Legal Position

This section is provided for your general information only. It is not intended to be, nor should it be, construed as or relied on as legal advice. You should make your own enquiries, and seek appropriate advice, about the provisions of the Copyright Act which are relevant to you and their implications for you and/or your business.

Under section 85(1) of the Copyright Act 1968 (“the Act”), the copyright in relation to a sound recording is the exclusive right to do all or any of the following acts:

(a) to make a copy of the sound recording;
(b) to cause the recording to be heard in public;
(c) to communicate the recording to the public; and
(d) to enter into a commercial rental arrangement in respect of the recording.

Music video clips fall within the definition of “cinematographic film” in the Act.  Under section 86 of the Act, the copyright in relation to a cinematograph film is the exclusive right to do all or any of the following acts:

(a) to make a copy of the film;
(b) to cause the film insofar as it consists of visual images to be seen in public or insofar as it consists of sounds to be heard in public; and
(c) to communicate the film to the public.

Copyright in a sound recording or a music video is generally infringed if a person other than the copyright owner or a person authorised by the copyright owner does any of these acts.

In some circumstances, however, provisions of the Act (including the so-called fair dealing provisions) may allow you to make use of sound recordings for particular purposes without a licence.

The possession of a copy of a sound recording or music video (for example, in the form of a CD or an enhanced CD) does not carry with it any right to undertake the public performance or broadcast of that sound recording or music video regardless of how that copy of the sound recording or music video was obtained.

Warning notices regarding unauthorised public performance, broadcasting, transmission, renting and/or copying of sound recordings and music videos typically appear on record and music video labels. A licence from PPCA (or the copyright owner) must be obtained in advance of any public performance, broadcast or communication of protected sound recordings or music video clips.  Failure to do so may render the user potentially subject to legal action for copyright infringement.

It is important to note that PPCA has limited incidental copying rights that are applicable in certain circumstances. If you requirements fall outside the scope of PPCA’s rights, you may obtain authorisation from the copyright owner or in some cases from ARIA (telephone (02) 8569 1144).

 

What is a 'sound recording'?

 

A sound recording means the aggregate of the sounds embodied in a compact disc, record, pre-recorded cassette, home-made tape or any other device in which sounds are embodied. In other words, it is the sounds on a CD (rather than the CD itself) which constitutes the sound recording. Protected sound recordings are those covered by the provisions of the Act and the Copyright (International Protection) Regulations, for which the Act grants public performance and broadcast rights.

 

What is a 'cinematograph film'?

A "cinematograph film" means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing:

         (a)  of being shown as a moving picture; or
         (b)  of being embodied in another article or thing by the use of which it can be so shown;

and includes the aggregate of the sounds embodied in a sound ‑ track associated with such visual images.

This includes video tapes, DVDs, celluloid film and any other visual media like these.  The Copyright Act and Regulations grant public performance and communication rights in respect of all Australian-made films and virtually all films made overseas.

What is a 'public performance'?

PPCA can license “public performances” of sound recordings and music videos.   A sound recording is “performed” if it is heard.   As a type of cinematograph film, a music video is “performed” if it is seen and/or heard.  “Public Performance” is the playing of a sound recording or the exhibition of a cinematograph film in public.

Whether a performance is “in public” depends on the “character” of the audience and the effect of the performance on the value of the copyright.   This means you have to consider the circumstances of each individual performance to determine if it is in public.  The courts have given some guidance, however, by making it clear that a performance can still be a “public performance” even if:

(a) the performance is given for free;
(b) the audience is small;
(c) there is no admission fee to hear or see the performance; or
(d) the performance is confined to members of a club.

In relation to sound recordings, it does not matter whether the public performance takes place by means of a compact disc, record, cassette, tape or other carrier.   Similarly, for music videos it does not matter whether the public performance takes place by means of a celluloid film, DVD or video tape, or through a large screen or a TV monitor.  In all cases, you still need a licence to publicly perform or exhibit the sound recording or music video.  Under the Act, only the copyright owner or exclusive licensee of a sound recording or music video can authorise (or license) its playing or public performance.  The record companies have authorised PPCA to grant non-exclusive “blanket licences”, which cover the public performance of protected sound recordings from a number of different record companies under the one licence.  This makes the licence procedure as simple and as easy as possible for all concerned.

What is 'communication to the public'?

A sound recording or music video is “communicated” if it is electronically transmitted by any means or made available online, for example, on the Internet.   Radio and TV broadcasts, webcasts of streaming audio or video, Internet simulcasts of radio broadcasts and the provision of music to telephone callers on hold (including music from the radio) are all examples of “communications”.  In determining what is a communication “to the public”, similar principles will apply to those that have been developed in the context of performances “in public”.

What does the PPCA licence entitle the licence holder to do?

A licence from PPCA gives the holder a non-exclusive right to publicly perform and/or communicate all sound recordings or music videos protected under the Act and released on any one of the many hundreds of record labels controlled by PPCA’s members, but only in accordance with the terms of the individual licence.   There are many classes of licences covering a range of uses of sound recordings and music videos.  Licence holders must ensure that they are licensed for the appropriate use or uses.

To assist licence holders to determine whether the licence covers a particular label, an up-to-date schedule of labels is available on request.

Need further information?

If you would like further information in relation to your rights and obligations in respect of the broadcast, communication and/or public performance of sound recordings, you can contact the Australian Copyright Council.