Bills Digest No. 36 2005–06
Copyright Amendment (Film Directors Rights)
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Amendment (Film Directors Rights) Bill 2005
Date Introduced: 17 March 2005
House: House of Representatives
formal provisions commence on Royal Assent. Schedule 1
commences on a date to be proclaimed or 6 months after Royal
Assent, which ever is the sooner.
The Bill amends the Copyright
Act 1968 to give limited economic rights to some
directors of some films. The Bill gives film directors a right to
receive fees from the re-transmission of free to air broadcasts by
pay TV operators. These rights are given to film directors who are
not employees. The rights are given in relation to films that are
not commissioned. The Bill does not change the moral
rights(1) that directors have in their films. The
concept of economic rights is explained below.
In Australia, the debate about ownership of copyright in films
has been around for some time. Presently, film copyright is held,
at first instance, by the maker (2) (usually the
producer). If the film is commissioned, the commissioning party
holds the copyright.(3) However, others involved in film
making most notably, directors have agitated for years for
recognition and parity of treatment with producers. Such treatment
has been accorded in some other countries. In most countries in
continental Europe(4) and, more recently, in the
UK(5), other participants in the film making process,
including directors, are given recognition as co-authors and hold
copyright in films.
The issue gained recent prominence as part of consideration of
the Copyright Amendment (Digital Agenda) Bill
2000 by a House of Representatives
committee.(6) One element of that Bill was the creation
of a statutory right to re-broadcast free-to-air broadcasts by pay
TV operators upon payment of a reasonable fee. The committee
received submissions in support of directors being given a right to
part of those fees.
The Government did not, at that time, accept the committee s
bipartisan recommendation that the claim by directors be
However, in its 2001 election policy Arts for All , the
Government undertook to 'consult key stakeholders on proposals to
amend the Act to grant new rights to film directors'.(7)
This inquiry was conducted jointly by the Attorney-General s
Department and the Department of Communications, Information
Technology and the Arts (DCITA). A request for submissions was made
on 27 October 2000(8) accompanied by a list of
non-exclusive key issues that the Government considered
In the course of that review, the Government agreed to give
consideration to [a] model granting limited rights to directors
which takes account of the views of stakeholders .(10)
Upon approval by the Government of a model, the Government said
that interest groups will be provided with a further opportunity to
comment on the proposed approach .(11) In 2004,
following the review, the Government undertook, in its
Strengthening Australian Arts policy statement, to give film
directors rights to copyright in the films they direct. At the
time, the Government did not indicate the extent of the rights that
it would give to directors or the manner in which those rights
would be implemented. Since then, the Government has considered
these issues and identified four options for
The model implemented by this Bill is the outcome of the above
process. It does not appear that further public consultation on
this model was undertaken prior to introduction of the
Bill.(13) However, the Bill was referred to the Senate
Committee on Legal and Constitutional Affairs which reported
recently. The report and submissions are available at:
As a general proposition, copyright initially resides with the
creator or author (for works) or with the first owner (for other
subject matter) of the thing. Films are other subject matter .
Presently, in Australia, the first owner of copyright in
cinematograph films is the maker of the film(14). The
maker of the cinematograph film is the person by whom the
arrangements necessary for the making of the film were undertaken
.(15) This is generally taken to mean the film s
In the absence of any agreements to the contrary, directors do
not have any economic rights in film copyright although,
since 2000, they do have moral rights.(16) The
expression rights is used in this digest to denote the economic
rights comprised in copyright. Moral rights will be designated as
Copyright protects original works (literary, dramatic, musical
and artistic) and subject matter other than works (cinematograph
films, sound recordings, radio and television broadcasts and
The copyright in film as a whole is distinct from the copyright
which exists separately in some elements which make up the film
like the script (a dramatic work) and the musical score (a musical
To hold the copyright in something is not to have absolute
ownership or dominion over it. Rather, copyright protection confers
upon the copyright owner a number of exclusive rights for a period
specified by the Copyright Act. These are economic rights.
The ownership of copyright in a cinematograph film gives the
to make a copy of the film
to cause the film to be seen or heard in public, and
to communicate the film to the public.
Practically, this amounts to a right and power to commercially
exploit the film and receive payment for it.
