Council of Europe Treaty Series - Explanatory Reports
The text of this explanatory report does not constitute an instrument providing an authoritative interpretation of the Convention, although it might be of such a nature as to facilitate the application of the provisions contained therein. This Convention has been opened for signature in Strasbourg, on 8 November 2001, on the occasion of the 109th Session of the Committee of Ministers of the Council of Europe.
CHAPTER I Introduction
Article 1 Aim of the Convention
1. The European audiovisual heritage is a relatively recent concept, and the commemoration of the centenary of the cinema has unquestionably increased awareness of the vulnerability of this heritage, which is both an essential component of contemporary culture, and also a witness to history. In this respect, during its first hundred years, the cinema recorded all the events of importance for Europe, such as the industrial revolution, wars or major scientific discoveries, and since the emergence of television there has been constant growth in audiovisual production. Unfortunately, a large part of this heritage has been lost forever because people were slow to consider films as museum pieces, worth protecting and restoring. It has also been known for some years now that it does not suffice to collect films, but that steps must be taken to preserve them: innumerable masterpieces have been irrevocably lost because of decomposing nitrate films, on which the pictures grow paler and paler and, in the end, vanish altogether, if the films themselves have not caught fire beforehand; or films made of triacetate, which came into general use in the fifties and raised great expectations until it was discovered that this material too was prone to slow, irreversible decomposition, giving off a smell of acetic acid. Modern film bases no longer contain cellulose and are thus safe from the "vinegar syndrome", but they nevertheless have a number of disadvantages, including the need for good storage conditions. Nevertheless, long-term conservation of digital documents cannot be ensured for more than ten years for the time being, and eternal storage remains to be defined.
2. Today the audiovisual heritage concerns not only the cinema but also television, video and, increasingly, multimedia and interactive products as well as any products yet to come as the new technologies continue to develop. It is this vast area that must be protected, and for that reason the principles enshrined in the Convention apply to all moving images. Hardly any reference is therefore made to specific media, in order to ensure that the Convention will be applicable to any new form of audiovisual expression. However, the modalities of application relating to legal deposit of moving image material other than cinematographic works will be specified in Protocols drawn up in accordance with Article 18, paragraph 1 of this Convention. For example, the first Protocol will concern protection of television productions.
3. On the other hand, neither sound nor still images are covered by the Convention, as their protection is ensured by other texts.
4. The Convention is consistent with the Council of Europe's logic in matters of cultural co-operation. From its outset, promotion of Europe's film industry was a key ingredient, as is borne out by the Recommendation on Cinema and the State (1979), the Recommendation on the Conservation of the European Film Heritage (1985), the Resolution on European Cinema and Television Year (1987), the Recommendation on Film Distribution in Europe (1987), the Resolution setting up the Eurimages Fund (1988) and the Recommendation on Cinema for Children and Adolescents (1990). This Convention is the missing link, since in most member states the audiovisual heritage is safeguarded solely through voluntary deposits. Yet, when deciding to make a deposit, how can one distinguish between what is important and what is subordinate? Permitting a choice between what is worth preserving and what should be disregarded has very adverse consequences for the heritage, leaving it bereft of works that future generations may rightly blame us for having allowed to sink into oblivion.
5. It was all the more necessary to heighten governments' awareness of this issue in that the European heritage henceforth encompasses that of greater Europe, and the states which have recently joined the Council of Europe also have an extensive heritage that must be protected rather than being left in danger through failure to take immediate action.
6. Legal deposit is the only means of changing the situation. Any new moving image material must be deposited to guarantee that a reference copy of it exists, which is the only way in which it can be effectively protected. Legal deposit means not only the requirement that a reference copy be deposited, but also that of ensuring its preservation, which may entail restoration work.
7. In addition, moving image material should be made available for study for cultural, scientific and research purposes. Indeed, moving image material preserved in this way represents future generations memory of the past. It must therefore continue to be available to interested Parties; both as educational and cultural material depicting changes in society and history and as working documents for consultation by researchers.
8. Although it is for each Party to establish a system of legal deposit of moving image material on its territory, it should be pointed out that this obligation relates exclusively to moving image material produced subsequent to the entry into force of the Convention and to domestic production, and not to other images which are merely distributed or broadcast within a country. The aim of these provisions is to reduce the volume of material to be deposited, and therefore the cost.
