|
Navigation: Previous Page | Contents | Next Page
Chapter 2 - Overview of the Bill
2.1
This chapter briefly outlines the purpose, background
to, and main provisions of, the Bill.
Purpose of the Bill
2.2
The Bill seeks to amend
the Copyright Act to provide for film directors to be joint copyright owners of
films, along with producers, for the purposes of the retransmission statutory
licence in Part VC of the Copyright Act.
2.3
The retransmission statutory licence allows free-to-air
broadcasts to be retransmitted by pay-TV platforms without permission from
copyright owners if the retransmitter pays fair remuneration to the owners of
copyright in the underlying materials in broadcasts (including films and
pre-recorded programs). Under the Bill,
directors and producers would share a right to this remuneration, as joint
owners of the copyright in their films for this purpose.
2.4
According to the Explanatory Memorandum (EM), the Bill
delivers a commitment made by the Federal Government in its Strengthening
Australian Arts policy for the last election.[1]
In particular, the Bill seeks to:
- address concerns about the level of recognition
available to directors in Australia;
- provide appropriate copyright recognition for
the creative contribution of directors;
- enable directors to share in the new income
stream provided by the Part VC retransmission scheme, in recognition of their
creative contribution to the film-making process;
- maintain, as far as possible, current financial
arrangements for the Australian film industry, and the ability of producers to
fully exploit films to recoup the cost of production and attract investors; and
- avoid, as far as possible, any negative impact
on consumers, user groups (for example, broadcasters and educational
institutions) and society generally.[2]
Background to the Bill
2.5
The Copyright Act does not currently recognise
directors as makers of films or as copyright owners in film. The 'maker' of a
film is the person 'by whom the arrangements necessary for the making of the
film were undertaken'.[3] This is usually
the producer. Under the Copyright Act, the maker (that is, the producer) is
normally the copyright owner of the film. Section 86 of the Copyright Act
provides that this copyright owner has the exclusive right to:
-
make a copy of the film;
- cause the film to be shown or heard in public;
and
- communicate the film to the public (including
via broadcast and online).
2.6
The EM states that these exclusive rights are called
primary economic rights, because they enable the copyright owner to control the
uses of the work that provide the primary economic returns (for example,
publication and distribution). Granting producers (as copyright owners) these
rights allows them to commercially exploit their films to recoup investment
costs (through, for example, cinema release, broadcast via free-to-air and
pay-TV, and the production of videos).[4]
2.7
Producers – as copyright owners – are also entitled to
payment where their films are used under statutory licences set out in the
Copyright Act; that is, for the copying of broadcasts by educational
institutions (Part VA)
and the retransmission of free-to-air broadcasts (Part VC). These licences or
rights are called 'secondary rights' because they do not relate to the primary
uses of the material. They allow copyright owners to obtain remuneration for
ongoing dealings with copies of works that have been created under the primary
economic rights (for example, the copying and retransmission of authorised
broadcasts).[5]
2.8
Under these licences, the permission of the relevant
copyright owners is not required to copy or retransmit broadcasts of their
material in specified circumstances, provided equitable remuneration is paid by
the user to a collecting society declared by the Attorney-General, for
distribution to the copyright owners. In the case of the Part VA and VC
licences, the declared collecting society is Screenrights.
2.9
The relevant copyright owners for the purposes of these
licensing schemes are the producer of the film being copied or retransmitted,
and the copyright owners of the underlying original material included in the
film (such as the screenwriter and composer). Broadcasters do not receive
remuneration for the copying or retransmission of material under these
licences. Both schemes apply only to traditional broadcasts, and do not include
webcast or video-on-demand services.[6]
2.10
The Part VC scheme is a new revenue stream that was
introduced by the Copyright Amendment
(Digital Agenda) Act 2000. It applies only to the retransmission of
free-to-air broadcasts over traditional broadcasting services (for example,
cable, satellite or airwave services, as opposed to online or video-on-demand
services). To fall within the statutory licence, the retransmission must be
simultaneous with the original broadcast, or delayed only to allow for time
zone differences. The content of the original broadcast must be unchanged. The
scheme will essentially apply to pay-television providers who wish to
retransmit free-to-air broadcasts over their systems. This enables
pay-television customers to receive all their broadcast material through a
single cable or satellite signal, increasing quality of reception and ease of
use.[7]
2.11
No money has yet been collected or distributed under
the scheme. The fees payable by those engaged in retransmitting broadcasts are
currently the subject of arbitration in the Copyright Tribunal between the
primary retransmitters (that is, Australian pay-television operators), and the
declared collecting society (Screenrights). The portion of this fund
distributed to each copyright owner will be determined by a formula set by
Screenrights.[8]
2.12
Directors are currently granted moral rights in films
by the Copyright Act. This means that directors must generally be attributed in
relation to uses of their film, and may take action in response to derogatory
treatment of their work. However, directors are not recognised as film makers
for copyright purposes. Thus they have no economic rights by virtue of the
Copyright Act in the films that they take a primary role in creating; they rely
instead on contractual means for financial remuneration. As they are not
recognised as copyright owners, directors also do not have any rights to
remuneration under the Part VA and VC statutory licences.[9]
2.13
In his Second Reading Speech, the Attorney-General
stated that the case for recognising directors' copyright was raised by the
Australian Screen Directors Association (ASDA) when the Copyright Amendment (Digital Agenda) Act 2000 was being debated.
