HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION INQUIRY UNDER THE DISABILITY DISCRIMINATION ACT INTO CLOSED CAPTIONING

SUBMISSION BY THE SCREEN PRODUCERS ASSOCIATION OF AUSTRALIA

In this submission SPAA wishes primarily to address the issues for discussion at Point 9 of the Discussion Paper Responsibilities of producers of program material.

SPAA supports the increased use of closed captioning for programs. Every producer wishes to see their programs accessible to the widest possible audience so that the addition of closed captioning to improve access by the hearing impaired is to be welcomed.

Role of broadcasters

SPAA submits it is the role of broadcasters to ensure that the programs they broadcast are closed captioned in accordance with their duty to be responsive to community needs.

Television is the most popular form of entertainment enjoyed by Australians and is the most influential means of communication. Its significance in the lives of Australians is substantial and for that reason equality of access to television services is important. For most Australians television is the primary source of news and information about Australia and the world as well as functioning as a primary medium of cultural expression and understanding. In Australia, as in the rest of the world, the number of television services is expanding and reaching an ever increasing number of viewers.

Because of its pervasive nature and its potential to influence behaviour and opinion television continues to be a highly regulated medium. The objectives of that regulation have been to promote the greatest public benefit from the use of what is a scarce publicly owned resource; the radio frequency spectrum. Despite the advent of television services using cable as the means of transmission, the majority of Australians still receive television services by means of the RF spectrum. This will not change for some years and it is likely to be only means of reception for regional and remote Australia because of the high cost of cabling those areas.

Australia developed a strong privately owned and advertiser financed commercial broadcasting sector alongside publicly funded and publicly owned national broadcasters. The national broadcasters are established by the Parliament to fulfil particular needs demanded of broadcasting in the public interest.

They are complemented by commercial television broadcasters developed as a regulated oligopoly of three national networks. In return for protection from competition and access by them to the profits from the oligopoly, the networks return a portion of their income in licence fees and are required to meet public interest, cultural and industry development obligations.

This system has been subject to strong government supervision in pursuit of the public policy goals for broadcasting. In broad terms these have been to ensure that broadcasting remains under the ownership and control of Australians, that audiences are provided with a diverse range of quality programs, that there is balance and fairness in the presentation of news, current affairs and political speech, that community standards of taste and decency are met, that Australian identity and cultural integrity is preserved and enhanced and that the needs of significant minorities are met.

The role of producers

The production of programs for television is carried out by the broadcasters themselves and by the independent production sector which SPAA represents. In addition broadcasters also import programs purchased by them from foreign broadcasters and producers.

Program production by broadcasters is largely in the areas of news and current affairs, sport and light entertainment, although they also produce programs in all genres. Independent production is strong in the area of drama, documentary, children’s programs and light entertainment. To finance this production independent producers need a commitment to purchase from the broadcaster, which in some cases may cover the entire cost of producing the program. However, in many cases the producer has to find other sources of finance, which can come from their own resources, from advances against export sales or, in the case of high quality drama, through investment by the government.

In producing a program, the independent producer has to meet the specific needs of the broadcaster in terms of length, number of episodes, delivery materials (ie tape or film), suitability for an identified timeslot and compliance with any regulatory requirements. In some cases this will mean that a program is only suitable for an Australian audience because of its nature and cultural specificity, but independent producers seek to build their business on making programs that will appeal to a range of broadcasters around the world.

The writers, performers, directors and technicians employed by independent producers, as well as the producers themselves, are part of a large and important cultural community that exists outside the Australian broadcasting organisations. Part of the public interest duties incumbent upon both the national and the commercial broadcasters is to ensure that they utilise and promote the development of that community. In the case of commercial broadcasters this is given specific expression through the imposition of Australian content standards with which they must comply as a condition of their licence.

As a consequence, although independent production forms a vital and important part of the broadcasting landscape, it is not primarily responsible for the fulfilment of the obligations placed upon broadcasters and it represents a significant section of the community to which broadcasters owe an obligation.

Broadcasting Services Act 1992

In 1992 as a result of the fundamental reform of Australia’s broadcasting law that resulted in the passage of the Broadcasting Services Act 1992 (the Act), a new regulatory body, the Australian Broadcasting Authority, was established. One of the regulatory functions of the ABA is to determine program standards and enforce compliance with them by commercial and community broadcasters.

