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Fair Use and Other Copyright Exceptions
The Commonwealth Attorney-General instigated a review, Fair
Use and Other Copyright Exceptions, and invited submissions. The review resulted
in part from the passage of the Australia United States Free Trade Agreement
and the concomitant consideration of whether to introduce the US
‘Fair Use' regime for managing ‘exceptions' to copyright law to replace the
Australian ‘Fair Dealing' system. The review also wished to consider a number
of other matters including the proposal to introduce a blank media levy to
reimburse copyright owners whose earnings had been damaged by illegal digital
copying of their copyright property.
The Music Council made a submission to the review in June
2005. The submission attempts to find common ground among the sometimes
conflicting interests of its very diverse membership. Generally, this is
achieved by accepting the more urgent concerns of the main stake-holders
insofar as they do not breach the equally urgent concerns of others. For
instance, the submission supports the desire of libraries to increase the
digitisation of collections for preservation and storage purposes and to
support enhanced public access to digital copies by using licence agreements,
but would not support any plan for their public dissemination of unlicensed and
unremunerated digital copies because that conflicts strongly with the interests
of copyright owners.
The submission covers these matters:
1. FAIR USE VS FAIR DEALING
2. TIME-SHIFTING TELEVISION AND RADIO BROADCASTS, INCLUDING
UNDERLYING WORKS, FILMS, SOUND RECORDING AND LIVE PERFORMANCES
Format-shifting
Back-up copying
3. BLANK MEDIA LEVY
4. THE ACTIVITIES OF LIBRARIES AND LIKE INSTITUTIONS
This submission is made in the knowledge that an expert
review team has been employed for an extended period in researching the
practice of music education in Australia
and abroad. It therefore has not been thought necessary to provide extensive
references, although these are present where there is a possibility that new
knowledge is being added. We would be happy to substantiate points made here,
upon request of the review team.
This submission deals with the following issues:
The context for change
The broad relevance of, and benefits accruing from a school
music education: individual, institutional, national/economic
The need for universal provision and the essential role of
schools
The need for expert teachers and teacher training
Approaches that might elevate music among the curriculum
choices of school systems
Specific issues around the effective inclusion of music in
the school program
Cultural diversity in the community requires diversity of
choice in music education, carrying forward the heritage and creating the
future
The need for school programs to interact with the community
and recognise that school age children may also receive music education in the
community
To read the Music Council April 2005 submission, click
here
Proposed Free Trade Agreement with ASEAN and New
Zealand
Proposed Free Trade Agreement with Malaysia
The Music Council of Australia has taken a keen interest in
the effects of globalisation and international trade on local culture, and has
been actively involved in informing and advising government during trade
negotiations under the WTO and with the USA.
Its very detailed submission concerning those negotiations can be read in the
PAST ADVOCACY DOCUMENTS section of this Music Council website.
The Free Trade Agreement with the USA has seriously curtailed
the Australian Government's prerogative to support Australian culture by
regulation especially as new media emerge and become more dominant, the
government's freedom to act will be further circumscribed by the very weak
reservation in the AUSFTA concerning ‘interactive media'.
Especially with this example in mind, the Music Council is
most concerned that the AUSFTA should not become a template for trade
agreements under the WTO or with other countries or regions.
Given its past submissions with regard to GATS and the US
FTA, the Council did not recapitulate in this submission the arguments for the
need to regard culture as not just another good or service to be traded. One of
humanity's fundamental needs is to find an identity and a sense of
belongingness. It is through our culture, above all, that such an identity is
articulated - as is recognised in various government documents such as the
charters of the ABC, the Australian Broadcasting Authority and the Australia
Council for the Arts. Its expression should not be sacrificed to the trade
ambitions of other countries.
The Music Council of Australia therefore strongly urged that
culture should be totally excluded from any trade agreement with ASEAN or Malaysia.
It urged that a line should be drawn under the AUSFTA and no more undertakings
concerning culture should be given in any subsequent free trade agreement.
The submissions concerning ASEAN (February 2005) and Malaysia
(October 2004) were very similar. You can read the submission for the ASEAN
agreement by clicking
here
If you would like to see the Malaysia
submission, contact the Music Council
A New Era: The Orchestras Review 2005 Report
This is a review called by the Commonwealth Minister for the Arts into the situation of the six concert orchestras formerly under the management of the Australian Broadcasting Corporation, plus the two pit orchestras in Sydney and Melbourne serving the Australian Ballet and Opera Australia.
