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Performance and new media licensing in Australia and New Zealand

by Scot Morris

(Australasian Performing Right Association and The Australasian Mechanical Copyright Owners Society)

Scot Morris: Thank you for the invitation to come and speak to you all, I feel a little bit like I’m here under false pretences. My role at APRA is Director of International, so essentially I’m in charge of all of our relationships internationally and try to maximise revenue for Australia and New Zealand composers to make sure that we get paid properly from overseas. But I suppose my background is that I’m a copyright lawyer and then went to an organisation called the Australian Copyright Council, and I recommend you all have a look at their website and some of the resources that are available. They also give free advice on any burning copyright questions you may have, so take advantage of that. Their website is just copyright.org.au, which I think one of you referred to?

Alastaire Bowler: Yes I did, I found some useful links and found specific documents and information sheets there.

Scot Morris: And there are also some useful books that you can order there. They’re really great, and there are ones for music, ones for librarians, and some for music teachers, just a whole range of them as well.

I’m also very happy to see my old friend Ian Coss, who I know because many years ago I took over his position at AMCOS as print music person, dealing with publishers and print rights, so I’m very happy to see him here and Chrissy [Chan, APRA/AMCOS’s National Theatrical Licensing Representative] as well. We can turn this into a bit of a general discussion and flesh out some of the questions we had from the first wonderful presentation on the basics of copyright. I did actually prepare a PowerPoint presentation, and I thought would put some of these questions into context, in particular what is the balance achieved through copyright policy, and when you can use materials without permission or having to worry about it? And when you do need permission, what are the mechanisms, who controls the rights, and how does that happen? There are some slightly complex things around the edges, particularly in the subject matter that you guys are dealing with.

So, I won’t go through this in too much detail, but in terms of print music publications, that basically dates back to the printing press, and that’s where copyright originated in the 1400s with the Gutenberg press. Initially it was set up as the Stationers’ Guild to give the Crown control of who had the right to publish things. The first compilations of notations of music were distributed in the 1400s, but music publishing per se did not develop until much later. Music publishing was all about the printing of music, and basically selling that to people who wanted to perform it, learn it, etc. Copyright then changed its focus from publishers to creators in 1710 with the Statute of Anne, and that’s where authors were given the rights to control publication of their work. So that gave them economic rights to negotiate with publishers to get paid according to the extent of use of their work. These rights come from a sort of natural rights philosophy, that people creating have human rights to benefit from the exploitation of their work, and there are two sorts or types of copyright law that have developed in the world. There is the English System (the Common Law System) which treats copyright more like property or something that can be traded, and that’s where publishers buy rights, societies also administer rights on behalf of the authors, composers and publishers. The Civil Law tradition, which is like a French tradition or Roman Law tradition, has a different philosophical basis and they call it ‘Author’s Rights’, and their focus is really on the creators, and some of those rights are inalienable to the author. So they stress more the personal relationship between a composer and the work that they create. They developed a law at the same time of something called moral rights, so how that creative work is used in the marketplace has rights related to ensuring that the creator is properly attributed and also that the integrity and purpose of the work and vision of the creator is respected. So these moral rights of integrity mean that you can’t alter a work in a way that would somehow be prejudicial to the intention of that composer. So that’s where some of these questions about altering a work do come into play. Australia now has also introduced moral rights into its legislation as has the UK, but they basically are a creation of Civil Law.

