• the music may be protected;
  
• the lyrics may be separately protected as a “literary work”;
  
• artwork on the cover may be separately protected as an “artistic work”; and
  
• the sound recording itself may be separately protected.

• it is “original” (that is, it is not a copy of previous material);
  
• it has some connection with Australian law (for example, it was created by an Australian, or by a person from a country to which we extend copyright protection); and
  
• it is recorded in some type of “material form” (such as sound tape, writing or computer file).

• Sound recordings and films
  Generally, the “maker” of a sound recording or a film will be the first owner of copyright. The Copyright Act contains special provisions which determine who is the “maker” of a sound recording or film. Under those provisions, the “maker” of a sound recording is deemed to be the person who owned the tape at the time the recording was made; and the “maker” of a film is deemed to be the person who made all the necessary arrangements for the making of the film. If a sound recording or film is commissioned by a station, the station will own copyright. For example, if a volunteer tapes something using their own tape, the volunteer will generally own copyright in the resulting recording. On the other hand, if a station supplies a tape, or pays someone to make a recording, the station will own the copyright in the sound recording.
  
  
• Broadcasts
  The copyright in a broadcast is owned by the station which produces and transmits the broadcast.
  
  
• Published editions
  The publisher owns copyright in their typesetting. For example, if a station publishes a newsletter, the station will own copyright in the “edition”, whether or not it also owns copyright in the articles and illustrative material in the edition.
  
  
• Government involvement
  The relevant Government will own copyright in material created under its direction or control. For example, if a government Department prepares a report, the relevant Government will own copyright.
  
  
• Works
  Generally the creator of a work will be the first owner of copyright in that work. For example, in a community radio station, the copyright in the compilation of material which constitutes a program will generally be owned by the person who put the program together, and copyright in scripts used in broadcasts will generally be owned by the relevant author or authors. The general rule is subject to a number of exceptions:
  
  
• Works created by employees
  The station owns the copyright if the work was created as part of an employee's usual duties. This rule doesn't apply to volunteers or freelancers, who will generally own copyright in works they create, unless the parties reach an alternative agreement.
  
  
• Works created by newspaper or magazine employees
  The journalist and employer own separate parts of the copyright: the employer owns the rights for the newspaper and magazine publication and broadcasting; the journalist owns the other rights, such as book publication rights. This rule does not apply to volunteers or freelancers, and doesn't apply to journalists employed outside the print media - for these types of employees the general rule applies, as discussed above.
  
  
• Some commissioned works
  A station which commissions a sound recording or film, a photograph, a portrait or an engraving will own the resulting copyright. However, in relation to photographs, portraits and engravings, if the purpose of the commission was made known to the creator, the creator has limited right to stop anyone using the work for any other purpose. The general rule applies to other types of commissioned works, unless another exception applies, or unless the parties reach a contrary arrangement
  
  The above rules operate only in the absence of an agreement to the contrary. People involved in creating or commissioning work are free to agree between themselves that the above rules will not operate.
  
  
• Works created by volunteers
  Generally, a station volunteer will own copyright in works he or she creates for broadcast by a community station. If a station wishes to own copyright in works created by volunteers or freelancers, it will need to reach an agreement with them to that effect. To be legally effective, such an agreement must be in writing, and must be signed by the relevant copyright owner.
  
  
• What rights do performers have?
  Under the Copyright Act performers have limited rights. In practical terms, a station wishing to record or broadcast a live performance should ensure that it has the permission of all performers, preferably in writing. (Note, however, that a performer may also have rights that protect them against persons recording or broadcasting a recording of a performance given without permission.)
  
  
• Unauthorised recordings
  Generally, it might be safe to assume that a performer’s permission has been obtained if the recording is one which has been commercially released. However, if the recording is a “bootleg” or “pirate” recording, or a recording which is labelled as “unauthorised”, performers' rights are likely to have been infringed by the initial recording. Such recordings should not be broadcast.

