FEDCAC

• 11.1 The Code is to be administered by a Code Administration Committee comprising a representative of each of the major exhibitors to a maximum of three (3) in total with up to an equal number of representatives from each of the Motion Picture Distributors Association of Australia, independent distributors and independent exhibitors.
• 11.2 The independent exhibitors shall be represented by two (2) members of the Independent Cinema Association of Australia Incorporated and one other non-aligned independent exhibitor representing not less than ten (10) non-aligned independent exhibitors who (in common with other representatives on the Committee) makes the financial contribution to the annual budget of the Code Administration Committee reasonably determined by the Committee, provided that if there is no nominee for that third position from a person who is not a member of the Independent Cinema Association of Australia Incorporated, then until that third position is filled by such a person, it may be filled by a member of the Independent Cinema Association of Australia Incorporated.
• 11.3 The independent distributors shall be represented by two (2) members of the Australian Independent Distributors Association Incorporated and one other non-aligned independent distributor representing not less than five (5) non-aligned independent distributors who (in common with other representatives on the Committee) makes the financial contribution to the annual budget of the Code Administration Committee reasonably determined by the Committee, provided that if there is no nominee for that third position from a person who is not a member of the Australian Independent Distributors Association Incorporated, then until that third position is filled by such a person, it may be filled by a member of the Australian Independent Distributors Association Incorporated.
• 11.4 All decisions of the Committee must be made by a decision of at least 75% of the Committee’s representatives except for any decision to amend the Code, appoint the independent chairperson of the Code Administration Committee and appoint the independent Conciliator, which must be by unanimous decision of all the Committee’s representatives who vote on the issue.
• 11.5 The Code Administration Committee will, by unanimous decision of all the Committee’s representatives who vote on the issue, appoint an independent voting chairperson of the committee. The term of the appointment of the independent chairperson:
  • 11.5.1 shall not exceed three (3) years; and
  • 11.5.2 will, as far as is possible, be determined so that there is a period of at least one (1) year between the end of the term of appointment of the independent chairperson and the end of the term of appointment of the Conciliator, provided that, notwithstanding Section 11.5.1, the Code Administration Committee may appoint the same person as the independent chairperson for successive terms.

• 12.1 The role of the Code Administration Committee will be to:
  • 12.1.1 appoint a Conciliator to be known as the Film Code Conciliator and publicise this appointment;
  • 12.1.2 monitor the operation of the Code and adopt amendments to the Code, such amendments to be agreed following consultations by the members of the Committee with their respective constituent members who are signatories to the Code;
  • 12.1.3 provide adequate financing for the administration of the scheme;
  • 12.1.4 maintain a register of signatories to the Code; and
  • 12.1.5 appoint a person or entity as the Code Secretariat to provide administrative support services to the Committee and, if considered appropriate, to assist the Conciliator.

• 13.1 The Code Administration Committee will appoint an independent Conciliator to serve for a term and upon conditions to be set by the Committee and shall have the authority to discharge the Conciliator.
• 13.2 The term of the appointment:
  • 13.2.1 shall not exceed three (3) years; and
  • 13.2.2 will, as far as is possible, be determined so that there is a period of at least one (1) year between the end of the term of appointment of the Conciliator and the end of the term of appointment of the chairperson of the Code Administration Committee,
  • provided that, notwithstanding Section 13.2.1, the Code Administration Committee may appoint the same person as the Conciliator for successive terms.
• 13.3 The Conciliator will be an expert mediator of recognised integrity and stature who will command respect from all sectors of the industry. During his or her term of office the Conciliator may not hold any substantial interest in the film industry. The Conciliator shall disclose all holdings of any interest in the film industry prior to appointment and shall also disclose any subsequent purchases or acquisitions whether for value or otherwise, of such shares or securities to the Code Administration Committee.

• 14.1 Conciliation is the process in which a conciliator seeks to facilitate a negotiated agreement in which the parties to a dispute, with the assistance of the conciliator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement.
• 14.2 The Conciliator will have an advisory role on the content of the dispute and/or the outcome of its resolution, but not a determinative one. The Conciliator is to act in good faith and maintain a neutral, impartial position in assisting the parties to reach an agreement on a mutually accepted solution and to facilitate the negotiation process.
• 14.3 The Conciliator may, where the Conciliator considers it to be appropriate in connection with the conciliation of a dispute, express and record the Concilitor’s opinion as to whether or not one or more parties to the dispute has acted on a fair and equitable basis within the meaning of Section 4.1.
• 14.4 The disputants shall bear their own costs of the conciliation and unless otherwise agreed, shall pay in equal shares the agreed Conciliator’s fee and reasonable out of pocket expenses and any other reasonable costs of and incidental to the conciliation (such as hearing room fees).

