BETH NEATE:  I think we might try and get started. We know there is another session that's being held this morning and some people are coming from that session but it's good to welcome you here today.  Anyone want to access the live captions there's a QR code on screen that's been prepared by Nexus Arts. 
Welcome everybody, I'm Beth Neate, chief executive of Guildhouse and it's our great pleasure to welcome you to this important seminar, introduction to creative workplaces and Arts law.  It's wonderful to see such a diverse gathering of artists and creative professionals. Thank you for making the time to invest in your creative careers at this busy time of the year.  
To begin I would like to acknowledge that we are gathering on the land of the Kaurna people and pay my respects to Elders  past and present acknowledging that Kaurna and extend that respect to First Nations people.  
How do we arrive at the seminar? Well Guildhouse is the peak body for visual Arts, represents over 1200 artists members and workers and what we've been hearing from artists is the challenges that you are facing in navigating changing workplace conditions, contracts, art activity payments copyright and licensing.  And as we know many artists are freelancers working on collaborative projects, and without guidance, artists are vulnerable to unfair pay, the misuse of their work and unsafe workplaces. And when we speak to our partners at Nexus Arts they shared they've been hearing similar feedback and delighted when we spoke with creative workplaces and Arts law they agreed to come and share sources of information with the creative sector.  
Today we are going to hear from Patrick McCarthy from Creative Workplaces and Louise Buckingham, the Chief Executive from Arts Law Australia. Thank you for travelling to Adelaide, makes such a difference to have the face to the name. The session is designed to give you tools and information that give you support and empowerment to work with confidence as you move forward in your practice.  Navigating the practical realities of being an artist and business person as we are, and I hope you will seek further information when you need it and now know that there are support services available to you to help you tackle these emerging challenges.  The presentations will be recorded, and made available on the Guildhouse website after this session. If you do not want to be involved in any of the recordings just make that known to the Guildhouse or Nexus staff member. After the presentations we have a short time allocated for questions and we ask that you keep the questions general and broad in nature so they can benefit the group. We have allocated a generous amount of time for networking and you can speak to the presenters with questions and please use the opportunity to connect with peers and representatives in room here Arts law, Guildhouse, and Nexus Arts.  
Without further ado let's welcome the first of our speakers, Patrick McCarthy. 

PATRICK MCCARTHY:  Thanks Beth. Hi everyone, lovely to be here. I'm Patrick from Creative Australia, pleasure to be here in Adelaide with you all today and glad that Arts Law could join us for this session as well. Just really want to thank Guildhouse and Nexus for putting on this event for hosting us. 
It's important to gather with the sector and talk in person as well as the opportunity when we can to gather online to really have conversations about your work and what is challenging for you in your work, and how we might be able to help support that because we know it's often really difficult to navigate a lot of the things that fall in to our remit and we are here to help. So really looking forward to going in to some of the areas of our focus today with you. I'm going to share some information and resources and insight in to what we do and where you can get more support if you encounter some issues that I'm sure you will at some point that we will be talking through today. 
I'll just acknowledge the Kaurna people and Elders past and present and extend that respect to any First Nations people here today and want to extend those respects to my First Nations colleagues at Creative Australia doing really important work across the sector, really exciting to see all the transformational investment and work that's being done by that part of the organisation if you're not familiar with that, check it out as well.  
So just going to talk a bit about first why creative workplaces exist because I know not everyone may have the opportunity to hear about us. We are a relatively new initiative of the national cultural policy revive from 2023, so two and a half years in to that policy period, it was identified issues in the creative industry that needed to be addressed and some key pieces of research that highlighted that work like raising their voices report in the contemporary music sector, sexual harassment, there were other issues from screen and other sectors really important pieces of research as well as a lot of anecdotal evidence feedback that was being given, the sector was highlighted in the pandemic and the artists and workers fell through a lot of the gaps in the systems and structures in place to support workers in organisations was really evident. It was decided something was needed to a bit in to that journey now I'll talk about what our remit is. Talking about where we want to go, so we really want to achieve an uplifting in standards, ways of working in the creative industry. 
Our remit includes artists/workers, as part of that conversation that's a really important point about what we do and we want to see that there's a greater level of evidence in the sector created in dealing with some of the issues that fall within our remit, things like paying conditions, behavioural issues like bullying, discrimination, harassment and safety, people's physical safety and what people might think of as workplace health and safety. But also psychosocial safety which is relatively new comparatively but an important part of creating safety in the sector across the Arts.  
So our approach to achieving this is driven by a few things, so we provide tools and information to the sector. So historically if you wanted to get information on these in our remit you probably had to go to the ATO website or the Fair Work website or the Human Rights Commission website or WorkSafe website that can be intimidating and complex, can be hard to get information for specific for what you do as someone who works in its Arts.  So we first and foremost are about providing information in a centralised location for people in the creative industry. You are the audience and we want the information to be accessible, easy to navigate and easy to put into practice. We offer research and training is also a really important part of what we do. I'll touch on some of the research we are doing a bit later. But these sorts of engagements we can have, dialogue with the sector, important to understand what's difficult for you. We can put things into practice to help address that. Training and professional development is something we will do more of, we’ve done some webinars in the past and looking that moving forward as well and a really important function of what we do is connecting people to regulatory bodies, give you information to understand the issues and put things in place to address them.There will be opportunities for people to connect with the regulatory bodies and seek assistance as well, and that's important because we are not a regulator, we don't have powers to investigate, we don't have powers to mediate between parties in dispute and we don't have the capacity to provide the one to one individual advice but a lot of regulatory bodies can, but most people in the arts don't make use of it so we want to make it easy. So we have some QR codes, there's sheets on the tables that have a bunch of QR codes on them with a lot of the content. I'll talk through some of the key areas of what we are covering. 
