If you can’t find the correct clan or family toask permission, that ’s a good reason not touse the music.19

In order to obtain proper consent it is necessary to:• provide adequate information • ask the right people• consult fully• be prepared that consent may be withheld.

The right of prior informed consent requires thatcustodians be given full information about theproposed use of the material. For instance, asongwriter may be composing an ad jingle orwriting a score for a play, teaching by performanceor writing music for a band to perform and record.If the songwriter hopes for widespread commercialexploitation, he or she should make this clear to theowners of cultural material.

Legal and customary law effects

The legal and customary law consequences shouldbe considered before recording communally owned music.

There are two issues to consider.

Copyright protection requires the work to have anidentifiable author. Some Indigenous material iscommunally owned, and there is no singleidentifiable author(s) as such.

Copyright law protects works in ‘material form’. In song cultures this generally means the writtenform or a sound recording. So, once an oral songis written or recorded, copyright in the song maybelong to the company or person who wrote orrecorded it, not the custodians of the song. Anyoneconsidering participating in the recording ofcommunally owned cultural material is advised toconsider the extent of copyright protection, and therequirements of customary law.

Because of these issues, proper communication andconsultation means understanding and explainingthese issues and all proposed uses of the work. This helps to ensure people are properly informedbefore giving their consent.

Customary law and cultural protocols should befollowed, and consultation should include discussionof proposed uses of the recording and theconsequences of wide distribution.

. . .

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. . .Interpretation, integrity and authenticity Indigenous musicians and their communities shouldhave control over how their cultural heritage ispresented. The presentation of a musical workincludes its interpretation, integrity and authenticity.

Interpretation

Interpretation refers to how cultural material isinterpreted and represented. This includes theperspective given to the cultural heritage materialand the language used.

In the past, Indigenous cultural material has beensubjected to interpretation by non-Indigenouspeople. Today, as Indigenous people seek toreassert and re-claim control over their culturalheritage material, Indigenous interpretation of thematerial is a way of enhancing the culturalsignificance of the work.

The context of the performance or recording is animportant consideration to ensure the music is notused in a disrespectful way.

It is very important that when Indigenous peopleare educating others – you have to get it right.25

For instance, an educational performance of songand dance, at a school, should include a goodbackground history of the music and be:

• accurate

• appropriate for children.

Consider interpretation and context in thepresentation of musical works:

• Words or phrases from particular languagesshould not be used just because they are‘language words’.

• Language should only be used where its propermeaning is known and where it is used in theproper context.26

• Cultural material should always be used in theappropriate context.

• Observe gender restrictions. For instance, theuse of the didgeridoo is generally thought to berestricted to men.

• Check that the musical work does not reinforcenegative stereotypes of Indigenous people.

• Check that the musical work does not exposeconfidential, personal or sensitive material.

Integrity

Integrity refers to the treatment of the original musicalwork and copies made of it. Under the Copyright Act1968, the moral right of protection for integrityprovides a right of protection for individual authorsagainst ‘derogatory ’ treatment of their work.For example, unauthorised sampling of Indigenousmusic may alter the original intention or meaning ofthe work and infringe the author’s moral rights.

Maintaining the integrity of a work is important forthe authors, but integrity of the work is also veryimportant for the Indigenous communities where thework originates. Unfortunately, there is no legalremedy yet for a community as a whole if a work issubjected to derogatory treatment. But the individualauthors can exercise their legal rights.

Authenticity

Authenticity refers to the cultural provenance of amusical work. This can be a complex question. For the purposes of this guide, authenticity may alsorefer to whether an Indigenous person produced themusical work; and whether it was produced withproper regard to Indigenous customary laws, orcultural obligations associated with the work.

Consultation and consent with Indigenouscustodians or their descendants is an important partof respectful use of these recordings.

There is a significant flow-on effect from theunauthorised use of Indigenous music for sampling.When recorded music is sampled without theconsent of Indigenous owners, there is a breakdownin the other principles.

There is no:

• authority or control over the work • respect for the integrity or authenticity in the use

of the work • respect for confidentiality or secrecy• proper return for its use• proper attribution • proper transmission of culture• proper recognition under law.

case study

Asking permission – and askingthe right people. In 1992 the album Deep Forest wasreleased. The album fused digitalsamples of Indigenous music fromGhana, the Solomon Islands andAfrican Pygmies with techno-dancerhythms. The band got access to thedigital samples from the recordists – ethnomusicologists who had workedwith these groups and deposited therecordings in a cultural archive.

Permission was not sought from thegroups whose songs were recorded.Some of the Indigenous musicians werenot credited for their contribution. The US album cover states that part of the proceeds were donated to the

Pygmy Fund, a charity that providessupport to the Efe people. But accordingto one observer, the music sampled wasnot from the Efe people.

There is no other evidence of Indigenousmusicians being paid for use of theirwork on the album. Large profits weremade with no returns to Indigenousmusicians. The music was appropriatedwithout consent or attribution, andpotential claims to copyright wereignored. All rights to self-determinationwere denied by these practices.24

Consenting to rearrange or re-mix music

It is adjustable to carefully consider the possibleeffects of consenting to the right of a recordingcompany to rearrange or re-mix music. If themusician is unhappy with the result, consent maymean he or she cannot complain that the re-mix orrearrangement is a breach of the musician’s moralright of integrity. This is the right not to have thework treated in a derogatory manner. It may alsocreate a new copyright in the adaptation.

Festivals, concerts and events

Festival and event organisers should consult withlocal communities for advice on cultural protocolsduring a festival, concert or event. Consultationsshould be held to discuss involvement of the localcommunity in the event, proper returns for the localcommunity, a welcome to country if appropriate,and meetings between the community and invitedguests or performers. Local communities will adviseon the cultural protocol for their area.

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. . .Helen Anu suggests the followingguidelines for the proper use of songs:

1. Find out the meaning of the songs.

2. Get a proper translation of the songs.

3. Get the context of the translation right.

4. It is important to ensure that theevent or venue at which the songwill be performed is appropriate forthe song. For instance, a politicalmeeting may not be an appropriatevenue for a particular song.

Performing the song at the wrongplace can ridicule the song. The context must be respected. 27

Secrecy and confidentiality Some Indigenous cultural material is not suitable forwide dissemination on the grounds of secrecy andconfidentiality. It is the responsibility of those puttingtogether music projects to discuss any restrictions onuse with the relevant Indigenous groups.

Secret and sacred material

The reproduction of secret and sacred music maybe a transgression of Indigenous laws.

‘Secret and sacred’ refers to information or materialthat, under customary laws, is:

• made available only to the initiated

• used for a particular purpose

• used at a particular time

• information/material that can only be seen andheard by particular clan members (such as menor women or people with certain knowledge).

Most material that is sacred has customary lawrestrictions on its use. The consultation processshould clearly state the proposed use and observeany restrictions according to gender or other customs.

Bull-roarer

The bull-roarer is used in a very restricted mannerby men, and only in ceremony. Although not strictlya musical instrument, the bull-roarer has beenincorporated into sound recordings. Musiciansworking in styles such as ‘world music’ are advisedto exercise extra vigilance when it comes toconsultation and consent for any proposed use.

Use of life stories

Are you planning to depict an identifiable individualor community? If so ask the individual, communityor relatives of the individual for permission.Observe close consultation and consent throughoutthe process.

It is important to avoid disclosing sensitiveinformation without discussion and consent.Confidential information must not be disclosedwithout permission from all Indigenous peopleaffected by the disclosure. Disclosure about a personwho has passed away will be very sensitive.

If a composer or lyricist uses details about anindividual’s life experiences, it is advisable toconsult with that individual. There may be importantcultural formalities to be observed in telling the storyin music or song.

Representation of deceased people

In many Indigenous communities, the reproductionof names and images of deceased Indigenouspeople is not permitted. If music or cover artwork is to represent a deceased person, surviving family members should be consulted and theirwishes observed.

AttributionIndigenous people should be attributed for the useof their cultural heritage material in musical works.

Under the moral rights provisions of the CopyrightAct, the right of attribution is recognised forindividual creators. The production of music – especially a recording – goes through a lot ofdifferent stages. It is respectful practice to creditindividuals, families, clans or communities whocontributed to the work at any stage.

It is important to consult on the form of attributionpeople may want such as proper wording andspelling of names.

This next case study shows the importance of givingcredit to all the people who collaborated on thecreation of a song. By attributing all the contributorsto the song, copyright is shared among them.

case study

Yothu Yindi’s ‘Treaty’– Treaty Mah!‘The songwriters and copyright ownerslisted on the sleeve of the recording areMandawuy Yunupingu, Paul Kelly,Galarrwuy Yunipingu, MilkaynguMunnungurr, Stuart Kellaway, Cal Williams and Gurrmul Yunupingu.28

The song primarily comprises of twoparts, the contemporary rock/dancesection and the traditional/manakayisection.29 All of the above songwritershad a hand in the writing of the rocksection of the song. The traditional section,I understand, is an Arnhem Land courtingsong, Djat’pangarri, which would have anumber of identifiable traditional owners,including the Yolgnu band.’ 30

Recording contracts

It is strongly advisable to get independent legaladvice before signing a recording contract. The owner of copyright in the recording will be theindividual or company who pays for it, unlessvaried by a term of the contract, so it is important to consider the contract carefully.

