Buyouts: your APRA membership and agreement
IMPORTANT INFORMATION FOR APRA MEMBERS FOR ANY BUYOUT DEALS
The AGSC advocates for composes to retain their intellectual property and subsequent royalties. Being an APRA member helps protect those rights. If however, a composer still wishes to sign a buyout deal, there are protocols everyone should be aware of, as an APRA member.
Under the APRA Constitution, a member assigns all performing rights in all of their existing and future works to APRA. Therefore, the starting point is that an APRA member is not able to enter into an agreement under which they assign those rights to a third party, because they do not own the rights anymore.
A member can elect to “opt out” of the assignment (including at the time they joint APRA) with respect to one or more of various categories of use, but it must be in relation to all of their works – it can’t just be in relation to specified works.
An opt out means that APRA will not license or collect on any of that member’s works for the specified uses, and neither will any other PRO worldwide. The categories of use are set out in the Constitution – they are:
·public performance (anything other than broadcast and online)
communication to the public other than by broadcasting (such as web streaming)
live performance (such as at a concert or festival)
public performance by means of film (cinema)
public performance other than live performance and cinema (such as background music, fitness centres, and discos or dance parties)
free to air television broadcasting
subscription (pay) television broadcasting
If a member wishes to sign a buyout agreement, they need to identify what uses are being bought out, and arrange an appropriate opt out with APRA. APRA requires at least three months written notice to take effect either on 1 January or 1 July in any year, as well as a signed consent and indemnity from all interested parties including writers and publishers. If the opt out arrangement is complex APRA will charge an admin fee up to $200. If the buyout is for all uses, the member has to decide whether they want to resign from APRA – they can’t sell their works to a third party and still be a member of APRA.
If the member wants to enter into a local agreement under which the licensee doesn’t have to pay APRA licence fees for using that work, the member can ask for a licence back – this will enable to member to grant a licence directly to a licensee for the public performance or communication of particular works. APRA won’t license or collect from that licensee for the use of the relevant work in Australia or New Zealand, but the work will still be in the worldwide collective administration system. APRA still requires as well as a signed consent and indemnity from all interested parties including writers and publishers, but the notice period is much shorter.
Members obviously have to make a commercial judgment about the amount they are being offered for a buyout or direct licence, and the royalties they would otherwise receive from APRA.