There's some information here. I know a lot of people in the room today will be independent contractors, very common in creative industries particularly individual arts. We have a lot of information on our website for people that are employers and employees but we know independent contracting is a challenging part of working in the industry so we have a lot of specific resources that are connected to that part of our work, so there's information in this section about what is independent contracting. If you are not sure about the difference between them and introductory information explaining what the differences are there's information and guidance on creating good contacts fees and pricing rate guides and invoicing this section of the website will take you to some of that relevant content.  
I'm going to start a bit with on invoicing, going to touch on some helpful tools and tricks, I know that this is something people in the sector struggle with not getting paid in a timely way, so this QR code here will take you to some content and resources, invoicing important things to know. I'll touch on a few of these now. There are two types of invoices, there's tax invoices and regular invoices and it's important to know, if you are registered for GST should be tax invoices and you have to issue a tax invoice if GST is payable on what's purchased or more than $82.50 that's the threshold including GST for the person selling it if they request a tax invoice you have to supply it as well. We have a list of things on the website you should include, it's good if you haven't, an invoicing template that you use at the moment that you can check against the list and make sure everything is included because that will help address the issues of being paid.  The ATO has good examples of tax invoices, you can check those out as well. We also recently launched some free templates for both tax invoice and regular invoice and there's a separate invoice on a template for invoicing people if you are working with people overseas and I'll touch on that as well, got really good feedback on these templates, free to use, you can use them for your practice, so really encourage you to check those out. 
We have steps on good practice for getting paid on time, things like including payment terms in your invoices like a due date, other things like how someone can pay you bank information on there but if you have a set up with other options where they can make payment to you making sure that's clear through there as well. Things like late payment fees if you have that in your practice that's helpful for getting paid on time and description of the work as well so people can see what it is they are making that payment for, particularly if you are invoicing the same person a lot or regularly good to have a clear description of what that relates to. 
The other type of invoices is regular invoices for anyone if you are not registered for GST you should use the regular invoice and don't add GST. Other things on the page, now you should include on a regular invoice and we have a free template that you can use, if you are registered overseas this can be complex to know whether to charge it and we have guidance templates for that as if you are selling artwork overseas and working with international organisations we have specific resources around that.  
So this next section I want to talk about is working out fees and pricing and we hear this a lot with the visual arts sector in particular and other people from other areas too, particularly the challenge of working out what to charge and as someone I have a background as an independent artist working in theatre and I've run small arts organisations, can be difficult to work out how to price your work and make reference given the size of a funding body. We have regular conversations with our colleagues to work in the arts funding team, they see it regularly that artists have challenges appropriately pricing their work in a way that acknowledges the time and effort and intellectual property and considerations that go in to making the art. There's a common practice, common experience for them they see people underquote for their work on the basis they think it will make them more competitive and likely to get the grant, in practice what they tell us it's the opposite, people are quite skilled now and referring to this part of our website to actually understand how artists should be pricing their work appropriately and if they spot someone that hasn't asked for enough money appropriately that will work against you and move you down, so really good to put time and thought in to pricing to give yourself the best chance and show in your grant applications and elsewhere that you've done to work to think about an appropriate fee. You might work for a set fee, you might include a way of charging for your work per hour, percentage of a sale price particularly if it's a painting or sculpture, you might get the total sale price or combination of these, what's going to work for you is for you think about there's no one way to price your work. Some things you should be thinking about in the process, any costs that you incur in your work needing to buy materials to create the work and build this in to your agreement and with the pricing of the work it’s important to think about the work itself, so the artwork, there's also the work involved the labour that you do in creating these things are considered in the pricing so you should think about things like market rates, pricing for profit, but actually price to make some money, cost of the materials, value of the IP involved in the work, the time you've spent, any industry rate guides can be really useful in this referred to the NALA code they have a lot of great resources for this sort of thing.  
Directing costs as well, you might have costs related to that artwork but indirect costs like the studio space, Wi-Fi, insurance, you should think about incorporating the costs of those overheads in to your individual artwork prices, otherwise the profit derived from the sale of individual work is eaten in to with that so it's important to think about the costs and project funding for applications. Any other supporting works such as research or mediums, applying time applying for permits if it's public artwork, so there's a lot of information to support that. 
I'm not going to spend a lot of time on this because Louise will go in to this better than I can but we do have some information on intellectual property on the website. We know this is a really tricky issue particularly at the moment as the landscape is changing a lot so you can refer to our website for some information there. We have a specific part of our website, which is called First Nations relations and this is content that is really both for First Nations artists and organisations as well as non‑First Nations artists and organisations it's how we do the work together well, developed by company a First Nations-led law firm, they own all the intellectual property on that part of the website there's a whole range of important content to support culturally safe work practices, culturally safe ceremonies, culturally appropriate dispute resolution there's specific information on IP as well if you are doing any work in that space that's good to refer to. We don't go in to that today.  
