Who Owns What???

Copyright is the keystone to earning and protecting your earnings in the creative industries. It is a pivotal set of laws used to acknowledge and protect an individual’s or collective’s effort, invention or creative imagination. Without its protection, the integrity of an artist’s endeavors can be duplicated and exploited by others for commercial gain. But what is it exactly? I discovered that until I researched Australian Copyright Law and specifically how it relates to music, that I had many misconceptions!

The Macquarie Dictionary (2010 Fifth Edition, p.277), defines copyright as “the exclusive right, granted by law for a certain term of years, to make and dispose of copies of, and otherwise control, a literary, musical, dramatic, or artistic work”. Well this sounds simple enough BUT:

How is ownership qualified i.e. how does an artist prove that what they present is indeed their work and prevent others from claiming and profiting from it? Do you need to register your copyright for it to be active?
Who enforces the copyright law in Australia?
What if an artist has received an investment from a record company and signed a contract? Have they signed over the rights to their work?

These are a few of the questions that arose in my mind after reading this definition of copyright and questions that will be pertinent to my career as a sound engineer and musician, so I began to research. To my surprise, I discovered that one does not actually ‘register’ a copyright on music in Australia! It is deemed to be ‘owned’ (or yours by right), under the legislation once it has been recorded in some way, be that digitally, written down or by some other method. You do not need to stamp it with the little ‘c’ notice, or let anyone else know, the protection is automatically granted at no cost to the artist.

In Australia, copyright protection is provided by the Copyright Act of 1968. This federal legislation is also supported by international treaties with other nations most notably the Berne Convention of which most developed countries are participants. This gives some continuity to these laws internationally although each country has their own specific variations to the copyright legislation. So what happens if someone does use your work for their own gain and you can prove it? Well it appears that in most cases these disputes are solved through negotiation and it is rare for these matters to end up in the courts, however there have been a couple recently most notably the ‘Men at Work’ VS ‘Kookaburra Sits in the Old Gum Tree case’. This was an interesting affair as a judge ruled that Men at Work had indeed plagiarised part of their worldwide hit ‘Down Under’ (the flute riff), from from the melody of a song written by a schoolteacher back in the 1930’s. Whilst I am unsure of the end compensation amount, the company that owned the rights (Larrikan Records), was suing EMI records for up to 60% of the songs earnings since it was written! Read more here

I have been a musician for many years and originally a classically trained pianist and I believe the similarities between the flute solo and ‘Kookaburra Sits in the Old Gum Tree’ were marginal to say the least! Granted, this type of enforcement of the copyright legislation is rare, but demonstrates that a composers creative rights can (given enough resources are available), be protected even 30 years after the plagiarism occurred.

From all the research I have done on this topic and as confirmed by The Australian Copyright Council (2007), “Copyright generally lasts until 70 years from the end of the year the creator died. There are some important exceptions: for example, if the material was not published in the creator’s lifetime, it may continue to be protected indefinitely”. The copyright laws however (whilst valuable to all creatives), are complex and most lawyers (unless specialising in the area), do not even have a firm grasp of them, let alone the artists who enjoy their protection! The Copyright Act of 1968 is essentially a ‘set’ of laws, comprising four major elements as outlined by the below illustration (released as part of ‘Music Rights Australia’s’ latest campaign to assist artists understand their rights):

So the composer who wrote the music has a copyright, the artist who wrote the lyrics has another, the artist who actually performed the song has one and the person or company responsible for facilitating the recording of the music has separate rights again. I think it is easy to see how these lines can be blurred when it comes to requesting permission from the correct holder of a copyright to use their material in exchange for royalty payments!

The internet has certainly not assisted when it comes to artists rightfully receiving royalty payments, with filesharing services becoming the biggest challenge for the music industry in recent years. Yes, holders of rights have made inroads by successful suing many companies such as Napster and Limewire, however “illegal filesharing has not significantly subsided, and it is estimated that only one out of twenty music downloads worldwide is from a legal online music service” (Moser and Slay 2011, p.271). This is an extremely disturbing statistic and one that should worry anyone who is seeking reward for their creativity and extensive efforts honing their craft. Lets face it, it is difficult enough to gain the sort of recognition as a musician where your audience craves and wants to purchase your work? To then see it stolen away from you in plain sight is just heartbreaking.

It is obvious that copyright laws are an essential piece of legislation forged for the purpose of protecting artists and encouraging them to continue producing art that we as a cultured society crave, but what is the legislation worth if it cannot be effectively enforced? The answer is unclear but must be found.