When someone creates a piece of music (or a piece of text, a graphic, a photo, a film or anything else that is protected under copyright laws), a whole system of legal rights and obligations come into play. These rights and obligations outline what someone can and can't do with the material.
Who owns the copyright in a piece of music?
There is generally more than one owner of copyright in any given musical track. The composer who wrote the music owns copyright in the musical works. The lyricist who wrote the lyrics owns copyright in the literary works. The artist who performed the music owns copyright in a sound recording of their live performance. Finally, the maker of the recording (typically a record company) owns copyright in the sound recording.
What rights do the copyright owners have?
The copyright owners (i.e. the owner of the work and the owner of the recording respectively) have a number of exclusive rights, including the right to:
- Make copies of the tracks;
- Perform music in public (eg by playing the tracks in hotel, café or retail stores); and
- Communicate the tracks to the public.
I bought a legitimate CD. Can I make copies for use in my café, restaurant, hotel or retail store?
The purchase of a CD gives you the right to own the physical disc, to play it privately, and to pass on the same physical disc to another person. This means that copying the music from a CD including onto an iPod, without the permission of all relevant copyright owners, is an infringement of copyright except in very limited circumstances. The Copyright Act allow you to “format shift” music for personal use, for example, to copy from CD format to MP3 format in certain limited situations. However, this does not extend to use of the music in a café, restaurant or retail store.
If you want to copy your legitimate CDs onto an iPod or onto other CDs to play as background music in a commercial setting, you must get:
- A licence from the relevant record company for the reproduction of the sound recording (contact the Licensing Department of the relevant record company). ARIA and PPCA offer “blanket” licences for these purposes; and
- A licence from AMCOS for the reproduction of the music. Generally, AMCOS will offer a “blanket” licence which allows you to be covered for all reproduction of musical and literary works for certain purposes.
Can I download music from the internet and play it in my café?
The basic principle is that you cannot copy or distribute music including from the internet without the permission of all relevant copyright owners. There are a number of legitimate download sites in Australia which are listed at www.pro-music.org
If you legitimately buy music from iTunes or other legal online distributors you should check their relevant terms and conditions to make sure that you are licensed for the relevant purpose, including to use as background music in a café or retail store.
What about downloading music through file-sharing?
Unless authorised, the vast bulk of P2P 'file sharing' is considered unauthorised copying and transmission of copyright material. This activity hurts sales of music and the livelihoods of people in the business including your favourite artists.
What if I download music to use in my café from a site overseas where the law might be different?
Internet activities of this sort typically involve acts of copying, transmission, or distribution in both the ‘receiving and sending’ countries and laws of each will apply. Be aware that if you download music files to your PC located in Australia, without the copyright owners' permission, you are committing an infringement of copyright under Australian law.
Do I need any licences to play legitimately purchased music in my café, restaurant or shop?
Yes, there are a number of licences that may apply depending on how you are using the music. Basically the owner or operator of the café, restaurant or retail store should consider a PPCA public performance licence to play protected sound recordings and an APRA public performance licence to play the musical and literary works. Further, the sound recordings used must be licensed copies.
Can I play music from a streaming service in my commercial premises?
There are a number of licences that may apply depending on how you are using the music. Basically, the owner or operator of the café, restaurant or retail store should consider a PPCA public performance licence to play protected sound recordings and an APRA public performance licence to play the protected musical and literary works. If you are playing protected sound recordings in public you will need to consider obtaining the necessary public performance licences. Music Rights Australia recommends that you also check with the service supplier to ensure that their terms and conditions allow you to play those recordings in public, particularly in a commercial/business context.
What are the consequences?
Penalties for copyright infringement range from injunctions, damages and costs through to fines of up to $60,500 for individuals and up to $302,500 for corporations for each infringement and/or up to 5 years imprisonment per offence. Police can also issue on-the-spot fines of $1320 per offence and seize any pirate product.
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