9. However, as the aim of the Convention is to preserve all moving image material, it also introduces the principle of voluntary deposit for, for example, foreign productions and moving image material produced prior to the entry into force of the Convention.
10. These provisions relating to the protection of the audiovisual heritage are to be implemented in the public interest. In other words, by converse implication, they disregard any considerations of a purely individual or commercial nature.
11. The principles of legal deposit are set out in Chapter II of the Convention; those for voluntary deposit are to be found in Chapter III.
Article 2 Definitions
a. "moving image material"
12. The definition of "moving image material" is based on the recommendation adopted by UNESCO at its twenty-first session on 27 October 1980:
"moving images means any series of images recorded on a support (irrespective of the method of recording or of the nature of the support, such as film, tape or disc, used in their initial or subsequent fixation), with or without accompanying sound, which when projected impart an impression of motion and which are intended for communication or distribution to the public or are made for documentation purposes; they shall be taken to include inter alia items in the following categories:
a. cinematographic productions (such as feature films, short films, popular science films, newsreels and documentaries, animated and educational films);
b. television productions made by or for broadcasting organisations;
c. videographic productions (contained in videograms) other than those referred to under (a) and (b) above;"
13. Despite the changes, particularly of a technological nature, that have taken place in the meantime, the term "moving image material" remains valid both in practice and in substance. Criteria concerning "moving image material" are deliberately not defined, so as to allow for technological developments (e.g. video-discs, CD-Roms and other forms of media carrying digital images, etc.) and thereby ensure that the Convention remains applicable.
b. "cinematographic work"
14. The term "cinematographic work" as defined in an earlier Council of Europe convention, the European Convention on Cinematographic Co-production (2nd October 1992, ETS 147), was the basis for the definition used in Article 2.b of this Convention.
c. "archive body"
d. "voluntary deposit body"
15. The Convention distinguishes between bodies receiving legal deposits and those receiving voluntary deposits. The two notions have been introduced into the Convention in order to make a distinction between these bodies which have different functions. With regard to archive bodies, emphasis is placed on the essential need to protect all moving image material forming part of the audiovisual heritage, the aim being to guarantee the existence of at least one copy, and it is in this respect that such archive bodies can be likened to a form of safe deposit. Voluntary deposit bodies might be more concerned with promoting moving image material for cultural purposes, as can be seen from the activities of film libraries (cinémathèques). On condition that this distinction is retained, Parties may decide to bring together the two bodies in a single structure (see Articles 13 and 14 of the Convention). Similarly, Parties which have introduced the term "depository" body or entity designated by a Party, in their legislation may keep these terms to designate archive bodies.
Article 3 Scope of application
16. As from the entry into force of the Convention, each Party is under the obligation to have a system of legal deposit covering all cinematographic works. A sampling system cannot be applied to them. Cinematographic works are an essential component of our cultural heritage and therefore necessitate full protection.
17. The Convention does not determine modalities of the legal deposit for moving image material other than cinematographic works. Due to the diversity and sheer volume of television productions, for example, it is necessary to draw up protocols which define the conditions and practical modalities of these categories of moving image material. The protocols will take into account the specificity of each of the different categories of moving image material and technological advances. Parties will be required to extend the legal deposit to other moving image material, as prescribed by protocols drawn up in accordance with Article 18, paragraph 1 of this Convention, as soon as they have become parties to these protocols.
Article 4 Copyright and neighbouring rights
18. The Convention explicitly states that its obligations in no way affect the provisions in international treaties concerning the protection of copyright and neighbouring rights. (1) The Preamble of the Convention makes reference to the international treaties in force and a "non-prejudice clause" has been inserted under Article 4. The formulation of the provisions under Article 4 follows closely the corresponding non-prejudice clause in the most important neighbouring rights treaties. The central copyright treaty is the Berne Convention for the Protection of Literary and Artistic Works, which was last revised in Paris in 1971. As regards the protection of neighbouring rights, the basic treaty is the Rome Convention, which provides for a protection of performers, producers of phonograms and broadcasting organisations. The system of protection established by these conventions has been complemented by several international and regional treaties on different aspects of copyright and neighbouring rights. All Member States of the Council of Europe have acceded to one or several treaties in this field.
