Screenrights' Express Resolution Process (ERP) is a framework for the timely resolution of Competing Claims which seem to be of a non-complex nature. The ERP utilises a simple set of presumptions based on principles of Australian copyright and contract law and standard industry agreements. Below are details of the current presumptions and the tests involved in determining the applicability of one or more of them.
EXPRESS RESOLUTION PROCESS (ERP) PRESUMPTIONS TABLE
Effective Date: 13 September 2023
| Presumption | Basis of Presumption | Reason for the application of Presumption | Test to determine if Presumption is applicable | |
|---|---|---|---|---|
| Presumption 1 | For cinematograph films made prior to 19 December 2005, no share of Statutory Royalties is payable to the director, but from that date a share of Statutory Royalties for retransmission is payable to the director subject to the exceptions set out in s98 of the Copyright Act. This Presumption acknowledges that since 19 December 2005 directors of cinematograph films have been entitled to share in retransmission royalties, subject to specific exceptions set out in the Copyright Act. Subject to those exceptions and unless a contract provides otherwise, directors and producers are therefore both entitled to receive a share of the retransmission royalties for a film produced after 19 December 2005, although the Copyright Act does not specify in what proportion. | Australian copyright law under the Copyright Act applies to Statutory Royalties. Moreover, under Australian copyright law: (i) Statutory Royalties are payable to copyright owners. Statutory Royalties under the Copyright Act of Australia are distinct from statutory remuneration rights to royalties that do not require copyright ownership as exist in laws of other territories. Accordingly, the recognition of enduring rights of authors (not tied to copyright ownership) under foreign copyright law (eg. a prohibition on the assignment of a right of remuneration) is not by itself relevant to determining the proper recipient of Statutory Royalties. (ii) Copyright ownership may be completely assigned without restriction. | Under Australian copyright law, no share of Statutory Royalties is payable to the director for programs made prior to 19 December 2005. | - The Film portion of retransmission is being claimed - One of the parties is claiming in the capacity of a director or directors-only agent - The program was produced prior to 2005 |
| Presumption 2 | Not in use | |||
| Presumption 3 | Not in use | |||
| Presumption 4 | The industry agreed contract applies and therefore Statutory Royalties allocated for a script of a children’s miniseries or series that commenced production in Australia on or after 1 July 2011 are payable to the producer or their assignee or successors in title (e.g. distributor or investor). The Presumption does not apply to children’s miniseries and series that commenced production prior to 1 July 2011. | The SPA-AWG Children’s Television Agreement 2011 assigns the copyright comprised in the script to the producer without a reserved right to Statutory Royalties for the writer. This agreement, which came into effect on 1 July 2011, is often used for children’s miniseries and series produced in Australia. | The SPA-AWG Children’s Television Agreement 2011 applies, and therefore the copyright comprised in the script is assigned to the producer without a reserved right to Statutory Royalties for the writer, meaning that Statutory Royalties allocated for script are payable to the producer or their assignee or successors in title (e.g. distributor or investor). | - The competing claim is in relation to script - One of the claimants is a writer or writers only agent - The other claimant is the producer or production company, or their assignee or successors in title - The program was produced in Australia - The program is a children’s television miniseries or series that commenced production on or after 1 July 2011 |
| Presumption 5 | The industry agreed contract applies and therefore Statutory Royalties allocated for a script of a television series or serial that commenced production in Australia on or after 1 January 2008, other than a children’s television program, are payable to the writer/s of a script where the script is solely created by the writer/s. The Presumption does not apply to series and serials that commenced production prior to 1 January 2008. | The SPA-AWG Series and Serials Agreement 2008 contains a reserved right to Statutory Royalties for the writer. This agreement, which came into effect on 1 January 2008, is often used for series and serials that produced in Australia, other than children’s television programs. | The SPA-AWG Series and Serials Agreement 2008 applies, and therefore the copyright comprised in the script is reserved for the writer, meaning that the Statutory Royalties allocated for script are payable to the writer/s of a script where the script is solely created by the writer/s. | - The competing claim is in relation to script - One of the claimants is a writer or writers only agent - The program is registered as a series other than a children’s program - The program was produced in Australia on or after 1 January 2008 |