Superannuation, so the creative workplaces website was launched in June, the superannuation page is the most popular part, more than double of the other, I guess this is lived experience as well, trying to navigate superannuation is really difficult and there's a bunch of information on our website that can help you with that. So particularly for independent contractors we know is really challenging, it's a bit more clear cut when it’s an employer and employee relationship for some independent contractors you are considered essentially as an employee for super purposes and you're entitled to that. It's important to consider whether an independent contractor or employee independently defined, law breaches relatively new legislation too, we have information to help with that. If you are not sure whether the people you are engaging are employees or contractors you should look at that. In regards to super we have a series of practical and easy, there's a series of questions that you can ask to determine if someone is an independent contractor and if they would be eligible for super. They must be a sole trader or individual, or proprietary limited company and you can use the ATO to check this, and it's important to think about what the contract is for, should be based around the person's labour or performing as these attract super generally, can't delegate the work to someone else, really important consideration and the important distinction there also based around someone as labour someone is not paid just to produce an outcome so that can be, for example, if the contract talks about paying you this much money to produce this artwork that may not attract super because it's for a specific outcome. If someone is paying you for a particular activity or to work on the project that involves under the contract that it's primarily around the work involved then that may attract super. It's a little challenging to determine this but these are the questions on the website to unpack that for your circumstances.  
There's also a super eligibility tool, I just want to point out if you are not entitled to super at work that you weren't entitled to super as an independent contractor you can pay yourself super as we talked about pricing earlier you can build those sorts of things in to your pricing so listed separately as superannuation and consider that part of how you charge people knowing you want to take a portion of that fee for your work and contribute to a super account ,not everyone wants to do this or has to do this but it can be useful to do and think about the benefits in the long‑term. 
I just want to mention we are developing additional information and resources related to superannuation off the back of it being so popular on the website, so we are developing these at the moment. There will be additional information and training material and resources and that will be online next year to flag that's on its way making sure it's fit for purpose and meeting your needs so keep an eye out for that. 
There's some key parts of the website. There's a whole range of things around bullying, discrimination, harassment, employee employer relationships, stuff around safety please explore that depending on what you are interested in they're the things that we want to touch on today. This part of our work is a little bit different, I'll touch on this briefly. We work with Support Act, you may have heard of Support Act before, primarily the music industry, charity and service organisations and focus around mental health and wellbeing during the pandemic opened their mental health and support line to all art forms and part of the revive the national culture, this would be extended on an ongoing basis if you work in the arts in an independent capacity, whatever you do in the sector you can access this service for free so gives you up to 12 sessions a year with a counsellor, training in arts and culture, the issues that people in our sector often experience and there's specific help lines for a few cohorts, there's a First Nations helpline, there's a helpline for the LGBTQIA plus community, people that have experienced sexual harassment or assault and people in management roles, it's available to you if you are in this room it's anonymous and really well supported so please make use of it, share it with your friends and colleagues and people think it's just for music but it's absolutely open to everyone. 
I'll touch on a bit on what's coming up. You can sign up with the QR code we on Instagram and LinkedIn, one of the things is the framework might have a name change by the time its released, the framework is essentially a compliance tool for organisations, anyone from an organisation in the room? Quite a few. So we know that when you visit our website, there's useful information can be a bit overwhelming, how do we know if we are doing everything right, so the framework is like a really long checklist, compliance tool for arts organisations to check they're meeting all of the minimum standards related to the remit and connects you with the various information and resources to help you address gaps in your current compliance should be useful way to go this is what we've got in place this what we are missing and this is how we can bring up to speed quickly, conversation with the boards, and what support you might need in draft mode at the moment going through consultation and testing will be released next year, first very long PDF format but planning, I believe, a digital version of the framework as well to assist you.  So please keep an eye out for that. 
We are running a significant survey, hoped this would be open now and ask you to do it this afternoon but it's open early next year, mid to late-January, as I touched on at the start of today there's a lot of great data and research done in creative industries but nothing that captures everything, nothing that captures the full range of issues across pay issues, bullying discrimination and harassment, this is what this survey will do, will be open for about five weeks open to artists and arts workers and any art form, encourage you to participate. We want to hear from the sector in Adelaide from people from all areas, and it's an opportunity to have your voice heard that we form our work ongoing forward and inform the work of the state and territory partners as well we work closely and form other parts of government as well this is a survey not done on this scale, I think, anywhere else in the world before and probably not for another four years so take the opportunity to be involved and have your voice heard. 
I'll just touch on child safeguarding resources, stuff on the website at the moment we know that's a big topic in the sector at the moment not just in our industry but all industries making sure that children that are working or in our care are safe and we have guidance and resources as additional information around superannuation and please subscribe for updates.  
I just want to acknowledge - I think Create South Australia are in the room today, acknowledge the support of our work and state and territory investing partners couldn't do the work. It's great to have tied up national approach to tackle these issues in the sector, we have strong alignment between the priorities and values of Creative Australia and the Create South Australia are doing and the policy and strategy that's now in place in South Australia, so looking forward to continuing that work, doing events like this in the coming year on the ground in years to come just want to acknowledge their support.  
I think that's everything from me. I'll just mention as well, colleagues in the room, I think Anna as well from our working to fundraise space and if you want to grab them and have conversations about that part of your work that's not what we do but that's what they do and they're great at it want to make sure you can take the opportunity to have conversations there as well.  And thanks again to Guildhouse and Nexus for having us. 
(APPLAUSE)
LOUISE BUCKINGHAM: Hello. I would like to start too by acknowledging the traditional custodians of the lands we're on, and also where we are based at arts law, which is Gadigal country, we've just moved to the rocks area and for all of you who put your hands up as people who are working in arts organisations you will know that is a small not for profit moving premises and many years is no mean feat so it's huge that we've done that. 