So in terms of the development of copyright, performing rights laws were passed in the 1800s, and that’s where the commercial rights to performance and ensuring that royalties went back to the creators of those works were first put into play in Europe. That spread through Europe by countries recognising on a bilateral basis composers from each of the other countries. That was then formalised in a multilateral convention that still is the foundation of international copyright today, and that is the Berne Convention of 1886. So what the Berne Convention does and is sort of interesting with some of the comments we made about how different territories have different rules, what the Berne Convention does is it set out the minimum and says that at a minimum you have to protect all these works, these artistic, musical, literary works, and photographs, films, etc. It also sets out the basic rights that each national law has to have, so you have to have exclusive rights of reproduction, of public performance, adaptation, etc. It also limits what exceptions to copyrights you can have, so exceptions for librarians or educational purposes are set out in the parameters of this convention. The question of duration comes up, and I’ll talk a bit more about duration of copyright and the extension of duration of copyright in Australia and not New Zealand because the Berne Convention minimum is life of the author plus fifty years, so fifty years from the end of the year in which the author died. So the Berne Convention is still really important today, and that’s administered by the World Intellectual Property Organisation, WIPO, which is an agency of the United Nations based in Switzerland, and they have developed other international conventions and treaties, probably most importantly in 1996 the WIPO Copyright Treaty and the Performances and Phonograms Treaty. Those treaties are known as the ‘Internet Treaties’, and basically what they did was introduce new forms of rights that copyright holders have in the digital environment, and they are communication to the public including making works available digitally on the Internet for people to access at their own time. So now, the ways copyrighted works are being exploited in the digital era are covered by copyright under these treaties. In Australia, those laws were enacted in the 2001 Digital Agenda Amendment, and in New Zealand I can’t remember what year, but the new New Zealand Act is based more on the UK Act. Both Australia and New Zealand used to have the 1911 Act, prior to that the imperial legislation, then the 1911 UK Act, and then the 1956 UK Act, which in Australia was the 1968 Act.

Most of you I would assume know about APRA but just to give you an introduction, we are a non-profit organisation that is owned and controlled by our members. Our members are composers, lyricists, librettists, arrangers and music publishers, all of those who own copyright in musical works. We have more than 70,000 members in Australia, New Zealand and the Pacific. APRA is the Australasian Performing Rights Association, so we are actually a trans-Tasman organisation, which is great even though sometimes with our database we have some issues with New Zealand law being different to ours, particularly with regard to duration, so at the end of each year we have to update our database in terms of protection given that the two countries have different duration periods. AMCOS is the Australasian Mechanical Copyright Owners Society, and that was established a bit later. APRA was founded in 1926, and it was established just before radio was introduced in Australia, deliberately. We were set up by the Performing Rights Society in the United Kingdom plus all the local publishers including Boosey’s, Albert’s, Chappell. All of the Australian publishers together with the British set up APRA in the same format and the same structure as existed in the United Kingdom. That’s relevant to things like long choral works but I’ll get to that in a moment. AMCOS was established later, and it is again Australasian (Australia and New Zealand), but mechanical copyright owners, not performers. Performing rights that APRA administers are public performance, broadcast, communication to public, electronic transmission, and those sorts of rights. Reproduction rights are mechanical rights, so they are what we call ‘mechanicals’, and that’s a very quaint expression that initially was in the 18th century applied to making music boxes because it was a mechanical reproduction of a musical work, and that’s the first example of mechanicals. Of course since then we have records, vinyl, piano rolls, and of course nowadays it’s CDs and even more currently uploading works is a sort of mechanical reproduction. Downloading onto your phone is a mechanical reproduction. So they’re still using that wonderful old term that applied to music boxes in the 1800s to apply to downloading songs from iTunes. So those are the rights that AMCOS administers. As you can see, in terms of digital environment you involve both sets of rights. There is uploading onto a site, which is a reproduction. There will be making available, communicating and transmitting the work electronically to the public, which are performing rights. So in 1997 APRA and AMCOS formed an operational line so we’re basically one organisation because we deal with the same membership base and we deal with the same music community in terms of facilitating reproducing works and performing them. That’s why we’re able to deal with all sets of rights. We have different sections and different people who specialise in different things at APRA. Some specialise in just the performing rights and issuing licenses for performing rights. We have one person in the Melbourne office who just does dramatic context and assists with grand rights clearances. We have someone in Sydney who deals with print copyright issues. And AMCOS also has a print publisher committee that looks at print issues to see how we can make things a lot easier in terms of getting permission and knowing how to do the right thing.

So, collective management, this whole issue of individual versus collective management and where does that come from historically? Why are some rights administered by publishers, and some by collecting societies? Essentially, from the beginning when performing rights were established in Europe, it became obvious that for certain types of rights it was impossible for individual creators to administer them, to issue and negotiate licenses for everybody who wanted to use their works. The first collecting society made up of authors and creators was established by the French author Beaumarchais in 1777 and that was called the Société des auteurs dramatiques and basically it was set up for playwrights to negotiate with theatres in France to get royalties from the performance of their plays. That organisation still exists. It’s called SACD which stands for the Société des Auteurs et Compositeurs Dramatiquesand so they actually do grand rights clearance collectively in France. So you can see that there are differences in how rights are administered in Roman law and Civil law countries, to Common law countries.

