Ms ROXON (4:18 PM) —Although the Copyright Amendment (Film Directors’ Rights) Bill 2005 is a small bill, it carries a great deal of symbolic importance. With the passage of this bill, Australian law will provide economic intellectual property rights to film directors for the first time. This will recognise that directors are essential creative contributors to the film industry and that, as with other creators, their creativity should be rewarded through copyright law.

Given the cultural and economic contribution that film directors make to Australia, Labor is pleased to support this bill. The bill includes directors of non-commissioned films in the definition of ‘maker’ of films for the purposes of section 98 of the Copyright Act. However, it then limits the effect of this change to the statutory scheme for the payment of royalties for the retransmission of free-to-air broadcasts. That is the scheme outlined in part VC of the Copyright Act. As a result, although it carries important symbolic value, it is a very limited change in practical terms.

In terms of the history of this issue, the practical modesty of the reform makes it remarkable that the government took such a long time to make good this commitment. The question of whether film directors should be included in the retransmission scheme first arose in 1999, when parliament was considering the digital agenda reforms which introduced the scheme. The House of Representatives Legal and Constitutional Affairs Committee, of which I was deputy chair, unanimously recommended that film directors should receive remuneration under the scheme. When the digital agenda bill was being debated in this House, Labor moved an amendment to give effect to that unanimous recommendation, but the government opposed it. We had planned to move the amendment again in the Senate, but the government announced at the last minute that it would conduct a special consultation process to consider the issue. In the interests of getting the rest of the digital agenda through, we accepted this compromise, expecting the government to make good its commitment. The then Minister for Communications, Information Technology and the Arts, Senator Alston, told the Senate:

Unfortunately, that was in August 2000—over five years ago. The government have taken an astounding five years to produce this very limited but, nonetheless, important symbolic change. Given that they could have been guaranteed bipartisan support at any stage in those five years to get this change through, this delay seems to us a sign of nothing but pure incompetence.

Mind you, while it has taken the government five years to finally get around to this reform, the Liberal Party have been more than happy to promise it in both of the elections that we have had in that time. We have heard of the core and non-core promises, but this is an example of a third category of promises—the ‘when we can be bothered, if we remember to’ promise. The irony is that, after five years of allegedly consulting, the government did not seem to consult anybody much. The Screen Producers Association of Australia told the Senate Legal and Constitutional Committee that they believed there had been a ‘serious failure on the government’s part to communicate and consult widely with the industry’ before introducing this bill. The Australian Writers Guild made a similar observation, saying that there has been a ‘complete lack of comprehensive industry consultation on the issue of director’s copyright’.

The first time any of the stakeholders got a chance to have real input was when Labor pushed for a Senate committee inquiry on the issue. So the consultation phase, promised to start in September 2000, never happened and the bill, promised before the end of 2000, did not see the light of day until 2005. This has been a case of quite extraordinary mismanagement.

Nonetheless, let us look at the proposed reform. While it has taken five long—and we say wasted—years, I am pleased that we are finally here debating this bill. As I have said, Labor will support the bill, as we believe that film directors should have their creative roles in the Australian film industry recognised through economic rights. By including directors of non-commissioned works in the retransmission scheme, the bill will give these directors an additional chip at the bargaining table. Copyright is assignable by contract, so a change like the one proposed really goes to the default position—the position where bargaining begins. In altering this default position, the bill recognises that directors do have a creative input into films. As with other creators, that input should be recognised through copyright law and through a system that makes sure that there are sufficient incentives to be creative.

There are many reasons that we should be concerned to provide the incentive structure to encourage and support creative directors. Along with others in the film industry, Australian directors over the last century have made a significant contribution to the development of our distinctive Australian culture. Through their work, they reflect our society, history and culture. They have also kept us entertained with Australian stories and, of course, Australia’s unique sense of humour.

Aside from these intangible benefits, the Australian film industry is an increasingly important export industry. As communications technology transmits higher quality video at faster speeds, Australian film increasingly competes in a global market. Indeed, one of the strongest rationales for including directors in the retransmission scheme is that it will help our directors receive reciprocal royalties from retransmissions of their work in other countries, which gives directors economic rights, principally in the large European market. This is a stream of export revenue which can be tapped to support our directors.

Although the internationalisation of the film industry is increasing in pace, the trend has been with us for some time and has already helped several Australian directors achieve international recognition. In what is far from a complete list, I think of people such as Gillian Armstrong, Peter Weir, George Miller and Baz Luhrmann or, more recently, John Polson and Cate Shortland.

I suspect that this bill will not do much to help those directors who have already landed on their feet. Their proven talent is no doubt their best bargaining chip. But it will help the next crop. It will also help the many less famous directors who make the documentaries, animations, miniseries, movies and other film products that are entertaining and educating us every day.

I know that it has been a concern among others in the film industry that the extension of economic rights to directors diminishes the recognition of other rights’ holders, like producers and writers. I do not believe that this is the case. Film, unlike some other creative pursuits, is inherently a collaborative art. It involves joint creative effort and the law should reflect that.

Labor acknowledges the concern raised by the Australian Writers Guild that screenwriters should also be considered owners of copyright in films for the purposes of the retransmission scheme. We support the recommendation of the Senate Legal and Constitutional Legislation Committee that the government consult with relevant stakeholders on this change. We hope that it will not take another five years to get that done.

The question has to be asked: could economic rights have gone further? The Australian Screen Directors Association, as I have said, would have liked this bill to go further. They would have liked some provision to include directors in future statutory royalty schemes. Labor believes that this is impractical at this stage, as we cannot make rules today that will govern schemes in the future—schemes that do not yet exist. I can give a commitment on behalf of Labor, however, that we will certainly consider the inclusion of film directors in any statutory scheme that is proposed in the future. One of the great benefits of the current bill is that it should mean that film directors are brought to the table whenever a new scheme is being considered.

The Australian Screen Directors Association also wanted to see film directors included in the educational copying and communication licensing scheme in part VA. They argue that it is inconsistent to recognise the creative contribution of directors in part VC but not in part VA. They also argue that it is discriminatory, as other creative contributors such as composers and writers are included in part VA of the scheme.

On their face, we find these arguments compelling. The film directors have raised a legitimate issue and it deserves to be explored, in consultation with other stakeholders. As far as Labor is concerned, this bill should not be considered as having closed the book on directors’ rights. Copyright law is a difficult area of policy, because we have to carefully balance the sometimes competing interests of directors, other creative collaborators like writers and producers, and of course consumers. Labor is committed to working with the film industry to pursue any improvements to copyright law that ensure that the incentives are right, the costs are fairly balanced, the export opportunities are maximised and that the public’s interest is properly taken into account.

Film directors are crucial contributors to Australia’s cultural and intellectual life. There is no doubt that their contribution to film is a creative one. For this reason, we believe that they are entitled to share the incentives that our system of copyright provides to creators. Although we would have preferred to see this change occur five years ago, we are pleased that the bill is before the House today, and we are pleased to provide Labor’s support.