13 September 2005
Second Reading Speech
Mr GARRETT (Kingsford Smith) (5.40 p.m.)—I thank the member for Watson for showing his thorough and acute appreciation of some of the issues surrounding the legislation that we are looking at today. I want to make some general remarks about the state of the film industry before I address the question of the Copyright Amendment (Film Directors’ Rights) Bill 2005 and take the opportunity to refer to some of the comments that have already been made by members in the House, including the members for Pearce, Fraser and others.
At one of the most recent conferences of the Screen Producers Association of Australia, a topic for consideration was: ‘Is the Australian film industry stuffed?’ That was the question that delegates to the conference had to ask themselves and the reason for asking was the alarming statistical record of decline in the success of Australian films which we have witnessed during the term of the Howard government. As shadow parliamentary secretary for reconciliation and the arts, I need to say that I share, along with all members of this House, great enthusiasm and hopes for the success of the Australian film industry. But I also have to make the observation that, since the high point of the 1980s—particularly the year 1986 when Australian films generated about 9.5 per cent of box office—we have fallen to the lowest share of box office, at 1.6 per cent, and it is declining under this government.
Members standing up in the House proclaiming the success and the level of support that has been shown by the government are simply flying in the face of the statistical realities. It is widely acknowledged in the industry that we have a serious problem in relation to the success of Australian films. To point this out is not to say that we do not have confidence in the talent and the abilities of our film-makers and our creative industries—we do. It is not to say that we do not recognise that some support has been provided by the government to buttress the film industry’s efforts—it has—but it simply has not been adequate enough and I will return to that a little bit later.
I have been championing a series of films that have come off the slate and have been released or are due for release soon. In particular, I want to place on record in the House my commendation of the efforts of director Rowan Woods and the film Little Fish. I had the opportunity to co-launch the film in the western suburbs of Sydney at the Westfield Plaza film complex in Liverpool only a couple of weeks ago. It was an appropriate location for us to speak to a film which actually dealt with people in the western suburbs and dealt with them in a sensitive and compelling way.
The simple fact is that we are not making enough films; we are not making enough Australian films. As a consequence, expectations of success for those films that we are making are that much higher. We make a dozen or so films; we need to be making scores of films. Whilst the full responsibility for ensuring that we do make more films does not lie entirely with the government—I acknowledge that—it does lie with a government policy which seeks to do two things. Firstly, it seeks to provide substantial resources and support for the film industry and, secondly, it seeks to provide appropriate and effective frameworks for leveraging private investment so that Australian investment and Australian income can go into our film-making industry.
This piece of minor legislation confers a copyright on directors in very limited circumstances, as members have noted. It is welcome, but it has been too long in coming. In fact, it is way overdue. Five years ago Peter Weir and Scott Hicks—both notable film directors—were among a number of people who visited then government ministers Alston, Williams and McGauran to argue the case for recognition of the role played by directors in the creation of motion picture films. Even earlier, a similarly eminent group of directors, including Gillian Armstrong, Bruce Beresford, Jane Campion and Fred Schepisi, had written to the Prime Minister in 1999—that is, in the last century—protesting that directors had been excluded from the Copyright Act. They were supported by Labor and by a number of organisations with interests in this area, including the Arts Law Centre and the Australian Copyright Council.
The background to this issue lies in the fact that the Copyright Act identifies two categories of artistic creation. The first category is works of an artistic, musical or literary nature and provides that, where a work is created, copyright in the work is owned by the author. The second category relates to subject matter other than works—for example, films—for which copyright did not adhere. Up to now the Copyright Act did not recognise directors as makers or copyright owners. The directors’ argument was a simple one—namely, that a film is in fact a work and as such copyright should adhere to directors, who clearly are creators of the work.
This legislation goes a small distance towards addressing this issue in that it grants film directors a share in copyright for the purposes of the subscription TV retransmission scheme, but I do not think it goes far enough. Still, as indicated by the shadow Attorney-General and other speakers, Labor supports the bill—with some reservations, which I will return to later. I note also the recommendation of the Senate Legal and Constitutional Legislation Committee of August 2005 that the bill in the form that it has come into the House should be passed.
Copyright is a sometimes complex and often contested area of the law in relation to creative works, but it has become an important legal principle that there should be a right which vests in the creator or originator of a work and which provides both recognition and legal foundation for the creator—in legal terms, the author—across the range of artistic, musical and literary output. This legal foundation is essential for the author of works to protect their interests in a work in any negotiation with someone wishing to exploit the work, and then, in the event that the work is publicly exploited, to have this protection available through the various commercial and legal relationships that follow.
