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The Symposium on Archival Rights in Jerusalem
Hoos Blotkamp
In Los Angeles it was decided to dedicate the symposium during the next
FIAF congress in Jerusalem to the legal problems of film archives, and a
working group was installed to prepare it. Since part two of my discussion
paper on the future of FIAF dealt with these problems, I was appointed chairman
of the "archival rights" symposium group, which currently has
two other members, Gabrielle Claes and Steve Ricci, and one advisory member,
Clyde Jeavons. The following presentation is the second part of my discussion
paper, which bears on the issues of "archival rights."
Legal Problems of Audiovisual Archives - A Summary
The legal problems facing audiovisual archives are manifold, and differ
substantially from country to country. Nevertheless, it's perfectly possible
to describe and catalog these problems, and to generalize our experiences.
This review of rights issues is intended as background for the symposium
in Jerusalem. Understanding the issues will help us to answer important
questions concerning the best strategy for approaching the rights situation
and for crafting a common strategy through FIAF. I'll begin with an inventory
of problems, which are linked to the various activities of the archives,
and then I'll review the strategy-problem.
Acquisition
The issue of the origin and provenance of films in the archive touches on
copyright legislation as well as criminal law. Significant parts of our
film collections have found their way to the vaults of the archives through
collectors who "acquired" films through non-official methods.
Sometimes these collectors are in fact the founding directors of some of
our archives. In theory, before the time when archives and producers/distributors
established regular deposit agreements, it was difficult to obtain film
copies through normal, legally sanctioned channels. Often, after films ended
their theatrical distribution, there were only two legal possibilities:
either the films were destroyed (or so seriously damaged that further use
became impossible), or they were returned to the original producers. These
producers either kept the prints or destroyed them.
Some of these prints undoubtedly came to the archives through extra-legal
activities. In some of these situations, the archives may technically be
considered as accessories to the theft of a film, depending on the nature
of the transfer and on how long a "stolen" film has been in the
archive. Fortunately, most countries have a reasonable statute of limitations
which applies, although this period differs from country to country. The
estimate of my group of specialist advisers is that the archives, especially
those who have been able to establish regular and legal contracts with producers
and owners of film properties, are not in great jeopardy, but we can't exclude
the possibility that an original producer may lay claim to material in an
archive on the basis of criminal provenance.
In a number of countries (including Holland) permission of the copyright
owner is required to incorporate a film or other audiovisual product into
a public collection. And certainly, in the older parts of the collections
this permission has generally not been solicited or received. In the case
of these situations, there's not much liability on the part of the archive
until the archive actually starts to do something with the material (preservation,
exhibition, etc.). Nevertheless, it is important to be aware of such problems
(especially of the second problem) because they bear significantly on our
ability as archives to fulfil our historical function, which is to say our
freedom to collect what we judge important to save for future generations.
The problem of legal deposit is of a totally different nature. Whereas the
former problems are a consequence of existing legislation and the early
developmental history of archives, the concept of legal deposit (which mandates
the placement of a film in an appropriate archive) is non-existent in most
countries. The absence of legal deposit legislation makes archival relations
with producers, distributors and owners more difficult and complicated.
It is not clear that legal deposit legislation is the answer to collection
development in all cases. We know that in Holland, for example, legislation
of this kind will not be implemented (efforts to do so for books failed
in the past). And if legal deposit isn't an available solution, the next
question is how to create a situation that roughly has the same effect.
It should be noted that it is relatively easy, even without anything as
heavy as legislation, to establish an obligatory deposit of films that are
produced with government subsidies. The more difficult part of this non-legislative
solution is acquisition of independent and foreign productions which are
not tied to the subsidy process of a nation or region.
Preservation
Here we are dealing with one of the essential principles of copyright law.
Although the purpose of duplication for preservation purposes seems noble
and definitely in the interest of the copyright owner, copying for preservation
purposes without permission of the copyright owner is forbidden in all countries
where copyright legislation exists. The Dutch variant states explicitly
that copying without permission is an offense, whatever the purpose. One
of the few known exceptions to this rule is the Library of Congress, and
their exemption is highly conditional. In many variants of copyright law,
an exception is made for copies for personal or research use, but such provisions
do not necessarily give us adequate license to protect and make the film
accessible, even in the ways we consider minimally effective. Sometimes,
government subsidy for the archives' preservation work comes into conflict
with copyright law. The entire process is complicated by copying for third
parties. What is needed is a modification of the existing legislation in
every country to legalize our preservation work in order for archives to
continue their efforts in a methodical fashion. In short, legislation is
required that frees archives from the requirement to seek permission of
the copyright owners. There are many good reasons for wanting preservation
work to be independent of that permission.
