[LINK] RFI: Music Copyright

Thu Jun 21 13:30:29 AEST 2007

My 85-year-old aunt (who has an MBE for music-teaching) plays the 
piano in a museum in Maryborough Qld (by chance, the one that just 
bought Keith Payne's VC).

She and the museum manager would like to:
-   play old-time music
-   record her playing it
-   play it back when she's not there to play
-   occasionally give copies of the recordings to visitors
     (and to nephews like me.  This request for information arises
     because I asked her for a recording of her playing)

The museum manager has asked what the copyright situation is.

Knowing that I've previously got mixed up in such things:
http://www.anu.edu.au/people/Roger.Clarke/EC/ETCU.html#C
http://www.anu.edu.au/people/Roger.Clarke/WM/Copyright.html
my aunt asked me if I could clarify the situation for them.

('Fat chance!', I was tempted to reply;  but I'm a polite lad).

I'd much appreciate any corrections, improvements and extensions to 
the following attempt to explain to myself and others how the world 
is supposed to work.

__________________________________________________________________________

In 2004, the Australian Government sold out to US corporations and 
extended the term of copyright even further than before.  For 
literary works, including music, it's now technically "life of the 
author plus 70 years".

So, for example, copies of George Gershwin's music, and performances 
of it, *may* be coming free in 2007, because he died in 1937 
(although it was out of copyright in Australia from 1987 until the 
idiots in Government enacted the extension of term in 2005).

And although Andrew Lloyd Webber is my age (i.e. late-middle) and 
filthy rich, very few of today's teenagers will still be alive when 
his music ceases to be subject to copying and performance fees (by 
which time most of it may have been forgotten anyway).

Finding out whether copyright in an item has expired is very difficult.

For example, Ira Gershwin died only in 1984.  So, although George 
Gershwin's instrumental music is coming free, for those items of his 
music that involve Ira's words, copies and performances will quite 
probably remain subject to copyright until 2054.  (To test your grasp 
of copyright law, try to work out whether playing the piano 
accompaniment of a Gershwin and Gershwin song is a breach of 
copyright ...).

Finding out who to ask for a licence, and how much it costs, is also 
very difficult.

Bruce Arnold's valuable site at
http://www.caslon.com.au/colsocietiesprofile2.htm
identifies the following as being relevant:
-   for public performance of musical works
     Australasian Performing Right Association Ltd (APRA)
     http://www.apra.com.au/
-   for reproduction of a musical work in a material form
     e.g. to capture a performance on vinyl, tape or a compact disk
     (and presumably directly onto a 'hard'/magnetic disk as well)
     Australasian Mechanical Copyright Owners' Society Ltd (AMCOS)
     http://www.amcos.com.au/

Both resolve to the same URL, so presumably APRA has taken over AMCOS.

So, what have I been able to find out?

1.  Playing Music

(I mean by 'playing' the rendering of music by means of an instrument 
such as a piano, whether or not reading a printed copy while doing 
so).

This seems to be the relevant place on the site:
http://www.amcos.com.au/music-users/events/concerts_festivals_and_functions.asp

But it doesn't seem to cover the situation in question.

Maybe it's a Free Event, in which case "You will still need an APRA 
licence to play copyright music if your concert, festival, dance 
party or event is free to the public. If the event involves live 
performers (not including DJs) the licence fee is calculated at 2.2% 
of your gross expenditure on the performers".  (So the museum would 
owe APRA 2.2% of the cost of a few cups of coffee?).

2.  Self-Recording Music

This seems to be the relevant place on the site:
http://www.amcos.com.au/music-users/making_records/making_recordings.asp

There seems to be no simple process:
http://www.amcos.com.au/music-users/making_records/non_retail.asp
and an enquiry has to go to:
02 9935 7900
nonretlic at apra.com.au

3.  Replaying Self-Recorded Music

This seems to be the relevant place on the site:
http://www.apra.com.au/music-users/business/hospitality.asp#BackgroundMusic

This form quotes prices for an annual licence to play pre-recorded music:
http://www.apra.com.au/music-users/downloads/BackgroundMusic_Hospitality_Hotel.pdf

But it's unclear as to whether this refers to pre-recording by a 
performer, or only by a third party such as a record company.