There are a number of other terms that musicians maywant to negotiate in a contract, such as the length oftime of the contract, who is credited on the recording,what the artwork and promotional material will looklike, who has creative control and many other issues.In addition to the standard clauses, Indigenousmusicians might want to include a clause thatincorporates cultural protocols.

Incorporating cultural protocols into recording dealswill assist in protecting Indigenous musicians andIndigenous culture.

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. . .Indigenous musicians should be consulted on thecover artwork and distribution of the recording.Artists should be properly attributed for any coverartwork. Similarly, Indigenous musicians shouldhave creative control over material used in thepromotion of performances and the recording.

Proper returnsRoyalties

Royalties are one important form of return formusicians. Copyright owners are entitled to receiveroyalties for broadcasts (radio, television and theInternet) and public performances of their songs.Collecting societies have been established to monitoruse, and collect and distribute fees or royalties owingto songwriters, composers and recording ownerswho are copyright owners. This system means thatcopyright owners are not individually trying to chaseup their royalty payments.

The Australasian Performing Rights Association(APRA) is a collecting society which distributesperformance and broadcast royalties to itscomposer and songwriter members. The otherrelevant collecting societies include AMCOS,PPCCA and Screenrights. You will find descriptionsof each of these societies at the end of theCopyright section.

Registration

Royalties are available to copyright owners whoare registered with the collecting societies. Unlessthe music copyright owner is registered with APRA,for instance, he or she cannot be paid royalties onthe public performance or broadcast of his or hersongs – so it is important to join and keep APRAupdated on your repertoire.

Royalties and Indigenous music

There are a number of reasons why Indigenousmusicians, songwriters and custodians of music arevulnerable to exclusion from the royalty system.

Some of the reasons are:

• The Copyright Act 1968 does not adequatelyprotect Indigenous heritage because it does notmeet the legal requirements of originality,material form and identifiable author.

• Some past recordings of Indigenous music haveresulted in copyright belonging to the personmaking the recording.

• Past recordings of Indigenous music were madeso long ago that the music is now in the publicdomain and is not protected by copyright.

• Appropriation of Indigenous music has occurredwithout consent or attribution, therefore ownersare not recognised as copyright holders.

• Indigenous people have not known aboutcopyright collecting societies and their functions,and generally, are not members.

This next case study shows how the failure to seekconsent of traditional owners and attribute them fortheir work, denied the owners of royalties from anextremely successful commercial song.

hypothetical

Attribution at the recording stageImagine an Indigenous performer whois recording his first CD and wishes torecord his version of a song written byan Indigenous singer/songwriter hereally admires.

He follows all proper protocols, seekingpermission and asking her how shewould like to be attributed on the CD.He tells the recording company aboutthis process and gives the company theproper form of attribution for thesinger/songwriter. But when the CD is produced the singer/songwriter is not credited.

The singer/songwriter is offended andthe performer is very upset that all hisinstructions were not followed through.

Since the introduction of moral rightslaw in 2000, this mistake not onlybreaches cultural protocol. It could bethe basis for legal action for failing toproperly attribute the composer.

Indigenous musicians might considerincluding cultural protocols in theirrecording contracts to ensure they are carried through at all stages of production.

Distribution, promotional materialand cover artwork

Songwriters who finance their own sound recordingwill generally be the copyright owner of therecording.31 The copyright owner of the recordingcan authorise the manufacture and distribution ofthe recording. It is recommended that writtencontracts are used and that legal advice isobtained before signing any contracts formanufacture, distribution and promotion.

case study

Distribution

An Indigenous community recorded itssongs and approached a record companyto distribute its CD. An agreement wassigned for distribution only. The recordcompany put a copyright notice on the CD, attributing copyright to therecord company. This was a falseattribution as copyright belonged to thecommunity. However, a notice of thecommunity’s rights was not publishedon the CD or cover.

The community was paid royalties forthe sale of the CDs.

The record company licensed the songsto a recording company in anothercountry. No permission was sought fromthe community. The songs wereincluded in a compilation album thatdid not properly attribute thecommunity as the source of the songs.The community successfully took actionagainst the record company for breachof copyright.

The company has since published anunreserved public apology.32

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. . .case study

The Ami in TaiwanIn 1999, an Ami couple from Taiwansettled their copyright infringementdispute against the band Enigma andVirgin Records America. The couple’sperformance of a traditional song,‘Jubilant Drinking Song’, wasappropriated by Enigma in their song‘Return to Innocence’, used as thetheme song of the 1996 OlympicGames in Atlanta.

The Kuos had not consented to this useand were not credited for their music.The original Kuos version of the musichad been recorded and stored by anethnomusicologist. This recording hadbeen used without consent orattribution in the Enigma song.

The Kuos settlement included:

• a written credit to be given on allfuture releases of the Enigma song

• a platinum copy of the album onwhich the song appears

• other confidential terms of settlement.33

Postscript: Difang Kuos went on torecord three albums of Ami music. The first, Circle of Life, made it to thetop of the World Music Chart in Tokyo.He passed away in March 2002.

Festivals, concerts and events

When organising a concert or other event, it isgood practice to contact APRA who will arrange forthe songwriters to be paid royalties for theperformance of their work. If tickets are sold to theconcert, APRA will arrange a concert promoter’s

license, and a fee to be paid and distributed to thecopyright owners. Organisers are asked to collectsong sheets from performers, prior to the event,so the royalties can be calculated.34 This applieseven if the event is not producing a profit.

Continuing culturesIndigenous people have responsibility to ensurethe practice and transmission of Indigenous cultural expression is continued for the benefit offuture generations.

Cultures are dynamic and evolving, and protocolswithin each group and community will also change.

Consultation is an ongoing process, and thoughtshould be given to ways of maintaining relationshipsfor future consultation. This might includeconsultation, at a later date, for further uses of themusic not envisaged at the initial consultation.

Recognition and protectionAustralian law and policies should be developedand implemented to respect and protect Indigenousheritage rights.

It is important for Indigenous musicians toestablish cultural protocols – but they must alsoknow their legal rights with copyright andcontracts. Make sure your songs are registeredwith APRA so that you receive your due incomefrom public performance. When writing songswith another person, have an agreement forsharing royalties.

Grant Hansen, Songlines Music

The Indigenous musician owns copyright in his or her songs. This means that he or she can control the reproduction and dissemination of his or her music. Such rights are granted under theCopyright Act.

It is important to understand these laws and how cultural material might be protected underthem. The Copyright section provides some general information.

There are currently no special laws dealing withIndigenous cultural material. The Copyright Act has been criticised for not recognising thecommunal ownership of heritage material and thecontinuing right of heritage custodians to control the use of this material.

The increasing level of non-Indigenousappropriation of Indigenous cultural material hascompelled Indigenous people to seek greaterprotection of Indigenous culture, including the call for new legislation recognising communal rights to culture. See Current protection of heritage in theIndigenous Heritage section of this guide.

ResourcesA number of protocol documents have beenproduced in recent years to meet the needs ofparticular communities, organisations, industries andsituations. The following are selected as usefulguides for people working in the music sector.

• Lester Bostock, The Greater Perspective: Protocoland Guidelines for the production of Film andTelevision on Aboriginal and Torres Strait IslanderCommunities, Special Broadcasting Services,Sydney,1997.

• Indigenous Arts Protocol: A Guide, IndigenousArts Reference Group, New South WalesMinistry for the Arts, Sydney, 1998.35

• Terri Janke, Doing It Our Way: ContemporaryIndigenous Cultural Expression in New SouthWales, Indigenous Arts Reference Group, New South Wales Ministry for the Arts, Sydney, 2002.

• Terri Janke, Our Culture: Our Future – Report onAustralian Indigenous Cultural and IntellectualProperty Rights, Michael Frankel & Company,Solicitors, for the Australian Institute of Aboriginaland Torres Strait Islander Studies and theAboriginal and Torres Strait IslanderCommission, Sydney, 1998.

• The Musicological Society of Australia (MSA)has adopted Guidelines for the Recognition ofIndigenous Culture and Custodianship ofCountry at National MSA Public Events,including a Welcome to Country policy whichstates in part: ‘It is the policy of MSA torecognise the Indigenous custodianship ofcountry where MSA public events are held, andacknowledge the continuing significance ofIndigenous culture in Australia.’

The Society recently amended its Constitution so that Article II (f) states: ‘The purpose of the MSA shall be, in collaboration with theperformers and owners of Indigenous music, topromote and support greater understanding andappreciation of Indigenous music in Australia.’

• Taking the Time – Museums and Galleries,Cultural Protocols and Communities, A ResourceGuide, Museums Australia Inc. (Qld), 1998.

• Previous Possessions, New Obligations, a policydocument produced by Museums Australia in1994 provides a way for museums to approachIndigenous cultures. A plain English version withcase studies has been published.

• Aboriginal and Torres Strait Islander Protocols forLibraries, Archives and Information Services,compiled by Alex Byrne, Alana Garwood,Heather Moorcroft and Alan Barries for theAboriginal and Torres Strait Islander Library andInformation Resources Network.

. . .

C O P Y R I G H T - 21

copyright

It is important for Indigenous musicians to developan understanding of copyright so they cannegotiate rights to their music under licence.