Preservation in an archival sense often means much more than just copying
films as they were found. In many cases it is necessary to restore a film
from many sources. When the film is finally duplicated and a new preservation
negative is created, the resulting film may be very different from the various
sources used to make the complete restoration, and possibly different from
the original release version as well. The issues surrounding archival restoration
extend into the realm of droit au respect (which I will refer to
henceforth as "moral rights"). Whereas the right to exploit films
are transferable, the moral rights of the author are very much attached
to the creator of the film. Accordingly, there is a general proscription
against alterations to the original film, but in practice and with the best
intentions, archives do, for reasons of necessity, contingency and sometimes
convenience, alter films. Archives have shown (and even copied) color films
in black and white. However, our reactions tend to be much stronger when
broadcasters do the same, or when they invert this process and colorize
black and white films. Nevertheless, it amounts to the same basic "offense"
to the moral rights of the artist.
In the case of restoration or reconstruction, the archivist is often not
sure about the exact original editing. Occasionally, missing parts are replaced
by explanatory titles, and the general archival practice seems to favor
duplication of deteriorated sections of film rather than cutting such sections
out, even though such sections do not reflect the original intention of
the film makers. Similarly, we are often compelled to preserve incomplete
films, because that may be all that remains of titles we consider significant.
And although such measures are, at least in archival practice, responses
to the contingent state in which such films have survived, we frequently
find ourselves in situations where we present films that are not equal to
the original creations, situations wherein we could be considered to be
in violation of the moral right of the author.
This problem is of a slightly academic nature, and we don't know of a case
of a protesting author just yet, but we must be aware of the possibility
and sensitive to the multiplicity of moral issues implicated in preservation
practice. The balance of opinion suggests that in most cases, archives would
prevail in a legal argument over such alterations (depending of course,
on what specifically has been done to restore a film) on the basis of the
principle of reasonableness, but there is no legal precedent on which to
base such an opinion.
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Public Access
Generally, "one-on-one" consultation in the context of research
access is not considered infringement in terms of copyright law. Affording
individual access to film material is not equivalent to making the material
public under copyright law, and copyright poses no particular problem to
this form of access, even without permission of the copyright owner. However,
as soon as film materials are duplicated (for instance, making video copies
available to individuals outside our premises) archives do run the risk
of infringement under most forms of copyright. New legislation in Europe
permits the lending of duplicate material for research purposes; also, there
is now somewhat more liberty to give broader public access as long as a
reasonable fee is paid to the copyright owner and the archive doesn't profit
financially from the transaction. The issue of profit, which I'll come back
to, is extremely important to the transaction.
As soon as we go public with our films, that is, when we show them to more
than one person at a time, we enter a legal danger zone because screening
for a public audience, even a select one, is considered exploitation whether
or not we charge admission fees, and such exploitation requires the permission
of the copyright owner, under terms that they may impose, such as high rental
fees or other impediments to archival programming. Some archives still manage
to escape the law on this point by working with memberships so as to suggest
a non-public screening. Most legal advisors agree that, at least in Europe,
such an arrangement would not withstand a legal challenge.
Although the initial implication of this situation seems to be the material
one (the costly burden of rental fees), there is actually a more serious
consequence in that copyright owners can determine de facto what archives
show and don't show. So the control of exhibition that is granted to the
rights holder on the basis of property law actually undermines the more
profound tenets of freedom of speech and information, and shapes to some
extent the intellectual and moral context of the public presentation of
the archives. This situation is at least as undesirable as the rights holder's
ability to insist on fees for screenings at archives.
As noted above, the latest European copyright legislation deals with the
"mays and may nots" of making film material available to third
parties. This is very important to archives, which may wish to exchange
film materials for collection, preservation and programming purposes as
much as it is significant to individuals or companies that wish to own personal
or research copies of films. In general, in Europe, archives are allowed
to make film materials available to third parties on a non-profit basis,
but the user has to pay proper fees to the copyright owner if demanded.