| Presumption 6 | The industry agreed contract applies and therefore Statutory Royalties allocated for a script of a miniseries or telemovie which commenced production in Australia on or after 1 January 2010 are payable to the writer/s of a script where the script is solely created by the writer/s. The Presumption does not apply to miniseries and telemovies that commenced production prior to 1 January 2010. | The SPA-AWG Miniseries and Telemovie Agreement 2010 contains a reserved right to Statutory Royalties for the writer. This agreement, which came into effect on 1 January 2010, is often used for miniseries and telemovies produced in Australia. | The SPA-AWG Miniseries and Telemovie Agreement 2010 applies, and therefore copyright comprised in the script is reserved for the writer and Statutory Royalties allocated for script are payable to the writer/s of a script where the script is solely created by the writer/s. | - The competing claim is in relation to script - One of the claimants is a writer or writers only agent - The program is registered as a mini-series or telemovie - The program was produced in Australia on or after 1 January 2010 |
| Presumption 7 | Not in use | |||
| Presumption 8 | Not in use | |||
| Presumption 9 | Not in use | |||
| Presumption 10 | The industry agreed contract applies and therefore Statutory Royalties allocated for a script of a television series or serial that commenced production: (a) on or after 1 July 1999; and (b) on or before 31 December 2007 are payable to the writer/s of a script. The Presumption does not apply to series and serials that commenced production prior to 1 July 1999 or subsequent to 31 December 2007. | The SPA-AWG Series and Serials Agreement 1999 contains a reserved right to Statutory Royalties for the writer. This agreement, which came into effect on 1 July 1999, was often used for series and serials that were produced in Australia prior to 1 January 2008. The agreement was superseded by the SPA-AWG Series and Serials Agreement 2008 which came into effect on 1 January 2008. | The SPA-AWG Series and Serials Agreement 1999 applies, and therefore the copyright comprised in the script is reserved for the writer, meaning that the Statutory Royalties allocated for script are payable to the writer/s of a script. | - The competing claim is in relation to script - One of the claimants is a writer or writer’s only agent - The program is registered as a series - The program was produced in Australia on or after 1 July 1999 and on or before 31 December 2007 |
| Presumption 11 | The assignment from Directors to ASDACS of rights relating to Statutory Royalties for retransmission in accordance with the ASDACS Constitution applies and therefore for a cinematograph film that commenced production on or after 1 January 2021 such royalties are payable 50% to ASDACS and 50% to the producer/s. The Presumption does not apply to cinematograph films that commenced production prior to 1 January 2021 and is subject to the exceptions set out in the Copyright Act. | Directors have a copyright ownership interest in the non-commissioned films they direct (the Relevant Rights), and they may assign the Relevant Rights, along with the entitlements to any related retransmission remuneration, to other parties. ASDACS’ amended its Constitution on 29 October 2020 to make its membership conditional upon directors assigning to it all of the copyrights directors have in relation to the ‘Retransmission Scheme’, as set out in the Copyright Act 1968 (Cth) (the Copyright Act). This is permitted pursuant to an authorisation granted to ASDACS by the Australian Competition and Consumer Commission (ACCC). The copyright comprised in the film assigned to ASDACS reserves the director’s right to a 50% share of Statutory Retransmission Royalties, meaning that 50% of Statutory Retransmission Royalties allocated for film are payable to ASDACS. Effectively, the conditions of membership of ASDACS require a director member to enter into an agreement assigning to ASDACS “retransmission rights” which the Director owns and all such future rights that the director would own but for that agreement. “Retransmission Rights” assigned include rights under s 98 of the Act and therefore include Screenrights statutory retransmission royalties. Therefore, for cinematograph films produced on or after 1 January 2021, it is reasonable to assume that, for its members that have entered into the new agreement, ASDACS has been assigned the relevant rights via an assignment from the director under the ASDACS membership agreement. Therefore ASDACS is jointly (with the producer/s of a cinematograph film) eligible to receive statutory royalties for retransmission and, in the absence of any indication to the contrary, ASDACS and the producer/s are likely to share such royalties in equal shares as tenants in common. | From 1 January 2021, a director’s membership of ASDACS is conditional upon the director assigning any copyrights that they have in a non-commissioned film that is included in the retransmission of a free-to-air broadcast under the Copyright Act 1968 (Cth). The effect is that a director member of ASDACS signed under the new terms cannot assign their copyright to another party, such as a producer, because they have already assigned it to ASDACS. | - The Film portion of retransmission is being claimed - One of the parties claiming is ASDACS on the basis that their Director member has entered into the new membership agreement assigning Retransmission Rights to ASDACS - The program was produced on or after 1 January 2021 |