Songwriters and musicians retain copyright in theirmusic for 50 years after their death. Copyright inmusical recordings lasts for 50 years after therecording is made. Composers and lyricists canlicense other people to reproduce their work underan agreement. The agreement will include certainterms such as the fee for use, the purpose of theagreement, the nature of the rights granted and theperiod of time the agreement will last.

Copyright owners need to think about who willcontrol their copyright after their death. Anotherissue to consider is who will continue to receive any royalties.

This section provides general copyright informationfor Indigenous musicians. For specific legal advicewe recommend consulting a lawyer.

What is copyright? Copyright is a form of legal protection that providesthe creator of a work the right to exploit or utilisethe work, and prevent others from exploiting itwithout his or her permission.

The Copyright Act 1968 (Cth) is the main law inAustralia that governs the use, production anddissemination of literary, artistic, dramaticand musical works. There are no special laws forthe protection of Indigenous cultural andintellectual property.

How does copyright protect music?

The purpose of copyright is to protect the author’srights to exploit their work. The Copyright Act isdrafted to achieve that aim.

In general, copyright protects literary, artistic,musical and dramatic works that are reduced tomaterial form. This means a work must be in apermanent and tangible form.39 Copyright protectsthe written expression, or in the case of recordings,the recorded form. Copyright protects the expressionbut not the idea.

How is music reduced to material form?

Music is reduced to material form in a number ofways. Separate copyright exists in each of thefollowing forms:

• written version of the music

• written version of the lyrics

• recording of the song

• published edition of the song, for example,sheet music.

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Who’s Who in the developmentof musical worksARIA - The Australian Record IndustryAssociation represents recordingcompanies in the industry.

Arranger - Arrangers may do anumber of tasks. Generally, an arrangerchecks the structure of a song and addschoruses, verses, chord progressions orother changes to enhance or develop thesong.36 An arranger may also adapt amusical work from one musical mediumto another – for example, a techno piece from a classical composition.37

The copyright owner must givepermission for such an arrangement. To avoid any confusion about copyrightownership over arrangements it is bestto use a written agreement.

Composer - Author of the music

Lyricist - Author of the lyrics

Manager - A manager administers thecareer of an artist by providing adviceand organising the business aspects oftheir work. The manager charges themusician a fee in the form of acommission. In New South Wales theEntertainment Industry Act regulatesmanagers’ commissions and providesfor a compulsory licensing system.38 It isa good idea to get legal advice beforeentering into a management agreement.

Music publisher - The music publisheris the person or company whoadministers the copyright in the musicalwork and/or the published edition, onbehalf of the composer and songwriter.

The music publisher will arrangelicensing, sale, publication andpromotion of music, on behalf of themusician, when it is to be used by arecording company, film producer or apublisher of sheet music. Musicpublishers provide these services for afee. Legal advice should be soughtbefore signing an agreement.

Producer - A producer oversees artisticdirection and management of a recording. A producer may be anindividual or a company. A producermay or may not provide financialinvestment. A producer may be paid a fee for services that can includeoverseeing the hiring of sessionmusicians, arrangers, recording studios,and administrative tasks such asorganising copyright clearances fromsession musicians.

Sound Engineer - A sound engineerbalances and manipulates the musicduring the performance and/or recording.

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• mechanical right – the right to record a songonto DVD, CD or cassette.

• synchronisation right – the right to use themusic on the soundtrack of a film or video.

• performing rights 46 – the rights to perform themusic in public ( for example, to sing a song at aconcert or to play recorded music between sets ata concert ) and to otherwise communicate the workto the public (any method of communicating musicto the public, including TV, radio, Internet, cableservices and other media).47

Collaborative worksIn many instances songs are written by a number ofpeople. In this case, copyright ownership may beshared among the creators. There are two commonways where this might occur.

• Where one person has composed the musicand another has written the words, copyright inthe music will belong to the composer andcopyright in the words will belong to the lyricist.

• In situations where two or more individuals havecollaborated to create a musical work, and neither person’s contribution can beseparated from the other, the work is one of‘joint authorship’.

The writer must contribute to the work by way ofeffort, skill and labour. It is not enough to inspire ormake suggestions.

Each creator in a work of joint ownership ownscopyright in the resulting work.48 This means thateach creator must obtain the consent of the othersbefore exercising any of their rights under copyright.For example, if a composer or lyricist wants tolicense the rights to record a collaborative musicalwork, he or she must get the consent of all the other

copyright owners who participated in collaboration.

The Australasian Performing Rights Association (APRA)recommends that band members draft a writtenagreement setting out proportional contributions tomusical works. In this way royalties can be distributedaccurately, especially in circumstances where themusical work might outlast the life of the band.

Some songs and themes have been passed downthrough many generations, meaning that anindividual creator may not be able to be identified.Indeed, as much Indigenous cultural expression iscommunally owned, individual creators may not exist.As copyright, through the Copyright Act, belongs toindividuals as creators of works, the communalownership of Indigenous heritage such as clan storiesor clan knowledge is not recognised.

Identifying relevant clan or family owners can be adifficult task. Some Indigenous communities havebegun compiling registers and databases to keeprecords of ownership. The Woomera AboriginalCorporation, for instance, has developed a songsregister which is kept at Mornington Island. It assistswith cultural clearances but also serves as ateaching tool for passing on knowledge of songs.49

Communal ownership vs. joint ownership

In Bulun Bulun v R & T Textiles,50 the court decidedthat traditional Indigenous works containing‘traditional ritual knowledge’, handed down throughgenerations and governed by Aboriginal laws, are not works of joint ownership. Although underAboriginal laws the entire community may have aninterest in the particular work, and the stories andknowledge within the work, copyright does notrecognise the group as the owners.

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There is no copyright in a performance, althoughthere are some limited rights for performers: seeCopyright and performers rights in this section.

Issues can arise from Indigenous traditionalknowledge, dance, designs and stories that areorally or ephemerally transferred. These are not inmaterial form and are not automatically protectedunder standard copyright laws.

Who owns copyright?

In the case of a musical work, copyright belongs to the person or people who created the musicalwork. This is usually the person or people whowrote the music and lyrics. Copyright in a soundrecording is owned by the maker.40 The maker is the person or company that paid to produce the recording.

For instance, the song ‘Hearts Speak Out ’ waswritten by Toni Janke in 1992 and recorded by herin 1994. Toni is the copyright owner of the song’smusic and lyrics as well as the recording.

The copyright in the song and the CD is notedas follows:

© Words and Music Toni Janke 1992Recording Toni Janke 1994.

Copyright exceptions

There are some significant exceptions to the generalrule of copyright ownership.

• Where the work is produced under a contract of employment, copyright will belong tothe employer.41

• Where a work is produced under the directionor control of the Crown, copyright may belongto the Crown.42

• Where copyright has been assigned under awritten agreement, the agreement may specifywho owns copyright.

How long does copyright last?

Copyright protects musical, literary or dramaticworks during the lifetime of the author and for 50years after the death of the composer or lyricist.43

After this time has expired, the work is said to be inthe public domain.

Copyright in a sound recording generally lasts for50 years from the date of the recording.44

Once in the public domain, the law no longerprevents anyone from accessing or exploiting the material.

Indigenous people’s right to culture exists inperpetuity. To respect Indigenous heritage, it may be necessary to get permission to useIndigenous stories and other cultural expressions,even though legally they are in the public domain.

What rights do copyright owners have?The copyright owner has the exclusive right toauthorise use and copying of their musical works.For example, the copyright owner of a musicalwork has the exclusive right to do any or all of the following:

• reproduce the work in a material form • publish the work • perform the work in public• communicate the work to the public• make an adaptation of the work which may

include new arrangements of the music andtranslations of the lyrics.45

Music is reproduced in a number of ways.Reproductions include CD, radio, film soundtracks,Internet music files and the incidental ‘on hold’music recorded for telephone message systems. The rights to use music in different media aredescribed as:

. . .

P

C O P Y R I G H T - 25

who worked on the recording. Copyrightclearances must also be obtained from othercomposers or lyricists whose songs are recorded.If recording communally owned songs, it isrecommended that you seek permission from therelevant groups or families.

What is the public domain?Once copyright lapses the music is said to be in thepublic domain where the law no longer preventsanyone from accessing and exploiting the music.Indigenous people’s right to culture is not limited tothe 50 year period, and it may be necessary to getpermission to use Indigenous music even thoughlegally, it is in the public domain.

The operation of the Copyright Act creates anumber of problems when it comes to protectingIndigenous music.

One example is copyright in Indigenous musicrecorded by early anthropologists, now stored inarchives and libraries. Copyright belongs to theperson who made the recording or wrote thenotation of the music. In most cases, copyright inrecordings by anthropologists and ethnomusicologistsbelongs to the anthropologist or ethnomusicologist.Copyright in the music does not belong to thetraditional owners or performers of the music.

Another problem arises because once copyrightexpires after 50 years, the work is in the publicdomain with no copyright protection. Recordingsmade before 1952 are now in the public domain.

It should not be assumed that all rights to a songhave lapsed because one recording of the song is in the public domain. More recent recordings andadaptations of traditional music by Indigenousmusicians will be protected by copyright, andreproduction may infringe copyright.