For performing rights in music, it wasn’t until 1850, when three composers went along to a cafe on the Champs-Élysées in Paris where they had an orchestra playing the hits of the day. These three composers had their dinner and everyone was dancing and the orchestra performed quite a few of their hits. At the end of the meal, they were presented with a bill. Those three composers said ‘We’re not paying this until you pay us for our music, which you’re using to attract all these people and make profit.’ It went to court and that’s where the judge decided that yes, these composers should be paid for the commercial performance of their works. So that’s an early performing rights society that preceded APRA. We came in 1926. But PRS in the United Kingdom and ASCAP in America were established in 1914. GEMA in Germany was set up in 1903, and the international confederation of all our societies was established the same year as APRA, and that sets out a lot of the rules and determines how these acts operate internationally. Because what we do is acquire, APRA gets an assignment of performing rights from all its composers and publisher members. We then have reciprocal agreements with societies like us in every other country. So we grant them rights to license all the rights to Australian and New Zealand music in France or England, America or wherever, and by the same token we get rights from all of those societies. That enables all of our societies to offer you a license to say you can perform any work in the world’s repertoire because we basically represent all composers, rights holders and estates that have copyright in musical works. So that’s how that network of reciprocal representation agreements works. There are rules about distribution, and in particular we have rules amongst ourselves that say at least 50% must be paid to the composer, the publisher can’t collect 100% for performing rights. They may for mechanical or reproduction rights in Common Law countries. In France and other Civil Law countries they have the same laws that apply to mechanicals as well.

Copyright is all about this balancing of rights of ownership (to ensure that creators get recompense for the commercial use of their work) and the rights of users (to have access to materials). With technology this balance always changes, and that’s why with digital technology where scanning works, storing them and then disseminating them around the world electronically is so easy, there is a change in that whole balance again. We have looked at enacting new rights in the year 2000 and why there’s now another government enquiry, the Australian Law Reform Commission is looking again at provisions in the copyright law and how that affects new digital services that deal with entertainment material. I suppose it’s also relevant with the National Broadband Network, now everyone will have much greater access and speed in downloading multimedia content, how do you maintain this balance? There is a lot of interesting debate and negotiation going on about the different players in that value chain now, with internet service providers and companies like Google that want to scan every book in the world and make commercial applications of delivering that electronically. Also big companies like YouTube, which is the biggest digital music company in the world where a lot of people go to either post recordings of performances, promote their works, and also to access performances and recordings. Apple is probably the largest in terms of revenue for us now, the iTunes service in terms of digital revenue is by far the most important one. Recently, in the past couple of years, we’ve had new streaming music services such as Spotify launched, and that’s a new model where you can subscribe and get access to music that is streamed directly to all of your devices. So it’s changing really rapidly, and it’s very interesting for us trying to keep up and to negotiate with these new players that come from a much more IT sort of perspective. The question of digitising is really important, and I think from the dispute about the Google Books settlement in the UK that hasn’t gone ahead, the book publishers were concerned that Google would just scan all of their books and make them available with advertising and subscriptions, without actually negotiating the terms with them about how going forward in a digital environment that would be viable in terms of ensuring effective returns to the creators. So we have the same sort of debates with Google about YouTube, and it’s difficult because we’re all national bodies representing 70,000 composers, and they’re Google. So the bargaining power we have with them is not equal. It was hard enough when we were dealing with television and radio in getting an equitable rate returned to creators.

