COMPETING CLAIMS
RESOLUTION PROCEDURE
1.
SUMMARY
1.1
A Competing
Claim arises when more than one member asserts a claim to the same
royalty. Screenrights will notify
members when a Competing Claim arises in relation to available royalties.
1.2
Members are encouraged
to review their claims, contact the other member(s) to resolve the dispute and
update their registrations on reaching agreement (Resolution by Agreement). See the section on Resolutions by
Agreement below at 3.13 3.29.
1.3
Where members are unable
to resolve the Competing Claim independently, Screenrights offers the following
procedures to assist members to resolve their Competing Claims:
(a)
the Express Resolution Process (ERP); and
(b)
the Assisted Resolution Process (ARP).
1.4
The
ERP is based on a set of presumptions based on
principles of Australian copyright and contract law and standard industry
agreements (see the Presumptions here). The ERP is designed to expedite the resolution of non-complex Competing
Claims and is explained in more detail below at 2.
1.5
The ARP
facilitates communications between members to help resolve Competing Claims.
The ARP is explained in more detail below at 3.
1.6
Screenrights will
notify members if the ERP applies, or when they have the option to
participate in the ARP to resolve the Competing Claim.
1.7
The key timeframes are set out here.
1.8
Screenrights’ role
is to facilitate the resolution of Competing Claims by members, monitor
members’ timely engagement in these processes and to record the outcome.
Screenrights does not assess or determine the validity of any Competing Claim.
1.9
Members can
contact Screenrights to gain further information about the programs and rights
involved and may also wish to seek legal advice about their position.
2.1
The ERP will apply
if Screenrights considers that a Presumption applies to the Competing Claim. This assessment is based on
information provided by members when registering their titles.
2.2
If Screenrights
identifies that a Presumption may apply to the Competing Claim under the ERP,
members will be notified:
(a)
which Presumption is
being applied;
(b)
whether or not the
Presumption is in the member’s favour; and
(c)
that they have 60 days to challenge the Presumption by
submitting written evidence to support their challenge to displace the
Presumption.
2.3
Screenrights does
not consider the merits of any evidence submitted as part of the ERP.
except to confirm that the submission and evidence represent a clear challenge
specifically to the basis for the application of the relevant Presumption.
2.4
Where a challenge
(which complies with 2.10 below) is received within 60
days, the ARP applies.
2.5
If no challenge is
received within 60 days, the Competing Claim is resolved in accordance with the Presumption. Screenrights will
amend the registrations and pay the royalties consistent with the applicable
Presumption.
2.6
If no Presumption
applies, members are encouraged to resolve the competing claim directly.
Members also have the option to request that the ARP apply to resolve
the Competing Claim.
2.7
The ARP is not
available in relation to a Competing Claim that has been resolved through the
ERP.
What if a
Presumption is in your favour?
2.8
If you are
notified that a Presumption is in your favour, you do not need to take any
further steps. It may be that the other member wishes to provide evidence to
challenge the Presumption or reach an agreement.
2.9
If you are
notified that a Presumption is not in your favour, you have 60 days to challenge the application of
the Presumption (ending at 5pm AEST/AEDTAET on the 60th day after the date of the notification by
Screenrights).
2.10
A member who wishes
to challenge the application of the Presumption must provide the following
information to Screenrights by email (resolution@screenrights.org) within the 60-day objection period:
(a)
the ERP
Evidence Submission Form; and
(b)
a written submission (no
more than 5 pages) and evidence in support of your challenge tothat
specifically challenges the basis for the application of the relevant
Presumption..
2.11
No extensions of
time are available.
2.12
Screenrights will
respond to your ERP
Evidence Submission Form within 14 days of
receiving the form and the ARP will commence on the date of Screenrights’ response.
2.13
Where a challenge
(which complies with 2.10 above) is received within 60 days, Phase 2 of the ARP
applies (see below at 3.10).
2.14
If you do not
provide Screenrights with the completed ERP
Evidence Submission Form together
with a written submission and supporting evidence within the 60 day objection period, your objection will be
considered withdrawn and you will have no further claim to the available
royalties. Future royalties will be paid in accordance with the relevant
Presumption. You may at any time, however, submit evidence challenging the
continued application of the relevant Presumption in relation to future
royalties, in which case the ARP will be initiated.
2.16
If no challenge is
received within 60 days Screenrights will apply the Presumption, amend
the relevant member’s registrations and pay the royalties in line with the
applicable Presumption. In relation to
future royalties however, it is open to the member against whom the Presumption
is applied to challenge its continued application by submitting evidence, in
which case the ARP will be initiated.