However, the right to commercially exploit a film is subject to
certain statutory licences which provide that certain acts that
would normally require the permission of the copyright holder, may
be done without that permission.
Part VA of the Act permits educational institutions to make
copies of broadcasts without the permission of the copyright
Part VC of the Act permits the re-transmission by pay TV
operators, of free-to-air broadcasts. Free-to-air broadcasts are
those made by the national broadcasters (ABC and SBS), the
commercial broadcasters (like channels 7, 9, and 10) and community
In the case of both statutory licences, the rights given by the
licence are subject to the satisfaction of conditions including the
payment of reasonable remuneration to the copyright holder. These
payments are collected by a collecting society, Screenrights, on
behalf of the copyright holders.
In short, under the present scheme, a producer has the right to
commercially exploit a film (and to receive payment for doing so)
and to receive payment under these statutory licences.
(Under this Bill, directors share only a small portion of these
rights. They are not given the rights of commercial exploitation
but are given the right to share in payments under one kind of
statutory licence; ie, the re-broadcast licence.)
In the debate about film directors copyright, the main issues
Should anyone else have rights in films?
If so, who should have those rights?
What is the nature and extent of the rights to be given?
Should any such rights be expressed to be non-transferable?
this Bill address these issues?
The Bill extends the ownership of copyright in films to a class
of directors but only in a limited way. The Bill does not
give to directors all of the exclusive economic rights that makers
or producers have under the Act. Rather, directors are given only
the right to receive payment from pay TV operators which exercise
their statutory right to re-transmit free-to-air broadcasts.
In other words, directors have no right to commercially exploit
a film or to receive payment for copying by educational
institutions under the statutory licence in Part VA. The right
given to directors is, therefore, narrower than the rights held
presently by producers.
Importantly, the right given to directors is not expressed to be
non-transferable (ie it is transferable). A director may transfer
their rights given under this Bill to a third party including, for
example, the producer.
Furthermore, a director will not hold this limited copyright if
the film is commissioned (in which case the commissioning party
will hold it) or if the director is an employee (in which case the
employer holds it unless there has been an agreement to the
No. There are diverse views about the main issues identified
Some notably interests associated with film producers say that
there should be no change to the law.(17) (Some say
that, not only should directors be given no economic rights, but
that they should not have been given moral rights(18)).
To extend copyright to others would, it is said, amount to a
sharing of rights which would interfere with the commercial
exploitation of, and investment in, films. This is because
agreement would be required between the rights holders in order to
deal commercially with a film.
Amongst those who agree that copyright in film should be
extended, there are different views about the people who should
benefit and about which economic rights should be given. On the
basis that the policy intent is said to be the recognition of
creative input, some commentators consider that copyright should be
extended to others having creative input. Besides directors, this
would include, for example, screenwriters.(19)
There are many possible models under which those creatively
involved in the film-making process can be given economic
rights. The submissions to the Senate inquiry suggest that there is
a lot of support for a joint ownership model which would equip
directors with the same rights of commercial exploitation as
producers currently have.(20)
As to whether the rights given to directors (whatever their
nature) should be transferable there are divergent views. By making
rights non-transferable, directors would not face the prospect of
losing their rights by agreement with more powerful parties.
Of those directors who are not employees or whose films are not
commissioned (the ones who benefit under this Bill), a few will be
sufficiently established to have enough bargaining power to reach a
commercial arrangement under which they have rights equal to, or
better than, those given under the Act. Those directors will likely
be no better or worse off.
Of the remainder, it can be argued that some will have
insufficient bargaining power to resist the common practice of the
producer either taking an assignment of the director s copyright
(director s copyright is not expressed to be non-transferable) or
engaging the director as an employee. The position of those
directors will not likely be improved by this measure.
In practice, it is possible that very few directors will benefit
from the limited copyright given by this legislation. The Senate
Committee heard that the percentage of uncommissioned films made in
Australia is very small, perhaps only 1 or 2 per cent; since
directors waive most of their rights under the terms of their
contractual arrangements with producers. (21) Thus the
Bill will affect only a handful of directors.