In cases other than inter-archival exchanges, archives can shift the burden
of fees and consents to the third party user, so the problem is not such
a pressing one. It seems perfectly reasonable that an archive should charge
a handling fee (most of us apparently don't do this yet) in the case of
materials provided for colleague archives.
Exploitation
All of the problems mentioned above relate to normal, quotidian archival
practice, the work we do within the context of our own particular mission.
This mission is idealistic and non-profitable by nature, so up until now
we have generally managed to avoid serious problems with copyright owners
and other rights holders. However, when it comes to actual exploitation
by the archives themselves, or to the provision of film material to third
parties for commercial purposes in the widest sense, we can't expect any
tolerance from copyright owners.
In fact, when the preserved material happens to be unique and is owned by
an archive, the situation can become very complex. At first sight, it may
appear that a third-party access transaction should simply be referred to
the owner of copyright, so that the third party and copyright owner can
work out the financial details to their mutual satisfaction and benefit.
But this scenario ignores the substantial investment of public resources
(through direct government subsidy, state and local support, public and
private grants and gifts, including the original film gift) involved in
the collection, documentation, preservation and restoration of the film.
Without the work of the archive, and the expenditures of public resources
by the archive, the arrangement between the third party user and copyright
owner would not be possible. Thus, it is reasonable that some revenue be
returned to the archive from the private sector as compensation. We also
need to keep principles of fairness in mind in allowing equal access to
all private sector users, although we cannot control the rights holders
in this respect except perhaps by moral suasion.
Especially when it comes to the use of material for television or large-scale
distribution by software producers, this aspect becomes significant, because
the amount of revenue involved is substantial. If as a general principle
it was accepted that in case of commercial use of film material the archive
would also be entitled to a piece of the cake, these access arrangements
could provide a revenue stream that could in part compensate for the loss
of subsidy from the public sector which seems to be a more or less general
trend. Such an income stream could be used to support underfunded archival
activities ranging from preservation to digitization of the collection to
permit broader scholarly access. Such an arrangement would have to involve
the archive, the rights holder and the third party user. These third-party
access transactions are based on copyright and other laws, but in fact the
actual relations between archives, rights holders and third-party users
is not normalized by specific regulations or standards. It might be a reasonable
goal for FIAF to develop a model of such an arrangement that could be collectively
adopted.
Copyright legislation had its origins in the desire to guarantee the moral
and material rights of "creators." As copyright developed into
a part of the formal legal system, the emphasis has shifted to protection
of property rights, in our case, the rights of the parties who invested
money in the production and distribution of films. For instance, up to 1985
in Holland the copyright owner of a film was defined according to law as
everyone who had made an artistic contribution to the film. This could include
almost any member of the crew. In 1985, this was changed, "for convenience",
in favor of the producer, so that the law now presumes that the producer
is the copyright owner of the film unless written agreements prove differently.
In the case of unique material preserved and restored by archives, we could
argue that time has given the film a second "producer": the archive
that invested resources in the (re) production of the film. Perhaps FIAF
archives should also seek formal legal recognition for the public resources
invested in a film. Most archives find themselves to a greater or lesser
extent dependent on relations with producers and distributors. Most of us
dread entanglements with the copyright owners because we require their goodwill
for acquisitions, preservation and screenings. It's time for the work of
the audiovisual archives to be legally recognized in a way that allows us
to free ourselves from the restrictions imposed upon us by the private sector.
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How FIAF can resolve these problems
Talk of legal matters has long been suppressed in FIAF, and when we have
gotten into this area, the discussion has been dominated by the issue of
legal deposit. But legal deposit legislation is not the most important issue
before us. It's not clear that a situation in which the archives were legally
compelled to absorb and conserve all national audiovisual production (and
perhaps imported productions as well) would be tenable or desirable. Such
a mandate could quickly crush us. The focus of our attention should be on
the creation of broader legal lattitude for the archives concerning acquisition,
and we need something on the order of an archival "bill of rights"
in this respect.
