Explainer: Screenrights and the thorny question of writers' royalties

In the last decade of the 20th century, something amazing happened: copyright again became a serious issue for a generation of creative workers.

Copyright was first established by British law in 1710. The Statute of Anne, as it is known, set the model for copyright as a property right that persists today.

Over time, new technologies forced the pace of copyright innovation. For instance, to collect and distribute the fees paid by radio stations to performers and copyright holders, the Australian Performing Rights Association was formed in 1926.

In the 1990s, a new batch of copyright collecting societies emerged. Photocopying had become widely accessible, as were video duplication and desktop publishing technology. So emerged Viscopy, to deal with art and graphic images; the Copyright Agency Limited, for text media, and the Audio Visual Copyright Society, now known as Screenrights.

All have led an uncontroversial life as not-for-profit, non-government organisations, charged to administer parts of the Copyright Act (1965) and distribute royalties.

Until recently.

On March 3, the Australian Writers Guild, on behalf of its 2,600 members filed a case in the Federal Court against Screenrights over its failure to fairly protect and represent Australian and international scriptwriters and their rights.

Based on Screenrights' own figures, the guild asserts, “they appear to have collected over $50 million in script royalties over the past 20 years, yet AWG’s Australian members may have received as little as $350,000”.

“This case is about fairness,” said Guild president, Oscar-nominated writer Jan Sardi. “It’s about scriptwriters – who are at the very centre of our film and TV industry – being treated fairly and getting the royalties that they are rightfully entitled to.”

Screenrights, in turn has offered to mediate the issues raised by the guild. It says it “pays the appropriate rights holders in accordance with Australian law and will defend the claims”.

So what is going on?

Of all the new agencies, Screenrights faces a most complex of tasks.

Its mandate covers both Australia and New Zealand and their relevant acts of parliament. And copyright in a screen production is complex. It almost always involves a raft of subsidiary copyrights.

Screenrights administers Part VA and VB of the Copyright Act 1968. They allow educational institutions and those helping people with intellectual disabilities to copy from radio and TV and communicate these copies subject to certain conditions, including the payment of a fee to the relevant copyright owners.

Similar provisions exist in the Copyright Act 1994 (NZ), although in NZ’s case, copyright owners must request Screenrights to collect royalties on their behalf, rather than it happening automatically.

Australian state and federal government departments may also copy from TV and radio subject to certain conditions.

Screenrights also administers the provisions of part of the Australian Act, allowing cable, satellite and other services to re-transmit free-to-air broadcasts subject to certain conditions, including the payment of copyright fees.

Criteria such as the nature of a program, the duration and number of the copies made and the uses of the program, are used to calculate the “point value” of the copy.

This point score finally translates into a share in the money pool that is ultimately distributed to right holders. In general, the top copyright in a production is vested in the producer. All arrangements with the principal creative workers and, sometimes, actors who may have “points” in the production (i.e. copyright participation), are contained in their individual contracts with the producer.

For writers, the nature of their participation in creating a script can vary. They may be the sole author. Or they may be part of a team that fleshes out storylines over many episodes from a core story created by the show runner – a person with overall responsibility for the extended narrative.

If pre-existing music performances are incorporated in a production’s soundtrack, there are further rights and possibly, royalties involved.

How the royalty is divided up between the various creatives is set in the contracts and up to the producer to administer, but generally remains confidential. Still, if a top copyright holder failed to distribute the fees, then there would be a problem, one beyond Screenrights' remit.

This matter of down stream distribution touches several of the collecting agencies. CAL frequently distributes the monies due to authors of articles in a magazine to the magazine’s publisher who, in turn, is expected to pass the payment on to individual authors. Happily, most do so promptly.

For a party to claim some share of the financial pool, they need to become a member of Screenrights. Membership is free, as it is for CAL, and fairly simple to achieve. Once they have joined, they may have to wait as small entitlements are put in trust until they exceed A$200.

The present system is, in principle, designed to ensure fairness, but in that quest, the system has become very complex. Indeed, almost 30 pages of Screenrights Distribution Policy booklet are devoted to explaining it. Like all complex systems, it is less transparent than a simple one.

The Australian Writer’s Guild is yet to argue its case in court. It remains to be seen whether there is basis to its claims, but one thing is certain: our arrangements for assessing audio-visual copyright payments may need reassessing.