I would like to extend respect also to First Nations persons in the room Elders past and present, and everywhere across Australia and acknowledge in relation to what Patrick referred to briefly as ICIP and we talk about at the moment in Australia as being indigenous cultural and intellectual property or sometimes traditional knowledge or traditional cultural expressions and cultural heritage, that sovereignty has never been ceded in relation to that, that's most important, next I'd like to acknowledge Guildhouse and Nexus, thank you very much for having us.  Creative workplaces, Creative Australia, Creative South Australian all of the various contributors who mean that arts law can exist because we are a tiny not for profit that punches above our weight, a tiny core team but exist all around Australia in part because of the extraordinary pro-bono network, I think it's important to understand we exist for you. We have no reason for being but to give legal advice that's free for accessible very cheap for people who subscribe mostly free to creators to artists and couldn't continue that with everybody that contributes to the organisations and has made it what it is for the last 42 years and continues to be now.  
So that's kind of, a big who we are, we also to the things on the screen we give free legal advice over the telephone. We have a particular program for First Nations artists of all creative disciplines called artists in the black and that means that whereas nonindigenous individuals and organisations at a certain point have to subscribe at a very, minimal rate for some of our services First Nations artists don't have to but the majority of our advice is delivered over the telephone except for the rare instances where we are able to travel remotely to deliver advice in person and events like today really wonderful opportunities to get a little bit of in person connection and potential advice as well, though this public forum I'll say upfront won't be a forum for the delivery of advice per se, if people ask me particular questions from the floor in relation to what I'm saying to the group now and I guess this is partly where Beth said keep your questions general from this point of view, I would usually be saying it depends by way of an answer because everybody's particular circumstances will be so different and really you shouldn't be talking about your confidential information in a public forum. In order to get a level of specific advice that you really need otherwise when arts lawyers are delivering advice in confidential. We encourage people to ensure that they've told us everything about the context and the circumstances surrounding their issue so they can get the help and advice they need, like creative work places as Patrick described we're not a regulatory body, we're not a tribunal, we're not a court. So unfortunately sometimes people contact us, I think, hoping that we will pass very strict judgment on the person or body that they're complaining about for having misappropriated their work or having done the wrong thing in relation to a contract and much as we would love to perform that role we don't do that, we're legal advisors and that's really the extent of it but in order to do that properly we really need full disclosure of all of the circumstances.  We also hope to maintain a current and useful accessible website full of resources that will assist you and that you can sort of use to navigate and self-help a little bit as well as give you information. We do – again, full disclosure, struggle in lots of ways to keep that updated just because we are always pushed for resources and we are always against the clock so every time there's an update in the law we will be on top of it in terms of advising people but sometimes the website takes a little while to reflect that.  
We love to hear from people telling us that there's something they need to know more about or that's wrong or whatever it is, so please take this as a sort of extended invitation to give us feedback and let us know what you would like by way of resources as well as everything else but there we host some useful templates, contracts in particular that kind of thing, that you can use that we hope will help you in your practice, the idea being that we kind of take care of the business legal end of things so that you can spend your energies and time and your thoughts creating and contributing making the wonderful work that everybody benefits from ultimately.  
With that in mind, we also advocate for artists and particularly where the arts, again, across all disciplines hits the law so that intersection between the arts and law and the big issues of the day are of course around generative AI copyright and rights in particular and indigenous cultural and intellectual property, so we find they're the things that we are constantly talking about in all sorts of things and will continue to advocate for so that's what we are and what we do. 
I'll skip through these; intellectual property or IP, this is one of those tricky slides if you click it will give us all the different categories of IP which we've put under an umbrella to convey that there's a number of different regimes all with very different histories that make up what we commonly refer to as intellectual property. So sometimes we hear from clients who tell us that they're very concerned about their patterns or their trademarks as intellectual property lawyers, no you are not because you are talking about copyright or you're talking about designs that's because of the types of IP have very different purposes very, very different rules, very, very big unwieldy statues, acts that are associated with each of them and generally for you in the room the time that is going to be of most relevance will be copyright and moral rights sits within the copyright act in Australia, sometimes designs and trademarks might come to the fore, but that's kind of species of intellectual property that's going to be most relevant generally for artists, arts workers, arts organisations across the board with that in mind I'll scoop through, thank you Beth.  
A little bit about copyright - and I'm conscious that we are probably getting near time so if whatever point people want to kind of gesture that I should speed things up I can do that but just to give you the overview of what's most likely to be of concern to many of you or the core principles, I guess, that come in to play when people are thinking about copyright law. You may have heard people describe this area of law first as being hopefully really empowering and important to all creators and really because of its history, where it comes from why we have it. The Copyright Act that we have in Australia comes from an English statute couple of hundreds of years ago, actually next slide, convey that pretty well, the statute from 1709, it's very culturally specific, it was designed with book publishing and authors in mind and we get our language in the Australian act from that original act so I'll often talk about the ‘author’ but I mean the drama activity, the visual artist, the musician when I say ‘author’ that's because of the history of copyright. It really means the creator and part of that is why copyright is so relevant in countries like Australia with extraordinary histories, of First Nations art and storytelling, and that's because the notion of what was involved with creative work and where it comes from and how long that lasts in terms of legal protection is at odds with First Nations output and production so we'll talk more about that as well. But we talk about copyright arising automatically in Australia there's no registration system that makes it really helpful for artists/creators in lots of ways because you don't have to go through the formalities or any particular procedures in order for copyright to exist in something that you create as long as what you create is human authored, that's a key concept, is looking that human element, as long as it's not copied from something else as long as it fits one of the categories that copyright covers in the copyright act and so I move us on again. The categories of creative output that copyright covers or is intended to protect and it's intended to by this, by giving creators and people investing so that might be through employing or commissioning but otherwise investing in creative output and artists generally gives them all an incentive or encouragement to continue either creating or investing in creativity because it gives an owner of copyright a limited monopoly during which the owner is the only