19. All deposited moving image material is protected by copyright and often also by one or several neighbouring rights. Authors, performers and producers of phonograms have a right of reproduction and a right of distribution of protected material, and authors enjoy, in addition, the right of public performance and the right of broadcasting. In connection with the production process, producers of cinematographic works and television productions acquire the necessary rights, by contracts, from authors, performers and possibly also from phonogram producers. In several countries, copyright legislation provides for the presumed transfer of rights concerning cinematographic productions from authors to producers. Under recent legislation of the European Community, producers of first fixations of films also have a neighbouring right of their own.
20. The transfer of the possession of the material in the context of the deposit does not imply the transfer of any rights of use relating to the deposited material to the archive or deposit body. In particular, it does not imply the transfer of copyright and neighbouring rights. Nor is the ownership of the material transferred without a contractual stipulation between the depositor and the recipient of the deposit. The necessary rights to copy and otherwise use the deposited material should thus be organised in one way or another, in order to make it possible to use the material for the very purposes of the deposit.
21. There are two methods of organising the necessary rights to use the material:
by (voluntary) contractual arrangements between the parties, and
by specific clauses regulating the matter on the level of legislation, limiting to some degree the rights of the right holders.
22. Contractual arrangements and licensing are generally the basic methods of organising copyright. There are three ways to acquire rights contractually, namely by contract from the depositor, from the original right holders and from a copyright management organisation.
Firstly, the depositor of the material is often the producer and at the same time also the right holder, or one of the right holders. In a deposit situation, there is a direct contact between the depositor and the archive body, which makes it possible to agree on how the material can be used. The rights not held by the depositor must be cleared separately.
Secondly, the original right holders are in fact always primarily able to agree on the rights to use the material.
Thirdly, in many areas of copyright there are rights management organisations which are authorised by the right holders to grant the right of use. Music is typically an area where the rights must be cleared with the copyright management organisations. Collective management of rights has been on the increase and has evolved rapidly in recent decades, currently using sophisticated methods based on information networks.
23. The rights relating to the use of deposited materials can also be stipulated in national legislation, which can provide for certain uses in archive bodies without specific licences and compensation. It can also provide for arrangements which facilitate the clearing of rights. The limitation of rights typically concerns copying necessary for restoring and preserving the material. This kind of activity benefits all the parties and does not affect the right holders' economic rights. The law can also allow some forms of non-commercial use, such as screening on the archive premises or use for educational and research purposes. When providing any limitation of rights, care must be taken that they are always in conformity with the provisions and criteria for limitations of rights in the international treaties and, when relevant, with the law of the European Community. As regards the material where it is impossible to identify the right holders or they cannot be reached by any effort, the archive bodies may take any appropriate measures which could settle this question through the support of professional third parties, such as producers, collecting societies or other collective management organisations, and, when appropriate, in the framework of national legislation.
24. Whenever an archive body uses the deposited material for purposes which are not directly allowed by law, it must obtain authorisation from the rights holders. When the archive body hands over material for use by third parties, for instance by delivering films for public screening or parts of deposited films for use as inserts in films or television programmes, it is essential to require that the user acquires the necessary rights from the right holders or their representatives. The archive body must naturally make sure that it has the right to deliver the material or parts of it to third parties.
25. It is to be recommended that archive bodies and voluntary deposit bodies develop practices for clearing and ensuring the right of use, also developing necessary expertise needed for this purpose, in co-operation with the professionals authors, producers and other right holders and their organisations.
CHAPTER II Legal Deposit
Article 5 General obligation of legal deposit
26. The obligation to deposit moving image material will be introduced through legislation or other means in accordance with the arrangements defined in this article.
27. In principle, legal deposit should be mandatory and exhaustive if it is to fulfil its function of preservation and restoration of all moving image material produced or co-produced and forming part of the audiovisual heritage. The term moving image material "produced" means all images created by professionals and intended for a market and thus excludes amateur images (family films, holiday films, etc.). The term "forming part of their audiovisual heritage" denotes the Parties wish to decide for themselves what does or does not belong to this heritage. They shall ensure that their definition is neither arbitrary or discriminatory.
