The result? A document of over 750 pages that identifies pretty much every flaw in our current system, and boy are there a lot of them!

It’s the stuff dreams are made of, not least because it (yet again) recommends the adoption of a fair use exception in order to redress the imbalance between the rights of copyright owners and those of consumers and would-be derivative creators.

The report confirms what many advocates of reform in this sphere have known for a while – our intellectual property arrangements are insufficient in an increasingly digital world, and improvement is needed across the spectrum of IP rights.

As immaterial as IP arrangements might seem to the average person on the street, there’s no doubt that having up to date, responsive and, above all, fair IP laws is increasingly necessary lest we sacrifice accessibility in the name of protectionism.

Striking an appropriate regulatory balance between the rights of the creator and those of the consumer will be the difference between living in a world that feels like a product of Kurt Vonnegut’s imagination, and one characterised by a rich public domain, where ideas flow freely.

When novel issues arise, governments are sometimes slow to respond by exercising undue caution. In the IP sphere, this has given rise to all sorts of problematic regulations, namely the so-called “right to be forgotten” in the European Union and the Harmful Digital Communications Act in New Zealand. While the Australian government has been pretty unresponsive to similar challenges, it’s important that we take the recommendations of this report seriously so as not to be led down the overly protectionist path of New Zealand and the European Union.

What are the recommendations?

What I like most about this inquiry is that the Productivity Commission really went back to basics, beginning by outlining why IP arrangements exist, something that appears to have escaped many legislators. The overview of the report provides that:

IP arrangements need to ensure that creators and inventors are rewarded for their efforts, but in doing so they must:

•  foster creative endeavour and investment in IP that would not otherwise occur

• only provide the incentive needed to induce that additional investment or endeavour

• resist impeding follow–on innovation, competition and access to goods and services.”

This incentives-based approach is one that should be the basis of any IP law – the first question regulators need to be asking themselves is: “Will this law incentivise creation and facilitate the proliferation of ideas?” Only if the answer is yes should the policy proceed.

While a number of important recommendations flow from the report a few are worthy of specific mention:

1. The first focuses on the need to improve access to enforcement mechanisms for small and medium sized enterprises. To this end, the report recommends the introduction of a specialist IP list within the Federal Circuit Court, making it easier for firms that are not well-resourced to resolve disputes quickly, without the need for litigation, and with lower costs and risks involved.

2. The report also recommends the implementation of an open access policy for publicly-funded research. This means improved access to research material, facilitating its dissemination, use and development.

3. In a similar vein, the report recommends clarification of the law surrounding technological protection measures and geoblocking technology to make it easier for users to access legitimate content.

4. It is unclear under current law whether it is an offence for consumers to circumvent geoblockers (technology that restricts access to content based on your geographical location). The report recommends amending the Copyright Act 1968 to clarify that it is not an offence for consumers to circumvent this technology. According to the report:

Research consistently demonstrates that timely and cost effective access to copyright-protected works is the best way for industry to reduce online copyright infringement. The Commission is recommending making it easier for users to access legitimate copyright-protected content.”

This would be a big win for anyone despairing over limited music catalogues and how feeble the Australian Netflix library is when compared to the U.S version.

Above all, as the report points out, what Australia needs is someone committed to and passionate about IP arrangements to drive reform in this area. Other reforms have fallen victim to misinformation and scare campaigns, largely because this area is so nuanced and multifaceted.

Without someone to champion the recommendations of this report any hope of reform in this area is likely to once again disappear into the ether.

*This article is based on Productivity Commission data, Intellectual Property Arrangements, Inquiry Report.

Have anything to add to this story? Let us know in the comments!

Further Information

To read the full report into Australia’s intellectual property arrangements, visit:

• Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra

We are lucky to live in a country where copyright protection is automatically afforded to creative works, a saving grace that makes Australia’s copyright law imperfections almost palatable.