• 15.1 Unless section 16 applies, the parties to a dispute shall undertake the following steps (as set out in the flow chart comprising Appendix 1):
  • 15.1.1 the complainant shall endeavour to discuss the dispute with the appropriate representative of the other party with a view to reaching an amicable resolution of the dispute;
  • 15.1.2 if, within the time considered reasonable by the complainant, either the complainant is unable to discuss the dispute with the appropriate representative of the other party or the discussions fail to resolve the dispute, then the complainant shall:
    • notify the Code Secretariat of the dispute;
    • endeavour to discuss the dispute with the Managing Director or equivalent officer of the other party with a view to reaching an amicable resolution of the dispute;
  • 15.1.3 if, within the time considered reasonable by the complainant, either the complainant is unable to discuss the dispute with the Managing Director or equivalent officer of the other party or the discussions fail to resolve the dispute, then:
    • the complainant shall notify the Code Secretariat of that fact and, if the complainant is a member of an industry association and elects to do so, shall notify the industry association of that fact and may request the Code Secretariat and/or the industry association to discuss the dispute with the Managing Director or equivalent officer of the other party;
    • if so requested by the complainant:
      • the Code Secretariat or, if considered appropriate by the Conciliator the Conciliator; and
      • if considered appropriate by the complainant’s industry association, the complainant’s industry association,
      will endeavour to discuss the dispute with the Managing Director or equivalent officer of the other party with a view to reaching an amicable resolution of the dispute.

• 16.1 If, within the time considered reasonable by the complainant, a dispute is not resolved using the informal dispute resolution proceedings set out in Section 15.1 (notwithstanding that those procedures may not have been completed) or if the complainant otherwise determines that the dispute should be resolved by conciliation proceedings, then the following procedures will apply (as set out in the flow chart comprising Appendix 2):
  • 16.1.1 the complainant shall raise the matter in writing with the other party by way of a Notice of Dispute (a suggested form of which is set out in Appendix 3) setting out the background and issues in dispute, including the grounds on which it believes the Code has been breached and the specific outcomes desired (the Desired Outcomes);
  • 16.1.2 the party complained against shall respond in writing within two (2) business days of receipt of the Notice of Dispute;
  • 16.1.3 the parties shall make every effort to resolve the dispute in good faith and fairly at this level but by no later than four (4) business days from the date upon which the other party received the Notice of Dispute;
  • 16.1.4 if the dispute is not resolved as above then the matter may be referred to the Conciliator by either party; and
  • 16.1.5 the Conciliator shall deal with the matter within seven (7) business days of the matter being referred to him/her or within such other time as the parties and the Conciliator agree.
• 16.2 The Conciliator will use every effort to conciliate a resolution to the dispute referred to him/her under Section 16.1.4. Failing agreement by the parties to a resolution of the dispute then the Conciliator may make a recommendation. A recommendation made by the Conciliator will address such matters as the Conciliator considers appropriate in the circumstances including, without limitation:
  • 16.2.1 the Conciliator’s opinion as to the nature of the dispute;
  • 16.2.2 the Conciliator’s response to the Desired Outcomes set out in the claimant’s Notice of Dispute; and
  • 16.2.3 indicative time periods for compliance with specific matters included in the recommendation.
• 16.3 If a recommendation made by the Conciliator under Section 16.2 is not adopted by the parties, the Conciliator will report to the Code Administration Committee the identity of the disputants, the nature of the dispute, the recommendation (and the basis for the recommendation) and either the reasons, if any, conveyed in writing to the Conciliator by any party not adopting the recommendation as to why it is not adopting the recommendation or a statement to the effect that no such reasons have been conveyed to the Conciliator, and:
  • 16.3.1 this information will be included in the next information bulletin issued by the Committee; and
  • 16.3.2 the Committee will include this information in its annual report;
  • but the Committee will not disclose any confidential information obtained in the conciliation procedure.