So talking about the balance, that’s where there are exclusive rights that basically mean if you want to use all or a substantial part of a work you have to get permission. But there is also a whole range of exceptions where you don’t have to get permission. Vi King [Vi King Lim, Symphony Services’ Library Manager] went through some that are important, and that issue of ‘fair dealing’ for an individual’s research or study is a good example. For a dealing to be fair, it can’t interfere with the market for existing sales. So to copy an entire work for your own research or study is not fair if you can go to the shop and buy it, because publishers publish materials for the educational market. A textbook publisher is in the business of selecting works, commissioning authors, printing and publishing works for that market, so that would not be viable if everyone under copyright law could just make an entire copy. That’s why there are in the fair dealing provisions a reference to what could be considered fair looking and the purpose that the amount or quantity is taken for, which is why they have said 10% of a work or one chapter or one article out of a periodical publication. That’s not so relevant to musical works and whether or not it applies. So those practice parts copies, those are probably fine. The other fair dealings are criticism and review, provided that an acknowledgement of the original work is made. There are also some new ones for parody and satire which were introduced about three years ago. It’s interesting because they’ve always looked at this Anglo-Saxon tradition of satire and parody that is a long standing tradition in theatre, but it’s the first time that they have actually introduced a provision saying that is a fair dealing. And now the UK is looking at enacting the same provisions. It’s funny that they are looking at what we’re doing, whereas for the last 200 years we’ve been looking at what they’re doing. They’re also looking at recent provisions we have introduced for format and time shifting, so this is a digital sort of thing-recording television programs or radio programs for your own personal use to listen to at a time that’s more convenient. Or format shifting if you’ve purchased and you want to copy it onto your hard disk or computer, and that may be acceptable. Again, they’re fairly limited, and there are sometimes interesting cases for these. With the time shifting one there was an interesting example recently where Telstra had paid millions of dollars for exclusive rights of online broadcast of football matches and Optus then decided that they would introduce this where you could ask to record it and stream it a few minutes later, and they sought to rely on this time-shifting provision and the court found that no, that was actually a commercial implication and not for personal time shifting.

Question: Really quickly, with the format shifting, not that we’re technologically advanced to do this, what comes to mind is if we were to scan printed hired parts onto screens…

Scot Morris: Which you will be able to do one day. And format shifting is that sort of thing, but it’s only for your personal use. I think for an orchestra, you’d be looking at this question of publishers that control those rights that are now developing online services. Already there is Sheet Music Direct, and I think Hal Leonard has one called Orchestra Music Direct (in the States) that will be rolled out here. Of course with the development of electronic music stands, that is the future, but you would need ones that you can notate as well. I think that’s what all those publishers are investing in now, because they know that you want to be able to get it, transpose it, etc. So with library copying provisions, and I know you are orchestral librarians, but there are provisions relating to libraries and archives generally about preservation copies of manuscripts and things like that, but with libraries that are open to the public and making copies to supply to an individual for their own research or study where permission is not required, but there are provisions that the library has to follow. Same for interlibrary loans, so, copying between libraries for certain works that may not be available at the request of the user for research or study. For orchestral libraries, you can’t do a loan for using a score or for performances under the interlibrary copying loan provisions.There is also a new section that was introduced recently that is meant to be a more flexible provision for libraries, cultural institutions, educational institutions called 200 Section AB of the copyright act. Again, you can make a more flexible use provided you look at what’s called the Berne three-step-test. The three-step-test refers to the provisions in the international convention that assess whether or not a free exception is acceptable, whether it is limited to a specially defined case, whether it affects the potential market of the copyright holder, and whether or not is unreasonably prejudices the legitimate interests of the rights holder. So that’s the prism through which national legislatures can make exceptions under the copyright act You have to pass the three steps before you can introduce this. In this flexible dealing exception, they have for the first time taken the wording from the Berne convention to say that you have to look at those three steps, which makes sense. What both user organisations and copyright holders have said is that in practice it’s really hard to determine what this applies to and what you can do with this section, and in fact the poor Copyright Council had to write a whole book on that one section. So it’s part of t Australian Law Reform Commission’s review as to whether or not Section 200 AB is actually achieving the aims of being a bit of a stopgap to allow people to use things in circumstances that are sensible, because really we want the copyright regime to operate in a sensible manner that is equitable and fair and transparent and not as mysterious as it can sometimes be.Talking about individual versus collective management, I think this is the interesting question that gets raised every now and then about small rights and grand rights. This had its origins going back to the formation of SACD in 1777, so you can’t get away from history. Grand rights works were treated as a separate type of work because they are a dramatic work that involves a libretto and music that is specially composed and created together to be performed in a dramatic context. In that case, rights holders determined in England and in America that because these were quite big productions, operas for example, that it was still quite easy for individual rights holders to control and to negotiate the conditions for the performance of those works. So these were not subject to collective administration. So grand rights were excluded from the input arrangement from publishers and composers, so that’s reflected in our memorandum of articles and the assignment that everyone signs when they give their rights to APRA, which then goes into the international system. The question of the delimitation of repertoires between different jurisdictions is slightly different, and there are different practices that have evolved. In particular, in Australia and New Zealand there are two questions: There are grand rights, which we can pretty much identify and we know that those are administered individually rather than through the society (although we will always try to put you in contact with the correct rights holder, particularly if the rights holder is overseas, and we can research if that work is still in copyright.) But dramatic context is another issue, and that has only come to light fairly recently, and it really started with a stage production put on here about 20-25 years ago called The Buddy Holly Show. What it did was take all of the songs of Buddy Holly and put them into his life story; it told his life story via the songs. In that case, the publishers said they didn’t want that license under the regular APRA concert tariff, they thought that the music played a really significant role in telling the story, and is the basis around which the whole show is created. Therefore, we should apply a hire tariff for the use of the music in that context. So that’s where the whole concept of dramatic context licensing really took off, in those dramatic shows.

