This FAQ 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.
Copyright is a legal right which protects original works by granting the creator exclusive rights over how the work is used and communicated. In Australia, it is governed by the Copyright Act 1968 (Cth) (“the Copyright Act”).
The exclusive rights include the ability to reproduce (copy), perform, play, adapt, modify and communicate the work. Before you can use someone else’s original work, you need to acquire permission from the owner of the original work.
In Australia, copyright automatically arises when an original work is created, released or published. Unlike other countries, there is no official register where a copyright needs to be filed.
There are generally two different copyrights that exist in commercially released music:
- Copyright in the musical works (i.e. the written lyrics and musical score written by the songwriter, composer and/or lyricist). The musical works for example can be owned by the songwriter, lyricist, composer or music publisher.
- Copyright in the original sound recording (i.e. the audio recording of the musical work). The sound recording for example can be owned by the record label who released the music or the performing artist.
In Australia, copyright in a recording generally continues for 70 years after the year of first commercial release, even if this is some years after the year in which the recording was made.
When is the sound recording made public?
The copyright in the Sound Recording has expired if:
If not, the duration of copyright in the sound recording is
Made public before 1 January 2019
Made before 1 January 1955
Year first made public + 70 years
Made public on or after 1 January 2019 and within 50 years of being made
Made before 1 January 1955
Year first made public + 70 years
Made public on or after 1 January 2019 but not within 50 years of being made
Made before 1 January 1955
Year made + 70 years
Never made public
Made before 1 January 1955
Year made + 70 years
A useful indication of whether or not a recording is still subject to copyright protection is the “℗” notice which typically appears on CD covers or in digital stores such as iTunes or on music streaming services (e.g. ℗ 2004 Acme Records Pty Limited).
This notice indicates that copyright exists in the recording (by use of the ℗ symbol), that the recording was first commercially released in the stated year (2004 in this example), and that the named person was the owner of copyright at the time the particular CD was manufactured. A recording that was given this ℗ notice would continue to be subject to copyright protection until 2074. For more information, please see PPCA’s guide to the proper use of the ℗ notice here.
Under section 85(1) of the Copyright 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 Copyright Act. Under section 86 of the Copyright 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 the above acts.
In some circumstances, however, provisions of the Copyright Act (including the fair dealing provisions set out in Part Three) 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, DVD or digital file) 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. Depending on the proposed use, a licence from OneMusic Australia, PPCA (or the relevant 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 liable for copyright infringement.
It is important to note that PPCA has limited incidental copying rights that are applicable in certain circumstances. If your requirements fall outside the scope of PPCA’s rights, you may obtain authorisation from the copyright owner or in some cases from ARIA.
A sound recording means the aggregate of the sounds embodied in a compact disc, record, pre-recorded cassette, home-made tape, digital file 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 Copyright Act which grants owners exclusive public performance, communication and broadcast rights.
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 soundtrack associated with such visual images.
This includes video tapes, DVDs, celluloid film, digital video and any other visual media like these. The Copyright Act grants exclusive public performance and communication rights in respect of all Australian-made films and virtually all films made overseas.
PPCA (via OneMusic Australia) 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, digital file, stream or other carrier. Similarly, for music videos it does not matter whether the public performance takes place by means of a celluloid film, DVD, video tape, digital video, online stream 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 Copyright 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.
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, streaming of audio or video online or on mobile phones, 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”.
The law in this area is complex and there is no simple test for determining when a sound recording is protected under Australian copyright law in respect of such uses. PPCA is aware that some licensees are under the misapprehension that all US artist recordings are unprotected, and can therefore be either broadcast or played without the need for any licence. This is not correct, and in fact many recordings made by US artists are protected because of the way specific aspects of the legal requirements are applied.