person who can legally use, exploit, copy communicate, the work, if anybody who is not the owner uses the work in one of the ways that is reserved to the owner for the lifetime of copyright or the duration of copyright which is the lifetime of the creator plus 70 years in terms of our traditional categories of copyright work and an exception doesn't apply to their work then they may have infringed someone's copyright, so the categories of work that copyright exists or subsists in are artistic works like works of artist, craftsmanship, musical works, dramatic works, and we also have our subject matter other than works in part four of our act things like film, broadcasts and published editions. Literary works which is that original category includes computer programs and if material or content doesn't fit one of those types of works or subject matter other than works then copyright doesn't step in to protect the content and again that's where it can come up against ICIP when we are talking about expressions that are intangible and aren't fixed in one of the forms that our Copyright Act cares about and it's where generative AI has presented lots of challenges because our guidance so far from the US Copyright Office, US is kind of an outlier in the copyright world because of a registration capacity that we in Australia don't have. For instance what that gives is that jurisdiction but also gives us, who are looking at it pretty closely as well, it gives us guidance from the copyright office and so far what they've tended to say in terms of content that generative AI systems and tools have been used to create is that they don't have the requisite human authorship for copyright to subsist in that content. That's a broad brush overview, skip through a couple more slides. Moral rights I referred to briefly earlier, they've been in the Copyright Act since the year 2000 and regardless of copyright ownership and the ability to exploit rights on an economic basis moral rights are about the connection between the creator, author and the work regardless of ownership so they're not rights that we look at as being a means for people to earn a living from, they do have that benefit because of what they are, they can have a sort of consequential benefit of assisting artists to earn a living but what they are really about is the connection and the reputation of the artist. So they're about the accurate attribution of an artist, again, regardless of who an owner is an artist has the right to be attributed correctly and the right not to have their work subject to derogatory treatment, changing the work in some way without the artists permission, again irrespective of the contractually binding and all across above board wonderfully negotiated copyright arrangements. So you might have a different copyright owner to who the original artist is because the original artist was employed to create copyright work, for instance if they were employed to create the work in the context of their employment the assumption is the employer owns the copyright work, if there's not been an explicit written agreement that the artist will allow the employer to infringe their moral rights in that work and it's not reasonable that they've done so, say not acknowledged the artist or subjected their work to derogatory treatment the artist may have a moral rights infringement claim.  
Another common scenario is the artist may have had first rights. may have been the first owner of copyright in something they've created but they've then assigned it to a new owner or transferred or sold the rights to a new owner so the rights in question still last for the life of the creator plus 70 years in relation to the traditional types of works, the duration period is a little bit different for things like film for example, this is very broad brush so I won't go in to that detail now. But we have that scenario where there's a new owner almost from the get go of a work being created who is not the artist but the artist still has their moral rights and moral rights last for the life of the creator plus 70 years and except in the case of film for instance, the right of attribution is for 70 years from the time of making a film like copyright ownership, so we do have exceptions in the Copyright Act if you are not the owner and you do one of the things reserved to the owner, for instance you copy or communicate the work and you shouldn't, you don't have permission to do that, there are inbuilt exceptions that we sort of recognise as being so important as a society that mean that a copyright owner's permission doesn't need to be sought and they're for specific fair dealing purposes in Australia. So distinct from the US what we often hear about in terms of fair use we don't have a fair use doctrine in Australia, research or study reporting news, criticism or review and parody or satire and there are a few other permissible uses as well but the key thing is someone's use has to be for one of those purposes and it has to go through a rigorous test for them to have genuinely been so. So, I like to give the example I think really neatly illustrates this which is the one where Clive Palmer after saying that he independently come up with Twisted Sister's “We're not gonna take it”, but Aussies aren't going to cop it and showing that wasn't the case, well a fair deal inception of parody or satire applies and court says no, your purpose was to get elected not parody that work that's a good example of the purpose has to be for what it's claimed, can't be sort of the applied as a loop hole for people to get out of copyright infringement. So that's a pretty broad brush overview there. And I'll just do a quick reference to a particular exception that's built in to the copyright act too for public arts so for buildings or sculptures that are permanently in public there's an exception for taking photographs, sketching and so on that particular work.  
That's a neat illustration there. Things like information, ideas, concepts, inspiration, those things are not amongst the categories that I referenced copy protecting so copyright doesn't subsist in this any of those things, the test whether copyright has been infringed is whether or not a substantial part of an original work has been taken and sometimes you can put elements of the things that aren't protected together and you come up with what the courts determine is a substantial part of the original work that has been used. Often our clients get quite frustrated saying, well, exactly where will we draw the line, can't someone make this determination, so I know for sure but it is really a subjective as it sounds. And we can't predict always what our courts would determine, all we can do is empower people with knowing what the law is and telling you what the risks are around it of someone using your work without permission. 
How are we going for time?  Going okay, five okay good. This next little part of the session then I'll whiz through. It's dedicated both to indigenous culture and intellectual property and generative AI a bit, and that's a part I think helpful to illustrate the nature of copyright itself, and how very culturally specific it is. So on the slide is a kind of illustration of the big differences between the copyright regime which you'll remember comes from England the statute of Anne couple of hundred years ago, that might seem old when we look at generative AI seems like not fit for purpose with new technological developments but it seems awfully new and imposed when we look at cultural law, customary law ways of being from 65,000 years plus and when we talk about copyright lasting for the life of the creator plus 70 years can seem a long time with contemporary works now and of course it's nothing when we are looking at ancient expressions and the importance of them being protected in some ways as well. So the screen is just meant to illustrate the key differences between a First Nations view of cultural heritage, ICIP and what copyright actually does.  And to illustrate where copyright falls short in terms of protecting First Nations traditional works. And so along with other wonderful initiatives through revive like creative workplaces, Revive also was the Albanese government's law to see developed and hopeful see a draft around in the next six months probably, that's intended in some ways at least for visual arts to stop the gap, I guess, between where copyright fails to protect First Nations traditional works and the importance of that kind of expression that doesn't fit one of the categories that copyright protects for now.  