Question: So, it’s not grand rights exactly?

Scot Morris: It’s not grand rights because they’re pre-existing works, so they weren’t written specifically for a show but they are used in writing a show around the pre-existing work. So that’s the distinction and that’s why the rights holders determined that it should be valued differently. There are different ways it works around the world. I suppose I should explain what happens in the US because the US is quite different to the rest of the world, especially in terms of copyright and collective administration. The way ASCAP was set up, it was set up in the same way as PRS with exclusive rights given into the society, and then in the 1930s, ASCAP was negotiating with radio broadcasters, and the radio broadcasters didn’t want to pay the fees that ASCAP was seeking, which they said were too high. What happened was they referred it under anti-trust laws. They referred it to the court, saying that ASCAP was effectively a monopoly, and of course societies like APRA are a natural monopoly because we control all of the rights to make it easier to grant all the rights. But we are then subject to fairly stringent competition regulation in terms of tariff setting to make sure that we don’t abuse a dominant position. What happened back in the 1930s, and it really is an interesting story because in those days, ASCAP represented all of the amazing Tin Pan Alley composers, Gershwin, Aaron Copland, all of the American serious composers, but they didn’t actually have any of the jazz musicians or African-American musicians. So what happened with the radio stations in the 1930s was that they said,

Okay, we’ll have a strike, and we won’t perform any of ASCAP’s repertoire. We’ll just perform all of the African-American repertoire that’s not represented’, and that’s why jazz became so popular in America, and because of this ASCAP strike, African-American music really took off in mainstream America. What happened after that was the broadcasters set up their own collecting society and admitted all of the African-American writers, so then they had competing collecting societies, one owned by the broadcasters who were then responsible for negotiating with themselves to pay the rate, so the rates are much lower than they are in the rest of the world, and there is a bit of inherent conflict there that you can probably see. But it is very interesting, and BMI (Broadcast Music, Inc.) still represents hip-hop type artists and ASCAP is much more oriented towards serious music and musical theatre. From the 1930s they had to change their input agreement and make them non-exclusive. So what that means is publishers now can and do license any public performance they want, so if they want to directly license a choral work that is under 20 minutes, the publisher can do it themselves and negotiate a rate directly. So that is one of the differences around the world, and all grand rights, in practice publishers would issue licenses for, but also for a lot more. In fact, it’s not clear and it’s not easy in the US in terms of identifying who to approach to obtain permission, but generally the publishers play a much bigger role. In the UK with dramatic context, they have a slightly different and perhaps slightly better way of doing it in terms of costs and practicalities. What they do is for dramatic context, the works are in PRS’s repertoire unless the publisher gives notice that they are going to issue a direct license. So they can identify something like The Buddy Holly Story, that they want to issue a direct license, but then maybe the London Symphony does something that has costumes or reconceptualises something with choreography, and that would still be licensed by PRS. If you’re just doing Buddy Holly songs as part of a concert (and that’s the same here) we would license that. It’s only this dramatic context thing that has become a relatively big market. The way it works for us is a little bit more complicated in that dramatic context performances are excluded from our input agreement, so we don’t get those rights from the publishers, but they do give them to us for certain types of performances and certain types of venues, and that’s the way they have approached it. We can license dramatic context for say, schools and other smaller type performances.Let’s turn now to this question of long choral works over 20 minutes. When APRA was established, it was established by PRS (the UK’s Performing Right Society) and publishers (Boosey’s, etc.) and at that time PRS had a similar restriction in terms of grand rights not being part of it and also oratorio and choral works longer than 20 minutes. When the memorandum of articles for APRA was drawn up, similar restrictions were put in by the publishers that established APRA. So that has gone on for quite a while and I’m trying to find the exact date, but in the UK PRS changed that rule in their articles around the 1980s and 90s, so it is relatively recent. But in terms of our memorandum and articles, that provision still applies therefore the licences that we give all of you for performances, we also don’t have the rights to be able to license that and we have to refer you back to the individual rights holders. There is an exception though, because that restriction no longer applies in the UK or in most other territories, that if the work is not sub published locally and APRA acquires the performing rights directly from PRS or ASCAP or the publishers there, we can give you that license. So it’s only when a work is sub published here that we have to refer you.

