Copyright is the means by which songwriters and composers, and those who invest in their work make a living. This is because copyright law gives owners of copyright in musical (and other) works certain legal rights in their work. This allows them to control how their work is used and negotiate payment when other people want to use their work in these ways.
The Australian Copyright Act gives copyright owners in musical works and lyrics the exclusive right to:
• reproduce the work: for example, by recording a performance of it, photocopying it, or downloading it from the Internet;
• make it public for the first time;
• perform it in public;
• communicate it to the public (including via radio, television and the internet);
• translate it (for lyrics); or
• arrange or transcribe it (for music).
Music Industry Terms
The music industry uses the following terms to describe some of these rights:
• Mechanical right: this refers to the right to record a song, usually onto a CD or digital format;
• Synchronisation right: this refers to the right to reproduce music onto a soundtrack of, say, a film or advertisement;
• Performance right: This refers to the right to perform music in public (whether live or by way of a recording) and to communicate it to the public (by, for example, a broadcast or playing it over the Internet).
Unless there is an agreement to the contrary, copyright in a musical work, and any lyrics, is usually first owned by the creator of that work, although there are certain exceptions to this rule.
In practice, creators often assign or license their rights to third parties who exploit them on their behalf.
APRA (the Australasian Performing Right Association) administers the performance and communication rights on behalf of most composers. For more information about APRA, go to www.apra.com.au
Publishers exploit the other rights (reproduction, including mechanical and synchronisation rights) and, in some cases, translation and arrangement rights, on behalf of the composers they represent.
Generally speaking, copyright in musical works and lyrics lasts for the life of the composer plus seventy years. Again, there are exceptions to this rule.
Rights In Sound Recordings
Sound recordings are also protected by copyright, separately to the music and lyrics. This copyright protects the investment made in recording a work, and is usually owned by the person or company that makes the recording or commissions the recording to be made, unless there is an agreement to the contrary or an exception applies. If you own copyright in a sound recording, you are generally the only person who can make copies of the recording, or perform it, cause it to be communicated to the public or rent it out.
There are many ways in which music can be exploited, including recording it on CD or digital formats, using it in advertising film or TV, using it on websites, and downloading it for mobile phone ringtones. Acting on behalf of the composers they represent, publishers license certain uses of the music for a fee, providing a revenue stream for the writer. Below is a list of the most common types of licences, with a brief explanation of how they work.
Recording a song involves reproducing it. There are special provisions in the Copyright Act that govern the reproduction of musical works in audio recordings for retail release. Briefly, these provisions allow for the recording of songs provided the copyright owner is notified that the song will be recorded and a royalty is paid.
In practice, these provisions are administered by AMCOS (Australian Mechanical Copyright Owners Society) on behalf of its publisher members. Most publishers in Australia are members of AMCOS, and this means that in nearly all cases, record companies contact AMCOS to notify the copyright owner that they intend to record the song and to make the appropriate payment. Detailed information about recording music can be found at www.apra.com.au/music-users
Film synchronisation and advertising deals
Synchronisation refers to setting music to a visual image, such as a film, an electronic game or an advertisement. Again, this is a reproduction of the music. Permission must be obtained directly from the copyright owner, usually a music publisher, who negotiates a fee on behalf of the composer. In some cases, publishers and composers agree that the use of music in, say, an advertisement, will not be negotiated by the publisher without first obtaining the permission of the composer.
For more information about a publisher’s role in exploiting music for advertising, see our article on the sale of Groove Terminator’s music to a large US insurance company for an advertising campaign.
There is also a separate copyright in the sound recording. This means that reproducing recorded music onto a film, electronic game or video, may require an additional licence for the use of the recording. In most instances the owner of the sound recording is the record company that released the recording.
Print publishing involves reproducing music and lyrics in print form, and in some cases also arranging the musical work. Specialist print publishers undertake this task, either negotiating a fee directly with the composer or with the publisher who represents them.
In the case of online music stores such as iTunes and Spotify, the exercise of the reproduction right (downloading music) is licensed by AMCOS and the exercise of the communication right (playing all or part of a song) is licensed by APRA.
Detailed information about the licence can be found at www.apra.com.au/music-users
Mobile phone ringtones
There are two rights involved in the process of making and supplying ringtones - the reproduction of musical works and the communication to the public of those works. Again, the exercise of the communication right is licensed by APRA, while AMCOS licenses the initial fixing of the musical work into a ringtone and certain subsequent reproductions of this. Details about the licence and the fees can be found at: www.apra.com.au/music-users
Public performance licences
There are many ways in which music can be performed or played in public, or communicated to the public. Examples include live or recorded performances at venues, playing music in a business such as a shop or restaurant, and the broadcasting of music on the radio or television, or communication over the Internet. Nearly all composers assign or transfer their public performance and communication rights to APRA, which then administers these rights on their behalf. APRA negotiates licence fees with users of music, monitors their use, and distributes royalty payments to its members. For more information, visit www.apra.com.au.