SPA seeks new regulatory powers to negotiate with platforms on behalf of producers

Australian screen production advocacy group Screen Producers Australia (SPA) is seeking government approval to negotiate terms of engagement with free-to-air broadcasters, payTV outfits and streaming services on behalf of its producer members.

Matthew Deaner

SPA has lodged two applications with competition watchdog the Australian Competition and Consumer Commission (ACCC) to gain authorisation to collectively bargain on behalf of its members.

One application covers regulated broadcasters – free-to-air and subscription television broadcasters and the second, domestic and global streaming services.

The move comes in the wake of  Australia’s new streaming legislation regulation, which came into force from January 1 and is poised to reshape the scope of negotiations between producers and commissioners across all platforms.

Under current competition law, SPA members are prohibited from engaging in conduct that could be considered anti-competitive, including coordinating negotiations. SPA’s applications seek a targeted exemption to allow collective bargaining for baseline commercial terms.

SPA chief Matthew Deaner said the ACCC applications were critical in strengthening the foundations of Australia’s independent production sector and hopes to address the issues around IP rights which have not been clarified by the new legislation.

“With the streaming regulation legislation now in place, Australia has taken an historic step in recognising the importance of local content and local production. This ACCC application aims to ensure Australian producers can operate with the fair commercial settings they need to deliver that content sustainably,” Deaner said.

SPA says that most Australian production businesses don’t have the scale or resources to repeatedly negotiate complex bespoke agreements on a project-by-project basis. The establishment of ‘model’ terms would establish a baseline set of negotiated rights that producers and buyers can work from, while still allowing flexibility to agree terms that suit individual productions.

“Collective bargaining is about fairness, sustainability and efficiency,” Deaner said. “Without this capacity, the risk is a market dominated by fewer, larger businesses, with fewer Australian stories being told.”

Across the six-12 week process, the ACCC will publish the applications and invite public submissions from affected stakeholders, including broadcasters and streaming services. SPA will then have the opportunity to respond before the ACCC issues a draft determination for further comment and ultimately makes its final decision.

Should authorisation be granted by the ACCC, SPA will then be permitted to commence collective bargaining discussions on behalf of its members. The authorisation would not compel broadcasters or streamers to negotiate, but it would provide a clear and lawful framework for negotiations to occur.

The SPA contends that the reforms would redress the significant power disparity between producers and their much larger customers; promote greater consistency, efficiency and fairness in contracting; reduce legal, financial and administrative costs for smaller businesses and support a broader, more sustainable and more diverse Australian production sector

“Even when Australian programmes are successful, producers are often negotiating in the dark. That lack of transparency directly weakens their bargaining position,” Deaner said.