The Music Council did not make a submission to the Review before it was written. After it was released it seemed more useful to comment through the media than through a formal submission to government, for which government had made no structured provision. This article from the MCA's Music Forum magazine Vol. 11 No. 3 puts the arguments that appeared elsewhere also in the public media.
The position is essentially that the Terms of Reference, and in particular that term which instructed the review team to assume a continuation of subsidies at the present level -- at a time when it was known that at least half of the eight orchestras were in serious financial difficulties -- led the reviewers to ask the wrong question.
In effect, they asked something like this: How can we have the cheapest orchestras possible, rather than How can we have the best orchestras possible. This, whether or not it was the government's intention.
At the time the article was written, it seemed clear that somehow the key recommendation for reducing the size of three of the concert orchestras would not be adopted. However, since the Review took the Terms of Reference literally, it did not put a figure on retention of the status quo. And even should more funds be made available to keep the orchestras at their present sizes, larger questions remain unattended to.
What is the plan for optimal orchestral development in Australia? There is none.
This is the title of the paper developed by the Australia Council to describe its intentions to restructure.. The Australia Council issued a press release in December 2004, announcing its plan to reorganise its operations. An analysis of the proposals was quickly prepared for the February Music Forum, at a time when the field had not yet responded (it being the beginning of the holiday period).
This paper by Richard Letts can be read by clicking here
Various interest groups took their concerns to the Australia Council. For its part, the Music Council has worked with counterpart organisations in a national coalition named ArtsPeak. We had a correspondence with the Ozco and also met with its representatives twice. The main other interest groups were from the community cultural development (CCD) and new media arts (NMA) sectors, both of which lose the funding and policy boards especially committed to their interests in the Australia Council.
In early April, the Australia Council met and voted for a plan amended after all these consultations. It issued a press release outlining the decisions taken.
ArtsPeak had written to the Council expressing a number of concerns. Some of these were addressed in its second meeting, and others in the press release mentioned.
A summary of these exchanges can be read in this Music Forum article click here
The final Australia Council formulation as of May 2005 can be read at www.ozco.gov.au Go to FUTURE PLANNING
The Australia Council originally announced the changes as a fait accompli. The response from the arts world was robust, especially from the community cultural development sector, whose Australia Council board was to be disbanded. One outcome is the formation of a sectoral advocacy group, the National Arts and Cultural Alliance, with a website at www.naca.org.au The other Board to be disbanded was New Media Arts. The special interests of that sector are covered by the publication RealTime and its website is at www.realtimearts.net
Small to Medium Performing Arts Sector
The Music Council has responded to the Report to the Ministers on an Examination of the Small to Medium Performing Arts Sector, produced by a Working Party for the Cultural Ministers Council (the council of arts ministers from the Commonwealth and the states and territories). The purpose of this report is not yet clear. The Music Council has taken the report to be a survey of the circumstances of the sector, serving to guide a more complete and satisfactory inquiry that would result in better governmental support. It is also possible that the report is an empty gesture, responding to calls from the community following the inquiry into and increased funding for the major performing arts sector. The Council is calling for a full inquiry.
Culture and the proposed Australia/United States of America Free Trade Agreement
SEE ALSO: Cultural Diversity in the Proactive section below.
The Music Council has joined with a number of Australian professional arts organisations in a coalition, the Australian Coalition for Cultural Diversity (ACCD), to advocate the interests of culture and cultural diversity during negotiations for free trade treaties, whether bilateral, regional, or under the auspices of the WTO.
The immediate impetus for the establishment of the ACCD was the announcement that Australia and the USA would attempt to negotiate a free trade agreement (FTA). For the cultural sector, the USA is probably the most feared protagonist of free trade because of US opposition to the governmental support upon which much of the cultural life of smaller countries depends.
It transpired that the first task of the ACCD was to respond to an invitation from the Department of Foreign Affairs and Trade to offer observations about the prospective Australia/US FTA. The Executive Director of the Music Council, working with representatives of the other ACCD members, prepared the response.
While the ACCD response covered broad issues of concern to the entire cultural sector, many ACCD members wrote submissions detailing the concerns of their own subsector.
The Music Council of Australia's response presents many major concerns for the music sector.
NOTE: The agreement was completed and ratified by the two nations. The outcomes for culture are negative, despite a vigorous public campaign by the cultural sector and in particular the film industry. The Music Council was successful in ensuring that Australian music quotas were retained for all free to air radio. This was a very modest outcome, however, given the overall objective of total exclusion of culture from the agreement. A summary of the outcomes was published in Music Forum.
