Doc. 8976

6 February 2001

Draft European Convention for the Protection of the Audiovisual Heritage and draft Protocol on the Protection of Television Productions to the draft European Convention for the Protection of the Audiovisual Heritage

Request for an opinion from the Committee of Ministers

Letter from the Chairman of the Ministers' Deputies to the President of the Parliamentary Assembly, dated 25 January 2001

Mr President,

      I have the honour to inform you that on 20 December 2000, the Committee of Ministers, at the 735th meeting of the Ministers' Deputies (item 7.2), agreed to consult the Parliamentary Assembly on the draft European Convention for the Protection of the Audiovisual Heritage and on the draft Protocol on the Protection of Television Productions to the European Convention for the Protection of the Audiovisual Heritage. The Deputies will resume consideration of these draft texts in the light of the opinion of the Parliamentary Assembly.

Signed:

Georgs Andrejevs

DRAFT EUROPEAN CONVENTION FOR THE

PROTECTION OF THE AUDIOVISUAL HERITAGE

Preamble

The member states of the Council of Europe, the other States Parties to the European Cultural Convention and the European Community, signatory hereto,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members for the purpose, in particular, of safeguarding and fostering the ideals and principles which are their common heritage;

Considering that Europe's heritage reflects the cultural identity and diversity of its peoples;

Considering that moving image material is an integral part of European cultural heritage, and that States shall ensure that it is safeguarded and protected for posterity;

Considering that moving image material is a form of cultural expression reflecting contemporary society and that it is an excellent means of recording everyday events, the basis of our history and a reflection of our civilisation;

Aware of the fragility of moving image material and the dangers which threaten its existence and its handing down to future generations;

Emphasising the importance of the Parties' responsibility to safeguard, restore and keep available this heritage;

Resolved to co-operate and undertake joint action in order to safeguard and ensure the continuation of audiovisual cultural heritage;

Taking account of the international treaties in force for the protection of copyright and neighbouring rights;

Taking account of the work carried out by other international fora in the field of the protection of the audiovisual heritage,

Have agreed as follows:

Chapter I – Introduction

Article 1 – Aim of the Convention

The aim of this Convention is to ensure the protection of the European audiovisual heritage and its appreciation both as an art form and as a record of our past by means of its collection, its preservation and the availability of moving image material for cultural, scientific and research purposes, in the public interest.

Article 2 – Definitions

For the purpose of this Convention:

a.       “moving image material” means any set of moving images recorded by whatever means and on whatever medium, whether or not accompanied by sound, capable of conveying an impression of movement;b.

b.       “cinematographic work” means moving image material of any length, in particular cinematographic works of fiction, cartoons and documentaries, which is intended to be shown in cinemas;c.

c.       “archive body” refers to any institution designated by a Party to carry out the functions of legal deposit;d.

d.       “voluntary deposit body” refers to any institution designated by a Party for that purpose.Ar

Article 3 – Scope of application

1.       The Parties to this Convention shall apply the provisions of the Convention to all cinematographic works as from its entry into force.

2.       By protocols drawn up in accordance with Article 18 of this Convention, the application of this Convention shall be extended to moving image material other than cinematographic works, such as television productions.

Article 4 – Copyright and neighbouring rights

The obligations of this Convention shall in no way affect the provisions in international treaties on the protection of copyright and neighbouring rights. No provision of this Convention may be interpreted as prejudicing such protection.

Chapter II – Legal deposit

Article 5 – General obligation of legal deposit

1.       Each Party shall introduce, by legislative or other appropriate means, the obligation to deposit moving image material forming part of its audiovisual heritage and having been produced or co-produced in the territory of the Party concerned.

2.       Each Party shall be free to provide for an exemption from legal deposit if the moving image material is legally deposited in one of the other Parties concerned.

Article 6 – Designation and tasks of archive bodies

1.       Each Party shall designate one or more archive bodies, whose tasks shall be to ensure the preservation, documentation, restoration and availability for consultation of deposited moving image material.

2.       The designated bodies shall be either public or private, but shall not be controlled directly or indirectly by any natural or legal person principally engaged in profit-making activities in the media sector.

3.       The Parties undertake to oversee the execution of the tasks assigned to the archive bodies.

Article 7 – Technical and financial means

Each Party shall ensure that archive bodies have the necessary means for carrying out their tasks as defined in Article 6, paragraph 1, of this Convention.

Article 8 – Conditions of legal deposit

1.       Each Party shall designate the natural or legal persons submitted to the obligation of deposit. It shall provide for the conditions of this deposit. It shall particularly ensure that the archive bodies receive the original or a material from which the original quality can be reconstituted.

2.       The material shall be deposited within a maximum of twelve months after the final version has been shown for the first time to the public or any other reasonable period specified by a Party. If it has not been shown to the public, the time-limit shall begin at the end of the production.