What are moral rights?The moral rights provisions of the Copyright Actprovide some new ways to challenge derogatorytreatment of Indigenous musical works. Moral rightswere introduced into the Copyright Act inDecember 2000. These new laws provide thefollowing rights to musicians:

1. The right to be attributed as author

The author of a work has the right to be identifiedas the author where his or her work is reproducedin material form, published, performed, adapted,or communicated to the public.52 Musicians canrequire their names to be clearly and prominentlyidentified with their work.53

2. The right not to have work falsely attributedto another musician

Musicians can take action against parties whofalsely attribute others as creators of their works.

3. The right of integrity

An author can bring a legal action if work istreated in a derogatory manner, causing harm to the author’s honour or reputation.54

A musician cannot bring an action againstderogatory treatment if he or she agreed to thetreatment of the work. For instance, if a musicianagrees to a remix of the work and then objectsto the remixed version, the original consent maymean that he or she cannot bring an action forinfringement of the right of integrity.

Whether or not the work has been treated in aderogatory manner is subject to reasonabledefence. For instance, the alleged infringermight argue that the treatment was reasonablein all the circumstances.55 Prior to making anysignificant alterations to, or adaptations of amusical work, it is important to get the consentof the copyright owner in writing.

. . .

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The individual author is recognised as the copyrightowner and may have a special obligation to theclan to deal with the copyright in the music, inways that are consistent with Indigenous law.Depending on the circumstances, this obligationmay be enforceable in the courts.

Copyright and performers rightsThere is no copyright in a performance, soperformers do not have the same rights as thesongwriter, composer or recording company. The performers must give permission for a recordingor broadcast, but once permission is given, therecording can be used in any way, except as a filmsoundtrack. The recording can be used in a film ifthe performer consents at the time of recording.Performers may be asked to sign release forms whenperforming at concerts that are being filmed, orwhere the performance is included in a recording.

Performing a cover version of a song

One of the exclusive rights of a copyright holder isto perform his or her work in public. APRA andAMCOS act on behalf of music copyright ownersto administer this right. They do this by licensingand collecting licence fees from music users anddistributing these fees as royalty payments to thecopyright owners in the song and sound recording.

Venue owners should have a licence with APRA toplay music. The venue owner will require musiciansto provide song sheets listing the songs played atthe venue. The song lists are then given to APRAwhich distributes royalties to the songwriter,composer or recording owner.

Songwriters and composers are strongly advised toregister with APRA so their royalties can be paid.

In addition to the legal requirements, the customarylaw requirements for performing any traditional musicshould be observed. As a courtesy, many Indigenousperformers ask permission for use of songs, especiallysongs about personal or community experiences.

Once permission is granted, the next step is toensure that songwriters or custodians are givenproper acknowledgment and credit for their work.

Copyright and recordingRecording musical works creates a new set ofIndigenous cultural obligations because:

• a new copyright is created in the recording

• distribution of the recording creates wideexposure of the work and there are few controlsover its use.

Consultation and consent processes should addressany cultural restrictions on the music in recorded form.

What is the legal effect of making asound recording?

When music is recorded a copyright is created.The owner of copyright in a sound recording is theperson or company who pays for the making of thesound recording.51 The copyright owner will havethe rights to:

• copy the sound recording

• play the sound recording in public

• communicate the sound recording to the publicusing TV, radio, the Internet or telephone system.

Musicians who receive Australia Council grants torecord their music are in a strong position to retaincopyright ownership in both the underlying workand the recording. It is recommended that contractsbe used for recording so all copyright is held by thegrant recipient/musician. Clearances should beobtained from session musicians and technicians

C O P Y R I G H T - 27

The new right of communication to the public alsomeans that collecting societies such as APRA 56 havethe right to collect revenue for the use of copyrightmaterial in the digital domain. However, many ofthe MP3 files and other musical works on theInternet are unlicensed and used without permissionof the copyright owners. Licensing of the Internet isin its infancy and there are many legal andtechnological hurdles to be overcome.57

While the law provides these rights to musiciansand composers, it can be difficult to enforcebecause of the global nature of the Internet.Technology such as watermarking and encryptionnow provide some protection – but furtherdevelopments are necessary before music can beprotected from downloading. So while the rightsare there, musicians need to be aware of the limitsof technology once their musical works areavailable through the Internet.

Managing copyright toprotect your interestsAs copyright exists as soon as a work is created, it is not a legal requirement to register copyright.However, certain precautionary practices can show copyright belongs to you should there ever be acontest or case relating to infringement of your work.

Some people believe they need to mail therecording and the written song to themselves beforecopyright protects their songs. This is not true,although it might be useful for evidence. If there is acompeting claim to the song, you can show youown copyright as at the date of the postmark on theunopened envelope enclosing your music. Althougha creative idea, this is not necessary. The contest ofcopyright will involve a range of inquiries includingwhether or not the first original song is substantiallysimilar to the second alleged song copy.

It is important to keep good records and clearlylabel reproductions of your songs. It is also a goodidea to record the song (it doesn’t matter if it’s notof a professional broadcast quality), and writedown the lyrics as well.

Label all reproductions of the song, tape and CDclearly with the following information:

• title of the song

• songwriters

• performers

• date created

• copyright owners.

When authorising others to reproduce your songsmake sure you use written agreements and keeprecords of the rights you have granted. Ask forcopies of compilations.

Copyright notice

You should also include a copyright notice. A copyright notice provides information aboutacceptable uses and includes details aboutcontacting the copyright owner for consent to use in other material.

Some recordings use the words ‘All RightsReserved’. This is not necessary but if you arepublishing in some South American countries it maybe advisable. If you think your songs will first bepublished overseas, seek advice from a suitablepractitioner on appropriate wording.

The following is an example of a copyright noticefor a song:

All songs written and performed by Terri Janke.© Terri Janke, 1999*.

*The date of creation or the date the song wasfirst published.

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The Australian moral rights laws are new, and theirpotential to increase copyright protection forIndigenous musicians has not been fully explored.

One important point about moral rights is that theyare individuals rights. There is still no legalrecognition of communal ownership of Indigenouscultural material. However, individuals who havecreated a song can bring legal action if they arenot properly attributed for their work, if someoneelse is named as the creator, or if their work istreated in a derogatory manner.

Licensing use of musicCopyright is personal property and can be licensedunder agreement for a fee. A licence is the grant ofa right to use or deal with copyright in a work. Youcan put limits on the licence, including limitations oftime, territory and purpose. For example, you canlicense the rights to reproduce your music throughan airline’s inflight audio network for a period oftwo years. The copyright in the musical workremains with the copyright owner.

It should not be assumed that traditional Indigenousmusic is in the public domain. It is necessary toconsult with relevant Indigenous people forpermission to use the music and if agreed, thereshould be scope for negotiating with Indigenouspeople on appropriate royalties for use. Some otherpoints are:

• Written contracts are preferred to oral agreements.

• Indigenous songwriters and musicians should begiven the opportunity to consider contracts andto obtain proper legal advice.

• The contract should be explained to Indigenoussongwriters and musicians, and if necessary, a translator be used to explain the major issuesof the contract.

• If the work is to be altered or adapted for massproduction, songwriters and musicians should begiven opportunity to approve or reject thealteration or adaptation of their work.

Assigning copyright vs. licensingCopyright can also be assigned. This means thatyou can give your copyright to someone else. They become the copyright owner and canauthorise others to reproduce your musical work.

Copyright is usually assigned under writtenagreement. Once assigned, the musicianrelinquishes copyright in his or her musical work.

Where possible, Indigenous musicians should retain the copyright in their works so they canmaintain control over reproductions.

It is important for Indigenous musicians to checkagreements and make sure they are not assigningtheir rights away instead of alternatively licensinguse of their work.

It is a good idea to seek legal advice on copyrightlicensing issues.

New technologiesThe Copyright Act was recently amended by theDigital Agenda Act 2000. The amendmentsintroduce a ‘right of communication to the public’to cover copyright material in the digital domain.

The right provides that digital transmissions ordealings with copyright material in the digitaldomain can be controlled by the copyright owner.The right applies to the Internet and other forms ofdigital media, as well as new forms beingdeveloped for the future. Whenever material on awebsite is downloaded by an Internet user it is anexercise of the ‘right of communication to the public’.

. . .

C O P Y R I G H T - 29

Crown use of artworks

The Crown may use a copyright work withoutpermission of the copyright owner where the usemade is ‘for the services of the Crown’. The artist isstill entitled to payment for use and the governmentmust contact him or her as soon as possible tonegotiate this.

Library copying

Libraries and archives can make copies ofcopyright works under certain circumstances inaccordance with statutory procedures.64

Further copyrightinformationFor further information on copyright laws see thefollowing websites:

• Australian Copyright Councilwww.copyright.org.au

• Arts Law Centre of Australiawww.artslaw.com.au

Copyright collecting societies

Most copyright owners lack the time and necessarybargaining power to manage and exploit theircopyright works. Several collecting societies havebeen established in Australia to administercopyright. These collecting societies manage therights of its members for an administrative fee or a share of the royalties. Some of them such asCAL and Screenrights have a legislative basis forcollecting royalties. Others are voluntaryorganisations which artists are required to join.Details follow on the most relevant collectingsocieties for musicians.