In general terms, for public performance and broadcasting, copyright protection applies to the playing of a sound recording in public in Australia if that recording was made by a citizen, national or resident of, or body corporate incorporated in, a [protected country]. The US is not a "protected" country at present, but that does not mean that all recordings by US artists or made in the US are necessarily unprotected under Australian copyright law.
First, determining who "made" the recording (and hence where their base or residence is) can be difficult. Traditionally, the "maker" for most recordings was the record company. However, following changes to the Copyright Act, on 1 January 2005, every performer contributing to a recording (including backing and session musicians) is also a "maker" of that recording, and if any of them are resident or nationals of protected countries, then the recording will be protected.
Apart from the nationality of the artists or the place of incorporation of the record company, copyright protection for public performance also applies if the recording was made in a "protected" country. Some US artists, for example, have recorded outside the US, making those recordings protected.
In addition, overseas recordings may attract a period of interim protection following release, and may be protected (wherever they were made) from the date of first commercial release until the earlier of 7 weeks after release, or the date of release in Australia.
Putting these rules together and applying them to a specific sound recording is very difficult. In order to determine whether a particular sound recording in a particular circumstance is protected or not the following information will be required:
- how is the recording being used? (e.g. for public performance or internet streaming);
- who "made" the recording, and if it was a record company, their place of incorporation;
- the place where the track was recorded (i.e. the location of the recording studio);
- the release date of the track, the country of first release and if released in Australia, the date of first release here; and
- the names of everyone who performed on the recordings and their citizenship or residency at the date the recording was made.
PPCA does not believe the law should be this complicated and difficult to apply, but PPCA has no control over copyright legislation. We can assure you that PPCA licences allow your business to avoid having to undertake any of this complex analysis of whether a recording is or is not a protected sound recording, as long as that recording is controlled by one of the many copyright owners that license their repertoire to PPCA.
PPCA urges anyone wishing to determine whether or not a particular recording is or is not protected to obtain their own independent legal advice.
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.
Unless otherwise specified, 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 thousands 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 published on the PPCA website.
A blanket licence from PPCA covers the very wide range of sound recordings and music videos that meet two criteria. First, the licensed sound recordings must be owned or controlled by copyright owners that are licensors to PPCA and second, the communication and / or public performance of the licensed sound recordings must be protected under Australian copyright law.
As to the first requirement, that the recording or video be owned or controlled by a PPCA licensor, you can check whether a particular copyright owner is a PPCA licensor by looking at the List of Current Licensors. That web page also provides a click through to the list of labels controlled by PPCA licensors and covered by PPCA's blanket licence. PPCA licensors include all the major record companies and over 2,500 other copyright owners.
As to the second requirement, that the recording or video be protected under Australian copyright law, it is worth noting that:
- all recordings are protected for non-broadcast communication (e.g. internet streaming, music on hold); and
- all music videos are protected for all uses.
Some business owners are surprised to learn that they need a licence to play copyright protected music in their business and don't always understand that simply buying a CD or a song on iTunes, for example, doesn't give them the right to play it in a commercial environment. Generally speaking, any business that wants to play, perform or sell copyright protected music or music videos has to first obtain a licence.
From 1 July 2019, licences for playing music in a business can be acquired from OneMusic Australia. OneMusic Australia is a joint initiative between PPCA and APRA AMCOS with the aim to simplify public performance music licensing for businesses. OneMusic Australia is able to issue licences for the public performance for both sound recordings and/or music videos and musical works.
The licences issued by OneMusic Australia are for the public performance of music. If you are a TV or radio broadcaster, an online radio station, a narrowcaster, or a streaming background music provider, then you will still be required to obtain a licence for the broadcast or communication of sound recordings or music videos from PPCA or the relevant record label/rights holder – not from OneMusic Australia.
There are generally two different copyrights that exist in commercially released music.
- Copyright in the musical works (i.e. the written lyrics and musical score written by the songwriter, composer and/or lyricist). The musical works can be owned by the songwriter, lyricist, composer or music publisher.
