ACCC Says No to Model Terms for Producers in Commissioning Agreements October 13, 2026

Australian producers may be disheartened to hear that the ACCC has knocked back Screen Producers Australia’s (SPA’s) applications to negotiate model terms with regulated streamers and broadcasters.

The decision with regard to streaming commissioners was particularly interesting, given the recent indicators that the majority of investment in Australian productions now comes from streamers, who are setting new terms for producers when they commission films. As a peak body, SPA has always strived to improve conditions for its members and the wider industry. In seeking to develop standard (or at least recommended) terms of engagement for producers being commissioned by both the international and homegrown streaming giants in particular, SPA had hoped to preserve downstream value for Australian producers in a market where that value is increasingly foregone.

Most international streamers commission producers to make new shows and the like under what are called ‘cost-plus-premium’ deals. The streamer agrees to pay for all the costs of production, with an additional premium paid to the producer upfront. The producer profits immediately, but the catch is that these agreements are also complete buyouts. The streamer takes all the copyright in the project, so there is no scope for the producer to monetise heldback rights, like airline licensing and physical media. Since the producer is no longer licensing the project, they also cannot expect secondary revenue streams to open up in the future, as they typically would when the licence periods on their distribution agreements expired. And, beyond the financials, producers lose creative control over their project (which translates to losing approval over format sales).

That is not to say that there is no room for innovative businesses to emerge in the ‘content creation’ space that is demanded by subscription video on demand (SVOD) platforms. Some producers are willing to make the jump into producing content for streaming. This is the kind of content that has that distinctive filter on it, depending on the service that commissioned it. It is explicitly branded, it owns its brand, and there is no shortage of punters willing to let their project take on a life of its own. In short, film and television production can still be a viable business, even when it is done on cost-plus premium terms. And some producers want this business like their consumers want their content. What remains true, though, is that streaming services are challenging the old business models that have made Australia’s rich media history possible. And heritage is slow to react to progress.

What SPA were ultimately trying to do with their application to the ACCC, then, was not simply rebalance the profit shares, but to level the playing field a little, to allow industry to react to the change, and ensure genuine Australian talent did not get immediately priced out by these sudden shifts in market forces. Unfortunately, the ACCC gave little weight to this side of the argument.

What did SPA propose?

SPA sought approval from the ACCC to collectively negotiate with regulated streamers, and make contracts with those streamers on behalf of their members. These contracts would contain model commercial terms that once agreed, would form the basis for contracting, and once signed on a project-by-project basis, would contractually bind both the streamers and SPA’s members in that deal. The ACCC had previously granted SPA authorisation in 2015 and 2021 to negotiate similarly structured, binding model agreements, albeit in an industrial context.

Since getting the nod, SPA have been negotiating (on behalf of their members) with Guilds (on behalf of their members) to draft industrial agreements for actors in film and TV and writers. And the resulting agreements, like the updated ATPA, have been and will be great for creatives and producers alike. Producers get certainty from the terms, and creatives get their security in the form of enforceable minimum standards.

A producer has a slightly different role to the creative though. It is their role to engage all persons required to make the film. But while relationships within the production are subject to a wealth of minimum standards, due to the producer typically being in an employer-employee relationship with members of production, the same cannot be said of the producer’s negotiations with financiers and funders, for instance.

As these relationships, i.e. between a producer and everyone outside of production, are strictly commercial, it is much rarer to find minimum standards of trade in these contexts. So, naturally, SPA also requested authorisation to internally resolve model terms of trade that would be adopted by their members, in the event that the streamers refused to negotiate with them.

Whether the ‘model terms’ with content commissioners was ultimately between SPA and their members with streamers, or just SPA and their members, the form of any collective action taken by producers would remain voluntary in either case, as any action taken by a producer in accordance with SPA’s proposal would be conditional upon them taking up a membership in SPA. That is, such collective action would only be as widespread in the market for commissioned content as there are willing members of SPA.

To be clear, SPA never proposed to organise a boycott of streamers who did not engage with these model terms. Rather, the risk of non-compliance with the model terms in the market for commissioned content could only be borne by SPA’s members, and (at worst) the commissioners who agreed to SPA’s terms.

Why did SPA have to seek the ACCC’s permission to take this action?

Because it acts on behalf of 800+ SMEs, sole traders, and emerging voices in the production space, SPA bears a lot of responsibility in representing the interests of its members in the market.

The ACCC, on the other hand, wants to maintain ‘healthy competition’, as this is seen to be the optimal state in a market where goods and services are priced for the benefit of consumers. And so, before a peak body can do anything, the ACCC must be satisfied that the collective bargaining conducted by peak bodies does not restrict competition (in the markets that their industries operate) at too high a price to the industry.

The ACCC does this by balancing the ‘public benefits’ of the proposed conduct against the ‘public detriments’ that might arise from the same.

What was the ACCC’s issue with SPA’s Application?

The ACCC were ultimately not persuaded by SPA’s application because they were too concerned that SPA’s terms would become an industry benchmark for commissioning contracts, notwithstanding their voluntary application.

The ACCC considered this effect too big a public detriment because it would reduce flexibility in contracting, ‘with the effect that contract terms that would have been mutually beneficial, but differ from the model terms, are prevented from being agreed upon’.

Producers might well question why ‘narrowing the range of outcomes that are treated as commercially acceptable’ is necessarily a bad thing, though, if this is what would be more beneficial for the section of the industry that is getting priced out. If they wanted their peak body to negotiate on their behalf, would that not be the industry making its commercial choice?