When some seven years ago, as a newcomer in FIAF, I asked my colleagues
whether legal problems were discussed, the answer was negative. Widely different
laws and social systems were adduced as arguments against a unitary FIAF
policy, and every archive was left to fend for itself. This attitude was
understandable in the past, but FIAF can't afford to maintain this position.
Not only is the geopolitical moment right for a generalized solution to
these problems, but insofar as the media sector is increasingly active,
none of us are going to be able to avoid the contradictions and difficulties
imposed on us by the current arrangements for acquisition and subsequent
access. While it may be true that FIAF cannot influence legislation country
by country, individual FIAF members may be able to do so, especially if
they are guided by general ideas and principles that we could agree upon
collectively.
Copyright and the archives
Some countries have legislation that expresses a general obligation to safeguard
the nation's cultural heritage for future generations, but it's exceptional
that such provisos explicitly include film or other audiovisual media. Each
FIAF archive should begin by reviewing the relevant legislation in order
to understand what changes need to be requested. Because of geopolitical
changes, the massive expansion of the media sector of the world economy
and the technological changes currently transforming this sector, copyright
and other forms of legislation that affect the media are in various stages
of development and revision in most countries. Unless the FIAF archives
become actively involved in shaping this legislation, our interests have
no chance of being served.
In terms of copyright legislation, the world can be roughly divided into
three parts: the region that uses American-style copyright law, the region
that relies on the Berne Convention and has now begun to implement some
European-style copyright legislation, and those regions where copyright
law is either absent or exists in an extremely undeveloped state. Beyond
this, we may presume that each archive has further detailed knowledge of
relevant national legislation. And this is enough of a background for FIAF
to clearly describe, in general terms and ordinary language, what kind of
regulations the archives need. All the archives in the world should approach
their governments with the same basic document containing clearly articulated
principles and a framework for the establishment of the legal provisions
adequate to address the current dilemmas. Such a document should be crafted
so that lawyers and political officers can easily apply FIAF proposals to
the relevant articles in the national laws.
The exact nature of the legal provisions that we seek must be derived from
the mission of the archives. For this exercise, I'll stick to what I described
as the main role of the archives (see Part One of my discussion paper) and
extract what I believe to be the relevant principles from that mission:
the broad cultural responsibility to present and future generations for
the conservation (collection, preservation and restoration) and access (documentation,
research access, exhibition and licensing) to the specific heritage of the
motion picture (and other audiovisual media). The expansion of our legal
franchise as cultural agencies should be crafted to support the key aspects
of this mission.
Freedom
The most basic thing that we need in order to be able to safeguard and show
what we find important as cultural phenomena is a certain freedom: freedom
to choose from all of the media products distributed those items that we
believe have cultural significance, freedom to duplicate for preservation
and research purposes, and, under certain conditions, freedom to screen
any of our archival holdings on our own premises, without the permission
of rights holders, distributors, and without paying a rental or charging
fees. We need to alleviate some ancillary restrictions such as the period
that has to be respected between the production or release date of a film
and the use of the film in archival programs, the definitions of "non-profit"
and the regulations concerning use of archive materials which have been
conserved using public resources, and archival obligations to the copyright
holder.
If these "archival rights" were built into our national laws,
the most egregious inadequacies in the existing situation would be eliminated.
It's my belief that legal incorporation of these freedoms for the audiovisual
archives is primarily a matter of adapting existing legislation rather than
creating new laws. Existing laws already have a number of exceptions, and
that's exactly what we want to be: culturally-sanctioned exceptions.
Co-Copyright
In order to avoid the perennial problems with original producers, the status
of "co-copyright owner" should be extended to the archives that
expend public resources in the conservation of unique material. This would
be something of a novelty, but it could be arranged by a relatively small
modification of the existing laws (for instance by a modification of the
legal definition of the term "producer"). On a national level
it's also possible to arrange this by agreement between the archive, the
government and the national agencies responsible for film, although such
an arrangement may not be as easily extended to productions of foreign origin.
Legal Deposit
The ultimate aim of legal deposit is to enable archives to collect, preserve
and exhibit what they choose without permission and without paying copyright
holders or distributors. If legal deposit can't be achieved on these terms,
archives should try to put in place systems of registration of national
audiovisual productions and circulating foreign productions for public exhibition,
so that such works can be tracked and pursued by means of bilateral agreements
with producers and distributors.