In the case of musical composition, it is a fact of history that the earliest arrangements between a composer, who was often also the performer of the work, and a record label or record company intent on exploiting the composers were lopsided to the extent that in many cases the composer and performer of the work rarely saw any return from the sale of the work, even in cases when the work was particularly successful. There are scores of examples, particularly in the early period of the development of the recording industry, of very successful recording artists dying penniless. They had few rights to begin with, few opportunities to assert them where they existed and oftentimes unwittingly traded them away as a result of their overwhelming lack of bargaining capacity when faced with the more experienced and better resourced record labels.
Jelly Roll Morton, the historically recognised creator of jazz, died in 1941 destitute, cheated by ASCAP and his publishers. Bo Diddley in his 50th year of touring still has not seen any money in relation to the Chess Masters issues, although he concedes that he has to believe that MCA is doing all that it can to resolve this matter. Bo’s faith in MCA is to be admired. Fortunately, the excesses of this period have been pared back somewhat over time, although the lack of bargaining parity remains a feature of the initial interaction between the sole performer—or author—and the music label or publisher, especially when that label or publisher is part of a much larger corporation.
As a consequence of this inevitable environment, which has not been confined to the music industry, we have witnessed the recognition of fields of copyrights extending over time—in part, as a consequence of the practices I have referred to here and due as well to the increasing commercial trade of creative works and the need to adequately identify and protect the inherent rights that attach to authorship. I do not think that it is stretching an analogy too far to say that the extension of the notion of copyright and its subsequent implementation through legislation has a parallel with the larger progress of increased political rights and freedoms and the attempts to guarantee those rights, which has been a compelling national and international development over the past 100 years or more.
In this instance, a number of interested organisations submitted to the government their support for the introduction of film directors’ copyright. The Australian Copyright Council, for example, supported the assertion by directors which proposed simply enough that where a film has a principal director, the principal director is deemed to be the author; where there is a principal director, copyright in the film would be co-owned by directors or directors’ employees or to the assignee of directors’ future copyright interests; the other co-owner would be the maker or the person who commissioned the maker to make the film or their assignee. Where there was no principal director, copyright was first owned solely by the maker or commissioning person.
The government’s election policy Strengthening Australian Arts promised that the coalition government would amend the Copyright Act to give, for the first time, film directors these rights. But it has taken far too long from the time this issue was first raised to now for the government’s promise to be partially realised. The explanatory memorandum to the bill notes that ‘Film directors make a significant creative contribution to the film making process.’ It is this contribution which can be summarised as the primary creative role in the ultimate making of an audiovisual work, which has in Labor’s view long needed due recognition and which ought to be accurately reflected within the legal framework that the film industry operates within.
To put it simply, the director is the linchpin of the entire creative process. The director is the most prominent and pre-eminent party in a process that can take up to a decade to complete. The director requires an all-abiding commitment to shepherd, energise, shape and sign off the work in question. This is not to say that screenwriters, producers, editors and other skilled personnel working on the film do not make significant contributions; they do. It is just that a film should be and usually is the fruit of many labours but the realisation of one or sometimes two filmic minds and imaginations and that creative intelligence and storytelling skill, as well as the responsibility for bringing the project home, belong to the director.
The reality is that the director is literally akin to the author. In numerous cases, where the director initiates the idea and writes the script, the director is actually the author as well. It is simply not possible to envisage Citizen Kane without Orson Welles, The Godfather without Francis Ford Coppola, My Brilliant Career without Gillian Armstrong or Little Fish—one of the finest Australian films I have had the privilege of seeing recently, which I have referred to above—without the encompassing role played by the director. The role of the director is central, it is authorial, and it is fundamental to the film’s genesis, execution and success. It is as simple as that.
It was implied that the government would grant more than one right to film directors in its contemplation of the role they play in the creative process, especially given the greater recognition and protection they have in other territories, particularly Europe. There is a strong argument that asserts that all creators should receive the same complement of economic and moral rights across the range of subject matter. In fact, this bill only grants a very limited right—namely, to provide for directors’ copyright in relation to retransmissions of free-to-air broadcasts across the pay TV platform, and only in relation to non-commissioned films. It is a very minor right. It will have very little effect on the working arrangements and enhancements of rights of directors, as few films will fall within the category identified and in many cases—and this is allowed under legislation—the right can and often will be contracted away.