28. However, to avoid imposing an excessive financial burden, the Convention does not provide for any retrospective legal deposit obligation; however, works produced before the signature of this Convention may be covered by voluntary deposit. Similarly, only national productions are covered by the obligation of legal deposit. As defined in the European Convention on Cinematographic Co-production (2 October 1992), "national production" means moving image material, the producer or at least one of the co-producers of which has his or her company headquarters or habitual residence in the state concerned.
29. The practical details of the three obligations laid down collection, preservation and availability for scientific, cultural and research purposes will be regulated by the domestic law of each Party. This legislation should take all matters of public interest into account, subject to compliance with copyright and neighbouring rights.
30. Legal deposit covers moving image material intended to be shown in public. The intention of this wording is not to be too restrictive and to include within the scope of legal deposit any incomplete works or works not publicly distributed, in particular as a result of censorship.
31. The concept of co-production has been defined, inter alia, in the European Convention on Cinematographic Co-production of 2 October 1992. For example, in addition to agreements governing bilateral co-production relations, there are multilateral co-productions for works produced by at least three co-producers. Such co-productions are, moreover, likely to emanate from one or more Parties and one or more states not party to the Convention. One of the specific features of co-productions is a requirement for prior agreement between the competent authorities in the states concerned to enable them to grant reciprocally their nationality to the moving image material produced by each of the co-production partners. The film is said to have the nationality of the co-producers.
32. The principle of legal deposit is a general one, not subject to any restriction. Nevertheless, an exception to the general principle of legal deposit, on account of the large amount of image material involved and the ensuing cost, is envisaged in paragraph 2 of this Article. It concerns moving image material whose legal deposit is already ensured by another Party. This provision is not systematic and is left to the discretion of each Party.
33. As mentioned above, the Convention does not lay down any obligation with regard to non-domestic products. However, each Party remains free to extend the scope of the voluntary legal deposit arrangement and to decide, for instance, to accept deposits of moving image material distributed on its territory.
34. This principle is applicable to all provisions of the Convention, which merely sets the minimum standards to be observed.
Article 6 Designation and tasks of archive bodies
35. Legal deposits must be made with archive bodies designated by each Party. To accommodate the Parties' differing structures, for instance federal structures, each Party is free to designate one or more bodies.
36. As the material deposited is of considerable value, measures must be taken to protect it and to ensure that copyright and neighbouring rights are respected; in general, all forms of abuse must be avoided. For this reason, archive bodies must be independent organisations appointed in accordance with the public interest. It is difficult to see how public or private organisations with primarily profit-making motives could be entrusted with archiving functions. If profit-making were the main concern of an archive body, it would no longer be a public body.
37. In any event, it is for each Party to ensure the correct implementation of the tasks assigned to these bodies. This stipulation, which applies ipso jure for public bodies, was necessary in respect of private organisations fulfilling the role of archive body.
Article 7 Technical and financial means
38. This article expects the contracting Parties to ensure that the archive bodies provided for in the Convention have the necessary means for carrying out the functions of legal deposit, i.e. in particular the financial, material and technical resources needed to carry out their tasks. The choice of means is left to the Parties: all that matters is the obligation to comply with the Convention's requirements, regardless of whether bodies derive all or part of their financing from sources other than state funds.
Article 8 Conditions of legal deposit
39. The Convention's aim is to safeguard the audiovisual heritage in the long term, and this requires that material deposited should be of very high quality. It is for each Party to specify the nature of material to be deposited, such as inter-negatives or material from which a working copy may be produced. Moreover, to keep pace with technological developments, the Convention does not stipulate the nature of the media.
40. Where they see fit, the Parties may also settle the question of covering the cost of completing the material for deposit.
41. They may also provide, via legislation or any other appropriate means, for penalties to be imposed in the event of failure to comply with the legal deposit requirement.
42. A time-limit for deposits must be laid down to ensure that the Convention is effectively applied. Under the Convention this time-limit shall not exceed twelve months or other reasonable period specified by a Party. This time-limit begins when the final version is made available to the public.