The meaning of "non-profit"
Apart from the archival freedoms, "non-profit" is a vital concept
for archives. The word helps to clarify and legitimate the cultural mission
of the archive, and to signal our partners in the private sector that we
are not going to assume a competitive position or do anything that will
be deleterious to their rightful commercial interests. Unfortunately, the
notion of "non-profit" has come to mean that no matter who else
may receive revenue from use of our preserved film materials, the archive
should never receive a penny. In the new era of reduced national government,
privatization and self-reliance for cultural agencies, if archives are to
survive, they will have to participate in some revenue generating activities
that have been forbidden in the past, such as charging for services and
screenings, and collecting access and license fees for material that has
been preserved in the archive. Such revenues only become profit if their
sum exceeds archival expenses and the surplus is not re-invested in the
work of the archive. In Holland, for instance, being a foundation automatically
implies that one's purpose is not for profit. Archives everywhere need to
work on legislative definitions of "non-profit" that permit the
collection of revenue so long as that revenue is reinvested in the public
trust in the form of archival programs.
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The Symposium on Archival Rights in Jerusalem
The Jerusalem Symposium is not only concerned with issues of legal deposit
(which was the subject two years ago in Bologna), but about all the legal
aspects mentioned above. Our working group is attempting to arrange the
Symposium in a way that will provide information as well as the opportunity
to comment on the subject. If all goes as planned, legal specialists will
be present to participate and answer questions as well. One of the objectives
of the Symposium will be to lay the foundation for a FIAF document, an "archival
bill of rights" which will present the general principles and specific
administrative, legal and financial provisions we seek in order to be able
to fulfil our cultural mission in the contemporary world. Each FIAF archive
should be able to use this document as a guide in working with relevant
government authorities to emplace those legal provisions we collectively
regard as necessary and desirable to further development of the film archive
movement.
Il a été décidé à Los Angeles
que le symposium de Jérusalem serait consacré aux questions
légales qui se posent dans les archives. L'organisation du symposium
(de deux jours) a été confiée à un groupe de
travail dirigé par Hoos Blotkamp.
Le présent document, deuxième partie du document de discussion
élaboré par Hoos Blotlkamp, énumère les principales
activités concernées par les questions de droit en vue de
faciliter la définition, en fin d'exercice, d'une stratégie
commune de "droits des archives" pour la FIAF.
L'acquisition (provenance) des films touche à des questions
de droit allant du simple droit d'auteur jusqu'au droit pénal, en
passant par des accords entre les producteurs, les distributeurs et les
archives, le dépôt légal, le dépôt volontaire,
etc.
La préservation pose le problème de la dérogation
aux législations sur le copyright ou du moins celui de l'obligation
des archives de demander l'autorisation de dupliquer à des fins de
préservation ou de restauration.
L'accès du public aux films déposés dans les archives
touche à des questions d'importance pour les échanges de films
entre cinémathèques et la mise à disposition de films
à des tiers.
L'exploitation pose le problème de l'application des copyrights
sans tenir compte des investissements de ressources publiques (subventions,
dons de tout genre, y compris du film lui-même, etc.), les efforts
de documentation, préservation et restauration des films. Ce problème
est encore plus complexe lorsqu'il s'agit de faire bénéficier
l'ayant-droit d'un contact avec une tierce partie disposée à
payer des sommes importantes (T.V., producteurs, etc.)...
Comment faire face à ces problèmes en tant que FIAF? Jusqu'à
il y a quelques années, les contradictions concernant les aspects
légaux de notre activité ont été pudiquement
ignorées. Ceci n'est plus possible aujourd'hui. Les relations entre
l'industrie et les archives ont évolué. Il s'agit, en définitive,
de créer une marge de manoeuvre plus large concernant l'acquisition,
une sorte de "charte des droits".
D'une manière générale, nos besoins peuvent être
résumés en une seule formule: liberté d'action. Il
s'agirait de regagner une certaine liberté de choisir parmi les produits
des medias ceux qui nous semblent garder un intérêt culturel;
liberté de reproduire des oeuvres à des fins de préservation
et de recherche; liberté de montrer n'importe quel élément
de nos collections à l'intérieur de nos locaux, sans devoir
solliciter la permission des ayants droit et sans devoir payer des locations
ou des redevances. Nous souhaitons bénéficier d'un statut
que certaines législations prévoient déjà: celui
de l'exception culturelle.