As the ACCC noted, ‘it is not in a position to conclude what combination of screen content would be of most value to the Australian community’. So, its assessment of the potential benefits was simultaneously muted, since the analysis focused only on the commercial aspects of SPA’s proposed conduct. Ultimately, the ACCC could not see a benefit that would arise to the consumer from helping producers retain the IP they create, which the ACCC considered rather narrowly as the ability to control ‘the duration of a Program licence’ to a commissioner.

As far as consumers were concerned, the ACCC opined that:

a consumer can opt to view the Program regardless of which platforms or broadcasters have the rights to that Program at that particular time by taking up the relevant subscription. The ACCC understands that most Australian consumers subscribe to SVOD services and reportedly maintain an average of 2 SVOD subscriptions at any one time. Whilst SPA further submits that this indicates that consumers are missing out on content (on the SVOD services that they are not subscribed to), the ACCC notes that consumers can switch between streaming platforms.

Of course, the question again is whether having two streaming subscriptions is a choice, or a product of commissioners holding all the cards in the market today. If producers retain their intellectual property ownership, they could expand the distribution possibilities of their content and potentially offer more cost effective or consumer-friendly options than are currently on offer. Producers have no scope to innovate in this way if they do not hold any copyright or other IP though.

The ACCC simply did not recognise how giving back copyright and other IP leverage to producers could allow for more homegrown stories (and story formats) to be told, since the distribution of their IP (and therefore saleability) would not be conditional on it bearing particular branding, but could be a brand in its own right. And there is something to be said for cultivating auteurs in the arts. But while:

the ACCC recognises that Australian drama production, in particular children’s drama, has reduced significantly over the last few decades, the ACCC cannot be sure the extent (if any) to which this decline can be attributed to commissioning arrangements between Producers and Commissioners.

And yet, as Screen Australia’s 2023-24 and 2024-25 drama reports show, the majority of investment in TV/VOD drama comes from Australian independent and global streaming platforms, and their market share is only growing. One might expect trends in drama production to follow the money that is funding it. But perhaps there were too many unknowns for the ACCC to investigate this claim thoroughly in SPA’s Application.

Of course, the new Australian content quotas are yet to play out, so it makes sense that the ACCC could be exercising a reserved approach before making more interventionist tweaks to the market. Although, one might dispute whether the conduct SPA sought to have authorised is as interventionist as the ACCC suggests.

What the ACCC probably should have considered was the public detriment that (arguably has) resulted from their decision against SPA’s proposed conduct, which is reinforcing of the status quo that SPA has argued urgently needs intervention. Old-school producers are now left between a rock and hard place: they are not permitted to collectively negotiate with commissioners, and they hold none of the cards to individually negotiate with the commissioners in the current market, who expect all the copyright (and other IP) in a project. Naturally, then, some of these voices are bound to make a sea change.

SPA’s broader advocacy

Following the ACCC’s final determination, Marshalls + Dent + Wilmoth Lawyers (MDW) spoke with SPA about its broader advocacy priorities. SPA noted that, while the ACCC process has concluded, it continues to pursue policy reforms aimed at improving the long-term sustainability of Australia’s independent production sector.

As part of its submission to the Australian Government’s National Cultural Policy consultation, SPA proposed a framework to improve commissioning relationships built on three core principles: Good Faith, Fair Value, and Transparency. The framework is intended to support fair and sustainable commercial arrangements between producers and commissioners and better recognise the role independent producers play in creating Australian screen content.

SPA also reiterated to the Government some of the findings from the Lateral Economics report they commissioned, which recommended that Australia consider adopting a terms of trade regime similar to the UK’s. The report also informed SPA’s advocacy on commissioning practices, including its application to the ACCC.

Unlike the voluntary framework proposed by SPA through the ACCC process, the UK’s terms of trade between producers and broadcasters are established through legislation.

Nevertheless, as the Lateral Economics report suggests, the UK experience demonstrates that within just two years of introducing terms of trade that guarantee holdback rights for independent producers, productions can shift from having a predominantly domestic focus and appeal, to becoming valuable cultural exports that elicit truly global engagement: see, eg, The Great British Bake Off, Gogglebox, and MasterChef.

The report argues that even relatively modest rights retained by producers can significantly improve their ability to build sustainable businesses and develop valuable exportable intellectual property. Similar opportunities could exist for Australian producers under an appropriately designed policy framework. It remains to be seen whether there is a broader policy appetite for reforms of this nature in Australia through future legislative or regulatory initiatives.

What producers need to know

While little may be clear about what it will take to have a viable future in Australian film and television (or, rather, streaming) production, what is clear is that producers are now more than ever beholden to streaming giants. These huge entities are more than just providers of entertainment: they really are studios in their own right, cultivating a brand with its own distinctive IP, and that is revolutionary in the famously and historically syndicated world of Australian TV.

Will all the legacy producers just have to make the jump? Maybe, if they want to sell to the streamers, who are avowedly not making TV. They are making SVOD, and they are here to stay.

MDW’s experienced team of media lawyers have the expertise and experience to navigate the commercial complexities of these new commissioning agreements and are eager to help the industry strategise for the future of the screen, no matter their business model.

For further information, please contact the Entertainment Law team at marshalls+dent+wilmoth lawyers.