Proposal for a directors copyright in films - 2000

Non-exclusive checklist of possible issues

Checklist of possible issues relating to the proposal that the Copyright Act be amended to grant directors copyright in films.

Would the director be a first owner of copyright, rather than "author" (bearing in mind that subject matter, including films, under Part IV of the Copyright Act 1968 (the Act) is not treated as the product of authorship)?
Do Australia’s obligations under the Berne Convention for the Protection of Literary and Artistic Works (eg, article 14bis) have a bearing on the choice of "owner" or "author"?
Subject to any provision in the director-producer contract, what should the relationship be between them - joint owners? Would it make any difference if the producer is a corporation, and not a natural person?

Should "director" be defined to include directors of feature film, TV drama, documentary and animation?
Should the right be restricted to the principal director(s), or extended to associate and other subsidiary directors (cf Copyright Amendment (Moral Rights) Bill 1999, s.191)? (As for the producer, see the Act, s. 22(4)(b)).
Who, if anyone, should be regarded as the director of a home movie, a film shot without any direction (eg, security camera film), a computer game or a multimedia production? Should there be a provision that if there is no director then copyright vests, as now, with the producer.

Under the Copyright Amendment (Moral Rights) Bill 1999, screenwriters are to be added as authors of films for the purposes of moral rights. Apart from the actors, other major contributors to films include cinematographers, editors and production designers (who, like directors, have no copyright in their output), and musical composers. How may directors be distinguished in order to justify conferring copyright upon them but not these other contributors?

Will any directors’ copyright have the same duration as that of the existing copyright in films (50 years after publication)?
Do Australia’s obligations under the Berne Convention or the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) have any bearing on this issue?

Should any new director’s copyright reside in the employer of an employed director (just as an employer of an author is the holder of copyright in works of the author created in the course of employment), subject to any provision in the employment contract?
Should any new director’s copyright in a film which has been made under commission be held by the person who commissioned the making of the film (as is the case with existing copyright in a commissioned film), subject to an agreement to the contrary in the commissioning contract?
How should any new legislation on directors’ copyright operate in relation to the subsequent dealings with the film in light of Article 14bis(2)(b) of the Berne Convention)?

What consequential amendments to the Act would be necessary? For instance, s.131 provides for an evidentiary presumption as to the ownership of copyright in a film on copies of which the name of the maker appears. Section 179 provides for agreement with film makers on the allocation of copyright in films commissioned by the Commonwealth, States and Territories.

Should any new directors’ copyright apply only to films made after the commencement of any new legislation? In the case of existing films, under the Act now, different rules apply to films made since 1 May 1969, when the Act commenced, and those made before then.
What transitional arrangements would be necessary to take account of existing contractual arrangements governing the making and exploitation of existing films and films not yet made?