For musicians, the stakes can be high when it comes to copyright infringement. Contrary to what many Australians may think, there is no such thing as the innocent use of a song, nor is it a ‘victimless crime.’ Most artists derive much of their annual income from royalties, so when an individual or corporation uses a song without permission, without a music licence or without paying royalties, it deprives that artist of a reliable source of revenue.

For Australian musicians, if someone uses your song without your permission it is not only an infringement of your moral rights as a creator of that work but also your economic rights.

So, what are your legal options if you discover someone using your song without your knowledge or permission?

Copyright And The Music Industry

In any situation where your music is broadcast, performed or reproduced, you have a right to royalties.

Copyright protection is automatic in Australia as soon as your original song has been written or recorded.

There are three main situations where copyright infringement of your music can occur.

1. Where a song is used by another person, or corporation, without your permission and without paying a music licence.

As recently as last year, NSW Premier Mike Baird unwelcomely discovered that even politicians are not impervious to making copyright infringements.

Baird found himself in hot water over the unauthorised use of R.E.M’s song ‘Everybody Hurts’ in a YouTube take-off of Jimmy Kimmel’s Mean Tweets series. Baird made use of the track without seeking permission or paying a music licence. YouTube removed the clip after Warner Chappell, the band’s publisher, made a copyright claim overnight.

2. Where another musician uses a substantial part of your song without your knowledge or permission and without paying for a music licence.

For example, by using a substantially similar melody, key, beat, harmony or song structure.

In 2010, Men at Work songwriters Colin Hay and Ron Strykert were involved in a high-profile, expensive and drawn out case over the similarities between their famous song ‘Land Down Under’ and the flute line in the children’s song ‘Kookaburra Sits in the Old Gum Tree.’ The Federal Court’s decision in favour of Larrikin Music (the copyright owners of ‘Kookaburra’) reinforced that musicians can be liable for plagiarising a substantial part of another musician’s work without approval.

3. Where another musician samples part of your song without your permission and without paying a music licence.

Vanilla Ice became the centre of a copyright infringement claim for sampling Queen & David Bowie’s ‘Under Pressure’ in his hit song ‘Ice Ice Baby’ without consent and without a music licence.

The case was settled out of court as it was clear that Vanilla Ice had merely altered the rhythm of the baseline in an effort to avoid giving credit, paying royalties, seeking permission and a music licence.

A Run-Down Of Your Rights

As a musician, you have three main rights:

1. Reproduction

This allows you to reproduce the music you have created in any format.

2. Performance and communication

This right is exercised whenever your music is broadcast on TV or radio, when you perform a song live or distribute your music on the internet.

3. Adaptation

This protects your status as the sole person who can create derivative works, such as music sampling, unless another person has your permission or a licence to do so.

As a creator of music, you not only possess copyright ownership of the music itself but also in the lyrics and any sound recording of your music.

You also own moral rights to your music, including the right to have your work attributed to you by name, the right to stop anyone else attributing your work to them and the right to protect your music from being used in a way that hurts or damages your reputation.

As An Artist, What Does This Mean For You?

If you discover that someone is using your musical work without your permission, you have the right to seek recompense.

Here’s what you can do to stick it to the infringer:

• Firstly, identify who used your song without your permission.

If it is a small team of indie filmmakers or school students making a project for their media class, it may be wise to let it go and take a ‘give-a-little get-a-little’ approach.

On the other hand, if it is a large corporation or mainstream media outlet who is profiting from your blood, sweat, and tears without a licence and without paying you the royalties to which you are entitled, it may be worthwhile taking things further and seek a legal remedy.

You may wish to seek an injunction, which prevents any further unauthorised use of your music, or damages as compensation for the loss you have suffered as a result of the infringement. In either of these scenarios, you will need to pursue legal advice from a lawyer who specialises in entertainment or copyright law.

They will advise you on your rights, whether your claim is worth pursuing, the best course of action based on your circumstances and possible remedies you may be awarded based on the loss you have suffered.