Question: So something like Sikorski which is not represented here, you would be able to grant a license?

Scot Morris: We would have to check with GEMA, because they have slightly different rules about how they treat grand rights works which come up every now and then. But we would approach GEMA and say that there is a performance here, and are we able to license it on your behalf? Because there isn’t the 20-minute choral restriction in our reciprocal agreement with GEMA. But if they say that no it’s a grand rights work then we couldn’t, because grand rights are excluded from our agreement.

Ian Coss: I wanted to mention that Alfred is taking over the Sikorski representation, and very consciously aiming to make it easier.

Scot Morris: Great, just a phone call away. So, that’s essentially the background on how that rule has come to be, and I know that it has been a concern with you. The whole issue I suppose of individual versus collective management is coming up again in a digital context. You may have read that there is a new, very big online service in America called Pandora which is all about streaming and discovery of music. It’s quite popular and earns a lot of money. Because collective management organisations are effectively monopolies, our tariffs are regulated, and in the case of APRA and AMCOS they are subject to review by the copyright tribunal. An independent body can set the rates looking at all the economic evidence of the value of the music, what rates have been historically, other similar types of use and what rates apply, and look at international practice as well in terms of determining what rate would be equitable. That’s the case in New Zealand as well as copyright tribunals in the UK, Hong Kong, and all the English-speaking jurisdictions. In the United States, ASCAP has its own rate court, and BMI has its own as well. They determine tariffs, and in particular they have determined tariffs in America for Pandora. The major publishers (Sony, etc.) have decided that they think that rate is far too low and they don’t want it to be subject to the jurisdiction of the rate court and administered by the collective administration organisation, so they’re seeking to withdraw the rights from ASCAP and BMI and negotiate directly with Pandora at a much higher rate. That’s the question of whether or not rights holders are able to negotiate directly with the user, and whether or not the rates that are established are appropriate for the type of music use. You’re probably aware that in terms of APRA’s performing rights tariff we currently apply a tariff of 1.5% of gross box office. That in fact is probably the lowest rate in the world sadly. It’s interesting because the UK just sought to review their tariff and make it higher. Their general concert tariff is 3%, and they apply a higher rate for some classical music, and they’re looking to increase that further. They did an international survey, and embarrassingly APRA and Australia were at the bottom of that list. I suppose in that respect there is incentive for publishers to say that 1.5% doesn’t really reflect the value of the music in those performances in certain cases, and I suppose that’s why they’re looking at this question of grand rights and choral rights as an economic issue. We act as an intermediary between publishers and composers, rights holders, and users and we want to facilitate the legal use of copyrighted material and ensure that there is equitable return to all of the relevant rights holders, but we can only do what our members give us the rights to do. So this is a question we can raise with our publishers again, but they would have some input where perhaps for oratorio and longer choral works there should be a higher rate than 1.5%, there should be some differentiation in the rates because we think that these should have a higher return to the creators. So that is I think the origins of the long choral work rule, to change it would require a change in our input arrangements with our members.

Ian Coss: And how could that possibly be prompted, such a change?

Scot Morris: I think it would require some lobbying of the publishers, and I think that if you’re supportive of such a change you could bring it up, certainly in terms of putting it on an agenda for discussion at APRA and AMCOS and we could raise that. Again, I think it would be up to our membership to pass that change, and we have rules and very strict corporate governance and oversight as to voting to make a change to our memorandum of articles. It does require a significant majority of our members to want that change, so it would require some lobbying and coordinating. I suppose to date it has been difficult because there are examples of it, but not very many in a year. How many long choral works do you perform in a year? Probably not that many.

