Copyright Amendment (Film Directors' Rights) Act 2005

The Copyright Amendment (Film Directors' Rights) Act 2005 is a Commonwealth amending Act. Its job is to amend the Copyright Act 1968, not to create a standalone copyright code for films.

The key change is narrow. For a film that is not a commissioned film, each director is treated as included in the maker of the film for the purposes of section 98. But that ownership only extends to one slice of copyright: the right to include the film in a retransmission of a free-to-air broadcast.

For businesses, this is mainly a rights-clearance and contracting issue. If you produce, acquire, finance, license or retransmit films, you need to check whether this narrow retransmission right sits with the producer alone, with a director, or with an employer standing in the director's place.

Schedule 1 adds new subsections (4) to (7) at the end of section 98 of the Copyright Act 1968.

First, subsection 98(4) says that if the film is not a commissioned film, the reference in subsection 98(2) to the maker of the film includes each director of the film. That matters because section 98 deals with ownership of copyright in a film, so changing who counts as the maker changes who may own the relevant copyright interest.

Second, subsection 98(5) adds an employment rule. 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 is substituted for the director for the purposes of subsection 98(4), unless there is an agreement to the contrary.

Third, subsection 98(6) limits the effect of the new ownership rule. A person who becomes an owner because of subsection 98(4), or because of subsections 98(4) and (5), becomes owner only so far as the copyright consists of the right to include the film in a retransmission of a free-to-air broadcast.

Finally, subsection 98(7) adds definitions. It says commissioned film means a film made as mentioned in paragraphs 98(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, and retransmission means a retransmission as defined in section 10 to which Part VC applies.

The amendment is relevant to businesses dealing with films where ownership and exploitation rights need to be checked carefully. It is most likely to matter for production companies, broadcasters, retransmission businesses, rights buyers, distributors, investors and anyone preparing chain-of-title documents.

The amendment is in scope where all of the following are potentially true: the work is a film covered by section 98, the film is not a commissioned film, the film commenced to be made after Schedule 1 commenced, and the rights question concerns including the film in a retransmission of a free-to-air broadcast.

The amendment is usually not the main issue for businesses outside film and media rights transactions. It is also not a general rule for all film exploitation. If your issue is theatrical release, streaming, physical distribution, soundtrack rights or broader copyright ownership, this Act may only be one small part of the analysis.

The commissioned film point is especially important. The Act does define commissioned film, but only by cross-reference to paragraphs 98(3)(a) and (b) of the Copyright Act 1968. Because those paragraphs are not reproduced here, businesses should confirm the current wording of the Copyright Act before classifying a film as commissioned or non-commissioned.

Most businesses will not deal with this Act every day. It usually becomes important at transaction and documentation points.

Common trigger points include signing a director agreement, deciding whether a director is being engaged as an employee or contractor, preparing finance or distribution documents, buying a film catalogue, licensing rights for broadcast-related uses, or giving warranties that all necessary rights have been secured.

For example, if an independent production company makes a non-commissioned film with an external director, the company should not assume it alone holds the retransmission right covered by the amendment. If the same director worked as an employee under a contract of service or apprenticeship, the employer may be substituted instead, unless the parties agreed otherwise.

Another example is a media company acquiring a library of film rights. The buyer should ask which titles commenced production after the commencement date, whether any are non-commissioned films, how the directors were engaged, and whether any earlier contracts preserve a different rights position.

This Act does not impose a broad operational compliance regime with forms, notices or registrations. Its practical effect is that businesses need to get ownership analysis and documentation right.

The first practical obligation is to identify whether the film is a commissioned film. The new director ownership rule only applies if it is not. Because the definition is by cross-reference, businesses should verify the current text of paragraphs 98(3)(a) and (b) before relying on an internal classification.

The second practical obligation is to identify the relevant right. The amendment only affects ownership so far as the copyright consists of the right to include the film in a retransmission of a free-to-air broadcast. If your proposed use is different, this amendment may not answer the ownership question.

The third practical obligation is to check employment status. If the director worked under a contract of service or apprenticeship, the employer is substituted for the director unless there is an agreement to the contrary. That means the engagement documents matter, not just the credit line or commercial label used by the parties.

The fourth practical obligation is to review contracts entered into before commencement. The Act expressly says the amendment has no effect to the extent the rights created by the amendment would be inconsistent with rights arising under a pre-commencement contract. Older agreements can therefore preserve a different rights position.

The fifth practical obligation is to keep records that support your rights analysis. In a live transaction, you may need to show when the film commenced to be made, whether it was commissioned, how the director was engaged, and what the contracts say about ownership and retransmission rights.

The Act itself shows how important contracts are. There are two separate contract-sensitive features in the text.

First, under subsection 98(5), the employer is substituted for the director only in the absence of any agreement to the contrary. That means parties can alter the default position by agreement.

Second, section 4(2) says the amendment has no effect to the extent the rights created by the amendment would be inconsistent with rights arising under a contract entered into before the commencement of the amendment. So even where the statutory amendment would otherwise apply, an earlier contract may displace its practical effect.

For businesses, this means rights analysis should never stop at the legislation. You need to read the statute together with director agreements, employment contracts, production agreements, commissioning documents, assignments, licences and acquisition documents.

If your business is giving warranties that it owns all necessary rights, or if you are relying on someone else's warranty, this amendment is a reason to ask targeted questions rather than relying on broad assumptions about producer ownership.

The Act received Royal Assent on 8 November 2005. Sections 1 to 4 commenced on that day.

Schedule 1 commenced on 19 December 2005. The commencement table states that Schedule 1 was to commence on a single day fixed by Proclamation, and if not commenced within 6 months after Royal Assent, it would commence on the first day after that period. The table records 19 December 2005.

The application rule is critical. Section 4(1) says the amendment made by Schedule 1 applies to films that commence to be made after the commencement of that Schedule. So the key timing question is when the film commenced to be made, not simply when it was released or delivered.

Section 4(2) then adds the contract protection for rights arising under contracts entered into before commencement. Businesses therefore need to check dates in two ways: first, whether the film commenced after 19 December 2005, and second, whether any earlier contract creates inconsistent rights.

Before relying on this page for a real transaction, check the current consolidated Copyright Act 1968 as well as the amending Act. This is important because the amendment works by changing section 98 and by using definitions and cross-references found elsewhere in the Copyright Act.

In particular, confirm the current wording of paragraphs 98(3)(a) and (b) for the commissioned film definition, and check the current definitions of director, free-to-air broadcast and retransmission. Also review all relevant contracts, because the statutory position may be altered by agreement or preserved by a pre-commencement contract.

If you are dealing with a rights acquisition, finance round, catalogue sale, retransmission licence or broad ownership warranty, a targeted copyright review is sensible before signing.

This page is based on the current public text of the Copyright Amendment (Film Directors' Rights) Act 2005 on the Federal Register of Legislation. The Act is in force and is administered by the Attorney-General's Department.

The page explains the amendment as enacted, including commencement, application and the text inserted into section 98. Because the Act relies on cross-references into the Copyright Act 1968, businesses should read both Acts together before making rights decisions.