Proposed merger of Sony Music Entertainment (Australia) Limited and BMG Australia Limited
The Music Council was invited by the ACCC to comment on the proposed merger. Due to lack of time and resources, it was not possible to explore the situation in great depth. Further, the opinions of the MCA membership were split for and against. The submission therefore did not take a position, but offered the arguments put by both sides.
NOTE: The ACCC in due course consented to the merger. If the overseas home offices were merged, it is difficult to see how it could do otherwise. Subsequently, there have been reported reductions in staff numbers at the merged entity, termination of contracts for some artists, and a reduction in back catalogue. At the same time, there is said to be an additional buoyancy among the independent record labels.
Culture and Australia's negotiations under the DOHA round of the General Agreement on Trade in Services (GATS)
Australia's negotiations under the current round of GATS differ in some significant ways from the negotiation of the free trade agreement with the United States of America.
Whereas negotiations with the US are bilateral, with Australia very much the junior and aspiring partner, GATS negotiations are multilateral, with agreements potentially among all member nations of the World Trade Organisation (WTO). Australia could be under more pressure here in the bilateral agreement than under GATS.
Whereas the US agreement is what is called a negative list agreement, GATS is a positive list. What this means is that under the US agreement, all aspects of trade between the two countries become "free" except those things which are specifically excluded. This is quite dangerous from a cultural point of view, because of the possibility of overlooking something important and so not having it excluded -- as happened with a negative list agreement with New Zealand. GATS is much safer. No cultural activities are included except those specifically added by our government -- although there still are risks that more general aspects of the agreement could "leak" into the cultural area.
As with the US FTA, two submissions can be found here: the submission from the Australian Coalition for Cultural Diversity dealing with the broad cultural issues :
and the submission from the Music Council of Australia, dealing with musical issues
Click here to view the Music Council of Australia submission
Both are modifications of the submissions concerning the Australia/US FTA, adopting the same approach but adding some issues that could arise under the different circumstances of GATS.
Proactive advocacy
Music Policy Recommendations for the 2004 Federal Election
The Music Council of Australia has prepared a set of policy objectives which it is recommending to all Federal political parties.
NOTE: The Labor Party adopted a music policy based in part on the Music Council's recommendations. It proposed to fund the establishment of new community-based regional conservatoria of music. The funds were to be assigned to the Music Council, which would work to establish the conservatoria and serve as the conduit for Commonwealth financial support.
National Campaign for Music Participation: Music. Play for Life
This campaign is organised conducted by the Music Council, the Australian Music Association and the Australian Society for Music Education.
The Music Council is working within Australia, and through the International Network for Cultural Diversity and the International Music Council, for the protection and enhancement of cultural diversity.
There are other relevant cultural diversity documents in that same section of the website. See also under Resources. Sample Music Forum Articles for articles on music and globalisation.
Review of Commercial Radio Codes of Practice
Since 1942, there have been statutory requirements on Australian radio broadcasters to assign at least a specified percentage of music broadcast time to Australian music. With the passage of the current Broadcasting Services Act, the statutory requirement was replaced by a self-regulatory regime, Code of Practice 4, administered by Commercial Radio Australia (CRA), the trade association of commercial radio broadcasters.
Every five years, the CRA is required to review the Codes of Practice and to invite public submissions. The Music Council submission argued in particular for an increase in the sub-quota for new music (i.e. recordings released in the previous 12 months) since evidence suggests that this has been very positive in building audiences and sales for Australian artists -- without damaging the commercial interests of the broadcasters.
NOTE: The MCA proposals were, on the evidence, ignored. However, it may not be coincidental that the monitoring committee, AMPCOM, met in October 2004 and published the required reports in April 2005. Paradoxically, AMPCOM is convened not by CRA, but by ARIA.
Australian Music on the ABC
In 1996, funding cuts to the ABC threatened the reduction or destruction of ABC radio live music programming. MCA campaigned successfully to save live music activities because they are the primary means by which Australian audiences can hear Australian musicians and Australian compositions.
Again in 2000, there was a very similar threat, with major cuts to the already very small musicians’ budgets announced for all ABC national radio networks. The MCA organised a petition to the Chairman of the ABC, requesting restoration of the full funding allocation. The campaign was successful.
The Ralph Tax Impost
The MCA campaigned alongside other arts organisations for the reversal of the government’s proposal to disallow certain artists’ expenses as deductions against income for tax purposes. The proposal was withdrawn.
The Former ABC Orchestras
The MCA played a part in securing the release of the ABC orchestras from central control.