There's no information about getting a licence for a particular item.

(Copyright collecting societies *could* have been established as 
switching stations, connecting copyright-licensors and -licensees. 
But it suited them better to set themselves up as bulk agencies. 
They charge bulk subscription fees that cover anything and 
everything, and then come up with formulae to split the net proceeds).

So APRA/AMCOS appears to offer no assistance to someone who would 
like to perform a single, specific item.  (I'm frequently asked about 
how to get a licence to perform live or play a recording of some or 
other variant of the several 'Waltzing Matildas', including 'The 
Politically Correct WM';  and it's impossible to find out who to ask).

This particular APRA scheme involves an annual fee for playing music 
in a venue.  The fee is in the process of being increased to $110 
and/or $170 p.a., depending on how the museum's activities are meant 
to map to the tariff.  That's non-prohibitive, even for a volunteer 
outfit;  and many such places would sooner 'do the right thing' and 
achieve peace of mind.

But it doesn't appear to cover the replaying of self-recorded music ...

Queries are meant to go to:
3 Winn Street Fortitude Valley QLD 4006
PO Box 1230 Fortitude Valley QLD 4006
Tel 07 3257 1007
Fax 07 3257 1113
qld at apra.com.au
Or call 1300.852.388

4.  Giving Copies of Self-Recorded Music to Visitors and Nephews

There may be an answer to this question in there somewhere;  but so 
far it's escaped me.

5.  'Music In Your Business'

It's unclear to me what, if any, relevance, this page has:
http://www.amcos.com.au/music-users/business/music_in_your_business.asp

To get a licence (although I'm unclear what it's for), it sends you to:
https://transactions.business.gov.au/BLIS/musiclicence.aspx

('Why https?', one asks).

That resolves - well better said, fails - and reverts to:
https://govforms.business.gov.au/

So I'm none the wiser.

[Declaration and Disclaimer:  Together with some colleagues, I did a 
lot of consultancy work for the Business Entry Point when it was 
first established, but the thorough cock-up that's been made of it 
since is nothing to do with us!  I looked up my ABN and ACN on the 
site recently, and (1) for some obscure reason, my ACN isn't 
accessible there - even thought it is at ASIC, (2) the feedback page 
is as poorly designed as most other such pages, and (3) the feedback 
malfunctions so badly that I couldn't even report to the agency that 
it malfunctions ...]

6.  ACC Information Sheets

The following information sheets from the Australian Copyright 
Council (ACC) don't seem to answer the questions either:
-   Music and copyright
     http://www.copyright.org.au/information/G012.pdf
-   Music: playing music
     http://www.copyright.org.au/information/G020.pdf
-   Music: Choirs, bands & private music teachers
     http://www.copyright.org.au/information/G059.pdf
-   Staging musicals, concerts and plays
     http://www.copyright.org.au/information/G064.pdf

In short, the efforts of the not-for-profit ACC are unable to unravel 
the complete dog's breakfast that successive Parliaments, public 
servants and collecting societies have made of this.

7.  Next Steps

Yes, I'll try asking APRA/AMCOS.  But the art of answering enquiries 
from the public has died over the last 30 years, and I suspect that 
I'll need to already know the answer before I call them.

8.   Recourse

My impression is that court actions, and even nastygrams, are used in 
Australia relatively rarely, and generally only on substantial 
organisations or unlucky test-cases.

I think I've heard of small, semi-commercial radio stations being 
picked on.  And I gather that amateur drama societies, choirs and 
orchestras live in fear of attack.  But I haven't heard of Girl 
Guides' camps being raided, as has apparently occurred in the US.

-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/

Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
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Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW