Lindy Morrison

The present government's pre-election arts policy "For Art's Sake a Fair Go" promised it would devise a workable performers' copyright legislation. They have avoided the issue about providing performers' rights as a whole.

Performers should be given a legal right to receive equitable remuneration for the reproduction, public performance, broadcasting, and communication to the public of their recorded performances.

The World Intellectual Property Organizations (WIPO) adopted the World Performances and Phonograms Treaty (WPPT) in Geneva, December 1996, which protects all of the those performers' rights in sound recordings. The WPPT includes the "making available" right for performers which authorizes and prohibits the dissemination of their works through interactive networks such as the internet. The WIPO treaties provide important economic incentives for performers.

Under the Australian Copyright Law 1968 there is no protection for performers. The only right performers currently have is where a sound recording of a performance is used in a film, and the recording was not initially authorised for that purpose.

Under the Copyright Law 1968, there are two copyrights relevant to the music industry, neither of which gives rights to performers on sound recordings.

1. A musical work is a work comprising both music and the lyrics, most commonly the song. The owner of copyright in the musical work is the songwriter.

2. A sound recording is a work comprised of a series of recorded sounds, the sounds on a cassette or disc. The owner of the copyright in a sound recording is the person who paid for it, generally the record companies. The largest owners are the major record companies.

Because of the copyright, the owners have the rights, amongst other rights, to communicate the work to the public, to perform the work publicly, to broadcast or to reproduce (copy) the work.

When copyright materials are communicated, played publicly or broadcast, the venues such as entertainment centres, pubs, hairdressers, restaurants, radio stations, TV stations, cinemas have to pay for the rights to do that.

They pay two licence fees.

The fee for the musical work goes to APRA, which distributes that income to songwriters.

The fee for the sound recording goes to the PPCA which distributes that income to the owners of the sound recordings and artists entitled to an artist royalty.

(Any payments performers currently receive under their contracts with record companies and/or from PPCA are based on their contribution to the recording costs of sound recordings. Although the record company pays the initial recording cost, it recoups those costs from the performers' (known as the artists) royalties. Performers pay for the costs of recording. Not so for the composer paid a royalty called a mechanical royalty, from the first record sold.)

Performance copyright would give performers on recordings the same rights and economic stream as the other copyright owners. In contrast to the existing rights under Part XIA of the Copyright Act, performers will have rights in relation to a range of uses of authorised recordings of performances, as well as moral rights. Performers are entitled to equitable remuneration in recognition of the value of their performances. Because performers have no legal rights for negotiating directly with end users of recordings on which they have performed, they have no opportunity to establish income streams which are independent of the maker of the first recording of a live performance.

If performers are granted legal rights to their performances they will be entitled to receive payment for the uses of their recorded performances. Performers would receive remuneration for the communication, reproduction, broadcasting and public performance of their recordings as do the composers and the owners of sound recordings.

Because performers have no rights, they have extremely limited income streams. As the Throsby/Thomson economic study of Australian artists, But What Do You Do for a Living?, noted in 1994, the majority of musicians receive low rewards for the practice of their profession and are earning incomes that barely provide for a minimum standard of living. The average income for an Australian musician (non-composer) is $24,078 per annum and the median income is $20,700 per annum (Census 96).

Note: Musicians including singers had a mean income of $26,400 in 1993, of which the arts component was $19,600 and the non-arts component $6,700. This compared with $24,700 ($18,000 plus $6,700) for all artists. (David Throsby and Beverley Thompson, But What Do You Do for a Living? A new economic study of Australian artists, Australia Council 1994).

Lindy Morrison is a community musician, Board member of the Music Council of Australia, and of the PPCA.