2.17
If no Presumption
applies, members are encouraged to resolve the competing claim directly.
Members also have the option to request that the ARP apply to resolve the Competing Claim (see below at 3).
3.1
The ARP has been
developed to assist members by providing a structured framework in which to
communicate and resolve Competing Claims together. The ARP is initiated when a
member requests assistance or when the ERP does not resolve a Competing Claim.
3.2
Screenrights’ role
in the ARP is to facilitate the resolution of Competing Claims by members,
monitor members’ timely engagement in these processes and to record the
outcome. Screenrights does not assess or determine the validity of any
Competing Claim.
3.3
The ARP is
designed to encourage members to engage constructively to resolve a Competing
Claim themselves. If Screenrights considers, in its absolute
discretion, that in any phase of the ARP a member has failed to comply with the
ARP constructively and in good faith, Screenrights may amend or delete that
member’s registration for the title on the basis that the member is deemed to
have withdrawn their conflicting claim. With
this in mind, each phase of the ARP
requires the member claimants to take certain steps, such as explicitly
confirming their registrations, submitting supporting evidence, or engaging in
constructive negotiations with the other parties. Strict deadlines apply.
3.4
If at
any timeCompliance with these requirements and deadlines is
very important. As set out in more detail below, where a member (the
“defaulting member”) fails to comply with the requirements of the
ARP results in changes to registrations meaning that
there are no longer conflicting claims, this will generally
have the following consequences:
(a)
The
defaulting member’s registration relevant to the title,
then the Competing Claim will be treated as withdrawn;
(b)
The
Competing Claim will be resolved and in favour of the party or parties who did comply with
the ARP (subject to any remaining dispute between those parties under the ARP);
(c)
Screenrights
will distribute royalties will be distributedfor
past and present distribution periods in accordance with the
amended registrations.that outcome; and
(d)
The
defaulting member will not be permitted to register a claim in respect of the
same title in future distribution periods unless they submit to Screenrights any
material that they previously failed to provide under the ARP.
Time Limits for Resolving
a Competing Claim
3.5
Screenrights has 4
years under its Constitution in which to distribute royalties from each royalty
“pool” (Distribution Period). If there are any undistributed royalties left
at the end of that period, they are added into the next royalty pool unless
the royalties are subject to an unresolved
Competing Claim. These Competing Claim
royalties are moved into the separate Competing Claims Fund (CCF) and members are given an
additional year (the CCF Year) to
resolve the Competing Claim in relation to those royalties (CCF Royalties).
3.6
If members are
unable to resolve a Competing Claim to CCF Royalties by 15 30
June of the CCF Year (a total of 5 years), those CCF Royalties will be forfeited. If an ARP applies to royalties from other,
open Distribution Periods, any resolution through the ARP will apply only to
those royalties.
3.7
For Screenrights
to process the resolution of the Competing Claim by 3015
June of that year, the members with a Competing Claim must advise Screenrights
of any resolution before 15 June that year otherwise the CCF Royalties
in relation to that claim, as at 30 June, will be
forfeited.
The Four Phases of
ARP
3.8
The ARP is
comprised of four distinct phases. It commences when Screenrights receives a
request from a member to participate in the ARP or when there is a successful challenge
to the application of a Presumption under the ERP (ARP Start Date).
Phase 1 – Confirmation, Amendment or
Withdrawal of Registration
3.9
Phase 1 gives
members an opportunity to consider their position in relation to the
registration(s) giving rise to the Competing Claim.
(a)
Within 10
business days of the ARP Start Date, Screenrights will send to the members a notice requesting that
they review their agreements and confirm, amend or withdraw their claim (Phase 1 Notice).
(b)
Within 45 days
of Screenrights sending the Phase 1 Notice (ending at 5pm AEST/AEDTAET
on the 45th day after the Notice is sent by Screenrights): a member must notify Screenrights in writing as to whether the
member confirms, amends or withdraws their registration. This must be done either via MyScreenrights
or resolution@screenights.org.
(c)
If a member does
not respond to the Phase 1 Notice within the allocated time: thethat member’s
registration will be deemed to be withdrawn to the extent that it
conflicts with another registration and amended or deleted by Screenrights
accordingly.
(d)
If, following
amendments or withdrawals of registrations by one or more members (including
deemed withdrawals under (c) above) there is no longer any conflict: Screenrights will consider the Competing Claim resolved and distribute
royalties in accordance with the updated registration. Any
distribution of royalties under this clause will be considered final for the
distribution period(s) in question.
