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Tuesday, 13 September 2005
Page: 59


Mr BRENDAN O’CONNOR (6:17 PM) —I will at some point comment upon alternatives; the member for Moncrieff can rest assured that the Labor Party has concerns about the parlous state of the film industry and looks at ways to improve the condition of the industry. However, I will turn to the Copyright Amendment (Film Directors’ Rights) Bill 2005—something the member for Moncrieff failed to do for 15 minutes—and make some comments on that.

But, before I do, I will respond briefly to the member for Moncrieff’s comments about how important government support is for an industry—whatever the industry. It is true to say that there is a direct correlation between encouragement and support—support in all sorts of ways—of an industry by a government, and I think there is clear evidence that the Howard government has failed in its commitments towards this industry. That is very clear. Since the election of the Howard government in 1996, we have seen the diminution of the industry—a direct correlation of a lack of support and a lack of funding—and, as a result, we have seen a decline in film features being developed and produced in this nation. Given that the member for Moncrieff represents an electorate where Australian workers work in that industry—unfortunately, in many cases for foreign productions—it is unfortunate that he does not seem to understand that there needs to be support.

It is also fair to acknowledge the first Prime Minister who realised the national importance of assistance to the film industry. It was John Grey Gorton, the former Prime Minister—


Mr Sercombe —The last good Liberal.


Mr BRENDAN O’CONNOR —Yes, the last good Liberal, as the member for Maribyrnong has pointed out, who ended up being elevated to the prime ministership. One thing he did was to realise the importance of the film industry being encouraged by the national government in this country. It is true to say that, upon the election of the Whitlam government, the support grew, but I think it is important to note that John Grey Gorton showed his support by creating the Australian Film Commission and by providing leadership and government support for this industry in the late sixties. That was followed by further support by Labor governments.

However, the obvious decline since 1996 has occurred as a result of the government not sharing the same interests of John Gorton. Clearly the Prime Minister and the ministers responsible do not believe that this industry is of such significance as to warrant support at the level it once had. Notwithstanding that, Labor support this bill. It is a meagre bill, but we do believe that film directors should have their creative roles in the Australian film industry recognised through the recognition of economic rights.

For the first time in Australian law, this bill recognises that directors are essential creative contributors to the film industry and that, as with other creators, their creativity should be rewarded through provisions of copyright law. This bill should be seen, therefore, as part of a gradual evolution in the understanding of copyright ownership, moral rights and economic rights law in this country, particularly in relation to the things made by artists.

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 transmission of free-to-air broadcasts—that is, the scheme outlined in part VC of the Copyright Act. It will therefore have little positive practical impact on the Australian film industry or on investment in that industry, and this is a very serious limitation of the proposed legislation.

It confers limited rights on directors in the transmission of free-to-air broadcasts but 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. This is a serious limitation of the bill and may show that the government’s intentions were cosmetic at best. This is because industry practice in this country is for directors to assign any copyright they may have to the producers of the film they are to direct. The bill is so modest, in fact, that we wonder why it has taken the government five years to pay up on their promise to review the issue and present another bill, after Labor agreed to the passing of the Copyright Amendment (Digital Agenda) Bill in 2000.

Earlier in the debate I heard the member for Wentworth indicate that somehow Labor should not be disappointed at this delay, because consultation had to occur. However, many of the submissions that were made to the Senate Legal and Constitutional Legislation Committee indicate that there was not genuine consultation. Indeed, even if the government were apparently listening, they were clearly not listening hard enough, because very few of the recommendations made by those who drafted submissions and put their arguments forward were properly addressed by the government. So I have to disagree with the member for Wentworth. There is no point in suggesting that the government are listening and consulting when, in fact, there is no evidence that some of the suggestions made by a number of witnesses were put into this bill.

Very little has changed, therefore, in five years. It should not have taken this long. There was a bipartisan position in relation to all the major tenets of the bill, but the government has delayed, delayed and delayed the passage of this bill. And there does not really seem to be any good reason for it. There does not seem to be any decent reason for the government to argue that it had to delay to provide for the process, given that nothing really eventuated as a result of those five years of delay. So the opposition suggests that the only reason for the five-year delay through this sham process—or at least a disingenuous review by the government—is that the government has no regard for this industry. If it did, it would have enacted the legislation, with the support of the opposition, much earlier.

It has been argued most sharply by film producer bodies that diluting the producers’ hold on sole possession of copyright could endanger future investment in films by making agreements more complex and therefore more difficult to achieve. It would also, so the argument goes, increase the cost of producing films in Australia. However, the number of countries that recognise directors’ economic and moral rights is increasing all the time without any adverse effect on the viability of their industries. In fact, compared to the current parlous state of the film industry in this country, many of these industries are in rude health, even those with a similar population base and systems of economic incentive and sponsorship. The member for Parramatta listed the progress of the film industries of many other countries. I have to say that we seem to be on the decline when compared to other countries, certainly countries of comparable wealth and size.