APRA – Performing rights for composersThe Australasian Performing RightsAssociation (APRA) administers theperforming rights in the music ofcomposers, songwriters and publishersin Australia and New Zealand. Theseare the rights of performance in publicand communication to the public.

The rights of performance in publicoccur mostly when music is played onradio, television, in music venues andother venues that play music (includingincidental music), and businesses(including online businesses) which use music.

The right of communication to thepublic includes any method ofcommunicating music to the publicincluding television, radio, Internet,cable services and other media.

APRA also manages the reproductionrights’ licensing business of theAustralasian Mechanical CopyrightOwners Society (AMCOS).

For more information about APRA visitits website www.apra.com.au

. . .

28 - S O N G C U L T U R E S

The following is an example of a copyright noticefor collaborations:

‘Circle of Sand’Performed by: Terri Janke and Justin MeleoLyrics: © Terri Janke, 1999Music: © Justin Meleo, 1999

This song is copyright. Apart from the usespermitted under the Copyright Act 1968, noreproduction of this song is authorised withoutthe consent of the copyright owners.

The following is an example of a copyright noticefor a recording:

TJ Records, 1999.

The following is an example of labelling a newrecording of a clan owned traditional song:

Traditional song: Torres Strait IslandsThis arrangement: © A. Murray, 2002. Thisrecording may not be reproduced in any formwithout the permission of the performer and theclans concerned.

Sometimes a warning is included:

WARNING: Copyright subsists in this recording.Any unauthorised rental, hire, broadcasting,public performance or re-recording in anymanner whatsoever will constitute aninfringement of copyright.

For more information on recommended copyrightwording for publications, see the Style Manual forAuthors, Editors and Printers.58

Moral rights notice

If your work is to be distributed in New Zealandand the UK, it is also a good idea to include anotice asserting your moral rights, as follows:

The creator(s) assert their moral rights.

When is copyright infringed?It is an infringement of copyright to copy a musical work without the consent of the copyright owner.

A person will infringe copyright in a musical work ifhe or she reproduces the work in material form,publishes, performs the work in public,communicates the work to the public, or makes anadaption of the work without permission from thecopyright owner.59

It is also an infringement to copy a substantial partof a musical work. A ‘substantial’ part of a workdoes not necessarily refer to a large part of thework. The court will look for striking similaritiesbetween the original song and the infringing copy,and assess the quality of what was taken.

It is also an infringement of copyright to importcopies of a copyright infringing recording intoAustralia for sale or hire.

Some exceptions to infringement are:

Fair dealings provisions

Copyright in the work is not infringed if it is used for:

• research or private study purposes 60

• criticism or review, whether of that work or ofanother work, and a sufficient acknowledgmentof the work is made 61

• the purpose of, or associated with the reportingof news in a newspaper or magazine and asufficient acknowledgment of the work is made;or for the purpose of, or associated with thereporting of news by means of broadcasting orin a cinematograph film62

• judicial proceedings or a report of judicialproceedings, or for the purpose of the giving ofprofessional advice by a legal practitioner.63

P

CAL – Copyright Agency LimitedThe Copyright Agency Limited (CAL) is an Australian statutory collectingagency whose role is to provide a bridge between creators and users ofcopyright material.

CAL collects and distributes fees onbehalf of authors, journalists, visualartists, photographers and publishers,operating as a non-exclusive agent tolicense the copying of works to thegeneral community.

CAL administers licences for the copyingof print material by educationalinstitutions, government agencies,corporations, associations, places ofworship and other organisations.

Authors must register to receive moniesdirectly from CAL. If not registered, themonies may go the publisher who isthen responsible for passing on theauthor’s share under terms of thepublishing contract.

For more information on CAL visit itswebsite www.copyright.com.au

ScreenrightsScreenrights is a copyright collectingsociety for screenwriters, producers,distributors, music copyright owners,copyright owners in artistic works andsound recordings, and other rightsholders in film and television.

Screenrights manages rights on behalfof copyright owners in film andtelevision, licensing the use of theirwork in circumstances where it isdifficult or impossible to do so on anindividual basis.

Screenrights also administers theeducational copying license. This allowseducational institutions to copy fromradio and television, provided they paya fee to copyright owners. Screenrightsmonitors copying, collects money and distributes this income to thecopyright owners.

In addition, Screenrights collectsroyalties being held by other societiesadministering rights in their territories.All money collected is distributed to thecopyright owners after deduction ofadministrative overheads.

For more information on Screenrightsvisit its website www.screen.org

Screenrights has also established awebsite for educators atwww.enhancetv.com.au. Enhancetv letsteachers know about upcomingprograms relevant to their curriculumand provides teaching resources forusing television and radio ineducational contexts.

C O P Y R I G H T - 3130 - S O N G C U L T U R E S

AMCOS – Mechanical rightsThe Australian Mechanical CopyrightOwners Society (AMCOS) administers abroad range of reproduction licensingschemes for musical works.

AMCOS can administer the mechanicalrights (the right to record a sound onto record, CD or cassette) and thesynchronisation right (the right to useyour music on a video or filmsoundtrack).

AMCOS can administer the right toreproduce written music, for examplethe original notation or lyrics for asong. The rights are assigned to a musicpublisher and anyone who then wishesto copy the work must seek permissionof the music publisher and pay royaltiesfor that use. Exceptions includeeducational purposes.

When music is used in a film ortelevision program, composers shouldensure the producer makes a cue sheetlisting the music on the soundtrack. This list should then be submitted toAPRA for royalty payment.

APRA and AMCOS license people andcompanies who want to use music, and then distribute the license fees to members.

For more information on AMCOS visitits website www.apra.com.au

PPCA - Copyright in sound recordingsThe PPCA is the PhonographicPerformance Company of Australia.

The PPCA grants licenses on behalf ofrecord companies and recording artiststo venues such as hotels, shops,restaurants, and radio and TV stationswhich play recorded music or musicvideos. It also licenses online users ofsound recordings.

PPCA members are the owners ofcopyright in sound recordings. They are mainly record companies.

For more information on the PPCA visitits website www.ppca.com.au

. . .

F O L L O W U P - 33

• Local cultural protocols and protocols associatedwith a work should always be respected and observed.

• Indigenous worldviews, lifestyles and customarylaws should be respected in contemporaryartistic and cultural life.

Indigenous control Indigenous people have the right to determine howtheir cultural property will be used.

• Indigenous people have the right to own andcontrol their heritage, including Indigenous bodypainting, stories, songs, dances and other formsof cultural expression.

• Identify appropriate Indigenous information andauthority structures.

• Discuss your ideas for development of musicprojects with the relevant people in Indigenousmusic companies and associations, andIndigenous media organisations.

• The current practice of the Australia Councilrequires all Indigenous participants to provide aletter of support confirming their Aboriginal orTorres Strait Islander identity from anincorporated Indigenous organisation.

• When engaging Indigenous contributors toparticipate in a project the Aboriginal andTorres Strait Islander Commission (ATSIC)definition of Aboriginal identity can be used as a guide.

• Keep appropriate and relevant Indigenouspeople informed and advised, and wherepossible, provide regular updates.

Communication, consultation and consentWhen performing, recording, publishing orotherwise dealing with Indigenous songs andmusic, consider the following:

• Has the consent of relevant Indigenous peoplebeen obtained? This should include the consentof composers, songwriters (including next of kinif deceased) and custodians of the music.

• It is very important that the Indigenouscustodians have all the relevant information priorto considering consent. This might include:

- proposed use, particularly if it involvesadaptation and alteration.

- whether you intend to perform or record thework, what instruments you intend using, andwho will be performing or recording the work.

- proposed digital or broadcast media: is thework going to be broadcast, or communicatedto the public through the Internet?

• Has sufficient time been allowed for consultation?

• Is the particular song or music acceptable forwider use and recording? If unsure, discuss withIndigenous people, composers and songwriters.

• Have you advised the elders or people ofauthority of the perceived risks and benefits fromthe wider use and reproduction of their songs?

• Seek advice on the correct cultural context for thematerial. Ask about any restrictions on the materialand the instrument, and establish the exactmeaning of any words in language if unsure.

• If you are writing lyrics about an individual orcommunity, advise the relevant people, family orcommunity. Seek their permission as you may betouching on sensitive issues, such as mentioningthe names of people who are deceased.

• Have the community and performers beenconsulted on any cultural considerations to betaken into account for the festival or concert?

• If recording communally owned songs andmusic, advise Indigenous custodians and other people in authority, and seek permission for recording.

• Recording companies and collecting societiesshould not assume that Indigenous music is inthe public domain.

• It is necessary to consult with relevant Indigenouspeople for permission to distribute recordings. If agreed, recording companies and collectingsocieties should negotiate with Indigenouspeople on appropriate royalties for use.

32 - S O N G C U L T U R E S

Applying the protocolsProtocols are about people’s value systemsand their cultural beliefs.65

The protocols in this guide are flexible. You can usethem to develop protocols for your music project,program or practice, and language group, region,clan or community.

It is important to read all the preceding sections ofSong Cultures before applying the protocols.Follow up can then be the main point of referencewhen returning to the guide at a later date, or inthe planning stage of a music project or program.