I won't labour that point. That slide explains the different things that can be bound up with ICIP is from Dr Terry Janke's work that started with Our culture Our future back in 1999, had lots of useful iterations in protocols and things that you can still use and really helpful guide with respect to ICIP and there's also, if we go to the next side thanks, there's also a parallel internationally and Australia's commitment to the united nations declaration on the rights of indigenous peoples and article 31 that has intended to cover traditional cultural expressions that we think about as being bound up with ICIP as well.  
All right. There's some other international conventions that we are not signed on but not ratified or otherwise not even party to but that gives you a sense of how the world has moved to recognise what we're calling ICIP in Australia. All right. And, key concept I guess in international law now and that will hopefully be part of a sort of normative framework that Australians are happy to adopt in the arts is the notion of free prior and informed consent went it comes to respecting and using First Nations traditional stories and cultural expressions and so on generally.  
All right and then generative AI, and the various platforms that people are using or worried that their work has been used in and by and where we stand there, so if we click to the next slide that's an example of what I mentioned earlier, that's a recent entrance of paradise it's called, by Dr Sailor and the AI project I think it was called and it's a kind of provocation back in 2023 to the US copyright office where the creators wanted to register this work as a copyright work, again, registration is not possible in Australia but in the US through the library of congress there is a system for registration, and in deciding that this work is not a copyright work the court looked at the fact that it is wholly machine generated so the creativity machine was the platform that was created so no copyrighting this work. What that means is anybody is free to use it, there's no owner or artist to stop anybody using it because it lacks the human authorship element that's crucial for originality. Distinction of the dawn between the text and images used in this scene, that which was wholly generated by generative AI platforms was not copyright protected but the text was in part copyright protected because it was authored by a human.  That's another quick example. 
This is an example that may be well‑known to people in the room. From earlier this year there was quite a bit of press about it.  This was an example of systems capacity to not just misappropriate and regurgitate and mix them up and misrepresent them those ways, but it was also an example of how sort of problematic and misinforming the output from these systems can be. So this is both bringing in ICIP and the problems with current law and what it doesn't protect because things like styles and techniques are not protected, if someone prompts an AI system produce this output in the style of and they might name a First Nations artist or first nations community and style or technique that's associated with artistic expression and output first of all the tools can do that at the moment and in doing so they may be using a whole lot of content that they've impermissibly scraped or ingested but it's very difficult to enforce copyright infringement and with content from the beginning wasn't protected because it might have been ancient or it might be something that there's not a clear identifiable owner around. Or, it may indeed just be a style and copyright doesn't protect styles so it's a pretty neat illustration of, I guess, like a double whammy or a double vulnerability that exists when we are looking at the intersection between generative AI copyright protection and ICIP. At the moment it's a cautionary tale if you will. 
So that's kind of the substantive content at a high level part of the talk, I guess. The most important thing for me from today to try and convey to each of you is that we really welcome and invite you all to have an ongoing relationship with arts law. As I mentioned at the outset we exist just to give legal advice to artists, arts organisations and people like yourselves. We are really nerdy about this intersection between the arts and law and so really welcome you coming to us, asking questions, and continuing to do that through your practice or your organisational lives with every development in the law and also just the problems that you encounter in the day‑to‑day with contracts, with copyright, with defamation, with any arts law subject. So again thank you very much. 
(APPLAUSE)
BETH NEATE:  Thank you Louise and Patrick for a generous and comprehensive presentation, feels like if you are freelancer or small organisation it's overwhelming but your presentation reminds us of the depth and breadth of the organisations that exist which we are very grateful for. Now we have some time from the audience to hear your questions for Patrick and Louise. If you have any? I'll hand over the microphone. 
>>:  There's an example of some artists in the UK, they did an original art piece called Icarus has a Sister, there was an innovative process involved in it; it was a creative work. What happened after they produced this and won an award and somebody in Melbourne bought a version of it because they did a limited edition, people overseas in other countries started copying their Icarus and producing them in things like plastic and other things and things like fridge magnets and tacky stuff and I'm trying to work on something myself and I'm concerned that the thing when I've finished it someone overseas, not in Australia, is going to look at it going that's cool, I'll copy it. What sort of protection is there, you've mentioned America but what about people in other countries looking at something I've made here in Australia and going, hey, I like that, let's copy it and sell it mass production because I do ceramics and glass. 
LOUISE BUCKINGHAM:  Yes. In all ages and with every technological development I think this is the core conundrum and it always has been so there was a big concern amongst authors like Mark Twain and Dickens about book publishing and piracy happening overseas always been the case and it's important to understand that Australia does have reciprocal arrangements by virtue of international convention that we are a part of with other countries, so we treat creators from other countries to the law what happens here same with Australian nationals and the same thing will happen in reverse and that's all well and good on a theoretical level, very difficult as I completely appreciate to enforce your rights overseas and I suppose that's where it's a good idea to be aware of things upfront and try and build a framework around your practice that means you are both legally and practically doing everything that you can to kind of prevent that kind of theft or misuse happening, and so you might think in the first instance about where you're going to show, display, disclose, exhibit, the work itself and images of it if it's something that you haven't, or you have the opportunity not to release before a certain time it's where things like contracts such as confidentiality or non-disclosure agreements can potentially come in to play. We used to tell people to use watermarks on their works if they with putting images on their websites or elsewhere they're pretty easy to remove these days, it's not obligatory that you use the copyright symbol, your name and date. There's nothing legal that turns on that here in Australia, again the US is a bit different because there is that registration capacity. But it's a good idea to use the copyright symbol, your name and date, just because you're alerting the rest of the world that you know you have rights and this is a time where we wish we were an international copyright court that doesn't exist, every country’s laws are national, we have reciprocal arrangements, national treatment but in practice it can be really difficult and you know, I think, if we sort of try and build respect and sort of lift the normative way that creative output and creators are treated and respected alongside with cases that hopefully are deterrents on a wide scale from time to time, you hope that there's a more robust kind of landscape for people to operate in. But it's tricky and I really do appreciate that. It can be really hard. But if infringement happens it's happened and that's where you can enforce your rights if you choose to go down that path. 