(e)
For the avoidance of doubt, the withdrawal of a
member’s registration under (c) above will not prevent the member registering a
claim to future royalties for the same title in future distribution periods (with
any resulting Competing Claim to be dealt with under this Procedure).
3.10
If the Competing
Claim is not resolved in Phase 1, Screenrights will send a written notice (Phase 2 Notice) to members requiring
the members to provide submissions to support their claims within 60 days (ending at 5pm AEST/AEDTAET
on the 60th day after the Notice is sent by Screenrights).
3.11
Submissions in
response to the Phase 2 Notice must include:
(a)
documents
supporting the member’s legal claims (contracts and/or supporting documents
identifying the member’s entitlement to claim the rights in conflict); and
(b)
a written summary (no
more than 5 pages) identifying the relevant provisions within the documents, a
description of the documents supplied and reasons as to how the documents
support the claim. (by reference to the
specifics of the Competing Claim in question).
3.12
Documents
submitted to substantiate a Competing Claim in Phase 2 must be complete,
legible, in English and signed, though confidential and sensitive information
that is not relevant to the member’s claim may be redacted.
3.13
Screenrights will
review each member’s submission for compliance with (a) and (b) above.
Screenrights does not assess or determine the degree to which the material
provided supports or detracts from the validity of a member’s claim.
3.14
If Screenrights
does not receive a response from a member to the Phase 2 Notice that complies
with (a) and (b) above within the 60 day time limit: thethat
member’s registration will be deemed withdrawn or amended to
the extent that it conflicts with another registration (for which submissions
have been received) and amended or deleted by Screenrights
accordingly.
3.15
If, following any
amendments or withdrawals of registrations by one or more members during Phase
2 (including deemed withdrawals under 3.14 above)
there is no longer any conflict:
Screenrights will consider the Competing Claim resolved and distribute
royalties in accordance with the updated registrations. Any distribution of
royalties under this clause will be considered final for the distribution
period(s) in question.
3.16
A
member whose registration has been deemed withdrawn or amended under 3.14 above
will only be permitted to register a claim to royalties for the same title in
future distribution periods if the
member also provides to Screenrights a submission meeting the requirements of
3.11 above.
Phase 3 -
Negotiation
3.17
If the Competing
Claim has not been resolved in Phase 2, Screenrights will notify the members by
sending them a “Phase 3 Notice”,
which will direct them to attempt to resolve the dispute through
direct negotiations within 9060
days (Negotiation Period). The
Negotiation Period ends at 5pm AEST/AEDTAET
on the 90th60th
day after the Phase 3 Notice is sent by Screenrights, unless extended under 3.20 below.
3.18
Within the
Negotiation Period, members must activity engage in negotiations and retain
evidence of this engagement. Evidence of engagement must be shared with
Screenrights upon request. These negotiations would generally
include, but are not limited to, arranging and participating in conference
calls, meetings and communications, exchanging written outlines of their claim
with supporting evidence, and responding to another member’s written outlines
(with a view to clarifying and narrowing legal issues).
3.19
If a member fails
to engage in the negotiations before 5pm AEST/AEDTAET
on the 60th30th day
after the Phase 3 Notice is sent by Screenrights: athe other member(s)
may inform Screenrights, in writing and before the end of
the Negotiation Period, that anotherthe
first member has failed to engage by outlining the nature of that
failure. Screenrights will then send the member alleged to have failed to
engage a Non-Engagement Notice which
will direct the member to provide evidence to Screenrights of
their engagement in the negotiations.
3.21
If a member fails
to satisfactorily respond to a Non-Engagement Notice before 5pm AEST/AEDT AET
on the 30th day after the Non-Engagement Notice is sent by Screenrights: the member’s registration will be deemed withdrawn and
amended or deleted by Screenrights accordingly. The determination of whether a
member has satisfactorily responded to a Non-Engagement Notice will be in
Screenrights’ absolute discretion.
3.22
If the members
fail to reach an agreement within the Negotiation Period and a member intends
to commence legal proceedings, arbitration or mediation (LAM)
to resolve the Competing Claim with the other
member(s): at the conclusion of the
Negotiation Period, a member must notify Screenrights of their intention to
commence legal proceedings, arbitration or mediation to resolve the Competing
Claim with the other member(s) (LAM
Intention
Notice).
3.23
If no member
provides Screenrights with a LAM Intention Notice before the end of the Negotiation Period: any and
there is still a conflict between registrations: all conflicting
registrations will be deemed withdrawn and amended or deleted by Screenrights
accordingly. Any available royalties, the subject of the Competing Claim,
will, upon expiry of the relevant CCF Year, will be
forfeited and reallocated into the new Distribution Period.