• where more than a “reasonable portion” of a literary or dramatic work is being read or recited (for example, where a novel is serialised or a dramatic version of a play recorded or broadcast);
  
• where a comedy record is going to be broadcast;
  
• where APRA* does not control the rights in a piece of music (for example, some unpublished music);
  
• where a band or a performer is going to perform an arrangement of a piece of music
  which has not been approved by the copyright owner (generally the music publisher);
  
• where an entire dramatico-musical work (such as an opera or a Broadway style musical) is to be broadcast, or an oratorio or choral work which lasts for more than 20 minutes (for example, a symphony or concerto);
  
• where the copyright in a sound recording is owned by a person or company which is not a member of PPCA* (for example, a recording made by an individual rather than a record company);
  
• where an arrangement or parody of an AMCOS* member’s work is being recorded;
  * see page 14 for details on APRA, AMCOS and PPCA

• Reading or reciting direct to air (section 45)
  Section 45 of the Copyright Act provides that broadcasting a reading or recitation of part of a literary or dramatic work does not require permission. However:
  
• only “an extract of reasonable length” may be read or recited; the term “reasonable length” is not defined in the Act; it’s likely that 10% or a chapter of a work, will be of reasonable length, however, the exception would not extend to serialising chapters of a work or scenes of a play over several broadcasts
  
• the exception applies only to published literary and dramatic works; if you wish to broadcast a reading from an unpublished work, you will need to obtain permission from the copyright owner
  
• the exception applies only to “live to air” broadcast; if you pre-record for later broadcast you will need to comply with the provisions of section 47, discussed below.
  
• “sufficient acknowledgement” of the work must be made; "sufficient acknowledgement” requires identification of the work by its title or other description, and identification of the author.
  
• Criticism or review (sections 41 and 103B). Sections 41 and 103A of the Act allow copyright material to be used in reviews or for criticism. Firstly, the dealing must be “fair”, having regard to all the circumstances. For example, it would be fair to quote parts of a literary work when reviewing a book or play, as a way of allowing the listener to understand the context in which you make your comments. However, it would not generally be fair to broadcast a literary work and then merely add on a comment that you found the work interesting.
  
  Secondly, a “sufficient acknowledgment” of the work must be made. Generally, it may be difficult to defend the broadcast of material which has been improperly obtained (such as leaked documents or pirated tapes), or the broadcast of material which has not yet been publicly released with the copyright owner’s permission.
  
  
  
  • Reporting the news (sections 42 and 103B)
    Under sections 42 and 103B it is not an infringement of copyright to make a fair dealing with copyright material for the purpose of reporting the news.
    
    The concept of reporting news includes the reporting of recent events, and reporting situations and information not previously known. As with the criticism and review exception, the dealing must be “fair”. In one case, the court found that the dealing was not “fair” where confidential documents were to be published without permission. There is no requirement for a broadcaster to give a “sufficient acknowledgement” of the material or its creator when relying upon this exception.
    
    
  • Reproduction for the purpose of broadcasting (sections 47 and 107)
    Often programs are pre-recorded for later broadcast. This can involve the reproduction of copyright works. Sections 47 and 107 generally allow this – the resulting copies are often referred to as “ephemeral copies”, as they may only be kept by the station for a limited period of time. The exception is only available if:
    
    
    • the station has the right to broadcast the material;
      
    • the station itself makes the recording;
      
    • the sole purpose of the recording is either for the broadcasting of the work or adaptation; or the making of further copies for broadcasting.
      
    • the copies are destroyed or delivered to the Australian Archives (with the Director General’s consent) within 12 months from the date of first broadcast.
    
    
    If you want to make or keep pre-recorded programs containing copyright music or sound recordings outside these provisions, you must check that the station has the relevant licences from AMCOS and from PPCA (see Section 3).
    
    If you want to record material for purposes not covered by the exception (for example, if you wish to archive the recording), you will need to negotiate with the copyright owner. Also, if you wish to give the recording to another station, you will need to negotiate with the copyright owner for payment. While a copyright owner cannot refuse permission, they are entitled to be paid if another station is to broadcast the program.
    
    Generally, music and sound recordings will be covered by the relevant AMCOS and PPCA licences. However, if the material recorded includes a literary or dramatic work, music controlled by a publisher who is not a member of AMCOS, or a sound recording in which copyright is not owned by a member of PPCA, you will need to contact the relevant copyright owner.
    
    
  • Broadcasting sound recordings (section 109). Under section 109, radio and television stations are entitled to broadcast published sound recordings provided that the station pays the required royalties. This scheme applies where the recording has been published in Australia or if a period of seven weeks has elapsed since the recording was published elsewhere. (PPCA administer the scheme: see page 15).
    
    
  • RPH Stations (section 47A). Under section 47A, a station which holds a print-handicapped radio licence may broadcast published literary or dramatic works (for example, newspaper articles, or readings from plays) beyond the “reasonable length” allowed under section 45.
    
    Only stations which hold a print-handicapped radio licence may rely upon the section. The section defines a “print-handicapped radio licence” as a licence which was granted:
    for the purpose of authorising the making of sound broadcasts to persons who by reason of old age, disability or literary problems are unable to handle books or newspapers or to read or comprehend written material.
    