• 17.1 Subject to this Code the Conciliator shall determine his/her own procedures and, prior to the Conciliator dealing with the matter, the Conciliator will require the parties to enter into a conciliation agreement in the form of Appendix 4 or in such other form as the Conciliator may consider to be appropriate in the circumstances (Conciliation Agreement). Each of the parties must execute the Conciliation Agreement and return it to the Conciliator (by facsimile transmission or email in the first instance, if possible) without delay and, in any event, within 24 hours of receipt of the Conciliation Agreement from the Conciliator (which may be supplied to the parties by facsimile transmission or email).
• 17.2 The Conciliator, acting reasonably, will determine the time and date for the conciliation proceedings and, where possible will include that information in the Conciliation Agreement supplied to the parties to the dispute.
• 17.3 Proceedings may include, for example:
  • 17.3.1 hearings in the capital city of the State in which the dispute occurs;
  • 17.3.2 telephone or video conferences;
  • 17.3.3 exchange of submissions, documents and information by facsimile and/or mail and/or email;
  • 17.3.4 opportunities for the parties adequately to state their case, and to correct or contradict any relevant statement prejudicial to it; and
  • 17.3.5 ensuring that relevant documents considered by the Conciliator are disclosed to the parties to the dispute subject to their acquiescence.
• 17.4 Proceedings shall be as informal as is consistent with the proper hearing of the matter.
• 17.5 Parties shall not be allowed legal representation before the Conciliator, except that:
  • 17.5.1 an in-house employee of a party who is legally qualified may represent that party before the Conciliator; and
  • 17.5.2 a legally qualified support person who is not an employee of a party may attend the conciliation proceedings to consult with, and provide assistance to, that party provided that the person does not present or seek to present that party’s position before the Conciliator.
• 17.6 Each party to conciliation proceedings will ensure that either:
  • 17.6.1 its representative in those proceedings is authorised to settle the dispute on behalf of the party (including, without limitation, by acceptance of a recommendation of the Conciliator); or
  • 17.6.2 arrangements are in place for the provision of a timely response by that party to any proposed settlement of the dispute (including, without limitation, by acceptance of a recommendation of the Conciliator).
• 17.7 All communications in relation to the conciliation of the dispute shall be in confidence and without prejudice. For the avoidance of doubt, the obligations of the confidentiality under this section apply to the parties to the dispute and their respective related bodies corporate (as that expression is defined in the Corporations Act 2001 (Cwth)).
• 17.8 No documents brought into existence by a disputant for the purpose of the conciliation process may be tendered in evidence by a party other than that disputant in any litigation of the dispute.
• 17.9 The parties shall report back to the Conciliator within fourteen days on actions taken on any recommendation made by the Conciliator.

• 18.1 Each of the major exhibitors and each distributor that is a member of the Motion Picture Distributors Association of Australia will put into place (and advertise internally) an internal dispute resolution procedure (which will include details of the website maintained by the Code Secretariat relating to the Code and the name or position of the person within the organisation designated to deal with those disputes in the first instance) and a program for monitoring compliance with that procedure (an Internal Dispute Resolution Program), and each other distributor and exhibitor will give bona fide consideration to putting into place (and advertising internally), an Internal Dispute Resolution Program, and will make a copy of that Program available on a confidential basis to:
  • 18.1.1 the Conciliator (who may supply a copy, on a confidential basis, to a distributor or exhibitor who is in dispute with that party); and
  • 18.1.2 on request, a distributor or exhibitor who is in dispute with that party.
• 18.2 Each distributor and exhibitor will give bona fide consideration (having regard to its resources and other relevant matters) to putting into place in-house Code compliance arrangements intended to ensure that the exhibitor or distributor complies with this Code, and reflecting the principles in Australian Standard 3806-2006 (a Code Compliance Program).

• 19.1 The Code Administration Committee shall publicise the existence and effects of the Code and the availability of the conciliation procedures. Except as provided under Section 16.3, there will be no publicity of any specific conciliation.

• 20.1 The Conciliator shall report at least annually to the Code Administration Committee such matters as may be specified by the Committee including on the operation of the Code and its administration and the number and nature of complaints received and conciliated.
• 20.2 The Code Administration Committee shall produce an annual report on the Code and its administration, including a breakdown of the costs of Code administration, which will be made available to interested parties.