The Senate Inquiry into this Bill concluded that:
It is apparent that the Bill will have little
practical impact on the Australian film industry or on investment
in that industry. The Bill will only confer a limited right on
directors (that is, the right to retransmission in a free-to-air
broadcast). This right only applies in respect of the
retransmission scheme under Part VC, which is a new regime that has
yet to generate an income stream. It does not extend to
commissioned films, which are the overwhelming majority of films
currently being made in Australia. Nor does it automatically extend
to employed directors. Moreover, industry practice in Australia is
for directors to assign any copyright they may have to the
producers of the film they are to direct. The committee also notes
the Department's advice that the Bill will not disturb existing
industry practices for the financing of films, nor for securing
investment and arranging distribution.(22)
The stated policy rationale for this Bill is not matched by the
measures that the Bill implements. The Explanatory Memorandum
includes this introductory paragraph:
Film directors make a major creative contribution
to the film making process. Other than moral rights, Australian
copyright law does not currently recognise this contribution, while
other creators involved in the making of a film such as
screenwriters and composers are recognised. The Government
considers that there is a need to amend the Copyright Act to give,
for the first time, film directors a copyright in the films they
Ultimately, despite the Senate Committee s view that the
Copyright Act should reflect the collaborative nature of the
film-making process and the role of directors in that process ,
this Bill grants symbolic recognition rather than meaningful
On its face, the Bill slightly improves the position of a class
of directors by giving them a very limited right compared with the
rights held by producers. Of this class, some directors will
already be powerful enough to negotiate to have these rights (and
more). Others face the risk of having these transferable rights
taken away by commercial agreement.
In the end, these limited rights come at the expense of the
addition of a great deal of complexity to the law which is out of
proportion to the benefit it confers. As one submission to the
Senate Inquiry observed, this complexity is demonstrated by the
fact that there will now be three senses in which the word owner
can be used in relation to film copyright; the producer who holds
all of the rights of exploitation and the director who wears two
hats as the holder of limited rights in re-transmission royalties
and as holder of moral rights in the film.
Having said that, this measure represents an effort to improve
on the status quo, the maintenance of which was one of the options
considered by the Government. Furthermore, in recognising the role
of directors in the film making process, it may open the door to
further extension of directors rights after the effect of this
incremental change is assessed. And, in addition, this measure will
not impact significantly on the ability of producers to
commercially exploit films because the agreement of directors will
not be required in relation to decisions concerning
Item 1 provides that a director of a film that
is not a commissioned film will hold copyright in the film only so
far as the copyright consists of the right to include the film in a
retransmission of a free-to-air broadcast.
The moral rights under Part IX of the Copyright Act 1968 are;
the right to be recognised as the author of a work; a right of
attribution; and, a right to prevent others from modifying,
distorting, or otherwise interfering with the integrity of that
Copyright Act, subsection 98(2).
Copyright Act, subsection 98(3).
Explanatory Memorandum to Bill, p. 5.
Explanatory Memorandum to Bill, p. 6.
Advisory report on Copyright Amendment (Digital Agenda) Bill
1999. House of Representatives. Standing Committee on Legal and
Constitutional Affairs, chapter 5.
Explanatory Memorandum, p. 8.
The level of consultation on the model adopted in this Bill was
the subject of criticism in the Senate Inquiry into this Bill. See,
for instance, the submission of the Screen Producers Association of
Australia, p. 2.
Copyright Act 1968, section 98.
Copyright Act 1968, subsection 22(b).
The moral rights under Part IX are the right to be recognised as
the author of a work, a right of attribution and a right to prevent
others from modifying, distorting, or otherwise interfering with
the integrity of that work.
See: for example, the submission to the Senate Inquiry on this
Bill by the Screen Producers Association of Australia. The
submissions can be found here:
The creation of moral rights was originally proposed in a Bill,
the Copyright Amendment Bill 1997 which was the subject of a Senate
Inquiry. The report can be found here:
see: submissions of Australian Writers Guild to the Senate
Inquiry into this Bill.
see: for instance the submission of the Australian Copyright
Council to the Senate Inquiry.
Senate Committee Report into Provisions of the Copyright
Amendment (Film Directors' Rights) Bill 2005,page 22,
Senate Committee Report into Provisions of the Copyright
Amendment (Film Directors' Rights) Bill
2005, page 28 paragraph 3.70.
Explanatory Memorandum, p. 2.
Senate Committee Report into Provisions of the Copyright
Amendment (Film Directors' Rights) Bill 2005, page
28, para 3.73.
29 August 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
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© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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