The Parliament introduced a degree of self-regulation for broadcasters in a range of other areas, while reserving to the ABA the power to impose standards where self-regulation had failed to be an effective means of encouraging broadcasters to be responsive to community attitudes. However, Parliament determined Australian content and children’s television were not matters for self-regulation and specified that the ABA must determine standards in these areas, which it has done.

To give effect to self regulation the Parliament required broadcasters to develop codes of practice covering matters of community concern and register these codes with the ABA.

Section 123 of the Act states that it is the intention of the Parliament that broadcasters:

"develop, in consultation with the ABA and taking account of any relevant research conducted by the ABA, codes of practice that are to be applicable to the broadcasting operations of each of those sections of the industry."

Further the Act provides that codes of practice developed for a section of the broadcasting industry may relate to "captioning of programs for the hearing impaired."

The ABA is required to monitor the operation of the codes, how the broadcasters are complying with the codes and deals with unresolved complaints made under the code.

In addition the national broadcasters were also required by Parliament to develop codes of practice relating to programming matters and to notify those codes to the ABA., which has the same role to monitor and deal with complaints.

The commercial television broadcasters have developed codes of practice that deal with the amount of captioned programming they provide to the hearing impaired, however the national broadcasters have not specified such a matter in their codes.

The fact that the ABC has not developed a code in relation to its commitment to and role in closed captioning is consistent with the view it has expressed to the commission that the responsibility should rest with the producers. As the Commission notes it has not been successful in transferring this responsibility as it has been resisted by producers.

It is clear from the above that the regulatory framework established by the Parliament makes it the responsibility of the broadcasters to ensure that they broadcast such levels of captioned programming as meet community needs. It is not intended to be a responsibility they can pass to others. SPAA supports this and would strongly resist any attempt to have this transferred to producers.

SPAA does not, however, hold any view as to whether, in the case of captioning, the power of the Disability Discrimination Act or the Broadcasting Services Act should take precedence. This is a matter best determined by the Government.

The economic position of producers

Australia has a relatively small, if vibrant, television production industry which still struggles to be profitable. A recent ABS survey (Film and Video Production and Distribution Australia 1996-97) showed that while the film and video production industry generated $1,129 million in total income ($375 million from the production of television programs), the industry recorded an operating loss of $67 million (-6.1%) for the 1996-97 financial year. This should be contrasted with the $734 million (28.2 % profit margin) operating surplus of the commercial free-to-air television broadcasters during the same period.

As can be seen, television production is a far less profitable business than broadcasting. Many producers work on low margins and sometimes are forced to sell their programs in Australia for amounts significantly lower than the cost of production. For this reason SPAA submits that placing responsibility for captioning on the producer rather than the broadcaster could be argued to represent an unjustifiable burden for the producer. There is the particular concern that if the onus for captioning was placed upon the producer, producers would have limited ability to transfer the costs of captioning to the broadcaster and would end up with those costs having to be absorbed in their already low margins.

We note that the Australian Caption Centre provides discount rates to broadcasters due to their high level of use of captioning services. Many production companies in Australia are very small and produce a very limited number of programs, meaning that the costs to them for the captioning of individual programs are likely to be significantly higher than they would be for a broadcaster. This is particularly true in areas such as children’s drama.

We also agree with the comments of the US regulator the Federal Communications Commission that the regulation of producers would also be significantly more administratively difficult than the regulation of broadcasters. Regulating the producers of Australian programs would also not solve the issue of internationally produced programs. This would involve the introduction of some kind matching Customs regulations to ensure imported programs were captioned. Attention would also need to be paid to the feasibility of introducing such a requirement given Australia’s obligations under trade treaties, in particular the free market access about to be given New Zealand programs under the CER treaty with that country.

We agree with the comment in the Discussion Paper that placing requirements on Australian producers alone could disadvantage the production and broadcast of Australian programs. As stated above, the costs of captioning would be difficult for Australian producers to absorb and could result in producers having to reduce the quality of their productions or increase broadcast licence fees in a market which is already being squeezed. Unlike US producers, Australian producers have a much smaller market through which to amortise their costs, leaving them further disadvantaged with respect to international competition.

Another factor to consider is that the government is itself a significant investor in production of film and television through the Australian Film Finance Corporation and the Australian Film Commission and by means of revenue forgone in tax concession arrangements for the industry. Any requirement imposed upon producers could therefore involve an additional cost to government, unless those agencies were directed not to contribute to the costs of closed captioning or such captioning was not eligible for concessionary tax treatment. If it were allowed it could also have the effect of being an indirect subsidy to the broadcasters.