There is also an interesting correlation with the ongoing controversy in the industrial relations arena regarding independent contractors. I presided over an inquiry that went to those matters of trying to delineate the relationship between employees and independent contractors, and I suggested that much of the government’s motive in that area was to deny employees particular entitlements or to shift obligations from the employer to the employee by using some form of disguised employment, in many cases dressed up as independent contractors. The bill would deny a director who was employed by a production company the right to have the bill, if enacted, apply to him or her. So we have a situation where, if a director is employed by a production company, on the face of it this legislation would not apply.

By including directors of non-commissioned works in the retransmission scheme, the bill will give these directors additional clout at the bargaining table. That is a good thing. Copyright is assignable by contract, so a change like the one proposed will become the position where bargaining begins. In slightly reframing the negotiation in this way, the bill recognises directors’ creative contribution to film. As with other creators, that input should be recognised through copyright law. In practice, it is possible that very few directors will benefit, however, 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 one or two per cent—since directors waive most of their rights under the terms of their contractual arrangements with producers. Again, whilst the intent of the bill is good, its application is very narrow and therefore its effect is negligible. I contend that the bill will affect only a handful of directors.

We should be concerned to provide an incentive structure to encourage and support creative directors at a time when levels of production in the Australian film industry are hitting all-time lows. Over the last century, Australian directors have made a significant contribution to the development of Australian culture. As the member for Kingsford Smith was saying, by telling our stories, they reflect our society, history and culture to us. In a time when cinemas are once again closing down in our capital cities and our screens and airways are saturated with foreign culture, we need our own stories now more than ever.

I could not for the life of me understand the member for Moncrieff’s concerns about the apparent lack of adaptability of Australian products overseas. At one point the member for Moncrieff indicated that viewers of film in Britain, the United States and other countries would not understand the nuances in a film like The Castle. I disagree with that. Firstly, that was a very good production with good writing and acting. Good film done well—comedy in particular—is universal in its application for viewers. I did not understand his concerns that it was somehow too peculiar to Australian filmgoers to be able to succeed overseas.

I do not think we should be diluting or changing the way in which we behave on film so as to make some producer or distributor in another country happy. I do accept that it is important to get a return on film. Yes, there is the need to have viable film, but I disagree with the member for Moncrieff, who suggested that somehow the good films that we have made, even in recent times, are not able to be appreciated by audiences across the world. I do not believe that at all.

It is clear that there has been a real decline in the film industry and I believe that that has affected our ability to tell our stories in our own way. Aside from these intangible benefits, Australian film is an increasingly important export industry. As communications technology transmits higher quality video at faster and faster speeds, Australian film increasingly competes in a global market. One of the strongest rationales for including directors in the transmission scheme is that it assists our directors to receive reciprocal royalties from retransmissions of their work in foreign countries that may not give directors economic rights. This is a further stream of export revenue which can be tapped to support our industry.

This bill will not do much to help the established directors but it will assist those struggling to find a place in the industry. It will also help directors of more marginal films like documentaries, animations and trade and educational films. It will help directors like Adam Elliott, the maker of Harvie Krumpet, who only a short time before his international success was never certain of his ability to continue in his chosen field due to the sorts of economic pressures that this bill might go some way in alleviating.

We acknowledge the concerns raised by the Australian Writers Guild that screenwriters should also be considered owners of the copyright in the 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 such a change. As I said earlier, over five years—from the year 2000, when a similar bill was introduced into this place, until now—very little genuine consultation has taken place between the government and the stakeholders. That is a crying shame and a reflection on the government’s disregard for this industry.

It is also important to note that, as has been indicated by the Writers Guild in their submission to the Senate inquiry this year, there was an inadequate consultation process. I am not the only one making that claim. The guild say in their submission:

It is unfortunate that due to the complete inadequacy of the consultation process, that the AWG—

that is, the Australian Writers Guild—

has been unable to explore further options for Directors to receive additional remuneration in recognition of the creative role they assume in the film making process.

They also mention that in 2001 the government made an election policy in ‘Arts for All’, but then go on to say that only lip-service has been paid to do that particular promise.

I would also like to make reference to the submission to the Senate Legal and Constitutional Legislation Committee by the Australian Screen Directors Association. Clearly, the screen directors do support the bill in principle. They do not believe it has gone far enough. On page 5 of their submission, they say:

In line with this determination, the Government has included the introduction of director’s copyright as an election commitment in its two subsequent election platforms. In its 2004 election policy Strengthening Australian Arts it stated that:

The Coalition Government will amend the Copyright Act to give, for the first time, film directors rights to copyright in the films they direct.

ASDA’s concern is that the current Bill does not appear to give effect to this policy.

What we have from the representatives of the directors in this country is a damning conclusion that, whilst they support the thrust of the bill in principle, they effectively say that the promise that was made by the government prior to the election would ensure that directors would be protected, indeed supported, in this particular way—that is, that the film directors’ rights to copyright in films would occur. Clearly, that has not happened in all but a very few cases. They make that very clear in their submission.

Unfortunately, the government did not properly attend to the concerns of the industry in drafting this bill. Labor supports the bill, but it is a very modest attempt by the government to assist the film industry and, indeed, a very modest attempt to recognise directors and their role in making films and to protect their rights once their hard work has manifested itself in an Australian film. I do have reservations with the lack of application of this bill. Therefore, I ask the government to consider widening the application for all directors and other professionals in the film industry in future. (Time expired)