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Tuesday, 13 September 2005
Page: 35


Mr TURNBULL (4:28 PM) —The significance of the Copyright Amendment (Film Directors’ Rights) Bill 2005 is perhaps essentially a statement of principle, as a recognition in a small but nonetheless tangible way of the creative input of directors: those people who, in the midst of the scores of others involved in the making of a motion picture, have to provide the artistic leadership and the creative command that pull it all together to make the cinematic art. Section 22(4)(b) of the Copyright Act provides:

… the maker of the cinematograph film is the person by whom the arrangements necessary for the making of the film were undertaken.

That language is derived from the United Kingdom legislation which was the consequence of the recommendations of the Gregory committee in 1952. The committee observed that what this language had in mind was ‘the entrepreneur’—if the word is not too old-fashioned—‘under whose care the labours of many contributors are brought to a successful issue’. The entrepreneur, as artist, is an interesting concept, which is not extended to other forms of creative ownership. The patron who organises all the necessities of life for a painter, or a writer, does not by reason of those logistical efforts become the owner of the copyright in the works created. For films, the owner has always been taken, therefore, to be the producer, who typically pulls the whole enterprise together but, who, most importantly, marries the financial resources necessary for the film, together with the artistic leadership in the form of the director. Of course, a lot of directors are producers, too. The artistic temperament does not preclude great logistical and organisational skill, but the functions are nonetheless separate ones.

Section 86 describes the copyright in a movie as consisting, as one would expect, of essentially the right to copy that film or to cause it to be communicated to the public. In 2000 the parliament amended the Copyright Act to introduce part VC, which is designed to enable pay television operators to rebroadcast simultaneously free-to-air channels. This was an obvious and necessary reform which meant that subscribers to pay television services would be able to watch both the free and the pay channels through the one service. A statutory scheme was established whereby the retransmitting pay television operators would pay a fee—to be settled by the Copyright Tribunal—to the collecting society in the case of films, for screen rights. The effect of the bill therefore is to amend section 98 to provide that, where the film is not a commissioned film, the maker of the film—hitherto meaning the producer only—shall include a reference to each director of the film. The amendments, however, provide that, if a person becomes an owner of the copyright by reason of this director provision, it applies only ‘so far as the copyright consists of the right to include the film in a retransmission of a free-to-air broadcast’.

The term ‘retransmission’ is defined to mean a retransmission to which part VC applies, which is of course the part which applies to the retransmission of free-to-air channels on pay TV services. In some respects therefore, the declaration that the director is a co-owner of copyright in a film is, as the member for Gellibrand observed a moment ago, a symbolic one. Unlike the producer who has all of the section 86 rights of a copyright owner, the director declared to be an owner by this bill has no rights other than to receive a share of the retransmission fees if his film is, firstly, broadcast on a free-to-air channel and, secondly, retransmitted pursuant to part VC of the principal act by a pay TV operator.

The director has the right to transfer his or her interest under this legislation, and one would expect that in most cases the director’s rights would be the subject of a contract and that his or her participation in the copyright of the film—if any—would be determined by that contract. The Senate Legal and Constitutional Legislation Committee, which considered this bill, was told by Mr Geoffrey Brown of the Screen Producers Association of Australia that only one or two per cent of Australian films were not commissioned ‘since directors waive most of their rights under the terms of their contractual arrangements with producers’. This commercial reality underlines again the essentially symbolic nature of the legislation. Reading the evidence given to the Senate committee, including that from the Attorney-General’s Department, one is struck by the consistent conclusion that the bill will have, in the Senate committee’s words, ‘a negligible impact for the current copyright arrangements for producers, because a director will never work without being in an employee relationship with a producer’.

The principal controversy attending the bill appears to have been the government’s decision not to confer on directors a similar share in the existing educational copying statutory licensing scheme in part VA of the principal act. Notwithstanding that the copyright ownership rights conferred on directors under the legislation are modest indeed, the screen producers expressed themselves as opposed to the bill. Mr Brown, to whom I have just referred, told the Senate committee that the bill introduces uncertainty to the investment climate in the industry. He said:

Producers have to guarantee to their investors that the copyright in a cinematographic work is clear and unencumbered, that there is a clear chain of title, to create the confidence for investors to invest in the film. Once you start splintering that into copyright to individual creators ... you start to lose that confidence.

Given the limited rights granted under this bill, Mr Brown’s criticism reads as unduly apocalyptic. A better argument, from his viewpoint, may be the contention that this would be the thin edge of the wedge and that further rights, especially statutory rights, could be granted. The bill, the producers would argue in that case, creates a precedent from which other legislative changes may follow. Dr Matthew Rimmer of the Australian National University, in his very scholarly submission to the Senate committee, observes—correctly in my opinion—that the answer to the thin edge of the wedge or floodgates argument put by Mr Brown is:

... that there should be clearer rules as to joint authorship in respect of a copyright work—not that we should deny the possibility of joint authorship altogether.

