First, home movies not involving any professional performance or crew at all;

Secondly, documentary production; and

Thirdly, works by “collectives” who are writer/director/performer teams.

And I don’t think there is any secret as to why this is the case.  I believe there are three reasons:

Audio-visual drama production is a collaborative work.  Whereas the author of a book or a composer/performer has no rights to consider other than their own and stands able to enforce their rights whether under standard copyright licensing or under the creative commons licence audio-visual drama production involves layers of rights.  The writer of the underlying work, the writer of the screenplay, the director, the cinematographer, the production designer, the performers and a raft of others all have creative input into the final product and all have rights in it and legitimate and different interests as to how the work is used.   Getting all these interest groups to coalesce in the production of the film is hard enough.  Seeking further rights and taking the production out of the control of all of these interested parties is in my view nigh on impossible.

Secondly, audio-visual drama production is an expensive and risky business.  It is virtually impossible to make a professional film in Australia now for less than $1 million.  Internationally only 1 film in 20 will make back its investment and the same holds true for Australia.

Professional films require investors.  Just like their equivalents in the pharmaceutical industry (or indeed law firms with their creation of legal precedents) investors in film seek certainty as to return and that is the very thing the creative commons licence removes.  It is no secret the US Studios were behind the push for the Australian Government to increase its copyright term from 50 to 70 years as part of the US-Australia Free Trade Agreement.  This gain for film investors is not going to be thrown away.

Thirdly, while slow to react initially the studios and other investors in film are now in the process of adopting models which respond to the new technologies available.  Whereas previously the studios only saw the new technology as a threat now the studios are looking at business models which incorporate new technologies into the release schedule.  For example, new episodes of the dramas Lost and Desperate Housewives are available for iPod download the day after first broadcast on Network television in the US for $US1.99 per download.

Performers may agree to work on small no-budget productions.  These will not be professional and are unlikely to attract investors.  We would be happy to work with the creative commons to build enhanced protections for performers in their licences for these works.  However, the Alliance sees no threat to mainstream production and contracting models and no likelihood of the use of the creative commons for such productions.