Follow up provides a checklist of key points toconsider when developing appropriate protocols fora music project, or in your own music practice. Itoffers different and more specific information thanthe preceding sections. We therefore suggest youuse the points outlined here together with thePrinciples and Protocols and Copyright sections.

The following principles are a framework forrespecting Indigenous heritage:

• Respect

• Indigenous control

• Communication, consultation and consent

• Interpretation, integrity and authenticity

• Secrecy and confidentiality

• Attribution

• Proper returns

• Continuing cultures

• Recognition and protection

RespectPeople working in the music industry areencouraged to respect that:

• Indigenous Australians, the Aboriginal and Torres Strait Islander people, are the originalinhabitants of Australia.

• Acknowledgment should be given to theIndigenous groups where projects are located.

• Indigenous music is produced by Aboriginal andTorres Strait Islander people.

• Indigenous cultures are living cultures.

• Indigenous culture is diverse. Culture varies from Indigenous country to country and fromclan to clan.

• Indigenous cultural expression is diverse.

• Indigenous people have the right to berepresented by Indigenous people of theirchoice and in a manner they approve.

• The cultural contribution to a performance byIndigenous people should be valued,acknowledged and remunerated.

. . .follow up

F O L L O W U P - 35

Attribution• Be sure to attribute the musical work to all

Indigenous custodians, composers, lyricists andsession musicians who contributed to the work atany stage.

• Ask for correct wording of how the person orcommunity wishes to be attributed withownership of the musical work.

• The composers, musicians and custodians shouldbe attributed at all stages, including use of thecopyright notice and attribution of a clan group.

Proper returns • Have fees or other benefits been negotiated

with the musicians, composers, songwriters and custodians?

• Is the cultural value of the work recognised infinancial returns?

• Have Indigenous cultural advisors beenacknowledged and properly remunerated fortheir contribution?

• Has the issue of copyright ownership beendiscussed upfront?

• Has registration with APRA, AMCOS and PPCAbeen completed?

• Are all other rights holders acknowledged in that registration?

• Proper credit and appropriate acknowledgmentincludes copyright and royalties for the use ofIndigenous cultural material.

• Check whether benefits other than royalties aresought by Indigenous people.

• Are the relevant Indigenous people sharing inthe benefits from any commercialisation of theircultural material?

Continuing cultures• Indigenous cultures are dynamic and evolving,

and the protocols within each group andcommunity will also change.

• Consultation is therefore an ongoing process.

• Have you given thought to ways of maintainingrelationships for future consultation?

• Have future uses of the music that were notcontemplated at the initial consultation been considered?

• Have cultural protocols been considered andincluded in any future plans for the musicalwork, including licence agreements?

• Indigenous people have a responsibility toensure that the practice and transmission ofIndigenous cultural expression is continued forthe benefit of future generations.

Recognition and protection• Has copyright protection for a work been sought?

• Have the owners of copyright in a workbeen identified?

• Written releases and contracts are the best wayof ensuring that rights are cleared for proposedand intended uses. The Arts Law Centre ofAustralia has draft agreements available formembers. It is a good idea to seek independentlegal advice on written releases and contracts.

34 - S O N G C U L T U R E S

• Indigenous musicians should consider any culturalobligations before negotiating a recordingcontract, or entering into agreements relating tothe publication and dissemination of the music.For example website publication may expose thesongs to greater appropriation.

• Is consultation seen as an ongoing process forthe life of the musical work or recording?

Interpretation, integrity and authenticityInterpretation

Be responsible for your representations ofIndigenous cultures.

• Does your composition, performance andrecording empower Indigenous people?

• Does your music expose confidential, sensitiveor personal material?

• Does it reinforce negative stereotypes?

Integrity

• Is there any adaptation which needs to bediscussed with relevant traditional custodiansfrom Indigenous country to country and from clan to clan?

• Have you discussed this and obtained consent?

• Will the individual or community who is thesubject of the work get an opportunity to hearthe work prior to public release. Have theirsuggestions been incorporated?

• Is the material suitable for the intendedaudience?

• When selecting illustrations or photos for thecover or promotional material, consult with themusician and other Indigenous people to checkthe cultural appropriateness of the image.

• It is important to exercise care when permitting a re-mix or rearrangement of a work. A newcopyright might also be created in theadaptation. If the owner is unhappy with theresult, there may be no legal remedy because of the consent.

Authenticity

• Are you using instruments and music with respectfor gender and cultural restrictions?

• Do you have a translation of the work you are using? Are you using language in thecorrect context?

Secrecy and confidentiality• The right of Indigenous people to keep secret

and sacred their cultural knowledge should be respected.

• Sacred and secret material refers to informationthat is restricted under customary law.

• Indigenous people have the right to maintainconfidentiality about their personal and cultural affairs.

• Does the music expose confidential or sensitivematerial?

• Be aware that the inclusion of personal materialmay be sensitive. If it is objected to by thefamily or clan representatives – leave it out.

• If mentioning deceased people, seek permissionfrom the family or clan representatives. Discussissues of interpretation and authenticity.

• It is a good idea to speak to elders and/orother Indigenous people in authority to identifysensitivities, sacred material or religious issuesrelevant to the music.

. . .

Sound recordings

• The copyright owner of a sound recording is themaker of the sound recording. The maker isgenerally the individual or recording companywho pays the costs of recording. However, thiscan be varied under written agreement.

• Copyright in a sound recording lasts for 50years after the date on which the soundrecording was made.

• The copyright owner of a sound recording hasthe exclusive right to:

(i) make a copy of the sound recording

(ii) cause the recording to be heard in public

(iii) communicate the recording to the public

• When any of these rights are exercised, thecopyright owner is generally entitled to a licensefee or royalties for the use of their work.

• Recipients of Australia Council grants areencouraged to seek legal advice on writtencontracts for recording.

• Recording companies should provide writtenagreements for musicians. Indigenous musiciansshould be given the opportunity to considercontracts and obtain proper legal advice.

• Has APRA been contacted to ensure royaltiesare paid on work performed?

• Have performers signed clearance forms if theirwork is to be recorded at a festival or concert?

Copyright infringement

• A person will infringe copyright in a work if heor she reproduces the work in material form,publishes the work, performs the work in public,communicates the work to the public, or makesan adaptation of the work without thepermission of copyright owner.

• Statutory exceptions to copyright infringementinclude the purposes of criticism or review, andincidental filming.

F O L L O W U P - 3736 - S O N G C U L T U R E S

CopyrightCopyright protects specific categories of material.The material must be original and must be reducedto material form.

To be original, for the purpose of copyrightprotection, the author or authors must have appliedsufficient skill, labour and judgment to create thework. In the case of music this will normally meanthat the author has composed the work, or adaptedor arranged the musical work.

To be ‘reduced to material form’ means that themusical work must have been written or recorded.

When reproducing musical works or soundrecordings it is necessary to get copyright clearancefrom the copyright owners.

Musical works

• Composers, lyricists and arrangers are referredto as ‘authors’ in a copyright context.

• The copyright owner is generally the author ofthe musical work. There are exceptions to thisrule, including an author who is an employeeunder a contract of service.

• Authors do not need to register for copyrightprotection.

• Copyright in a musical work lasts for 50 yearsafter the death of the author.

• The copyright owner of a musical work has theexclusive right to:

- reproduce the work in a material form

- publish the work

- perform the work in public

- communicate the work to the public

- make an adaptation of the work

- do any of the above in relation to an adapted work.

• When any of these rights are exercised thecopyright owner is generally entitled to a licensefee or royalties for the use of their work.

• It is strongly recommended to use writtenagreements when licensing musical works forcommercial purposes.

• The author has moral rights to his or her work.This includes the right of integrity and attribution.

• The Indigenous author who incorporatestraditional ritual knowledge in his or her musicalwork has a special obligation to the clan whenexercising copyright in the work.

• In collaborative works, copyright may be sharedwith the collaborating authors. If all bandmembers collaborate to write a song, themembers will generally be the joint authors.

• Styles of music are not protected by copyright. It is the expression of the style, that is, the actualsong or instrumental piece that is protected.

• Public performance of a work can include anyperformance that is not domestic or private,even if no fee is charged. So anyone intendingto perform a work that is protected by copyrightshould seek advice to ensure they are notinfringing copyright. Check the Contacts sectionin this guide for copyright advice referrals.

• Under the educational statutory licensingschemes authors may be entitled to royalties foruse of their music and sound recordings informal teaching and learning situations. The relevant collecting agencies, APRA,AMCOS and PPCA, collect and distribute theseroyalties to members.

. . .

R E F E R E N C E S - 39

25 Helen Anu, consultation interview, 14 August 2001, Sydney.

26 Helen Anu, consultation interview, 14 August 2001, Sydney.

27 Helen Anu, consultation interview, 14 August 2001, Sydney.

28 The original release included accreditation to Peter Garrett who,the author believes, relinquished his share to members of YothuYindi. Martin Hardie, Treaty Mah! But Who Owns theCopyright?, unpublished paper in possession of the author,Darwin, 1996, page 10.

29 The author states that subsequent remixes have blurred thisdistinction. Martin Hardie, Treaty Mah! But Who Owns theCopyright?, unpublished paper in possession of the author,Darwin, 1996, page 10.