3.24
If, following
amendments or withdrawals of registrations by one or more members during the Negotiation
Period (including as a result of any agreement between the members, or as a
result of deemed withdrawals or amendments) there is no longer any Competing
Claim: Screenrights will consider the
Competing Claim resolved and distribute royalties in accordance with the
updated registrations.
Phase 4 - Legal
proceedings, arbitration or mediation (LAM)
3.25
A member that
sends Screenrights an LAM Intention
Notice must, before 5pm AEST/AEDTAET on the
60th day after the end of the Negotiation Period, provide Screenrights with
evidence that LAM have been initiated and that each other member involved in
the competing claim has been informed of that initiation.
3.26
If no evidence of
LAM having been initiated is provided to Screenrights within the 60 day timeframe: then each member’s registrationall
conflicting registrations will be deemed withdrawn
and amended or deleted by Screenrights accordingly.
Any available royalties, the
subject of the Competing Claim, will, upon expiry of the relevant CCF
Year, be forfeited and reallocated into the new Distribution Period.
3.27
If a member
provides evidence of LAM having been initiated to Screenrights:
(a)
Screenrights will
suspend the ARP process pending the outcome of the LAM;
(b)
Screenrights may
suspend the payment of any royalties the subject of
the Competing Claim, however any suspended royalties will only be held for the
period permitted by Screenrights’ Constitution and Distribution Policy, after
which the suspended royalties will be forfeited and no longer allocated to the
Competing Claim; and
(c)
upon receipt of
evidence of an agreement between the relevant members or a determination of
their rights (such as a Court order or arbitral determination), Screenrights
will modify the registrations for the title and distribute royalties in
accordance with any agreement or determination.
3.28
Members
participating in this Competing Claims Resolutions Procedure, including the ARP
and the ERP, unconditionally release Screenrights from all claims they may have
against Screenrights, its directors, officers or employees arising from or
relating to that participation or the procedure including, without limitation,
any decision made by Screenrights in relation to the member’s rights or
entitlements.
Timeframes and notification
Warranty Verification
3.31
Members may resolve a
Competing Claim at any time by reaching agreement:
(a)
as to the copyright
owner of the title (determining entitlement to CCF Royalties (defined below)
and future royalties) (Final Resolution);
or
(b)
only in relation to
currently available royalties from the CCF Year or a final year of a
Distribution Period (without resolving the underlying copyright ownership of
the title) (Temporary Resolution). For example, a member may agree to waive
their entitlement to currently available royalties but without waiving their
claim to copyright ownership or future royalties.
3.32
Members must
promptly notify Screenrights of their agreement by:
(a)
For Final
Resolutions: making relevant changes to
their registrations via MyScreenrights; or
(b)
For Temporary
Resolutions: completing the relevant form here.
3.33
Screenrights will
distribute royalties in reliance upon members’ notifications given in
accordance with 3.3325.2 (a) and (b) above and any
registrations that are amended or updated as a result of
the ERP or ARP.
3.34
The commencement
of either the ERP or ARP does not limit any entitlement members may have to
apply to a Court or, if members have agreed to do so, seek to have the dispute
resolved by external mediation or arbitration (these services are not provided
by Screenrights).
Resolution by Court or Arbitration Process
3.35
In the event a
member refers a Competing Claim to a Court or to arbitration or mediation:
(a)
the member agrees to
promptly inform Screenrights of the
referral;
(b)
Screenrights may
suspend or terminate the ARP or ERP;
(c)
Screenrights may
suspend the payment of any royalties the subject of the Competing Claim (any
suspended royalties will only be held for the period permitted by its
Constitution and Distribution Policy after which the suspended royalties will
be forfeited and no longer allocated to the Competing Claim); and
(d)
each member agrees to
promptly inform Screenrights of the outcome of the referral.
3.36
Screenrights will
act consistently with a determination by a Court or arbitral award in relation
to a member’s copyright interest (or the members’ agreement as notified by the
members pursuant to 3.33 above).
3.37
Screenrights is
entitled to rely on a communication from a member that provides evidence of an
agreement between members or evidence of a determination of the rights of
members (such as a Court order or arbitration determination) in relation to a
Competing Claim and to act consistently with that communication to amend its
records and distribute royalties.
Policy Updates
3.38
This document may be updated
by Screenrights from time to time and any updates will be recorded in the table
at the conclusion of this document.
Status
|
VERSION |
DATE |
DESCRIPTION |
|
1.0 |
1 July 2023 |
Competing Claims
Resolution Procedure published. |
|
1.1 |
24 July 2023 |
Update to
paragraph numbering. |