D'autres instruments permettant de mener à bien notre mission devraient
être envisagés ou réaménagés, tels que:
la notion de co-ayant droit appliquée aux archives, le dépôt
légal en tant que moyen de permettre aux archives de collectionner,
préserver et montrer des films sans dépendre des ayants droit,
la précision de la notion "à but non lucratif" appliquée
aux archives et cinémathèques dans le sens d'une participation
de celles-ci aux revenus générés par l'investissement
public.
Le symposium de Jérusalem sur les "droits des archives"
aura pour but la rédaction d'une "charte des droits des archives"
énonçant les principes généraux ainsi que des
dispositions administratives, légales et financières permettant
aux archives et cinémathèques de remplir leur mission dans
le monde contemporain.
En Los Angeles se resolvió dedicar el Simposio de Jerusalén
a los derechos de los archivos de cine. La organización del simposio
(cuya duración será de 2 días) fué confiada
a un grupo de trabajo dirigido por Hoos Blotkamp. Este documento, segunda
parte del papel destinado a la discusión, elaborado por Hoos Blotkamp,
enumera las principales actividades vinculadas a aspectos jurídicos
con el fin de facilitar, al final del ejercicio, la definición de
una estrategia común de los "derechos de los archivos"
para la FIAF en su conjunto.
La adquisición/proveniencia de películas toca aspectos que
van de simples discusiones de derechos de autor hasta cuestiones penales,
pasando por acuerdos entre productores/distribuidores y archivos, depósito
legal o voluntario, etc.
La preservación plantea el problema de la derogación de la
legislación sobre el copyright o, al menos, el de la obligación
de los achivos de solicitar autorizaciones de duplicación de películas
con fines de preservación o de restauración.
El acceso del público a películas depositadas en los archivos
afecta a los intercambios entre archivos y el préstamo a terceros.
La explotación plantea problemas de aplicación de copyrights
sin tener en cuenta la inversión de recursos públicos (subvenciones,
donaciones de todo tipo, inclusive de la misma película, etc.), los
esfuerzos de documentación, de preservación y restauración
de películas, etc. Este problema es aún más complejo
cuando se trata de favorecer los contactos de un derecho-habiente con terceros
dispuestos a pagar sumas importantes (TV, productores, etc.)...
El autor se pregunta ¿cómo responder a estos problemas desde
la FIAF? Hasta hace algunos años, las contradicciones relativas
a la situación jurídica fueron púdicamente evitados.
Esto ya no es posible: las relaciones entre la industyria y los archivos
han evolucionado.
Se trata en definitiva, de crear un espacio de maniobra más amplio
en lo que se refiere a la adquisición de películas, una especie
de "carta de derechos de los archivos".
De manera general, nuestras necesidades pueden ser resumidas en una sola
fórmula: libertad de acción. Se trataría de recuperar
una cierta libertad de elegir entre los productos audiovisuales, aquellos
que nos parecen conservar un interés cultural, libertad de reproducir
cualquier elemento de nuestra colección sin deber solicitar el permiso
de los derecho-habientes y sin deber pagar ningún tipo de renta.
En definitiva, reclamamos un estatuto que algunas legislaciones ya conocen:
el de la excepción cultural.
Asimismo deberían ser considerados otros instrumentos que permitan
llevar a cabo nuestra misión, tales como la noción de co-detentor
de derechos aplicada a los archivos, el depósito legal como medio
de coleccionar, preservar y mostrar películas sin depender de los
productores, la adaptación de la noción de "sin fines
de lucro" aplicada a los archivos y cinematecas en el sentido de una
participación de éstos a los ingresos generados por la inversión
pública.
El Simposio de Jerusalén sobre los "derechos de los archivos"
tieno por objetivo la redacción de una "carta de los derechos
de los archivos" que defina los principios generales y las disposiciones
administrativas, legales y financieras que permitan a los archivos y cinematecas
de cumplir con su misión en el mundo contemporáneo.