This Alert was previously published in ACSA Weekly.
Copyright is not usually high on the list of concerns for retirement village operators and providers of residential aged care. However, it is raising concerns in connection with the screening of films for residents. There is some confusion as to when operators and providers need to obtain a licence to avoid infringing copyright laws.
This Alert provides important information regarding when your retirement village or aged care facility may need to obtain a licence and how to go about it.
Do I need a licence?
Copyright laws give exclusive rights to the owners of copyright in films and other works to do a variety of things, such as copying or screening the film, until the copyright expires. If a person does one of the acts without permission from the copyright owner during that period then, unless an exception applies, they are infringing the owner’s copyright.
When you purchase a DVD or a Netflix subscription, you are also purchasing the right to view the movie in your own home. Most of us will have seen the notices at the start of DVDs warning that the film is provided for in-home use only. If you wish to screen the film outside your home, then in most circumstances you need to purchase a separate licence to do so.
However, what if you wish to screen the film in an aged care home or retirement village that is ‘home’ for the residents? That is when things get a little complicated. There are no blanket exceptions or specific ‘fair dealing’ provisions that apply to the screening of films in aged care homes or retirement villages1 or for not-for-profits. So the question becomes whether it is a ‘private’ or ‘public’ screening.
What’s the difference between a ‘Private’ and ‘Public’ screening?
There are no specific guidelines set out in the legislation.
Generally, if a resident is watching a film in the same way a person might do in a private home then it is likely to be considered a private screening. For example:
- If a resident of a retirement village hires a DVD or signs up to a streaming service and watches a film alone in their room or invites a few friends over to watch.
This would generally be regarded as a private screening that would not require permission.
However, if the provider or the operator organises to screen a film for multiple residents in a common area such as a recreation room, for example, this is more likely to be considered a public screening requiring permission from the copyright owners. For example:
- If a retirement village committee plays a DVD in the community centre and residents from the village gather there to watch it, even if there are no guests from outside the village; or
- If a residential aged care facility plays a DVD in their communal lounge area and residents come from their rooms to watch it there.
This is more likely to be considered a public screening requiring a licence.
If a residential aged care facility subscribes to a streaming service and wants to stream movies into residents’ private rooms then it will need to consult the terms of its particular subscription agreement.
What if copyright in the film has expired?
If copyright in a particular film has expired then you will not need permission to screen the film. However, because of changes to Australia’s copyright laws over time it can sometimes be tricky to determine exactly when copyright in a particular film has or will expire.
Where can I get a licence?
Rather than approaching the individual owners of copyright in the particular films you wish to screen, to streamline matters, the various studios have granted rights to different organisations to manage licensing on their behalf.
In particular, we understand that Roadshow Public Performance Licensing (RPPL) (www.roadshowppl.com.au) manages licenses for studios such as Roadshow, Warner Bros, Universal, Paramount, and 20th Century Fox. RPPL has recently authorised a specialist distributor, Heritage Films International Pty Ltd, to issue the Big Studio Movie Licence (www.bsml.com.au) to retirement communities and aged care facilities.
What if I do not get a licence?
If you do not get a licence, then you may be infringing the copyright in the films you screen. The copyright owner or authorised licensee could take legal action against you any time up to six years after the infringement occurred. The copyright owner could seek orders from the courts including that the infringer pay damages or a portion of profits. In some circumstances, directors can also be found personally liable.
We are here to help
Contact one of our Russell Kennedy expert IP team members, Rohan Harris (email@example.com / (02) 8987 0024), Gina Tresidder (firstname.lastname@example.org / (03) 8602 7243), Kate Littlewood (email@example.com / (02) 8987 0020) or Michael Cassidy (firstname.lastname@example.org / (03) 9609 1556), if you have any questions regarding your obligations around movie licensing.
If you would like to keep up to date with Alerts, news and Insights from our aged care and retirement living team, you can subscribe to our mailing list here. We also have a broad range of standard and tailored template aged care agreements, policies and other documents you can find more information about here.
The information contained in this Alert is intended as general commentary and should not be regarded as legal advice. Should you require specific advice on the topics or areas discussed please contact the Russell Kennedy lawyers listed above.
 There are some limited ‘fair dealing’ exceptions in sections 113E and 113F of the Copyright Act 1968 (Cth) with regard to providing access to material for a person with a disability but these only apply in specific circumstances.
Other useful resources
Key Personnel obligations for all approved aged care providers take effect 1 December 2022
Russell Kennedy Key Personnel Package of Documents: Russell Kennedy has developed a range of resources that approved providers can purchase individually or as a pack to ensure compliance with the new requirements of key personnel. We have a Key Personnel Suitability Matters Information and Assessment Form and Guide to assist with gathering and assessing the information. We have letters and guides for key personnel explaining the changes, the regulatory context and their key obligations. We have also developed a template policy, as well as clauses for agreements and contracts.
Download our flyer here to find out about the key personnel package, and email email@example.com to find out about pricing and to purchase all or any of the resources available.