8.26 The Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Classification Act) provides that, subject to some exceptions, ‘if a classified film or a classified computer game is modified, it becomes unclassified when the modification is made’.[21] The Act also prescribes a list of changes that do not amount to a modification.[22] This provision has been applied strictly by the courts. In Muscat v Douglas, Buss JA stated that:

Any partial or minor change or alteration to a classified film constitutes a modification for the purposes of that provision. The change of status from classified to unclassified is automatic and immediate.[23]

8.27 This strict and prescriptive modification rule has been the subject of complaints from industry. Some claim that it is too narrow, and results in content being unnecessarily classified many times over, at considerable expense to distributors. A prescriptive, statutory modification rule is also unlikely to keep pace with technology, and does not account for the fact that much online content is dynamic and changes constantly.

8.28 The ALRC considers that the new Act should provide that classified content only becomes unclassified if it is modified in such a way that the modified content is likely to have a different classification from the original content. Neither the Act nor industry codes need to prescribe specific types of modifications that would, or would not, change the classification of content. Whether something has been modified should depend on the content itself, not on the type of modification.

8.29 However, only minor changes should be considered ‘modifications’. ‘Modify’ means to ‘make partial or minor changes to; alter without radical transformation’.[24] As discussed later in this chapter, adding extra content will often not be a ‘partial or minor’ change.

8.30 Submissions were broadly supportive of the ALRC’s proposal to set limits to the kind of modifications that would declassify content that has been classified.[25] Free TV, for example, supported the proposed definition of modify, and said it ‘will, to a degree, reduce double handling of material’.[26] Telstra also supported the proposal, noting that it would ‘not reduce the scope or accuracy of the classification information provided to consumers in any way’, and would ‘avoid the current costs associated with the valueless duplication of classification assessment processes as content is distributed across multiple platforms’.[27]

8.31 The Interactive Games and Entertainment Association (iGEA) welcomed the proposal, which will ‘effectively allow certain modifications of computer games, including expansion packs and downloadable content, to legitimately share the classification of the original game and be marked accordingly’.[28]

8.32 However, some submissions called for a more certain rule. The Australian Federation Against Copyright Theft, for example, submitted that the proposed definition:

may raise some issues in practical application since it lacks any objectively verifiable criteria. The inclusion of examples of modification for different programs in an Industry Code may be a useful way to provide practical guidance on the interpretation of ‘modify’ while retaining the flexibility of the proposed ALRC definition.[29]

8.33 The ALRC’s recommendation requires content providers to consider whether changed classified content is ‘likely’ to have a different classification. Foxtel said that it did not support regulations which require classifiers to decide on ‘likely classifications’:

the scheme should either provide that content is required to be classified or it is not required to be classified. This is because the ‘likely’ pre-decision is, in fact, a classification decision.[30]

8.34 In the ALRC’s view, assessing the likely classification of content differs from classifying the content in a few important respects. Generally only trained and authorised classifiers can make classification decisions, whereas others may assess the likely classification. For some content, very little work may need to be done to determine its likely classification. Finally, formal classification decisions may need to be recorded and registered with the Regulator on a database.[31] So, classifying content will generally have a greater regulatory burden and a higher cost than assessing the likely classification of content.

8.35 Under the ALRC’s scheme, if a computer game is modified (that is, changed in a minor way), and that modification is unlikely to change the classification of the game, then the modified version of the game will have the same classification as the original version. If the classification is likely to change, however, the game will need to be reclassified. In the ALRC’s view, this should ensure that changes to computer games that significantly increase impact are treated appropriately.[32]

Changing platforms

8.36 In the ALRC’s view, changing platforms should not cause classified content to become unclassified. If a content provider has content classified for one platform (for example, television), then it or another content provider may use that classification decision for the same content published on another platform (for example, DVD or the internet). This is an important feature of the ALRC’s model, and one of the advantages of platform-neutral classification regulation.

8.37 Likewise, the classification decisions of the Classification Board (the Board) should also usually be used by all subsequent providers of the classified content. For example, if the Board classifies a film for cinema release, and a year later a television station broadcasts the same film, then under the ALRC’s scheme, the television station must use the Board’s classification—unless the film has been changed such that the modified film is likely to have a different classification from the original film. If the film has not changed, the television station may not give it a new classification.

3D content

8.38 Currently, the Board treats a 3D version of a film as a different film from the 2D version of the film, so that both versions are classified by the Board before being exhibited in Australia. Film distributors have criticised this, arguing that it is costly and unnecessary to classify twice what they argue is essentially the same film. Distributors argue that the two versions have always received the same classification, and that any theoretical possibility that one version will have a higher impact than the other may be met by applying the classification of the 3D version to the 2D version.

8.39 The Motion Picture Distributors Association of Australia criticised ‘the notion that remaking the film in a revised format is a “modification”, even where there was no change to the content’, and submitted that the Act:

should define that it is only content modification, not format variation—such as 2D or 3D—that might require a new classification, and that the perceived impact of the format is not a relevant factor.[33]

8.40 The ALRC agrees that it should not be necessary to classify both the 2D and 3D versions of a film—unless one version of the content is likely to have a different classification from the other version.

8.41 Whether one version of a piece of content is likely to have a different classification from another version should depend on the specific piece of content, and any change in the actual impact of the content by a modification, rather than the abstract question of whether one type of modification alters impact. The ALRC considers that the Act should not prescribe specific types of changes that would or would not declassify content.

8.42 The definition of ‘modify’, recommended below, places upon content providers, such as film distributors, the obligation to consider whether a version of their classified content should be classified afresh. As with other obligations placed upon content providers under the new scheme, this obligation would be monitored and enforced by the Regulator.

Recommendation 8–2 The Classification of Media Content Act should provide that if classified media content is modified, so that the modified content is likely to have a different classification from the original content, the modified content becomes unclassified. The Act should not prescribe specific types of modifications that operate to declassify content.

[21]Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 21(1).

[22] Ibid s 21.

[23]Muscat v Douglas [2007] 32 WAR 49, per Buss JA, at [143]–[144].

[24] Ibid, per Buss JA, citing the Shorter Oxford English Dictionary.

[25] See Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 6–7.

[26] Free TV Australia, Submission CI 2519.

[27] Telstra, Submission CI 2469.

[28] Interactive Games and Entertainment Association, Submission CI 2470. See also FamilyVoice Australia, Submission CI 2509; Arts Law Centre of Australia, Submission CI 2490.

[29] Australian Federation Against Copyright Theft, Submission CI 2517. See also Motion Picture Distributors Association of Australia, Submission CI 2513; Australian Home Entertainment Distribution Association, Submission CI 2478.

[30] Foxtel, Submission CI 2497.

[31] This database is discussed in Ch 7.

[32] Computer game ‘mods’ and expansion packs are discussed further below.

[33] Motion Picture Distributors Association of Australia, Submission CI 2513.