    Unfortunately the current legislation governing broadcasting does not grant licences on any basis as specific as this. It is therefore unlikely that any station may currently rely upon the section. However, it is understood that the section may be amended in the future to solve this difficulty. It is not known whether the section may then be extended to apply to community stations generally, or only to specific stations broadcasting for the print handicapped.
  
  
  RECORDING AND BROADCAST OF LIVE PERFORMANCES,
  AND THE MAKING OF COMPILATION CDS.
  
  Whose permission do I have to get to make a recording of a live performance?
  As the performer owns the copyright in the performance, you will need to get their permission to record the songs, and to use the recordings for broadcast or inclusion in a compilation CD.
  
  How should I get permission to make a recording of a live performance for broadcast and or use in a compilation CD?
  The most effective way to ensure that you are not breaching the performers’ rights is by getting their written permission to make a recording. While the performers can give their permission orally it is preferable that they sign a release form specifying exactly what they have given you permission to do with the recording (see sample contract “Release Form for Recording and Broadcast of Performance” on page 10).
  
  The release form should therefore specify in detail what you intend to do with the recording, such as the number of broadcasts and whether the recording will be used on a compilation CD (see sample contract “Record Company Release Form for Compilation on page 11). Without a signed release form it is extremely difficult to prove exactly what permission you were given to deal with the recording.
  
  Who owns the copyright in the recording of a live performance?
  Generally, the person who makes the recording owns the copyright. If the person is an employee of a community radio station, then their employer the radio station automatically owns the copyright. If the person is a volunteer of a community radio station, the individual who made the recording and not the radio station may own the copyright.
  
  To ensure the copyright in the recordings go to the radio station the station should have the volunteer sign an agreement specifying that they assign all copyright in any works created by them before they start working as a volunteer for the radio station.
  
  What if the performers have signed a recording agreement?
  The radio station should ask the performers if they have a recording contract so as to ascertain whether further permission is required from the record company. If the performers have a recording contract it is necessary to contact the record label and enquire as to whether their permission is needed to make a recording of the performance.
  
  If the record company’s permission is required, then a separate signed release should be obtained from the record company (you would need a contract like the “Release Form for Recording and Broadcast of Performance” to obtain recording and broadcast clearance and a contract like the “Record Company Release Form for Compilation” to cover compilation activities).
  
  How am I allowed to deal with the recording?
  You are only allowed to deal with the recording in the manner specified in the release. To do anything other than what is specified in the release may constitute a breach of the performers’ rights in the performance. If the release specifies that you may broadcast the recording twice, then to broadcast a third time will likely be in breach of copyright.
  
  What could happen if I make use of a recording without permission?
  The holder of the copyright may commence civil court action against the individual or the station who uses the recording. This may involve:
  
  
  • proceedings restraining the radio station or individual from making use of the recording by seeking an injunction, a court order preventing the use of the recording;
    
  • damages or an account of profits that the radio station has made in dealing with the recording;
    
  • a court order demanding that the radio station give all copies of the recording to the copyright owners.

• a. make adaptations of works (that is, translations, arrangements, or transcriptions);
  
• b. broadcast grand rights works (that is, works longer than 20 minutes; entire dramatico-musical works such as operas or musicals; and certain prohibited excerpts);
  
• c. broadcast parody versions (a musical work with different lyrics) if the parody either denigrates a musical work or is broadcast for an excessive period (note that, except for these limitations, parodies may be broadcast, provided the station notifies APRA);
  
• d.broadcast literary works (such as spoken word comedy records or plays).
  Permission to make adaptations and to broadcast grand rights works must generally be sought from the relevant music publisher.

• a) sponsorship, subscriptions/membership, fees, sale of airtime, donations/bequests, fundraising, racing revenue.
  When the Music Use Percentage (MUP) is less than:
  25% = fee rate of 0.50%
  25% to 59.99% = fee rate of 1.75%
  60% to 79.99% = fee rate of 3.00%
  greater than 80% = fee rate of 3.75%
  
• b) grants and subsidies
  Flat fee = 1.25%
  
• c) sale of capital assets, merchandising interest, job skills training subsidies, ancillary communication services.
  No fee

• to use production music, and ensure that the station has a “PC” licence with AMCOS; or
  
• to use music which is out of copyright.

Appendix 1 - Glossary

Appendix 3 - Duration of Copyright

Appendix 4
Contact Numbers and Addresses

ACKNOWLEDGEMENT

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