Article 9 Restoration of deposited material
43. Proper preservation of moving image material necessitates regular restoration work, and this generally requires a copy to be made of material on deposit. As a rule, copies cannot be made without the right holder's permission. Such permission is sometimes difficult to obtain because of the problems frequently encountered in identifying right holders. Under Article 9 of the Berne Convention, Parties may include an exception in their national legislation, provided that such copying does not in any way hamper normal exploitation of the work or prejudice the rightowners legitimate interests. Also, moral rights must be respected. In accordance with the provisions of the Berne Convention, it is for each Party to provide for this exemption in its legislation.
44. It is for each Party to take the necessary measures to encourage the restoration of moving image material, the quality of which has deteriorated, which has been legally deposited in accordance with the terms of the Convention.
Article 10 Emergency measures
45. Such emergency measures are prescribed in order to respond to any circumstances where a private individual is in possession of moving image material exposed to an imminent danger and liable to be lost forever. The Parties may, for example, make it mandatory in their legislation for that individual to lend his or her copy for a limited duration to allow its reproduction by the archive body. Other circumstances necessitating action by public authorities may also arise; this applies in particular to moving image material which slip through the legal deposit net and to works not selected in the sampling process, but which subsequently prove to be of special interest from the audiovisual heritage point of view.
CHAPTER III Voluntary deposit
Article 11 Promotion of voluntary deposit
46. A Party's audiovisual heritage is not confined to domestic products alone: the cultural influence of other European countries and even of other continents should not be overlooked. Cultural interpenetration has become a common process, and there is no art form that does not draw its inspiration from world wide sources. It is therefore essential to supplement the mandatory legal deposit system with arrangements to encourage voluntary deposits covering any moving image material which is part of the audiovisual heritage of a State but does not qualify under the criteria of legal deposit under Article 5. The principles of voluntary deposit are also applicable to ancillary material. On the other hand, voluntary deposit does not entail an exemption from legal deposit. Although the bodies designated to receive legal deposits appear to be best positioned to take voluntary deposits as well, it is nevertheless for the Parties, where necessary, to designate any other bodies capable of fulfilling this function. Voluntary deposit also makes it possible to protect moving image material produced, prior to the entry into force of this Convention.
47. Voluntary deposit also covers ancillary material. This refers both to the technical material resulting from the production of moving images (shooting equipment, print items, projection copy etc) but also derived products associated with the dissemination and exploitation of these moving images (posters, publicity merchandise, etc). The term "print items" is taken to mean any moving image material medium comprising, for cinematographic films, a negative, inter-negative or inter-positive and for videograms, a matrix, such print items being used for obtaining copies. The term "projection copy" is taken to mean any moving image material medium intended for viewing and/or disseminating these images.
Article 12 Availability to the public
48. The right holder's contractual permission is encouraged under this Article. The aim of the contract referred to is to specify the conditions of use and availability under this Convention.
CHAPTER IV General provisions common to archive and voluntary deposit bodies
Article 13 Joint archives
49. This article makes provision for co-operation between Parties, especially in the event of specialisation of archive bodies.
50. Parties with a low output of moving image material may find that it is to their advantage to set up joint archive bodies responsible for either legal deposit or voluntary deposit, or for both.
51. For practical reasons, it may be useful to group together archive bodies and voluntary deposit bodies in a single institution. However, strict compliance with the respective tasks laid down by the Convention is imperative in order to avoid any confusion between the roles of each body.
Article 14 Co-operation between archive and voluntary deposit bodies
52. Protection of the European audiovisual heritage will not be possible without close co-operation between Parties and their archive and voluntary deposit bodies as well as between these bodies themselves. This article contains a non-exhaustive list of co-operation activities in areas of current concern, which are of importance for achieving the Convention's aims.
Article 15 Contractual terms of deposit
53. The legal or voluntary deposit of moving image material with archive or voluntary deposit bodies will imply a number of legal questions, such as "the liability for any damage of the deposited material, its temporary or permanent withdrawal from the deposit by the rights holders, and the compensation to be paid by the rights holders for its restoration or other services of the archive or voluntary deposit bodies". Article 15 therefore requires Parties to the Convention to encourage archive or voluntary deposit bodies to conclude contracts with the depositors specifying all rights and obligations with regard to the deposited moving image material.