According to the Attorney-General:
The government agreed to look at the issue of extending a share
of copyright in films to directors. An issues paper was published and
submissions were received from stakeholders, including ASDA and also
representatives of film producers and broadcasters.
The bill...has resulted from a careful consideration of those
submissions and from consultation with the main stakeholders.[10]
2.14
The Federal Government considered various regulatory
and non-regulatory options for addressing the issue of directors' copyright.
These options were as follows:
- Option 1 – Maintain status quo
- Option 2 – Adoption of joint authorship model
- Option 3 – Co-ownership with presumption in
favour of producers
- Option 4 – Remuneration of directors under the
secondary rights schemes
- Option 5 – Remuneration of directors under the
retransmission scheme.[11]
2.15
Option 5 is the approach taken in the Bill.
Significant provisions of the Bill
2.16
Clause
4 of the Bill provides that the amendments in Schedule 1
apply to films that commence to be made after Schedule 1 commences. Subclause
4(2) provides that the amendments have no effect to the extent that the rights
they provide are inconsistent with the rights arising under a contract entered
into before the commencement of those amendments.[12]
2.17
Item 1
of Schedule 1 of the Bill
inserts new subsections 98(4), 98(5), 98(6) and 98(7) into the Copyright Act.
Section 98 of the Copyright Act relates to ownership of copyright in
cinematograph films.[13]
2.18
Subsections
98(2) and (3) of the Copyright Act generally provide that the maker of a film
is the owner of the copyright in it, subject to any contrary agreement. New
subsection 98(4) provides that each director will be taken to be a 'maker' of a
film if the film is not a 'commissioned film' (defined in new subsection 98(7):
see paragraph 2.22 below).[14]
2.19
The
effect of new subsection 98(4) is that, where a film is not a commissioned
film, the director, as a maker of the film, will be a copyright owner in
addition to the person who falls within the definition of a maker of a film in
paragraph 22(4)(b).[15] Since the
majority of films made in Australia are commissioned films, the extent of ownership
by directors of film copyright will be fairly limited in practice.
2.20
New
subsection 98(5) provides that if a director directed a film under the terms of
his or her employment under a contract of service or apprenticeship, then in
the absence of any agreement to the contrary, the director’s employer will be a
'maker of the film', and hence a copyright owner, in place of the director, for
the purposes of new subsection 98(4).[16]
2.21
New
subsection 98(6) provides that, if a person becomes an owner of copyright in a
film as a result of the operation of new subsections 98(4) and/or (5), then the
copyright in the film shall only comprise the right to include the film in a
retransmission of a free-to-air broadcast.[17]
2.22
Several
terms are defined in new subsection 98(7):
- 'commissioned
film' is defined as a film made as mentioned in paragraphs 98(3)(a) and (b). These
paragraphs provide that a commissioned film refers to a film made in pursuance
of an agreement made by a person for valuable consideration with another person,
for the making of a cinematograph film by the other person.
- 'director'
is defined as having the same meaning as in Part IX of the Copyright Act. The
effect of this provision is that where two or more people are involved in the
direction of a cinematograph film, then 'director' is to refer only to the
principal director.
- 'free-to-air
broadcast' is defined as having the same meaning as in Part VC of the Copyright
Act. The effect of this provision is that a free-to-air broadcast refers to a
broadcast delivered by a national broadcasting service, commercial broadcasting
service, or community broadcasting service within the meaning of the Broadcasting
Services Act 1992.
- 'retransmission'
is defined as meaning a retransmission, as defined in section 10 of the
Copyright Act, to which Part VC applies. That is, a retransmission, other than
over the Internet, of a free-to-air broadcast where the content of the
broadcast is unaltered and either the retransmission is simultaneous with the
original transmission or, if the retransmission is in an area with a different
time zone to that of the broadcast, the retransmission is delayed until no
later than the equivalent local time.[18]
Navigation: Previous Page | Contents | Next Page
|