>>:  Hi I'm Prue and a big part of my business is teaching workshops and increasingly I'm reading in contracts expectations around if events are cancelled. In one case I was going to owe them $6,000 and my question is around who is responsible when an event is cancelled and is there event insurance or performer insurance we should be investing in to protect us so we aren't somehow have to fork out all this money? 
LOUISE BUCKINGHAM:  I won't say much because I've been talking a lot. That's probably an it depends when we look at the contract and there are probably key things you can generally everybody be aware of doing including having appropriate insurance and so on that Patrick will speak to.  
PATRICK MCCARTHY:  Tricky one. Hard to give - again we won't give specific advice but we see these sorts of things come up a lot in different art forms particularly where often the experience particularly for small arts organisations or independent artists can be power imbalance between parties in negotiating. People feel obligated when you have an opportunity to present a work or if you have been commissioned or any of these opportunities that we encounter in the act of trying to get the art made can feel like I need to sign this thing that's been given to me, sometimes people don't read the contract just sign it because that's what you have been asked to do or you don't feel beyond that that you can negotiate the terms of the agreement but in reality you can absolutely do that, you probably know more about this than me, but contract terms that can be disputed and challenged later, particularly if there's imbalance in place but a good place to start is to think about that and from that perspective bring the risk lens to your process and when you are going through negotiating and engaging in agreements with parties that you think about what's the risk here, what risks are we carrying by entering this agreement. There's a risk that if this event is cancelled for this reason we have a financial obligation, are we comfortable signing that, ideally as an individual practitioner because it might be you and your money also in an organisation, hopefully you have a risk analysis process in place to catch some of those things, where we have financial risk, what level are we willing to carry and what sort of approval processes, so you might have governance arrangements with the board or something that needs to be escalated to the CEO and checks and balances are good so you don't end up in a situation where you signed this without realising or needing to get legal advice because we are not sure what the options are, generally. 
LOUISE BUCKINGHAM: I'd endorse everything Patrick said and also as a plug to get the advice upfront. So have someone else review the contract ideally a lawyer, for that extra level of insight in to the significance of what it is that you're actually looking at agreeing to. And depending on the circumstances maybe some help negotiating the terms as well and just as Patrick said, I think creators often feel pressured either because a deal is better than no deal to sign and we can't say strongly enough that people ought to try not to feel that and be ready if you can adopt a position where you are ready to walk away and happy to walk away rather than enter something that isn't right for you. That's the best starting point. 
>>:  Hello, I'm an artist and part of Guildhouse team. We at Guildhouse are getting more and more questions around licensing, so I was wondering if you could run through different types of licensing and if there's any resources out there in terms of how you price work that's licensed?  
LOUISE BUCKINGHAM:  You mean licensing of a visual art work for an annual report or a RAP? 
>>:  Annual reports through to public artwork, all sorts of bit and pieces. 
LOUISE BUCKINGHAM: All right. So licensing starts with copyright. That's what licensing is about in the field that we're talking about so it's not, for instance, the purchase of a physical artwork. Someone may well have purchased a painting and it doesn't give them the right to reproduce the painting. The reason that licensing can occur is really because of the existence of the copyright regime and that allows for what are really just contracts or licence is you can either look at it as permission or you can look at it as a contract. Which is also permission to use the work, and by the work I mean not the physical work itself but for instance, you know, 100 versions of it on the annual report or presence on the website for a three year period, or whatever it is that involve an arrangement between the owner and the person or body that they're giving permission to use the work for certain purposes for a certain time usually, and usually for a certain fee as a result of. So it's really just a contract, it's just an arrangement undertaking between one side and another from the organisation's point of view you want to make sure we would say that you've treated the artist fairly as well but you want to make sure all of the purposes and usages that you need to make with the work are captured in that licence and that will include the moral rights concerns as well as copyright and it's super important to understand that for exclusive licensing as well as for permission to have moral rights infringed as well as for a wholesale transfer or sale of copyright which we call an assignment those deals, those arrangements need legally to be in writing and signed in order to be valid but otherwise a licence that is non-exclusive is like any other contract and the important elements that need to be in place for it to be a valid arrangement are simply that there is an offer and acceptance, there's valuable considerations. So that will often be the fee or the recurring payments and the intention of both parties, or more than both parties to enter in to the arrangement. And it doesn't need to be in writing and signed but it's usually best practice for everybody that it is so things are clearer and from the artists whose work is involved it’s critically important they understand from the get go the sale of the physical work is different from the licensing arrangement to use copies of that work or versions of that work and that you can potentially monetise, or exploit that for your lifetime plus 70 years and you are entitled to your moral rights, and they need to be captured in any licensing arrangement for the practical purposes. It's not going to make sense to attribute the artist in some context so you need to build that in to the agreement and that's an example of something that does need to be in writing in order for it to be valid.  