54. Provisions concerning remuneration should also be laid down in a contract between voluntary deposit or archive bodies and right holders. The notion to be taken into account here is that of technical skill, which is at the basis of any restoration or enhancement of the heritage. Restoration is taken to mean any active intervention on a certain scale. There is thus every reason to demand payment not only of the costs incurred (financial expenses, time and effort, special or specific equipment), but also for the added value engendered by the application of know-how which will make commercial use possible. In short, remuneration should be balanced between, on the one hand, the investment and the know-how and, on the other, the commercial results obtained.
CHAPTER V Follow-up of the Convention
Article 16 Standing Committee
55. In order to take account of the specificity of and developments in technology in the audiovisual field, the diversity of the works and of the bodies responsible for protecting the heritage in this field, a Standing Committee will be made responsible for examining the follow-up to the Convention. This committee will in particular examine the operation and implementation of the Convention, as provided for by Article 17. It will be composed of representatives of the Parties to the Convention.
56. Because of the particular nature of the subject-matter of the Convention, it seemed appropriate that the Standing Committee should be able to seek the assistance of experts in carrying out its functions, as well as other observers sent by any international or national, governmental or non-governmental body, to attend the Standing Committee, and their capacity is defined in paragraph 6 of this Article.
Article 17 Functions and reports of the Standing Committee
57. Following an in-depth examination of the difficulties encountered by the Parties in the interpretation or application of the Convention, the Standing Committee may propose measures considered necessary to improve the protection of audiovisual heritage, in particular by making recommendations to the Parties, but also to the Committee of Ministers with a view to extending that protection to other States.
CHAPTER VI Protocols and amendments
Article 18 Protocols and amendments
58. This Convention lays down the basic principles of protection of the audiovisual heritage; the legal and technical modalities are left to be defined in specific fields, and in particular those relating to the applicability of legal deposit to moving image material other than cinematographic works.
59. Article 18 is aimed not only at proposals for protocols, but also at any proposals for amendments to such protocols and indeed amendments to the Convention itself, in so far as these appear necessary in the light of technological developments.
60. Protocols, amendments to protocols and amendments to the Convention must be examined by the Standing Committee in accordance with the provisions of Article 17, paragraph 1.b. Any protocols will be adopted by the Committee of Ministers according to its usual voting rules. The adoption of a treaty text requires a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee (Article 20.d of the Statute of the Council of Europe).
61. It was not considered necessary to provide in the Convention any modalities for the entry into force of protocols or amendments to protocols. These modalities will be fixed in each case, taking into account the object and purpose of the proposed texts.
62. The Convention requires that, in order to become a Party to a protocol, a state or the European Community must be a Party to the Convention. On the other hand, states or the European Community which have signed, ratified, accepted or approved the Convention will not be obliged to sign, ratify, accept or approve a protocol.
63. The Standing Committee will only be established when the Convention has come into force.
CHAPTER VII Final provisions
64. The final provisions of the Convention are based on the "model final clauses for conventions and agreements concluded within the Council of Europe" which were adopted by the Committee of Ministers in February 1982.
65. In accordance with Articles 19 and 22, the Convention is open for signature by member states of the Council of Europe, other states party to the European Cultural Convention, and the European Community; it is also open to accession by non-member states of the Council of Europe.
66. A clause concerning the relations between the Convention and Community law is also inserted in the Convention. It contains a formula used in other agreements and conventions of the Council of Europe.
67. The provision concerning territorial declarations (Article 23) is mainly aimed at overseas territories.
(1) The main international treaties on the protection of copyright and neighbouring rights currently in force are the Berne Convention for the Protection of Literary and Artistic Works (1886, the Paris Act, 1971), the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (1971) and the Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement, 1994). In addition, two treaties have been concluded under the auspices of WIPO, but they have not yet entered into force: the WIPO Copyright Treaty (1996) and the WIPO Performances and Phonograms Treaty (1996).
Within the framework of the Council of Europe two regional treaties on copyright and/or neighbouring rights have been concluded: the European Agreement for the Protection of Television Broadcasts (1960) and the European Convention relating to Questions on Copyright Law and Neighbouring Rights in the Framework of Transfrontier Broadcasting by Satellite (1994).