30 Martin Hardie, Treaty Mah! But Who Owns the Copyright?,unpublished paper in possession of the author, Darwin, 1996.

31 This includes finance through grants from the Australia Councilfor the Arts.

32 Peter Cleary, consultation interview, 11 September 2001.

33 Nancia Guivarra, ‘Singing the Unsung’, Music Forum: Journal ofthe Music Council of Australia, vol. 6, no. 5, June 2000, pages 18–19.

34 See Australasian Performing Rights Association, ‘Event Licenses’,at http://www.apra.com.au

35 NSW Ministry for the Arts, Guidelines 2001–2002, Sydney,2000, pages 103–104.

36 Milroy, David, consultation interview, 11 October 2001.

37 Staniforth Ricketson, The Law of Intellectual Property, Law BookCompany, Sydney, 2001.

38 See Arts Law Centre of Australia, ‘Music ManagementChecklist ’, athttp://www.artslaw.com.au/documents/artpluslaw/music/

39 Sections 31(1)(a)(i) and (b)(i), Copyright Act 1968 (Cth).

40 Section 22(3)(b), Copyright Act 1968 (Cth).

41 Section 35(6) of the Copyright Act 1968 (Cth) states that wherethe work is ‘made in by the author in pursuance of the terms ofhis or her employment by another person under contract ofservice or apprenticeship, that the other person is the owner ofany copyright subsisting in the work’.

42 Section 176(1), Copyright Act 1968 (Cth).

43 Section 33, Copyright Act 1968 (Cth).

44 Section 93, Copyright Act 1968 (Cth).

45 Section 31, Copyright Act 1968 (Cth).

46 These are different to the rights of performers who do not owncopyright in the work or sound recording. For performers rightssee Copyright and performers rights in the Copyright sectionof this guide.

47 See Australian Copyright Council, Information Sheet G12,‘Music and Copyright’, page 2.

48 Section 35, Copyright Act 1968 (Cth).

49 Peter Cleary, consultation interview, 11 September 2001.

50 Bulun Bulun & M* v R & T Textiles Pty Ltd (1998), 41 IntellectualProperty Reports 513. The M* refers to a deceased person andthat is how the cultural protocol advises speaking of him.

51 Section 97, Copyright Act 1968 (Cth).

52 Section 194(1), Copyright Act 1968 (Cth).

53 Section 194AA, Copyright Act 1968 (Cth).

54 195AJ, 195AK and 195 AL, Copyright Act 1968 (Cth).

55 Section 195AS, Copyright Act 1968 (Cth).

56 See the Australasian Performing Rights Association website,http://www.apra.com.au, for further information.

57 Scot Morris, Director of International Relations, APRA,correspondence dated 30 November 2001.

58 Style Manual for Authors, Editors and Printers, 6th edn,Commonwealth of Australia, Canberra, 2002, page 413.

59 Section 36, Copyright Act 1968 (Cth).

60 Section 65, Copyright Act 1986 (Cth).

61 Section 41, Copyright Act 1968 (Cth).

62 Section 42, Copyright Act 1968 (Cth).

63 Section 43, Copyright Act 1968 (Cth).

64 Section 49, Copyright Act 1968 (Cth).

65 Doreen Mellor, telephone consultation, 31 May 2002.

. . .references

38 - S O N G C U L T U R E S

1 David Milroy, consultation interview, 11 October 2001.

2 Terri Janke, Our Culture: Our Future – Report on AustralianIndigenous Cultural and Intellectual Property Rights, MichaelFrankel & Company, written and published under commission bythe Australian Institute of Aboriginal Studies and the Aboriginaland Torres Strait Islander Commission, Sydney, 1999.

3 Song Cultures uses the terms ‘music’ and ‘songs’ interchangeably.

4 Many ethnomusicologists now seek to make agreements that vestcopyright in the Indigenous owners. Linda Barwick, consultationinterview, 14 June 2001.

5 Terri Janke, ‘Deep Forest and the Commercial Exploitation ofIndigenous Music’, Music Forum: Journal of the Music Council ofAustralia, vol. 3, no. 6, Aug-Sept 1997, page 27.

6 Terri Janke, Our Culture: Our Future.

7 Terri Janke, Our Culture: Our Future.

8 Terri Janke, Our Culture: Our Future, page 3.

9 Terri Janke, Our Culture: Our Future.

10 Report of the Sub-Commission on Prevention of Discriminationand Protection of Minorities, 46th session, Draft Declaration onthe Rights of Indigenous Peoples, United Nations Documents,E/CN.4/1995/2 and E/CN.4/Sub 2/1994/56.

11 The Mataatua Declaration was developed at the FirstInternational Conference on the Cultural and Intellectual PropertyRights of Indigenous Peoples, 12–18 June 1993, atWhakatane, Aotearoa, New Zealand. A full text of theDeclaration is cited in Terri Janke, Our Culture: Our Future,pages 306–310.

12 Erica Irene Daes, Final Report on the Protection of the Heritageof Indigenous Peoples, United Nations DocumentE/CN.4/Sub.2/1995/26. The full text, as adopted andelaborated on by ATSIC’s Indigenous Reference Group, is citedin Terri Janke, Our Culture: Our Future, pages 273–277. Seealso Erica Irene Daes, Study of the Protection of the Cultural andIntellectual Property of Indigenous Peoples, United NationsEconomic and Social Council, Geneva, 1993.

13 See the World Intellectual Property Organisation’s website,http://www.wipo.int/globalissues, for further information.

14 See the World Intellectual Property Organisation’s website,http://www.wipo.int/globalissues, for further information.

15 Section 6, Model Law for the Protection of TraditionalKnowledge and Expressions of Culture, South PacificCommunity, Noumea, 2002.

16 Ade Kukoyi (Daki Budtcha), consultation interview, 1 October 2001.

17 See the Contacts section in this guide.

18 Yothu Yindi, ‘Our Homeland’,http://www.yothuyindi.com/ourhome.html

19 Helen Anu, consultation interview, 14 August 2001, Sydney.

20 Terri Janke, ‘Deep Forest and the Commercial Exploitation ofIndigenous Music’, Music Forum: Journal of the Music Council ofAustralia, vol. 3 no. 6, August–September, 1997.

21 This issue was identified as a concern by a number of musiciansand industry participants.

22 Section 14, Copyright Act 1968 (Cth).

23 Michael Easton, ‘Music Sampling’, Art + Law, no. 3, September2000. Available from the Arts Law Centre of Australia website,http://artslaw.com.au/reference/003music_sampling/

24 Terri Janke, ‘Deep Forest and the Commercial Exploitation ofIndigenous Music’, Music Forum: Journal of the Music Council ofAustralia, vol. 3 no. 6, August–September, 1997.

B I B L I O G R A P H Y - 41

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 InternationalLegislation’, Yearbook for Traditional Music, vol. 27, 1996.

Staniforth Ricketson, The Law of IntellectualProperty: Copyright, Design and ConfidentialInformation, Lawbook Company, Sydney, 2001.

Terri Janke, ‘Deep Forest and the CommercialExploitation of Indigenous Music’, Music Forum:Journal of the Music Council of Australia, vol. 3 no.6, August–September 1997.

Terri Janke, ‘Issues of Indigenous Music andCopyright’, Paper for the Fifth Annual Conferenceof the International Association for the Study ofPopular Music, Sites and Sounds, Popular Music inthe Age of the Internet, Sydney, 21 July 1997.

Terri Janke, Our Culture: Our Future – Report onAustralian Indigenous Cultural and IntellectualProperty Rights, Michael Frankel & Company,written and published under commission by theAustralian Institute of Aboriginal Studies and theAboriginal and Torres Strait Islander Commission,Sydney, 1999.

40 - S O N G C U L T U R E S

. . .bibliography

Ade Kukoyi, ‘Daki Budtcha Submission: Responseto Discussion Paper, Our Culture, Our Future’, Sydney, 1997.

Chris Gibson, ‘We Sing Our Home, We DanceOur Land: Indigenous Self-Determination andContemporary Geopolitics’, Australian PopularMusic, vol. 16, 1988, pages 163–184.

Clinton Walker, Buried Country: The Story ofAboriginal Country Music, Pluto Press,Sydney, 2000.

Ian McDonald, ‘Cross-fertilisation or CulturalImperialism?’, Sounds Australia, vol. 15, no. 50,1997.

‘Indigenous Arts Protocol: A Guide’, Guidelines2001-2002, NSW Ministry for the Arts, 2001.

Karl Neuenfeldt, ‘The Quest for a Magical Island:The Convergence of the Didjeridu, AboriginalCulture, Healing and Cultural Politics in New Age Discourse’, Social Analysis, no. 42,July 1998.

Maroochy Barambah and Ade Kukoyi, ‘Protocolsfor the Use of Indigenous Cultural Material’,in A Fitzgerald, B Fitzgerald, C Cifuentes, P Cook (eds), Going Digital 2000: Legal Issues forE-Commerce, Software and the Internet, ProspectMedia, Sydney, 2000.

Martin Hardie, Treaty Mah! But Who Owns theCopyright? Unpublished paper in possession of theauthor, Darwin, 1996.