The fact that this legislation, so limited in scope, comes after a long campaign by directors and also many years after the initial announcement by the government that it would enter into joint ministerial consultation about directors’ copyright begs the question: what took the government so long to do so little? And where is its commitment to promptly reviewing and clarifying the broader issues of copyright as it pertains, for example, to harmonisation with international law and treaties, to consideration for screenwriters to be accorded some form of copyright or, in another area of importance, to visual artists in respect of royalties where their work is resold for significantly higher prices?
It is telling that directors previously had no rights, other than moral rights, as makers or copyright owners which were reflected in copyright law. But the Labor Party, from the first instance when this issue was drawn to our attention, have been active and consistently supportive of the claims that directors have made. We recognised that they were legitimate and urged action. I note in the House the significant contribution of the member for Denison, the then shadow arts minister, whose early advocacy in this matter was substantial, and also the efforts undertaken on behalf of directors in the Senate by Senator Stott-Despoja, of the Democrats.
The claim by directors that as a matter of fairness they were entitled to some form of copyright protection simply should have been acted upon earlier. It is some small consolation that the limited nature of the rights means that the government’s laxity in this instance has not meant significant income forgone. Most importantly, European jurisdictions, which ultimately will be covered under European Union regulations and laws, do recognise directors as film-makers for copyright purposes, so it is way overdue that similar arrangements be put in place in Australia.
The arguments that were put in opposition to this legislation, including issues of certainty surrounding contracting and investing in a project and the ‘thin end of the wedge’ argument, which featured in these deliberations, were—with respect to those who made them—not sufficiently substantial. They do not and did not neuter the legislation.
There is one exception. This goes to the reservation I have in relation to the intended copyright not extending to the educational use licence in part VA. No compelling evidence was brought that I am aware of by any party, including the Screen Producers Association of Australia, to demonstrate how producers or others would be worse off if this very minor right were extended to part VA. Indeed, the Senate committee made that same observation in their report at paragraph 3.26. It does not seem fair or consistent with the granting of a retransmission right that a right for education use should not be similarly granted. For now, we simply note the disappointingly limited right that this bill confers. Yes, it is a small first step, but there is a long way to go.
Generally, the longevity and success of a particular work or film depends very much on the original vision and its execution by the director. Even though the likelihood is that in many instances directors, under this legislation, will have contracted away their rights, long-term success is a guarantee for investors and directors alike, so sharing a right should not be an impediment to the success of a work. Here I am referring to the essentially collaborative nature of the engagement between film-makers and film producers. Ultimately, they go hand in hand to the marketplace, and ultimately the open, sometimes defined but necessarily cooperative, nature of that collaboration is essential to their success. After all, this is what occurs in many other fields of creative and commercial endeavour. There is no reason why it should not happen in Australia as well, where the films made by directors and the efforts they put into making these films shape and embolden our identity and add immeasurably to our national store of culture.
This legislation was too long in coming, but it affords us the opportunity not only to recognise the contribution that directors make in the production and bringing to the market of a creative work but also to highlight some of the insufficiencies evident in the track record we have in relation to the current state of health of the Australian film industry. I was reading—browsing, you might say—through the Herald of 2 August and I noted that Australian culture now rates ‘zilch’ in the latest international survey of how people see Australia. The days of Aussie cinema being celebrated overseas unfortunately seem to me to be disappearing. This is a serious state of affairs. It requires resolute action by this government, who are charged with the responsibility of ensuring that our culture is healthy and buoyant and continues to grow. We need to be able to tell our stories here, and we also need to be able to sell them overseas.
There is no denying the talent that we have in this country. A number of actors—whose names people would be well aware of—producers, directors and directors of photography have found eminence working both here and overseas. Whenever we take the opportunity to watch the films they make and to see their success against their contemporaries, particularly their American contemporaries, we know that we have capacity and talent that is equal to the best in the world. However, they need the opportunities and the platforms. We need to make more films in order to see those successes play out not only here but also in other parts of the world.
There is no denying the current poor state that we are in. We are optimistic for the future, but some 300 films land off the slate into our cinemas and onto our television screens every year and the majority are American. Very few of them are Australian films. It is high time that this government did something about that state of affairs, and this legislation should not have taken as long as it did to reach the House.