Copyrights and copywrongs: reforming educational film rights

By Ruari Elkington, Queensland University of Technology

At the end of November, after 18 months of deliberations, the Australian Law Reform Commission will hand down its report on the appropriateness of existing copyright laws in the new digital environment.

Among the questions it seeks to answer are: how can film and documentaries be used in education, how much should rights holders be remunerated and how should that remuneration be calculated?

The report, Copyright and the Digital Economy, has received hundreds of submissions since June last year. It will make general recommendations for amendments to the Copyright Act on numerous areas in print, sound and film.

Both Universities Australia and primary and secondary schools have been receptive to the Commission’s proposed “fair use” scheme, although their grievances largely concern collection agencies dealing with text and images as opposed to audiovisual content.

Screenrights

“Universities conduct a very easy online survey where they simply record details of the program and whether it was copied, put online or emailed. Schools take part in a similar survey to universities, only it is paper-based. Each sector pays on a per-head basis. The system is efficient for both licensees and for Screenrights’ distribution purposes.

The sample system means that universities are surveyed every three to four years and schools are surveyed on average once every 100 years. – Screenrights

While the education sector has always been a solid market that film and documentaries are regularly sold into, a clear understanding of the many specifics underlying the education market has remained elusive.

As a fragmented and highly institutionalised market, it is difficult to give the value of the education sector to content producers a clear dollar figure. Its value is stubbornly hard to arrive at, given distributors rarely report specific educational sales of their product.

So how important is education as a market for Australia’s screen sector? One way to approach this question it to look at what remuneration we can see flowing from educational use of screen content back to those who create it. If we follow the money, the role of Screenrights becomes clear.

Screenrights is a non-profit organisation that licenses educational institutions to copy from television and radio. Nearly all schools, TAFEs and universities in Australia have a Screenrights licence. The money collected from these licences is paid to the rights holders – producers, broadcasters and distributors.

Screenrights returned $34.9 million back to rights holders in the 2012/2013 financial year.

As an indicator of market value, this is a far cry from overstuffed market research firm calculations on the value of copyright industries. Nor is it a generous estimate on the value of the screen sector in Australia to aid in lobbying efforts.

That $34.9 million represents actual dollars now in the back pocket of the Australian screen sector from the legitimate, commercial use of their copyright content in education.

Why is this important? Maybe an example of a project where returns from education have become important parts of income for a producer

As well-established producer Veronica Fury has stated, “Screenrights incomes are an utter, utter godsend… it would be an exaggeration to say that this revenue has saved my business but it would not be far from the truth”.

Fair use? Fair go

Universities and schools are arguing that changing patterns of use, thanks to new technology, will make the current system unaffordable and unwieldy.

The schools submission argues

Under the statutory licences, payment for use of online content by schools is set by attaching a price to the value of an act of communication and multiplying that price by the number of times that a particular piece of online content is communicated or by the number of students who have access to it. In other words, the statutory licence imposes a ‘one-copy-one-view-one payment’ model of remuneration.

Screenrights in turn responded by stating in their submission:

The schools state that the licences are based on a “one-copy-one-view-one-payment” although they acknowledge that “in recent years” commercial deals have been struck on a per student basis. This claim is completely untrue in regard to Part VA.

Therefore the complaints from education seem far less relevant to the film and TV content Screenrights deals with (Part VA) and more concerned with written content dealt with Copyright Agency Limited and Viscopy (Part VB) .

As Screenrights explains in its submission to the Commission:

As in the other criticisms made by the education sector of statutory licensing, an attack on statutory licences is made generally without any acknowledgement that the specifics of the attack are not relevant to all statutory licences.

A recommendation from the Commission’s final report to move from this statutory licence model to broad “fair use” exceptions not only jeopardises these legitimate incomes but creates uncertainty for all stakeholders. As Screenrights argues:

It will be rights holders that bear the cost of this uncertainty. They will either have no knowledge that their work has been used in education under the guise of fair use, or if they do know and object, they will have to bear the considerable costs of litigation to defend their rights.

For educators and students, the implications are significant. For the screen sector, particularly documentary makers, the implications could be far greater.

In their submission, Screenrights cites an internal survey where half their members felt the royalties played an important role in the financial sustainability of their business with close to 20% saying these royalties are “extremely important”. The fate of any incomes judged “extremely important” by one in five producers, rights holders and filmmakers should be just that.

While many societal shifts have motivated the Commission’s enquiry into copyright, the impact of new technologies cannot be understated. The clue is right there in the inquiry title: “Copyright and the Digital Economy”. However, new technology does not a new law make.

At last month’s Australian International Movie Convention, George Brandis, a former intellectual property lawyer and newly appointed Arts Minister and Attorney General, said he was “on the side of the artists, the copyright owners and the content producers”.

He went on to counter prevailing attitudes and endear himself to the assembled delegates by arguing, “the principles of IP, the rights that underpin them, are not a function of the platforms through which content is distributed”.

While many unknowns surround the Commission’s final report, it is hoped the vital function of Screenrights is acknowledged, supported and maintained. The sustainability of Australia’s film and documentary sector is tightly bound to the ways in which these final recommendations play out.

Ruari Elkington has worked in documentary film distribution through Antidote Films. In addition to his academic work he consults in distribution for this company and others.

This article was originally published at The Conversation.
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