The recommendations are primarily concerned with the regulation of Australian media in a converged environment in relation to standards and level of influence. It recommends a new regulatory environment, with two new bodies: a new communications regulator – incorporating the existing body, Australian Media and Communications Authority (ACMA) – and a new body to oversee standards in news and commentary which cover functions in this area currently carried out by ACMA and by the Australian Press Council.
Amongst other things, the report makes some important recommendations for support of Australian content:
Government intervention is necessary to ensure the production of content forms that the public considers valuable, but which would be under-produced if market forces alone were at play. In 2012, the content forms in need of such intervention remain Australian drama, documentary and children’s programs. However, the situation may change in the future and the regulatory environment should be flexible enough to allow for this.
It also noted that although there were various views about measures to protect Australian content:
… the social and cultural value of Australian content in all its forms was not contested.
The report includes findings from research commissioned from PricewaterhouseCoopers Australia on the likely drop in expenditure on Australian content if the current quotas were removed. It proposes obligations on ‘content service enterprises’ to support Australian content in one of two ways:
• investing a percentage of their revenue in Australian drama, documentaries and children’s programs; or
• contributing to a new converged content production fund.
A content service provider would be identified according to whether it:
• has control of the content delivered;
• delivers professional content to a significant number of Australians; and
• derives a high level of revenue from the content delivered.
The report envisages that the thresholds for audience and revenue would be set by the new regulator. It also recommends that:
• premium television content be eligible for the 40% tax offset available to feature films; and
• interactive entertainment, such as games and other applications, be supported by the converged content production fund.
Distinction between ‘professional’ and other content
The report distinguishes between ‘professional’ and other content, including user-generated content.
The Review believes that where regulation is necessary, it should focus on enterprises that control professional content and should explicitly exclude user-generated content. User-generated content is typically short-form amateur video published on social media sites where the only control open to the platform provider is the ability to take down the content.
The report does not acknowledge that much user-generated content incorporates the content of others, including ‘professional content’ (such as music), and the role of this incorporated content in attracting viewers (and thus revenue for the provider).
It also does not acknowledge that providers do have other means of control over the content they distribute, including the terms of their agreements with uploaders, and their monetisation arrangements with rightsholders.
The report goes on to say that enterprises that currently host user-generated content could in the future become content service enterprises.
Copyright is not addressed in the main recommendations and the report does not address unauthorised use of content.
In the chapter on competition issues, however, the report refers to the implications of its recommendations for retransmission of free-to-air broadcasts, and the need to review current arrangements. Under those arrangements, there is a statutory licence that allows pay television operators and others to retransmit free-to-air television broadcasts provided they pay equitable remuneration. The licence is managed by Screenrights, and recipients of the licence fees include film makers, screen writers and artists.
The report proposes that this issue be considered as part of the Australian Law Reform Commission inquiry into copyright, and it is, in fact, contemplated in the draft terms of reference which direct the Commission to ‘take into account recommendations from related reviews, in particular the Government’s Convergence Review.
The report also proposes that:
… in investigating content-related competition issues, the regulator should have regard to copyright implications and be able to refer any resulting copyright issues to the relevant minister for further consideration by the government.
The report makes one other reference to copyright: at the end of the chapter on Australian content, it refers to submissions it received regarding support for independent producers including ‘statutory licensing arrangements to encourage the exploitation of back catalogue’. This proposal would seem to be connected with current considerations of ‘orphan works’ (works whose rightsholders cannot be identified and/or located), and solutions to enable the use of those works. Following research commissioned by Screenrights, the University of Technology Sydney is launching a white paper on this issue on 3 May. Research on orphan works is also being carried out by the University of New South Wales, with support from the Copyright Agency Cultural Fund.