Continuing Problems with Film Copyright
NEW DIRECTIONS IN COPYRIGHT LAW, Vol. 6, Ch. 7, Fiona Macmillan, ed., Edward Elgar, 2007
19 Pages Posted: 7 May 2009 Last revised: 11 Feb 2013
Date Written: August 7, 2008
It is hardly controversial to suggest that British and Australian film copyright law is at present incoherent and conceptually confused. Much of this problem stems from the consistent failure of both countries to recognise that films, being the product of an interdependent relationship between collaborative artistic creation and economic investment, are not susceptible to straightforward categorisation as copyright subject matter. Yet the dynamics of the film and television industry appear to be such that irrespective of the way in which the law classifies films as copyright subject matter, the relevant party seeking to commercialise the film will, generally speaking, end up with all relevant rights to exploit the film. This is likely to occur primarily through contract rather than through the operation of legislative designations of authorship and/or ownership of copyright. I wish to suggest that notwithstanding this narrative of film copyright ownership, there are good reasons for continuing to question the way in which films are conceptualised under British and Australian copyright law. In particular, I will challenge the assumption that contract can always be relied on to put parties in their desired positions, seek to justify the argument that there is ongoing value in correctly identifying and granting rights to the contributors to a film, and explore the issue of potential non-compliance with the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights. These reasons suggest that it is worth considering alternatives to the current system of protection in the UK and Australia and, in particular, what it might mean to protect ‘cinematographic works’ in addition to ‘film fixations’, which in turn raises difficult, although not intractable, questions of identifying the contours of the cinematographic work and the author(s) of such a work.
Keywords: Intellectual Property Law, British and Australian film copyright law
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