Ian Coss: It’s really unfortunate that in that particular year it just so happens that the works in question have not come from our camp, so we couldn’t really set a precedent and say that we don’t think they should be. Unfortunately all have come from Hal Leonard.

Vi King Lim: And we’ve really only been dealing with two hire agents: Hal Leonard and Alfred. And certainly Hal Leonard has quite an extensive catalogue of publishers that they represent. So it would seem to almost monopolize the position on long choral works. It’s kind of hard to argue when you just have the one agent saying that yes, we do think that choral works should be charged at a higher rate.

Scot Morris: You also have to remember that we also represent 70,000 composers, including the choral composers in Australia and New Zealand, so perhaps they may have something to say about it.

Ian Coss: And the direct lobbying to the overseas publishers will have an effect.

Scot Morris: Yes. And you know, if overseas the collective management organisations can work efficiently in terms of granting licenses for long choral works at tariffs that are acceptable to those publishers, perhaps they can lobby and say that the same should apply here because APRA is a very well run and transparent organisation, and if they’re agreeable to the tariff that we would apply, we would deal with it in the same way as done in Europe for example. But I am but a humble servant of APRA and our membership so I can’t really have an opinion on this. So, you know that APRA and AMCOS are non-profit collecting societies administering mechanical rights and performing rights. For sound recording and performers, there is also another collecting society. If you’re using sound recordings, it’s the Phonographic Performance Company of Australia, and sadly they’re not Trans-Tasman, there’s a PPNZ in New Zealand. And how that works if you’re looking at the flow from the right to the left is the performing artist and the composer or songwriter. So the artist contracts with the record company and usually the record company administers all the rights. In the good old days it was through sale of CDs and DVDs, so usually they would collect the money. The record company would then under the contract pay the performing artist, and they’d also pay the publisher or pay AMCOS mechanical royalties for the rights to reproduce the musical work. That’s under a statutory license that establishes the rate effectively at 6.25% of retail price goes to the rights holders. In practice, there’s a much more complicated agreement that AMCOS negotiates with the record industry that sets it on wholesale price and has a lot of different provisions. So, if you’re looking at broadcast and public performance, APRA does it for musical works on behalf of publishers and songwriters,  PPCA does it on behalf of record companies and artists. For online mobile, APRA and AMCOS usually issue joint licenses to cover all performance and mechanical rights. Interestingly, it’s usually the record companies individually that license online and mobile directly. Then, what we call sync rights or reproducing music onto a film is administered for the musical work by the music publisher, and AMCOS has certain limited rights we get from the publishers to give licenses for recording, DVDs etc. of performances, although the record company does usually do all of that directly. That’s just a summary of the rights clearance and collective administration in Australia.There were some other fun questions that you had, like Russian revival for example. I talked about the Berne convention, being the treaty that essentially gives international minimal rights of protection. For a long while, neither the US nor the USSR were members of the Berne convention, and in fact Americans had to do everything their own way and set up this separate convention called the Universal Copyright Convention, mostly because in America they had a system of registration of copyright which determined duration, and we’ll talk about duration too. The Universal Copyright Convention required registration and the application of the copyright notice on all copies of the work and without that it wouldn’t be protected, that is the letter c with a circle. That’s a convention that everyone uses everywhere, but it has its origins with the fact that America was not in the Berne convention and it did not comply with international standards. Similarly, Russia didn’t. The way that Berne operates in terms of protection in various Berne signatory countries is on the nationality or citizenship of the author or creator. So works by an Australian author will be protected in all Berne Conventions by the fact that they are an Australian resident citizen. Or by first publication in a Berne country, so if a work is first published in a Berne country like Australia or New Zealand then it will be protected in all other Berne countries. Russia is outside of the Berne, so Russian citizens don’t get international protection unless they’re first published in another country, and I think the Anglo-Soviet Music Press was set up precisely for the purpose of ensuring that certain Russian composers’ works were protected in all Berne Conventions; they were first or simultaneously published in the UK through the Anglo-Soviet Music Press so those works were protected. There were some that were not subject to those publishing deals and therefore not subject to copyright protection in all Berne countries. When Russia joined the Berne Convention in around 1992, those other works were then protected throughout all of the other Berne Convention countries. This is where we have revival of copyright or ‘zombie copyrights’ coming back from the dead, and that was the case with a lot of Shostakovich works, of some Prokofiev works that weren’t previously protected in Berne countries but now were. The Berne Convention was life plus 70, so you have an anomaly in the US because they didn’t want to go along with that provision. They had set up registries of copyright that gave initially only 25 years protection plus rights of renewal. So it was actually on the publisher or rights holder to renew those copyrights to ensure ongoing protection through the registry. That meant they had different periods of protection depending on the work and whether or not it was renewed, and this is why we still have some weird things going on, like Happy Birthday being protected in the US because of registration   and renewal periods, so the question of duration in America is always really difficult. There are some interesting websites (some more reliable than others) about how to determine when the work was created, when it was published, what regime it was subject to in terms of duration. When America finally joined the Berne Convention they had to go to life plus 50 like the rest of the world, which makes it a lot easier particularly in these days where it’s all international and we’re using the works internationally and particularly online. And they changed it again, I can’t remember the year but it was relatively recently, to life plus 70. We turn back to Europe and what happened in Europe; the formation of the European Economic Area, through the Rome convention article 12, is trying to create a single market. One of the areas that they were looking at harmonising was copyright, because each country has its own copyright law, and they vary. One of the ways that they varied significantly is duration of copyright. You had Germany that is very strongly promoting and protecting the rights of composers and publishers, and they had always had life plus 70, beyond the Berne. Spain had life plus 60 and for some materials life plus 70, so there were different periods, although the rest were probably life plus 50. So when they came to harmonising the duration within Europe, there’s also a rule under European law that you can’t take away rights from anybody, so they couldn’t reduce it to life plus 50 because they’d be taking 20 years away from all those poor German publishers and they had to go to life plus 70 to make it uniform and harmonise everything to make it one market. That meant that in a lot of those territories there were zombie copyrights that came back to life. They did have revival to life plus 70; that’s why there are certain works that used to not be protected in some of those countries that now are. What the European Union also did was say, ‘Okay, we’re going to grant this not under the international principle of natural treatment which means that everybody’s works will also be protected in Europe for life plus 70, we’ll do it on the basis of reciprocity only. Only those other countries that provide life plus 70 will get life plus 70 in Europe.’

