1. Copyright and other publishing issues for CLCs Robyn Ayres Arts Law Centre of Australia 8 April 2008

2. 2 Outline About Arts Law Copyright Moral Rights Licensing A practical example

3. 3 About Arts Law CLC for the arts – Free telephone advice – Legal advice nights for subscribers – Publications including sample agreements – Educational workshops – Advocacy on law reform issues – Indigenous service – Artists in the Black Further info www.artslaw.com.auwww.artslaw.com.au

4. 4 What do you publish at your CLC? Website Publications – Brochures – Information or fact sheets – Reports – Books – Newsletters DVDs Audio recordings Plays/scripts Posters

5. 5 Who contributes to your publications? CLC staff Volunteers – law students, pro bono law firms, lawyers, writers, others? Contractors (paid) – designers, writers, editors, publishing company, cartoonist, photographer, artist Audio-visual products – actors, musicians, crew eg camera person 3 rd party materials eg sound recording What are your relationships– do you have contracts in place?

6. 6 Copyright

7. 7 TRUE or FALSE 1. Copyright protects ideas 2. Copyright protects styles. 3. You need to register your material to get copyright. 4. It is OK to copy up to 10% of someone else’s work. 5. It is OK to reproduce work for a non-profit purpose. 6. It is OK to copy things on the internet – they are in the public domain 7. When you buy an artwork you also own the copyright 8. Copyright protects names. 9. Copyright lasts forever. 10. Copyright does not protect Indigenous art.

8. 8 What is copyright? – Exclusive rights to copy, use and circulate particular materials, and to allow others to do this, for a limited time – Bundle of rights – ‘Economic’ right – Automatic/no registration requirements – Different from rights in physical thing – Copyright notice ©, Eg © Robyn Ayres 2008 – Contained in Copyright Act 1968 (Cth) and court decisions

9. 9 What does copyright protect? Works – Literary (includes books, lyrics, computer programs) – Artistic – Musical (the composition, melody) – Dramatic (plays, scripts)

10. 10 What does copyright protect? Subject-matter other than works Films, DVDs, videos sound recordings TV and sound broadcasts published editions Usually no artistic merit required Note for music – often 3 separate copyright elements Note for film – separate protection for film, then components of film eg script, music, costumes

11. 11 Copyright: essentials summary © Subject matter recordoriginalCountry

12. 12 Owners Who owns copyright? – Authors – the poet, painter, songwriter, playwright – Makers For film - usually the producer ie. the person who makes arrangements to make film. Directors – small interest For sound recordings - person who owns recording medium and performers – Joint owners Exceptions: – Contracts – Crown copyright – Employment – Some commissioned works eg, portraits, where films or sound recordings commissioned for valuable consideration

13. 13 Rights For works: Reproduction Publication Performance Communication Adaptation Commercial rental arrangements For films: Make a copy Cause it to be seen or heard in public Communicate it to the public For sound recordings: Make a copy Cause it to be heard in public Communicate it to the public Commercial rental arrangements

14. 14 Duration of copyright Duration: often – Life of author plus 70 years – 70 years from first publication or other act When copyright expired = public domain

15. 15 Copyright infringement Use of the whole or a substantial part of a copyright work without the copyright owner's permission generally isn't allowed under Australian copyright law Substantial part means a vital or important part. It does not mean that the whole of the work is copied

16. 16 Copyright: infringement exceptions But a person is sometimes allowed to use someone else's copyright material without consent eg: – for fair dealing purposes eg research and study; criticism and review; and parody and satire – for incidental use in film and television broadcast – for certain uses of artwork eg sculptures that are permanently in place in a public space – if an insubstantial amount is used

17. 17 Dealing with copyright If you own copyright in protected material: Assignments (transfer or sale) Licences (exclusive, non-exclusive, sole) – permission to use If you want to use someone else’s copyright protected work, consider: Has the copyright in the work expired? Do you fall into one of the exceptions? How can you obtain permission (a licence) to use the work? (and try to get this in writing).

18. 18 MORAL RIGHTS

19. 19 MORAL RIGHTS “Moral rights” has a legal meaning Personal (non-economic) rights that protect individual creators Cannot be given away, sold or transferred

20. 20 What are Moral Rights? 3 types: – right of attribution – to be named – right against false attribution – to ensure someone else is not named – right of integrity – to ensure work not treated in way prejudicial to creator’s honour or reputation.

21. 21 Moral rights: who has them? For works: the creator (writer, artist, designer) For films: the producer, director and the screenwriter For performances: the performer (includes a conductor). NB no moral rights for maker of sound recording who is not performer

22. 22 Copyright + moral rights in practice

23. 23 Publication case study Business Structures for the Arts Creators Adaptation of outdated publication by Australia Council Text written primarily by a casual employee and a volunteer lawyer who has done the work at her law firm Designer – layout and cover design Cartoonist – 6 cartoons for publication Publisher Arts Law Centre of Australia

24. 24 Case study – what agreements should you have? Licence to adapt Australia Council publication – will depend on how different it is to original Employee – ALCA owns © but there may be issues about moral rights – consider consent to infringe moral right of integrity eg editing Volunteer lawyer – need assignment (with lawyer and firm) and consent to infringe moral rights (with lawyer) Designer – licence or assignment of © in design Cartoonist – licence or assignment of © in drawings

25. 25 Other issues Self-funded publication -consider distribution agreement with publishing company eg Federation Press. What % will they take? Online publication – all © and moral rights issues apply Creative commons licences V Publishing agreement – get legal advice

26. 26 Disclaimer This presentation is intended as a guide to the law only. It is not legal advice and should not be used as a substitute for legal advice. Although all care has been taken in preparing this presentation the Arts Law Centre of Australia does not guarantee the accuracy, adequacy or completeness of any information and is not responsible for any errors or damage suffered as a result of it being relied upon. Legal advice should be sought on the specific legal issues affecting you. This information reflects the law as at April 2008. This information applies to people who live in, or are affected by the law as it applies in NSW. These materials cannot be reproduced without the permission of the Arts Law Centre of Australia.

27. 27 Arts Law Centre of Australia www.artslaw.com.au 43-51 Cowper Wharf Road Woolloomooloo NSW 2011 02 9356 2566 \1800 221 457 artslaw@artslaw.com.au © Arts Law Centre of Australia 2006