Generally speaking you will need permission every time you use a “substantial part” of another work. This does not mean that the part needs to be large; the law looks to the importance of the part to the entire work. A very small part of a song can be substantial. It is therefore advisable to seek permission whenever you sample another song, no matter how small the part may be.
Generally speaking, in Australia, copyright in music and lyrics lasts for the life of the creator plus 70 years. Copyright in a sound recording usually lasts for 70 years from when the recording was first published. In New Zealand, these terms are 50 years. There are exceptions to these rules and if you are uncertain as to the duration of copyright in a work, seek legal advice.
An assignment of copyright is a transfer of ownership. It must always be in writing and signed by the copyright owner. A licence simply allows another person to use the work without transferring ownership. It does not need to be in writing but it is always advisable to put agreements concerning the use of a work in a written form to avoid disputes as to the terms. Both assignments and licences can be limited by time (for example, for five years only), by territory (e.g. in Australia only) and by the rights to which they apply (e.g. to publish in print form only).
If you each contribute separate parts (for example, one writes the lyrics while the other writes the music), you would usually each own copyright in your part. If you write music together, then you may be joint owners of copyright in that music. This means that anyone who wants to use the work would need permission from both joint owners. It is always advisable to have an agreement clarifying copyright ownership in these circumstances. This helps avoid confusion and disputes.
In the absence of an agreement to the contrary, copyright in a musical work is usually first owned by the composer of that work. There are certain exceptions to this rule, and if you are uncertain, you should always seek legal advice. In practice, composers often assign or license their rights to third parties who then manage and exploit these rights on their behalf. Reproduction and publication rights are usually managed by a publisher, and communication and performance rights are usually assigned to APRA, which then manages these rights on behalf of its members.
The fact that a work is placed on the Internet does not mean that it loses copyright protection. Downloading or uploading that work without permission is, in most cases, an infringement of copyright, just as making copies of a CD without permission will usually infringe copyright. The ease of uploading, communicating and reproducing material, coupled with the difficulty in policing such activities, does mean, however, that the Internet poses a challenge to copyright owners.
This has, to some extent, been eased by the advent of legal sites for downloading and streaming music (such as the iTunes music store, Apple Music and Spotify). The Digital Content Guide (http://www.digitalcotentguide.com.au) provides details of safe and licensed digital content in Australia. These sites provide a new avenue for licensing works, and a legitimate means for consumers to take advantage of the vast amount of music available online.
Australia and most countries in the world belong to international treaties under which they promise to protect the copyright in works created by each other’s citizens or residents. This means your work will be protected in, say, the United States under US law, just as a work created by a United States citizen will be protected in Australia under Australian law.
If there is a dispute about who created a work, it may need to be resolved by a court. The most important evidence in such a case would be oral evidence from the creator and from people who saw the material being created or who saw early copies. Other evidence may include drafts of the work or diary notes regarding the creation of the work. Such cases are, however, rare.
Copyright protection is automatic. As soon as a work is put into a material form (for example, recorded or written down) it is protected by copyright. There is no need to register copyright. It is, however, advisable to put the copyright notice on all copies of your work. This is the copyright symbol ©, followed by the copyright owner’s name, and the year of first publication. For example: © John Guitar 2016
Copyright owners in musical works and lyrics have the exclusive right to:
- Reproduce the work: for example, by recording a performance of it, photocopying it, or downloading or streaming 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).
Generally speaking anyone who wants to use a work in these ways must get permission from the copyright owner, who can negotiate a licence fee for these uses. In practice, the public performance and communication rights in a song are usually administered by APRA, while the other rights are often administered by a music publisher.
There is also a separate copyright in a recording of a musical work. These rights are usually owned by a record company, and include the reproduction right as well as the public performance and communication rights.