Tertiary music agreement

Copyright in a musical work

Music copyright is complicated. Unlike other kinds of works, musical works have many different layers of copyright that need to be considered.

  • Firstly, there is the copyright in the music itself, that is, the notes that make up the melody that forms the work.
  • Secondly, there is copyright in the lyrics – if there are any.
  • The person who wrote the music is not always the person who wrote the lyrics.
    And sometimes there can be multiple people who wrote the music and/or the lyrics.
    There could be one person who wrote the music and the lyrics all by themself.
    Or there could be five people who wrote the music together and two people who wrote
    the lyrics which means there are seven possible copyright owners in total.
  • Thirdly, there is copyright in the printed edition. This is usually vested in the publisher that caused the work to be printed but these rights can sometimes change hands.

This means you could be dealing with multiple copyright owners who are individual people or who are publishers.

Copyright in a sound recording

If a musical work is recorded, there is separate copyright protecting the sound recording to the one protecting the musical work.

  • The owner of the sound recording copyright could be the performing artist. Just like with composers and lyricists, there could be one performing artist, or there could be a whole band of people.
  • Usually, a record label is the one to make the sound recording available to the public so they too could have a share in the copyright in the sound recording. Again, there could be one label involved or maybe more.

The licensors

These four organisations are the licensors that are party to the agreement with Universities Australia:

  • APRA  is the Australasian Performing Right Association and it has the exclusive right to license the public performance (and communication) of musical works on behalf of its songwriter/composer/lyricist members.
  • AMCOS is the Australasian Mechanical Copyright Owners Society and it has the exclusive right to license the reproduction of musical works on behalf of its composer/songwriter/lyricist and publisher members.
  • PPCA is the Phonographic Performance Company of Australia and it has the non-exclusive right to license the public performance (and communication) of sound recordings on behalf of its performing artist and record label licensors.
  • ARIA is the Australian Record Industry Association and it has the non-exclusive right to license the reproduction of sound recordings on behalf of its performing artist and record label members.

Under the agreement, Universities can make audio or audio-visual recordings:

  • to play at University events and graduations
  • to use on hold on a telephone system
  • of university events
  • that will be used for University purposes.

Making audio recordings could include recording performances or digitising existing commercial sound recordings. Making audio-visual recordings is making a video with music in it (a synchronisation – there is more on this below), this includes recording lectures and lessons, or events, graduation
ceremonies or University activities.
There are certain ways Universities can store or share the audio and audio-visual recordings they make for the purposes above. These are that Universities can:

  • Store them on the University LMS or other system as long as it is password protected and only accessible by staff and students.
  • Supply physical recordings of University events to staff and students and their immediate family for private and domestic use either for free or for a cost recovery price.

Audio-only recordings can also be:

  • streamed via the University website

They cannot be:

  • streamed via official University social media channels

The definition of a synchronisation means to put music together with video footage. Synchronisations can be made ‘in-context’ which means you are capturing the music
at the same time as you are capturing the video footage (for example, you are recording a concert or recital). Synchronisations can also be made ‘post-production’ which means you have some video footage and you use editing software to put music behind that footage (for example, making a short film).

As noted above, there are two kinds of synchronisations. There are in-context synchronisations and post-production synchronisations. These need to be treated differently. The reason for this is that ARIA only has the right from its members to license in-context synchronisations, not post-production synchronisations.

If the University makes an in-context synchronisation that uses a commercial sound recording it is allowed to:

  • store it on a password-protected University platform like an LMS
  • stream it on the University website (it must be the University website that ends with .edu.au or .edu)
  • provide it to staff and students in a physical format for free or at a cost recovery price.

If the University makes a post-production synchronisation that uses a commercial sound recording it is only allowed to:

  • store it on a password-protected University platform like an LMS
  • provide it to staff and students in a physical format for free or at a cost recovery price.

You will note the difference is that in-context synchronisations can be made available on the University website while post-production synchronisations must be behind a password on a University platform (like an LMS).

If your synchronisation does not contain an ARIA sound recording, the rules are different. ARIA represents the reproduction right in the sound recording and AMCOS represents the reproduction right in the musical work.

ARIA does not have the right from its members to license the use of their sound recordings in any synchronisation that is shared on social media as part of this licence (post-production or in-context). AMCOS however does have this right from its members in respect of the musical work.

So, if you are using a recording in your synchronisation that you have made yourself (e.g. your University orchestra or jazz band was recorded playing the piece) then this is not an ARIA-controlled sound recording. That means the ARIA rights do not come into play, only the AMCOS rights in the musical work. This in turn means the synchronisation can be:

  • stored on a password-protected University platform like an LMS
  • streamed on the University website (it must be the University website that ends with .edu.au or .edu)
  • streamed on the official University social media platforms
  • provided to staff and students in a physical format for free or at a cost recovery price.

There are quite a few limitations to these rights that are detailed in Schedule G of the agreement. These include (but are not limited to) that Universities cannot:

  • remix, arrange, adapt, mash up or otherwise debase a work or recording
  • make available recordings for download by way of the internet (the licence only allowsstreaming from the internet in the limited circumstances above)
  • allow a stream of a graduation ceremony to be available online for more than 30 days after that graduation ceremony occurred
  • include any advertising or promotional material on any recording made under the agreement.