If the agreement isn't valid then either or both parties can get out of it essentially and there might be penalties to pay as well.  So I would say key things are being really clear about what you need and are agreeing to, always going to be best for everybody that both of you understand that. Usually licences are going to be for a set period of time maybe with an option to renew or expand that in some way. And for very clear purposes and both parties will want to know whether the arrangement is exclusive which is what it sounds like between them and the other party or non-exclusive where perhaps the same terms or similar arrangements are entered in to with many many other parties because that changes the value of the work that's licensed as well obviously. It's probably less valuable to the organisation if lots of people are using the image or whatever it is. Is that kind of a nutshell answer? 
>>:  Yeah we just have lots of members asking about the types of licensing and pricing. 
LOUISE BUCKINGHAM:  It depends, so at different times put on their websites some indications of pricing but the problem with is that people go for the lowest in the range and you can agree whatever you like, so we would always encourage an artist to think about if it's a more one wonderful or exclusive arrangement they may want to ask for more money for that use if it's going to be something that they are able to exploit across a wider range of uses, perhaps they can afford to lower the price but you know, it will depend on the circumstances each time.  
PATRICK MCCARTHY: Just to add to that, for people that are new to this, some of these ideas, the intellectual property section of our website which is linked on the handouts has a lot of really clear plain English, plain language explanations of some of these terminologies that we are talking through here, so if people are new to it or not sure where to start that can be a good point to just wrap your head around some of the key concepts then we will refer to places like arts law and places to get more detailed advice and explanation, if you are new to it, hard to think about it but a good example some of the content we talked about today. So the question around pricing and connection with licensing is good to think about as Louise said. Selling the original artwork and licensing it, how much time did it take you and costs involved in producing it and taking that in consideration to refer to the different parts of the website in some of that thinking to support where you might land in the end. 
LOUISE BUCKINGHAM:  And no one should be embarrassed either. Even in places you would least expect it. I've seen instances where people have with the best intentions in the world bought an artwork and thought they were allowed to make certain uses of it that they weren't and really 99 percent of the time the best thing to do if that sort of inadvertent mistake happens is apologise swiftly and try and compensate the artist in some way. If I teach copyright law to law students we spend six months on it, it's crazy how high level it gets, the act is this thick.  So all the resources that put things in to plain English, creative Australia, great resource, plain English clear information arts law and then you may wish to also speak with a lawyer in addition.  
>>:  Hi. My name is Julie and I'm an artist, and finishing art school recently we were encouraged to have a social media presence. And with all the information that I've read places like Instagram which is one a lot of artists put their work on, you're not really protected because reading through their agreement which I did, they're allowed to use it for whatever they want but also they have agreements with third parties.  So is there any general advice around protecting ourselves on social media?  
LOUISE BUCKINGHAM: I think you've done the most important thing which is actually reading the terms and conditions because you want to know what you are signing up to and what you are allowing what perhaps giving an implied licence through using because that can often be where people sort of get, in their efforts if you put them there and the terms of the platform that you are putting it on mean that you're allowing them or others to use it then that's what you doing, and I guess the other reality we know is that in a very practical way once something is online now it's very practically easy for it to be used so you just want to be really thoughtful and deliberate about doing that and maybe it's not always the case that any publicity is good. And then in addition to that thinking about the sorts of contractual terms that you can place on uses of your work to the extent that you can do that on third party platforms that might be another thing but perhaps on your own website or places that are a bit more restrictive, you have the capacity to impose your own terms so you can host something and give people a licence to use it under certain terms for certain purposes for instance or not.  
But I think you're already ahead of the game actually if you have already read the terms and conditions, that's crucial and if you have and are still worried or maybe you struggle to that's where you can also get legal help, so we consider reading terms and conditions of any contract including for a platform as part of our document review service it's just like any other contract so we will read through and talk about what the significance legally is of the terms that you're agreeing to essentially.  And most lawyers will. Get legal help if you need it. 
BETH NEATE: Time for one more question if there's a burning question. 
>>:  I want to thank you for your wonderful talks. Just a question about smaller galleries. Is there a code of conduct or a regulatory parameter for the protection of the public purchasing art works as well as for protecting the artists that are selling them?  
PATRICK MCCARTHY: Might just need you to clarify, so the code of conduct -
>>:  For how they organise the practice of selling them because with smaller galleries they haven't got all their systems in place, things can go awry because of that. 
PATRICK MCCARTHY: Do you mean for the purposes of making sure if they are selling work on behalf of the artist. 
>>:  And the customer is getting the art work after having purchased it. 
PATRICK MCCARTHY: I'm not sure is the answer to be upfront about that, if there's a specific code. I think usually in regards to visual arts and practice around galleries we refer people to the NALA code, that's usually where we refer people to the industry national standard, that's not something that can be a legally imposed framework but there would be broader consumer protections that would exist and protect people if you're purchasing something that you've received and the laws would apply, some might vary depending what jurisdiction you are in so maybe worth exploring if that comes up. 
>>:  Okay thank you. 
BETH NEATE: Can we please give a very warm round of applause to our guest speakers. 
(APPLAUSE)
Thank you so, so much. That was incredibly informative, so grateful you are here and sharing your contributions and the creative workplaces and arts websites are very accessible information in plain English great place to start. Can I give a warm round of applause to the team at Nexus Arts for hosting today.  (APPLAUSE) 
And to the amazing Guildhouse staff for the work behind the scenes. 
(APPLAUSE) 
Thank you to all of you for your company today and investing in yourselves and creative practices by attending the session that brings the formal session to a close please share your experiences with each other, hit up Patrick and Louise with a question and thank you so much for your company.  
End of session.