Copyright & Alternative Dispute Resolutions

Here we unpack issues around copyright infringement and disputes regarding copyright ownership or royalty entitlements.

As music makers, it’s important to be aware of these issues, the processes around resolution and steps you can take that could help prevent disputes arising, or position you well if they do.

1. COPYRIGHT BASICS

First, a quick refresher on copyright basics.

Copyright is a type of intellectual property that protects all sorts of creative work across the arts - visual arts, literature, sculpture, music, film, gaming and more.

Music often involves three types of copyright material:

• the musical work,
• lyrics (“literary works”); and
• the sound recording.

Each of these is treated as a separate type of copyright material – including when it comes to ownership and permissions for use. These always remain independent types of copyright material – even when in a combined format, such as on a recording.

In Australia and New Zealand, copyright protection is free and automatic – you don’t need to register a song or musical work for protection. Sound recordings and original music and lyrics are protected by copyright as soon as these exist in some sort of tangible form – such as being written down, recorded or saved as a file.

Copyright is not one right, it’s a bundle of different exclusive rights. In copyright law, this bundle refers to a set of specific uses of copyright material that the copyright owner exclusively controls. These uses include playing music in public; streaming, uploading or downloading music online; and reproducing (or copying) music. Reproduction of music would include copying music and incorporating music into video content or, for sound recordings, incorporating parts of recordings of music into new music (sampling).

Someone wanting to use copyright material in one of the ways covered by these exclusive rights needs permission from the copyright owner for that use, unless a copyright exception applies. Exceptions are rules allowing copyright material to be used in certain circumstances without needing the copyright owner’s permission (i.e. a licence). There are a number of different types of exceptions, including use for the purposes of research or study or reporting news.

To learn more about copyright basics, check out this article - Nine Music Copyright Tips with Arts Law.

2. COPYRIGHT INFRINGEMENT DISPUTES

Copyright infringement broadly refers to when someone uses copyright material in one of the ways covered by the exclusive rights where no exception applies and without the copyright owner’s permission (i.e. a licence). It’s essentially an unauthorised use of material that is protected by copyright.

What can you do if you suspect your copyright has been infringed?

• If you have a publisher, record label and/or digital distributor, contact them when you suspect an issue. They will usually have processes in place to address infringement issues.
• If you believe that your registered works with APRA AMCOS are being used without your permission, you can contact our Member Services team. APRA AMCOS cannot investigate or resolve copyright infringement issues but, in the appropriate circumstances, we can put the distribution of royalties for works in dispute on hold until the dispute is resolved.
• Where the material is online, many platforms have a facility for copyright owners to flag infringing content. APRA AMCOS have collated links for requesting take downs and reporting copyright infringement with the major services – see the end of the page here.

It’s good practice to seek legal advice if you suspect copyright infringement because several factors need to be considered before an infringement claim should be raised – some of these are:

• The grounds for the infringement claim – Who owns copyright? Is the use licensed? Do any exceptions apply? Has a substantial part (i.e., a qualitatively distinctive, important, recognisable or essential part of the original work) been used?
• Identifying the party alleged to have made the infringement - Is it a person or company? Are they located domestically or internationally? How can the party be contacted?
• Evidence in support of the infringement claim – Is there evidence of the infringing material (audio, video or text as appropriate)? Where is it occurring? How long has it occurred?
• Outcome sought by making the infringement claim – Is the aim to remove, take down or confiscate the infringing material? Or, for the material to remain as is but with remuneration paid to the copyright owner.

The answers to these questions will determine the most appropriate way to deal with the issue.

Where there are grounds to claim an infringement of copyright, then the issue comes down to taking escalated steps aimed at coming to arrangement with the other party to resolve the issue.

Some of these steps may include:

• Issuing take down requests to the platform hosting the infringing material.
• Writing to the infringing party to raise the issue, make them aware of your claim and any desired outcome.
• Issuing a letter of demand (a formal letter that puts the other party on notice about your infringement claim and what steps you plan to take if the demand is not complied with). A letter of demand is an indicator to the other side that you are taking the matter seriously and often elicits a response.
• Alternative dispute resolution pathways, such as mediation or expert determination (though in most cases, both parties must consent to participate in the pathway for it to proceed).
• As a last resort, taking the matter to court – while the other party’s consent is not needed to proceed, initiating court proceedings can be costly. Where a court finds that an infringement of copyright has occurred, it can make orders against the infringing party, including payment of damages, and/or an injunction (a court order to refrain from doing something).