Question: So someone like Richard Meale would get life plus 50 in Europe?

Scot Morris: Right, so someone like Richard Meale would be subject to the duration period of life plus 50 because the EEC said that it was reciprocal. You only get the extra 20 years if European works in your territory get the extra 20 years. So America went, ‘Oh my gosh, Disney and Mickey Mouse are about to go out of copyright, Gershwin is about to go out of copyright, and Europe is a really important market, we better also extend.’ Tragically at the same time Sonny Bono, that fantastic singer and performer, skied into a tree and killed himself. He was a member of Congress so they passed the Sonny Bono Term Extension Copyright Act to change it to life plus 70 to ensure that American copyrights got the extra 20 years in Europe. That has become the new standard that America does their trade negotiations with. When they first did the Free Trade Agreement with Singapore, they of course insisted on it going to life plus 70. When Australia happened, they again insisted it be life plus 70. So that’s the interesting background story of how we got life plus 70, and from our perspective we’d love to have New Zealand have life plus 70 only because it’s that much extra work for us at the end of the year when we have to determine everything and there are complex rules about joint authorship whether it’s life plus 70 from the last death year of the joint authors and the question of first publication posthumously.

Question: Would it be too nitpicky, say a librettist lives a lot longer than a composer, can you play the music as long as nobody sings the words?

Scot Morris: That’s a very interesting question because yes, you could. Under our law the lyrics are protected as a literary work which is separate from the musical work. In America though, they define it as a work of joint authorship and it’s really interesting in terms of publisher mentality and international practice about what is a work of joint authorship.

Comment: And you can understand that, because the music probably wouldn’t have been written if the lyrics weren’t created at the same time.

Scot Morris: And there are possibly moral rights issues with substituting lyrics. There’s a big debate in Israel now about the rules they apply about writing new lyrics to existing music.

Vi King Lim: Well, since it is past 12:00 now I should probably thank Scot for an extremely informative presentation on copyright.

This paper is the transcript of a presentation Scot Morris gave at the Symphony Services International Orchestral Librarians’ conference, 6 December 2012.