• Secondly, ascertain how much of your song has been used.

Copyright is infringed only where a substantial part of your copyrighted music is used without your permission, and where this infringement is not covered by any of the fair dealing exceptions.

The Copyright Act balances your rights as the copyright owner with the general public allowing the general public to use a substantial part of copyright material without first seeking your approval. This only applies for certain approved purposes called ‘fair dealing’ defences.

This means that if someone uses your music for any of the below purposes, then they have a defence to your copyright claim:

• research or study
• criticism or review
• reporting news
• giving professional legal advice; and
• parody or satire

If the copyright infringement does not fall within any of the above purposes, it is important to contact the person whom you believe has infringed your copyright as soon as possible after you become aware of the infringement.

• Thirdly, you may wish to send an initial letter of demand.

Your letter should make that person aware that you own exclusive rights to your music, that they have infringed your rights, and how you would like the situation resolved. You should also include a date that you would like to receive a response by, and that you have the right to commence legal proceedings if an adequate response is not received within that timeframe.

Before sending your letter, it is not only important that you consult a legal professional, but also that you consider the outcome you would like to achieve.

For example, would you like the person who has infringed your copyright to:

Simply stop using your music? This is a simple request if your music is being used on a website, for example, as it can be removed quickly.

Continue using your music, but to pay a licence fee?

Pay compensation to you for the loss you have incurred as a result of the unauthorised use of your music?

The Arts Law Centre of Australia has a downloadable template of a letter of demand.

Groundless Threats

Before sending a letter of demand, or making any claims that someone has infringed your copyright, it is critical that you seek legal advice.

If you send a threatening letter and the person has not actually infringed your copyright, this can be considered a groundless threat. This means that the person you have accused of infringing your copyright can turn around and sue you for making an unsubstantiated threat of legal action.

What Can I Do To Protect My Music In The Future?

As a first step, you can set up a Google Alert to receive daily inbox alerts whenever your music is being mentioned or used on the internet. This will help you to keep track of who is using your music, when it is happening and where it is happening without your consent.

To protect economic rights to your music, you can register with a collecting society.

These bodies oversee payment of royalties, look after your copyright and grant permission for others to use your songs (either by performing them or recording them) if they pay a fee.

Australia has a few main collecting societies:

• Australasian Performing Rights Association (APRA) which covers situations where another artist wishes to play your songs live.
• Australasian Mechanical Copyright Owners Society (AMCOS) which covers instances where someone wishes to make their own recording of your song.
• Phonographic Performance Company of Australia (PPCA) or the Australian Record Industry Association (ARIA) which covers sound recordings.

You may also wish to consider getting an International Standard Recording Code (ISRC). This is the international identification system for sound recordings and music video recordings which provide a method to automatically identify recordings for royalty payments. In Australia, this is administered by ARIA.

Conclusion

The area of copyright law can be a minefield at the best of times.

For musicians, the first step to protecting your rights is understanding them. Knowing what your options are if you believe they have been infringed by an individual or corporation, and when to seek legal advice, is the best way to secure a favourable outcome.

Bear in mind that there are time limits for commencing legal proceedings in copyright cases, so it is important to see a lawyer as quickly as possible if you suspect your copyright has been infringed.

Further Information

Arts Law Centre – for more information on your rights as a musician and access to legal professionals specialising in copyright law.

To learn more about your rights as a musician visit:

• Music Rights Australia

To find safe and licenced content online visit:

• Digital Content Guide

For a list of legal digital music content providers in Australia and internationally visit:

• Pro Music

To get in touch with a legal professional specialising in entertainment law visit:

• Marque Lawyers (NSW)
• Creative Legal (WA and Vic)
• Studio Legal (Vic)
• Media Arts Lawyers (NSW and Vic)
• Shaun Miller Lawyers (Vic)
• Simpsons Lawyers (NSW)
• Sanicki Lawyers (Vic and Qld)
• McCormicks (Qld)