Most disputes will be resolved without the parties needing to go to court. However, be ready for the other party to be non-responsive, dismissive of, or reject your approaches. Sometimes, it can take a fair amount of persistence and time to resolve an issue – seek legal advice where possible.

3. DISPUTES OVER OWNERSHIP AND/OR ROYALTIES

It’s important to separate the concept of copyright ownership from that of registering a royalty share of a work with APRA AMCOS. Registering a work with APRA AMCOS assigns a portion of the royalties for that work to certain parties and may reflect the composers’ agreement as to the share copyright ownership, but does not, in and of itself, determine or even record actual copyright ownership.

Entitlement to copyright royalties is determined by agreement (informal or formal) amongst the royalty sharers. Copyright ownership is determined by a several factors, including certain presumptions under copyright law, about who owns copyright (these are different for sound recordings and musical and literary works) and importantly, any agreements about ownership made by the parties involved in creating the music.

Unlike an infringement of copyright - which are usually directed toward a third party using your copyright material without permission - disputes over copyright ownership or royalty entitlements are often with people who are well known to each other, such as bandmates, producers, writers and other creators.

If there’s a dispute or disagreement about copyright ownership or royalty shares, the first point of contact is APRA AMCOS Writer Services (if you are published, then contact your publisher first). We assist by notifying the parties involved and facilitating avenues for the parties to meet to come to a resolution. You can read here about our procedures around addressing disputes between members.

An independent dispute resolution facility, Resolution Pathways, is available to APRA AMCOS members. APRA AMCOS can contact Resolution Pathways to check about eligibility for your particular issue, or you can contact Resolution Pathways directly. Read more about this process on the Resolution Pathways website.

Importantly, APRA AMCOS cannot investigate, resolve or make a judgement or decision with respect to a dispute over ownership or entitlement to royalties. We amend disputed works registrations only by agreement between the parties once the dispute is resolved.

Like with infringement, most disputes regarding ownership or royalty entitlements are settled by the parties involved negotiating and agreeing to a solution. As the best approach to take usually varies depending on the circumstances of the dispute, it’s important to consider obtaining legal advice.

Where a dispute is heading in the direction of escalation rather than resolution, some of the factors a legal advisor may consider before progressing the issue include the following:

• The circumstances around how the music came to be created.
• The nature of the contributions made by the parties (including the creative skill and effort made by contributors and the significance and originality of that contribution).
• Any agreements (formal or informal) made between the parties around ownership or royalty entitlements.

4. CANNOT EMPHASISE THIS ENOUGH: KEEP RECORDS OF YOUR WORK, SET EXPECTATIONS AND HAVE WRITTEN AGREEMENTS

As is evident from above, it’s important to keep good records around your songwriting and production process in case it’s ever challenged.

Here are a few tips:

• Keep your working files from your production and songwriting sessions, including different versions that show your contribution to the music, progress in the project or development of the track over time.
• When collaborating or co-writing, set expectations around the music that results, as early as possible, so everyone’s on the same page, including:
  • Copyright ownership and royalty share entitlements around the music resulting from the collaboration.
  • Who’s paying for what?
  • How the music and recordings resulting from the collaboration can be used (or not used) afterwards (e.g., are there any specific uses that don’t need permission or conversely, that do require approval).
  • Clarification around ownership of any pre-existing material created by participants that is brought into that collaboration.

Get the above in writing!

• Be aware of what you permit others to do with your music, lyrics or recordings – get legal advice so you know exactly what you’re getting into before giving permission to others to use your music.
• If you are presented with someone else’s contract, including when you distribute your music on different platforms online, instead of signing right away, get advice first and know the fine print and exactly what permissions you’re granting for your music.

It can sometimes feel awkward to raise the prospect of a written agreement before starting a session, collaboration, or project. However, ensuring that everyone is on the same page is good practice and doing this early may help prevent future problems and anguish!

For any legal advice on matters such as document reviews, agreements impacting ownership or royalty entitlements or general advice on your legal rights to your creative output, contact a lawyer practicing in arts law or entertainment law. The NZ Law Society has a facility to search for lawyers by practice area - NZLS | Get legal help (lawsociety.org.nz). There are also organisations such as the NZ Intellectual Property Office that, in limited circumstances, may be able to assist.

You’ve worked hard on your creative output, so it’s important to protect your intellectual property and place yourself well if you’re impact by a dispute around infringement, ownership or royalties.