I note, in the context of Dr Rimmer, that the member for Gellibrand, in her criticism of the government, seemed to make two critiques of the government’s preparation of this legislation or carriage of this legislation which were contradictory. On the one hand she said that the government had taken far too long to introduce it: after all, part VC had been introduced in 2000 so why had it taken five years to bring this bill into the House? On the other hand she said that the government had failed to consult and that one may then ask what had been happening over all those years. The reality is that the government was consulting. It is true that the producers and the Australian Writers Guild complained to the Senate committee about a lack of consultation—and the member for Gellibrand pointed that out. But she would have given the House a fairer appreciation of what had transpired before the Senate committee had she referred to the submissions from other parties before the committee, in particular that of Dr Rimmer whose contribution, as I said earlier, was a very scholarly one and an extremely valuable one. I will read what he said on this point in his submission. He said:

... the debate over film directors’ copyright has been an exhaustive process, with much special pleading by all sides. The various stakeholders have all had ample opportunities in the past six years in which to address this issue. There certainly has been a comprehensive consultation about film directors’ copyright.

Dr Rimmer was not an interested stakeholder: he was not a producer, he was not a director, he was not a writer. With respect to the member for Gellibrand, I think it would have been fair of her to draw that objective appreciation to the attention of the House before she presented her highly critical assessment of the government’s carriage or preparation of this legislation.

The Writers Guild, predictably, opposed the bill unless similar rights could be given to writers. The Senate committee’s sole recommendation—other than that the Senate should pass the bill—was that writers be included as co-owners of copyright for the purpose of sharing part VC retransmission revenues. The writers’ case for inclusion in this bill appears to me a very strong one. After all, it was only in 2000 that the Copyright Amendment (Moral Rights) Billwas passed by this parliament. It granted to the authors of literary, dramatic, musical and artistic works and cinematographic films certain moral rights—essentially, the right to have their authorship acknowledged, or attributed in a reasonably prominent way, and the right to ensure that the work’s artistic integrity is maintained. For the purpose of the moral rights legislation, the author of a film is defined as the maker of the film, which is in turn defined as the principal director, principal producer and principal screenwriter of that film.

There was also some criticism of the bill because it allows directors to sign away their part VC rights—as undoubtedly almost all of them will do in accordance with their contracts with the producers. The notion of a nontransferable property right does not sit comfortably with our legal system and, certainly from our side of politics, it is difficult to see any reason why a person should not be able to deal freely with their own property. Given the global nature of the cinema industry, it is well for the House to consider whether this bill adds to international harmony or complexity.

The countries of the European Union have traditionally taken a different view of the ownership of the copyright in a film. Rather than the entrepreneur, the organiser, the producer, who pulls it all together being the owner of the copyright—which is the view taken by the common law countries, including the United Kingdom, the United States, Australia, Canada and New Zealand—the Europeans have given directors moral and economic ownership rights. This view of the director as auteur is distinctly different from our own, but it is gaining ground because of the influence of the European Union. In 1996 the United Kingdom’s laws, in order to comply with European laws, were changed to provide that the director and the producer are deemed to be joint authors and copyright owners of a film. An employed director’s rights vest in the producer, and a nonemployee director can, of course, contract to transfer his rights to the producer—and most do. The UK maintains a statutory scheme—not unlike our own scheme for rental rights—and the directors have a nontransferable right to remuneration from that scheme.

One submission to the Senate committee, by Kimberlee Wetherall, claimed that the bill creates a uniquely—and thus discordantly—Australian position, because, while we will recognise producers as owners of the copyright, as do the United Kingdom and the United States, we will add directors only for certain purposes. Further, she said, unlike the United States we will give directors moral rights—of course, we have given directors moral rights—but, again, unlike the United States, not confer a concept of co-authorship where the film is regarded as a joint work. The US position, as in so many other areas of law, is essentially unique, even idiosyncratic.

It is difficult to see how Australia can reconcile its law perfectly with that of any other country unless we were to copy that of another country. Of course, it used to be the case that our copyright laws were essentially a facsimile of the United Kingdom’s. The rest of the world has moved in so many different ways—and the differences are, in so many ways, very subtle—that it is hard to see how Australia can harmonise its laws with a copyright world that is becoming increasingly, often subtly, less harmonious.

On balance, I believe that the bill improves our position in a global context. It is better to give directors some recognition than to give them none. As the explanatory memorandum notes, the Australian Screen Directors Association has contended that it has had difficulty negotiating for recognition for Australian directors under authorship schemes in Europe due to the lack of reciprocal payments in Australia. A fair criticism of the bill would be that it is a gesture only—that directors will simply contract away their rights to the producers. That may be so—in which case the concerns of the producers ring rather hollow.

The critics of the bill may find, therefore, that this legislation will be an arrangement which, from their point of view, fails in theory but works perfectly well in practice. Time will tell. When the House returns to the subject matter of this bill, it would do well, in my view, to give very serious consideration to including, as the Senate committee recommended, writers as co-owners for the purposes of participating in the statutory scheme under part VC of the principal act. I commend the bill to the House.