INDEPENDENT REVIEW OF THE EXPRESS RESOLUTION PROCESS

Thank you for your feedback.

Thank you to the members who contributed to the review of the Express Resolution Process (ERP). Philip Argy conducted an independent review, Screenrights provided our draft response to the review, and we sought members feedback on Mr Argy’s recommendations and our draft responses.

Members’ feedback was put before the Screenrights Board who gave it careful consideration and made changes to the ERP to improve its operation.

The Board’s responses to the consultation document is provided below. 

Recommendations by the independent reviewer

Here are the 21 recommendations made by the independent review and the Board’s response to each.

Recommendation 1

The word “usually” should be omitted wherever it occurs in each presumption, so that the assumed facts and law created provide a firm foundation for the subsequent determination.

Accepted.

Recommendation 2

When an independent expert decision is requested by a member dissatisfied with Screenrights’ internal determination, the member should bear at least some of the costs of the external decision if Screenrights’ internal determination is upheld. Where the external decision is the same as a precedent published on Screenrights website, the member should bear the entire costs of the external decision process.

Accepted. See Costs.

Recommendation 3

Screenrights should not self-initiate a referral of competing claims for external decision unless necessary to obtain a precedent on a novel point, or to avoid making an internal determination where a party is in current conflict with Screenrights, such as litigation or other adversarial process, or where there is some conflict of interest.

Accepted.

Recommendation 4

Screenrights should instruct each expert-nominating body to identify as large a panel of qualified experts as possible to be used when external determinations are required.

Accepted.

Recommendation 5

The heading of column 2 of the table reproduced in Schedule 1 be changed from “Relevant Circumstances” to “Basis of Presumption” wherever that table is used on Screenrights website and in its publications, so that the role of that column is clearer.

Accepted.

Recommendation 6

The explanation for Presumption 2 should be clarified, both in the table on the Screenrights website and whenever Presumption 2 is referred to in a notification to competing claimants, so as to make plain to lay claimants that there is a difference between a statutory remuneration right not tied to copyright (eg under French law), and a remuneration right that is part of the copyright and which can therefore be recognised in Australia under the Statutory Schemes.

Accepted.

Recommendation 7

An agent member should not have the benefit of any presumption in its favour unless and until its principal has provided written confirmation, given any time prior to ERP finalisation, that it has not assigned or licensed any copyright which the agent’s registration implicitly assumes had not occurred. This is to deal with numerous instances of principals having entered into arrangements inconsistent with those claimed by their agent.

Not agreed as recommended. Alternatives being considered.

Recommendation 8

When a competing claimant is invited to show cause why another claimant should not have the benefit of a presumption, it should be required to file a Notice of Intention to file a Submission within 14 days, failing which the ERP process should resume without the balance of the 60 days otherwise allowed for a response having to expire.

Not accepted. On balance, following consultation and further consideration, there are insufficient benefits to members to justify adding additional administration for the member and Screenrights.

Recommendation 9

Where a Notice of Intention to file a Submission has been filed and no bona fide submission eventuates, the person filing the Notice should be required to compensate the other competing claimant/s in the sum of $250 or such other amount as the Screenrights Board thinks fit. This should be by way of fee paid upon filing of the Notice, refundable if Screenrights is satisfied that the submission filed was a bona fide submission.

Not accepted. On balance, following consultation and further consideration, there are insufficient benefits to members to justify adding additional administration for the member and Screenrights.

Recommendation 10

Where a Notice of Intention to file a Submission has been filed, then rather than notifying the party in whose favour a presumption is likely to apply that they need do nothing during the balance of the 60 days that the other party has to displace the presumption, Screenrights should advise that member of the filing of any Notice of Intention and invite the member in anticipation to commence preparation of the information or evidence to substantiate their entitlement to the presumption.

Not accepted. On balance, following consultation and further consideration, there are insufficient benefits to members to justify adding additional administration for the member and Screenrights.

Recommendation 11

Where a deadline claim reaches ADR stage after having been through a ‘contested’ ERP process, the requirement of any pre-ADR negotiation be dispensed with.

Accepted.

Recommendation 12

The mandatory inter-party negotiation period should be abolished or significantly truncated once a competing claim is or becomes a deadline claim, regardless of its value.

Accepted.

Recommendation 13

Where a claim remains uncontested for four or more years, a presumption should be applied in favour of the first claimant if a conflicting claim is subsequently lodged.

Not agreed as recommended. Alternatives being considered.

Recommendation 14

All competing claims related to the same title should be dealt with at the same time, unless an individual episode in a series involves one or more different claimants and the registration information demonstrates that the rightsholder for the episode in question may well be different to the series claimant. In the latter case there should be a presumption against the ‘series’ claimant if the competing claim is in respect of only a single episode in that series.

(Part in bold) Accepted. Remaining part of the Recommendation not accepted, as there was no support from members for this proposal.

Recommendation 15

Screenrights should devote additional effort to automating the registration process so as to maximise the quality of information supplied by registrants.

Accepted.

Recommendation 16

Screenrights should devote additional effort to identifying the existence of conflicting registrations as soon as possible.

Accepted.

Recommendation 17

Screenrights must notify competing claimants as soon as possible after a competing registration is identified.

Accepted.

Recommendation 18

Screenrights should determine whether any registrant appears entitled to the benefit of a presumption as soon as possible after a conflicting registration has been identified.

Accepted.

Recommendation 19

Screenrights should at least investigate the feasibility of automating as much of the ERP [Express Resolution Process] and ADR [Alternative Dispute Resolution] process as possible utilising ODR [online dispute resolution] or similar techniques.

Accepted.

Recommendation 20

Where Screenrights determines that a competing claim supports the application of a presumption, an ERP could be commenced immediately regardless of how many existing ERPs are in progress involving one or more of the same competing parties.

Accepted.

Recommendation 21

Screenrights should warn competing claimants of their claim’s impending ‘deadline’ status at least 18 months before it will achieve that status if still unresolved.

Not agreed as recommended. Alternatives being considered.