Copyright Amendment (Film Directors’ Rights) Act 2005
No. 130, 2005
An Act to amend the Copyright Act 1968, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
4 Application of amendment
Schedule 1—Amendment
Copyright Act 1968
Copyright Amendment (Film Directors’ Rights) Act 2005
No. 130, 2005
An Act to amend the Copyright Act 1968, and for related purposes
[Assented to 8 November 2005]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Copyright Amendment (Film Directors’ Rights) Act 2005.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 8 November 2005 |
2. Schedule 1 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 19 December 2005 (see F2005L04088) |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
4 Application of amendment
(1) The amendment made by Schedule 1 applies to films that commence to be made after the commencement of that Schedule.
(2) However, the amendment has no effect to the extent to which the rights created by the amendment would be inconsistent with the rights arising under a contract entered into before the commencement of the amendment.
Schedule 1—Amendment
Copyright Act 1968
1 At the end of section 98
Add:
(4) If the film is not a commissioned film, then the reference in subsection (2) to the maker of the film includes a reference to each director of the film.
(5) If a director directed the film under the terms of his or her employment under a contract of service or apprenticeship with another person (the employer), then, in the absence of any agreement to the contrary, the employer is to be substituted for the director for the purposes of subsection (4).
(6) If a person becomes an owner of the copyright:
(a) because of the operation of subsection (4); or
(b) because of the operation of subsections (4) and (5);
then the person becomes the owner of the copyright only so far as the copyright consists of the right to include the film in a retransmission of a free‑to‑air broadcast.
(7) In this section:
commissioned film means a film made as mentioned in paragraphs (3)(a) and (b).
director has the same meaning as in Part IX.
free‑to‑air broadcast has the same meaning as in Part VC.
retransmission means a retransmission (as defined in section 10) to which Part VC applies.
[Minister’s second reading speech made in—
House of Representatives on 17 March 2005
Senate on 14 September 2005]
Overview
The Copyright Amendment (Film Directors’ Rights) Act 2005 was enacted by the Parliament of Australia to address a gap in the existing copyright law concerning the rights of film directors. The Act seeks to amend the Copyright Act 1968 to recognise and protect the rights of film directors by conferring copyright ownership and control over certain aspects of their work. This legislative amendment was introduced to ensure that film directors receive appropriate recognition and protection for their creative contributions. The Act commenced on 19 December 2005, following its assent on 8 November 2005, and applies to films made after the commencement of the amendment, provided that such rights do not conflict with pre-existing contractual agreements.
Scope and Application
The Copyright Amendment (Film Directors’ Rights) Act 2005 is an Act of the Parliament of Australia that seeks to amend the Copyright Act 1968 by extending certain rights to film directors in respect of their work. The Act applies to film directors involved in the creation of films that commence to be made after the commencement of the amendment on 19 December 2005, but does not affect rights arising under contracts entered into prior to this date. Specifically, the Act grants directors of non-commissioned films the right to be recognised as the maker of the film, and in certain circumstances, the right to be recognised as the owner of the copyright in relation to the retransmission of the film in a free-to-air broadcast. However, if a director is employed under a contract of service or apprenticeship, the employer may be substituted for the director for these purposes in the absence of an agreement to the contrary. The Act's application is limited to film directors and does not extend to other types of creators or industries. The Act applies nationally across Australia, as it is a Commonwealth Act. The Act does not specify any exclusions, exemptions, or thresholds, but the operation of the amendment is subject to the terms of any pre-existing contracts. The Act does not extend or restrict its application through subordinate instruments.
Key Provisions
The Copyright Amendment (Film Directors' Rights) Act 2005 (C2005A00130) amends the Copyright Act 1968 to extend certain rights to film directors in relation to films. Section 1 of the Act introduces the short title, while section 2 specifies the commencement date for various provisions. The primary amendment is detailed in Schedule 1, which modifies section 98 of the Copyright Act 1968 to include directors of a film in the ownership of copyright, under specific conditions.
Under the new provisions, if a film is not a commissioned film, the director of the film is included in the definition of the film's maker for the purposes of copyright ownership (section 98(4)). If a director works under a contract of service or apprenticeship, the employer is substituted for the director unless there is an agreement to the contrary (section 98(5)). Ownership of copyright by a director or employer is limited to the right to include the film in a retransmission of a free-to-air broadcast (section 98(6)). This amendment applies to films made after the commencement of Schedule 1, which was 19 December 2005 (section 4).
The Act imposes obligations on parties involved in film production, particularly requiring clear contractual agreements regarding the ownership of copyright if a director works under a contract of service or apprenticeship. It mandates that the terms of such contracts should explicitly address the rights of the employer versus the director to avoid conflicts with the new provisions. Additionally, film producers and employers must ensure that any pre-existing contracts do not inadvertently infringe upon the new rights afforded to directors under this legislation.
Failure to comply with the provisions of this Act may result in legal disputes regarding the ownership of copyright. While the Act itself does not specify particular offences or penalties, breaches could lead to litigation under the Copyright Act 1968, where penalties for infringement can include substantial fines and imprisonment. For instance, under section 116 of the Copyright Act 1968, the maximum penalty for wilful copyright infringement can be five years imprisonment or a fine of up to $345,000 for individuals, and for corporations, the fines can be significantly higher, up to $1,725,000 for serious infringements. These penalties underscore the importance of adhering to the new provisions regarding film directors' rights.