Michael Easton, ‘Music Sampling’, Art+Law, no. 3,September 2000. Available from the Arts LawCentre of Australia website, viewed 10 April 2002,http://artslaw.com.au/reference/003music_sampling/

Music Council of Australia, MCA Directory ofNational Music Organisations, Music Council of Australia, Sydney, viewed 10 October 2002,http://www.mca.org.au/dnmo.htm

Nancia Guivarra, ‘Singing the Unsung’, MusicForum: Journal of the Music Council of Australia,vol. 6, no. 5, June 2000, pages 18–19.

Scot Morris, Director of International Relations,APRA, correspondence dated 30 November 2001.

C O N T A C T S - 43

Copyright and legal

Arts Law Centre of Australia

The Gunnery43 – 51 Cowper Wharf RoadWoolloomooloo NSW 2011Tel: (02) 9356 2566Toll Free: 1800 221 457Fax: (02) 9358 6475Email: artslaw@artslaw.com.auWeb: www.artslaw.com.au

Australian Copyright Council

PO Box 1986Strawberry Hills NSW 2012Redfern NSW 2016Tel: (02) 9318 1788Fax: (02) 9698 3536Email: cpright@copyright.org.auWeb: www.copyright.org.au

Indigenous Cultural andIntellectual Property website

Web: www.icip.lawnet.com.au

Copyright collectingsocieties

Australian MechanicalCopyright OwnersSociety – AMCOS

Locked Bag 3665St Leonards NSW 2065Tel: (02) 9935 7900Fax: (02) 9935 7999Email: amcos@amcos.com.auWeb: www.amcos.com.au

Australasian Performing Rights Association – APRA

Locked Bag 3665St Leonards NSW 2065Tel: (02) 9935 7900Fax: (02) 9935 7999Email: apra@apra.com.auWeb: www.apra.com.au

Copyright Agency Limited - CAL

Level 19, 157 Liverpool StreetSydney NSW 2000Tel: (02) 9394 7600Fax: (02) 9394 7601Email: info@copyright.com.auWeb: www.copyright.com.au

Phonographic PerformanceCompany of Australia – PPCA

PO Box Q20Queen Victoria BuildingSydney NSW 1230Tel: (02) 8263 1100Fax: (02) 9264 5589Email: ppca@ppca.com.auWeb: www.ppca.com.au

Screenrights

PO Box 1248Neutral Bay NSW 2089Tel: (02) 9904 0133Fax: (02) 9904 0498Email: info@screen.orgWeb: www.screen.org

Export

Austrade

GPO Box 2449Darwin NT 0801Tel: (08) 8981 8686Fax: (08) 8981 4349Web: www.austrade.gov.au

Indigenous musicorganisations

Broome Musicians AboriginalCorporation – BMAC

PO Box 2708Broome WA 6725Tel: (08) 9192 1325Fax: (08) 9193 6407Email: goolarri@gme.com.auWeb: www.goolarri.com.au

Central Australian AboriginalMusic Association – CAAMA

PO Box 2608Alice Springs NT 0871Email: music@caama.com.auWeb: www.caama.com.au

Daki Budtcha

PO Box 3261South Brisbane QLD 4101Tel: (07) 3846 7722Fax: (07) 3846 7020Email: office@dakibudtcha.com.auWeb: www.dakibudtcha.com.au

Songlines MusicAboriginal Corporation

PO Box 574Port Melbourne VIC 3207Tel: (02) 9696 2022Fax: (02) 9696 2183Email: songlines@vic.net.auWeb: www.songlines.com.au

Yothu Yindi Foundation

1st Floor, 16 Bennet StreetDarwin NT 0800Ph: (08) 8941 0202Fax: (08) 8941 1088Email: yyf@bigpond.comWeb: www.garma.telstra.com

Indigenousorganisations

Aboriginal and Torres StraitIslander Commission - ATSIC

PO Box 17Woden ACT 2606Tel: (02) 6121 4000Toll Free: 1800 079 098Fax: (02) 6281 0722Web: www.atsic.gov.au

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contacts

Arts policy and funding

Aboriginal and Torres Strait Islander Arts Board,Australia Council

PO Box 788Strawberry Hills NSW 2012Tel: (02) 9215 9065Toll Free: 1800 226 912Fax: (02) 9215 9061Email: atsia@ozco.gov.auWeb: www.ozco.gov.au

Arts NT

GPO Box 1774Darwin NT 0801Tel: (08) 8924 4400Fax: (08) 8924 4409Email: arts.office@nt.gov.auWeb: www.nt.gov.au/cdsa/dam

Arts Queensland

GPO Box 1436Brisbane QLD 4001Tel: (07) 3224 4896Toll Free (Qld): 1800 175 531Fax: (07) 3224 4077Toll Free (Qld): 1800 175 532Email: reception@arts.qld.gov.auWeb: www.arts.qld.gov.au

Arts Queensland – Aboriginaland Torres Strait Islander Unit

PO Box 5300Cairns Mail Centre Qld 4870Tel: (07) 4048 1411Fax: (07) 4048 1410Email: Cairnsaq@arts.qld.gov.auWeb: www.arts.qld.gov.au

Arts SA

GPO Box 2308Adelaide SA 5001Tel: (08) 8463 5444Fax: (08) 8463 5420Email: artssa@saugov.sa.gov.auWeb: www.arts.sa.gov.au

Arts Tasmania

GPO Box 646Hobart TAS 7001Tel: (03) 6233 7308Fax: (03) 6233 8424Email: arts.tasmania@arts.tas.gov.auWeb: www.arts.tas.gov.au

Arts Victoria

Private Bag No 1South Melbourne VIC 3205Tel: (03) 9954 5000Toll Free (Vic): 1800 134 894Fax: (03) 9686 6186Email: artsvic@dpc.vic.gov.auWeb: www.arts.vic.gov.au

Arts WA

PO Box 8349Perth Business Centre WA 6849Tel: (08) 9224 7310Toll Free (WA): 1800 199 090Fax: (08) 9224 7311Email: info@artswa.mca.gov.auWeb: http://hosted.at.imago.com.au/artswa/

Department ofCommunications, Information Technology and the Arts

GPO Box 2154Canberra ACT 2601Tel: (02) 6271 1000

Fax: (02) 6271 1901Email: dcita.mail@dcita.gov.auWeb: www.dcita.gov.au

NSW Ministry for the Arts

PO Box A226Sydney South NSW 1235Tel: (02) 9228 5533Toll Free (NSW): 1800 358 594Fax: (02) 9228 4869Email: ministry@arts.nsw.gov.auWeb: www.arts.nsw.gov.au

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A C K N O W L E D G M E N T S - 45

acknowledgmentsTerri Janke & Company would like to acknowledge the role of David Milroy in developing this document.

We thank Helena Zilko whose contribution as editorassisted in bringing the five protocol guides into acomplementary set.

We also acknowledge the contribution of thefollowing people who provided comments on earlydrafts. Their feedback was invaluable in thedevelopment of Song Cultures.

Helen Anu – Singer and performer

Linda Barwick – Musicologist

Peter Cleary – Woomera Aboriginal Corporation

Lola Forester – Actor, SBS broadcaster

Grant Hanson – Musician, Songlines Music

Toni Janke – Singer

Ade Kukoyi – Daki Budtcha

David Milroy – Yirra Yaakin Noongar Theatre

Scot Morris – Director, International Relations, APRA

Rose Pearce – Music NSW

Karl Neuenfeldt – Producer, musician and musicologist

Charles Trindall – Musician and arts advisor

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Australian Institute forAboriginal and Torres StraitIslander Studies - AIATSIS

GPO Box 553Canberra ACT 2601Tel: (02) 6246 1111Fax: (02) 6261 4286Email: email@aiatsis.gov.auWeb: www.aiatsis.gov.au

Gadigal Information Service

PO Box 966Strawberry Hills NSW 2012Tel: (02) 9564 5090Fax: (02) 9564 5450Email: info@gadigal.org.auWeb: www.gadigal.org.au

Goolarri Media Enterprises

PO Box 2708Broome WA 6725Tel: (08) 9192 1325Fax: (08) 9193 6407Email: goolarri@gme.com.auWeb: www.goolarri.com.au

Island Coordinating Council

PO Box 501Thursday Island Qld 4875Tel: (07) 4069 1446Fax: (07) 4069 1868

Torres Strait Islander Media Association

PO Box 385Thursday Island QLD 4875Tel: (07) 4069 1524Fax: (07) 4069 1886Email: admin@tsima4mw.org.au

Torres Strait RegionalAuthority

PO Box 261Thursday Island QLD 4875Tel: (07) 4069 0700Fax: (07) 4069 1879Email: wayne.seekee@tsra.gov.auWeb: www.tsra.gov.au

Vibe Australia

28 Burton StreetDarlinghurst NSW 2010Tel: (02) 9361 0140 Fax: (02) 9361 5850Email: info@vibe.com.auWeb: www.vibe.com.au

Music industryorganisations

ARIA – Australian RecordIndustry Association

PO Box Q20Queen Victoria Building Sydney NSW 1230Tel: (02) 8263 1144Fax: (02) 9267 7962Email: aria@aria.com.auWeb: www.aria.com.au

Music Council of Australia - MCA

PO Box 287Double Bay NSW 2028Tel: (02) 9251 3816Fax: (02) 9251 3817Email: ozmusico@zeta.org.auWeb: www.mca.org.au

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