Despite Australia’s prodigious directing talent our Copyright Act operates under the legal fiction that there is no author of a film. Australian Screen Directors Association

In Australia, we've ignored the importance of directors and locked them out of copyright. Scott Hicks, the director of Shine and Snow Falling on Cedars

How can a producer be the creative force behind a work? What does he do exactly? There are very few producers who have any clue what goes on ... That's why film is such an abused medium. Paul Cox, the director of The Man of Flowers and Molokai

Directors are key creative contributors to film and TV, and to be excluded because of an anomaly in the Copyright Act would have been grossly unjust, and made Australia a laughing stock. Chris Noonan, the director of Babe

The Federal Government is to be congratulated on introducing the Copyright Amendment (Film Directors' Rights) Bill 2005 (Cth) into Parliament. The reforms are long overdue. This submission is sympathetic to the situation of the Federal Government. It notes that 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.

The particular issue of retransmission royalties for film directors arose during the debate over the Copyright Amendment (Digital Agenda) Act 2000 (Cth). The matter was deferred for further policy deliberations. The Attorney General's Department and the Department of Communications, Information Technology, and the Arts co-ordinated a policy review of film directors' copyright. Seventeen submissions were received from directors, producers and other interests in the Australian film and television industries. Submissions addressed the issue of whether, and if so, how, the Copyright Act 1968 (Cth) should be amended to include directors as owners of copyright in film. The current bill before Parliament was based upon a consideration of the responses to this inquiry.

This submission is divided into three parts. First of all, it considers the history of authorship in cinematographic films under Anglo-Australian laws. It notes that initially cinematographic films were protected as either dramatic works or as artistic works in the form of individual photographs. Such a categorisation was awkward - many significant audio-visual works, such as documentaries, did not fit into the subject matter of dramatic works. This submission considers the creation under the Copyright Act 1968 (Cth) of the special category of cinematographic films and the award of ownership to producers. It argues that the policy justifications in the Gregory Report and the Spicer Report for the treatment of cinematographic films as entrepreneurial ventures are weak and implausible. The submission notes the expansion of the category of cinematograph films to include new technologies. It therefore observes that any decision will also implicate subject matter, such as animation and multi-media. This submission also considers the legal developments in 2000 - namely, the Copyright Amendment (Digital Agenda) Act 2000 (Cth) and the Copyright Amendment (Moral Rights) Act 2000 (Cth). It observes that the current copyright regime lacks simplicity and symmetry.

Second, this submission considers the range of options available in respect of film directors' copyright in cinematographic films. It rejects Option 1 - namely, the protection of the status quo. This submission is supportive of Option 2. It maintains that joint authorship of the economic rights of cinematographic films should be shared between the director, the producer, and even the screenwriter. Alternatively, this submission supports Option 3. However, it notes that the operation of presumptions as to ownership could prove to be inflexible. This submission raises concerns about Options 4 and 5. It argues that it is inconsistent and anomalous to consider the film director an author for the purposes of statutory licensing schemes and retransmission royalties, but not for the sake of economic rights in cinematographic films.

Third, this submission conducts an international survey of authorship in audio-visual works. It observes that the Berne Convention for the Protection of Literary and Artistic Works treats cinematographic films as literary and artistic works. This submission notes that other Commonwealth countries, such as Canada and New Zealand, are struggling to deal with the division of economic and moral rights in cinematographs. As a result of European Union Directives, the United Kingdom has had to recognise that principal directors are authors of cinematographic films. This should be taken into account, given that British law is the original model for the Copyright Act 1968 (Cth). This submission considers United States law on joint authorship of audio-visual works, and ownership of works made for hire. It stresses the need to develop indicia to determine joint authorship. This submission also notes recent legal developments in Israel, with the recognition of film directors' copyright.