- Copyright in the original sound recording itself (i.e. the audio recording of the musical work). The sound recording can be owned by the record label who released the music or the performing artist.
APRA grants licences for the broadcast, public performance and communication of the musical works and distributes licence fee income to songwriters and their publishers. PPCA grants licences for the broadcast and public performance of recordings and distributes licence fee income to record labels and directly to registered Australian recording artists.
The broadcast or public performance of a protected recording usually requires two licences - one from APRA and one from either PPCA or the individual sound recording copyright owners. However, from 1 July 2019, businesses can obtain a licence from OneMusic Australia that will cover the copyright in public performance of both the musical works and sound recordings.
Licences costs vary across different industries. For public performance licences, go to OneMusic Australia to find the appropriate licence and cost for your business.
A licence should be obtained in advance of undertaking the public performance or broadcast of sound recordings or music videos.
It is illegal to play protected sound recordings for commercial purposes without a licence. The Copyright Act imposes an obligation on those who wish to broadcast, communicate or publicly perform protected sound recordings and music videos to obtain a licence from the copyright holders. PPCA (or One Music Australia if relating to public performance) is authorised by participating record labels to grant licences for the use of sound recordings and to collect licence fees. If you don't obtain a licence, you will need to obtain a licence from each relevant individual copyright owner.
Research has shown that recorded music and music videos can help create an image, influence the experience and decisions of customers, motivate staff and positively impact sales. Most importantly, it helps your business stand out from its competitors!
Put simply, if the music played in your establishment is enjoyed by a customer, then it is likely that this positive response will be associated with your product, environment or experience – which is what every successful business needs.
It is illegal to play or make available protected sound recordings without an appropriate licence.
PPCA operates an enforcement program, carrying out inspections and investigations into the unauthorised use of copyright protected sound recordings and music videos across Australia. In some circumstances, where a business continues to perform or communicate protected sound recordings in public without a licence from the appropriate copyright owner(s) or PPCA, PPCA can take legal action on behalf of its licensors for the infringement of copyright.
PPCA has enjoyed a 100% success rate in legal proceedings against businesses using protected sound recordings without a licence.
The Federal Circuit Court of Australia can rule that an unlicensed business must pay back licence fees, legal costs and damages if they are found to be illegally playing recorded music.
We encourage anyone who is considering using recorded music or music videos to contact us beforehand to ensure the appropriate licenses are issued. We are able to talk people through their responsibilities and the costs involved so that they can build them into a business plan. However, if relating to the public performance of sound recordings, please contact OneMusic Australia in the first instance.
PPCA and OneMusic Australia are not the only organisations from which you can obtain the required licences. If you prefer, you can approach each copyright holder (usually the record company) individually to get a licence for the recordings and music videos that they control.
If you undertake the communication or broadcast of protected sound recordings or music videos, and don’t wish to deal with the PPCA, you will have to find and contact each individual rights holder whose protected sound recording you wish to play. This can be a lengthy and difficult process. Once you identify these owners, you must then negotiate deals and undertake the necessary administration/accounting activities with respect to each of the rights owners.
PPCA provides an efficient “one-stop-shop” to users who wish to undertake the communication or broadcast of protected sound recordings or music videos covered by a PPCA licence. If relating to the public performance of sound recordings, please contact OneMusic Australia or the individual copyright holders directly if you wish to obtain a licence.
For information about public performance licensing activities, head to the OneMusic Australia website.
A licence is required to cover the public performance of protected sound recordings used during live performances. For example, if sound recordings are used within an artist’s set and/or where sound recordings are used before, after or between performers’ sets at events and concerts, a public performance licence is required.
This licence can be obtained from OneMusic Australia as a blanket licence. Alternatively, a licence can be sought from the individual copyright holder(s) of each sound recording performed during the event or concert.
No. International copyright regulations extend copyright protection to recordings and music videos of overseas artists played in Australia.