• 20.1 No distributor or exhibitor may engage in retaliatory conduct against a distributor or exhibitor because the second mentioned distributor or exhibitor has invoked the provisions of this Code (including, without limitation, the conciliation procedures) to challenge the conduct of the first mentioned distributor or exhibitor.

• 22.1 Where a complaint involving a breach of this Code involves a non-signatory to the Code, the complainant may refer the matter to the Australian Competition and Consumer Commission to take whatever action it considers appropriate.
• 22.2 Whilst it is the intent of this Code that a complaint involving signatories to the Code is resolved through the Code mechanisms, the complainant may refer the matter to the Australian Competition and Consumer Commission.

• 23.1 The Code and its administration will be reviewed and evaluated by the Code Administration Committee at the end of each year of its operation.

• 24.1 An exhibitor or distributor may become a signatory to this Code by written notification to the Code Administration Committee.
• 24.2 A signatory may cease to be a signatory to this Code by written notification to the Code Administration Committee.
• 24.3 A notification shall become effective upon its receipt by the Code Administration Committee or upon such date as may be specified in the notification.
• 24.4 Each signatory to this Code consents to the Code Administration Committee and the Code Secretariat advising other exhibitors and distributors (whether or not they are signatories to this Code), the Conciliator and the Australian Competition and Consumer Commission, and including on the website maintained by the Code Secretariat relating to the Code and in information bulletins, annual reports and materials advertising and promoting the Code issued by the Code Administration Committee or the Code Secretariat, all or any of the following information:
  • 24.4.1 the name of the signatory;
  • 24.4.2 the address of the signatory;
  • 24.4.3 as applicable, the telephone number, facsimile number, email address and website address of the signatory;
  • 24.4.4 the fact that the signatory is a signatory to this Code; and
  • 24.4.5 the signatory classification and the Association affiliation (if any) of the signatory (as set out in Sections 11.1, 11.2 and 11.3).

cinema:
includes a drive-in cinema.

complying digital projection system:
a digital projection system which complies with the requirements of a majority of the Major Studios in order for the Major Studios to permit their films to be exhibited on the system.

DCP:
Digital Cinema Package, being the collection of digital files used to store and convey digital cinema audio, image and data stream for films which are made available in Digital Form.

Digital Form:
the digital format of a film which complies with the requirements of a majority of the Major Studios in order for the Major Studios to permit the film to be exhibited (described as “DCI Specification Compliance”), capable of being exhibited on complying projection systems.

film:
includes:

1. feature length theatrical motion pictures in 2D or 3D format; and
2. programming content (other than feature length theatrical motion pictures, trailers and advertising content) in 2D or 3D format including, but not limited to, television programs, sporting events, theatrical stage productions, religious services, concerts, educational classes or presentations, live events, speeches and meetings.

Film Copy:
any current or future medium in which a film is made available for commercial distribution including, without limitation:

1. as a 35mm print; and
2. in Digital Form.

KDM:
Key Delivery Message, being the security key encryption system used with digital projection systems which is unique and allows only a specific DCP to play on a specific cinema complex playback server for a specified period of time.

Major Studio:
each of Twentieth Century Fox International Corporation, Universal City Studios LLP, Warner Bros. Entertainment Inc., Sony Pictures Entertainment, Inc., Paramount Pictures Corporation and The Walt Disney Company.

supply:
in respect of a film includes:

1. physical delivery of a 35mm print;
2. for a film made availabe in Digital Form:
1. physical delivery of a hard disk drive;
2. terrestrial, cable or satellite delivery; and
3. on-line delivery, being digital delivery by means of the Internet, any proprietary computer service, any local area telecommunications network or system used to communicate audiovisual work (including, without limitation, films) and/or any audio and/or video and/or digital data or content, on a point to point or point to multi-point basis (Network) and/or any other Network (linked by any transmission means including, without limitation, RF, broadband, wireless, satellite and coaxial or fibre optic cable).

VPF:
a so-called “virtual print fee” (including so-called “Alternative Content Fees”) paid by a distributor to a third party ‘integrator’ in connection with the exhibition of a film in Digital Form on a complying digital projection system operated by an exhibitor and applied in financially assisting the conversion to complying digital projection systems in the exhibitor’s cinemas.