Article 9 – Restoration of deposited material

1.       Each Party shall encourage and promote the restoration of legally deposited moving image material forming part of its audiovisual heritage whose physical quality has deteriorated.

2.       Each Party may permit in its legislation the reproduction of legally deposited moving image material for the purpose of restoration.

Article 10 – Emergency measures

Each Party shall make appropriate arrangements to ensure the protection of moving image material forming part of its audiovisual heritage which is exposed to an imminent danger which threatens its material existence, if it is not otherwise protected under the terms of legal deposit.

Chapter III – Voluntary deposit

Article 11 – Promotion of voluntary deposit

Each Party shall encourage and promote the voluntary deposit of moving image material forming part of its audiovisual heritage, including ancillary material, which does not qualify under Article 5 of this Convention.

Article 12 – Availability to the public

Each Party shall encourage voluntary deposit bodies to specify by contract with the rights holders the conditions under which the deposited moving image material may be made available to the public.

Chapter IV – General provisions common to archive and voluntary deposit bodies

Article 13 – Joint archives

1.       In order to fulfil the aims of the present Convention more effectively, the Parties may decide to establish joint archive bodies and voluntary deposit bodies.

2.       The archive body and the voluntary deposit body may be one and the same institution, on condition that the provisions specific to each function are applied.

Article 14 – Co-operation between archive and voluntary deposit bodies

Each Party shall encourage its archive or voluntary deposit bodies to co-operate with one another and with the bodies of other Parties with a view to facilitating:

a.       exchange of information on moving image material;

b.       the compilation of a European audiovisual filmography;

c.       the development of a standard procedure for storing, pooling and updating moving image material and related information;

d.       the development of a common standard for electronic information exchange;

e.       the preservation of equipment for showing moving image material.

Article 15 – Contractual terms of deposit

Each Party shall encourage archive and voluntary deposit bodies to conclude contracts with the depositors specifying the rights and obligations as to the deposited moving image material. Unless regulated by law, such contracts may specify the conditions on 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.

Chapter V – Follow-up of the Convention

Article 16 – Standing Committee

1.       For the purposes of this Convention, a standing committee shall be set up.

2.       Each Party may be represented on the standing committee by one or more delegates. Each Party has a right to vote. Each State which is a Party to this Convention shall have one vote. Concerning questions within its competence, the European Community shall exercise its right to vote and cast a number of votes equal to the number of its member States that are Parties to this Convention. The European Community shall not exercise its right to vote when a question does not fall within its competence.

3.       The European Community or any State referred to in Article 19, which is not a Party to this Convention, may be represented on the standing committee by an observer.

4.       The standing committee shall be convened by the Secretary General of the Council of Europe. Its first meeting shall be held within six months of the date of entry into force of the Convention. It shall subsequently meet whenever one-third of the Parties or the Committee of Ministers of the Council of Europe so requests, or on the initiative of the Secretary General of the Council of Europe in accordance with the provisions of Article 18, paragraph 2, or at the request of one or more Parties in accordance with the provisions of Articles 17, paragraph 1.c.

5.       A majority of Parties shall constitute the quorum required for the adoption of decisions. Subject to the provisions of Article 16, paragraph 6, and Article 18, paragraph 3, the decisions of the Standing Committee shall be taken by a majority of two-thirds of the Parties present.

6.       The Standing Committee may seek the advice of experts in order to discharge its function under this Convention. It may, on its own initiative or at the request of the body concerned, invite any international or national, governmental or non-governmental body technically qualified in the fields covered by this Convention to be represented by an observer at all or part of its meetings. The decision to invite such experts or bodies shall be taken by a majority of two-thirds of the Parties.

7.       Subject to the provisions of this Convention, the Standing Committee shall draw up its own rules of procedure.

Article 17 – Functions and reports of the Standing Committee

1.       The Standing Committee shall be responsible for examining the operation and implementation of this Convention. It may:

a.       make recommendations to the Parties concerning the application of the Convention;

b.       suggest any necessary modifications to the Convention and examine those proposed in accordance with the provisions of Article 18;

c.       examine, at the request of one or more Parties, any question concerning the interpretation of the Convention;

d.       make recommendations to the Committee of Ministers concerning States, other than those referred to in Article 19, to be invited to accede to this Convention.

2.       After each meeting, the Standing Committee shall forward to the Parties and the Committee of Ministers of the Council of Europe a report on its discussions and any decisions taken.

Chapter VI – Protocols and amendments

Article 18 – Protocols and amendments

1.       Protocols dealing with moving image material other than cinematographic works shall be concluded with a view to developing, in specific fields, the principles contained in this Convention.

2.       Any proposal for a protocol referred to in paragraph 1 or any proposal for an amendment to such a protocol, or for any amendment to this Convention, presented by a Party, the Standing Committee or the Committee of Ministers shall be communicated to the Secretary General of the Council of Europe and forwarded by him to the member States of the Council of Europe, to the other States which may become Parties to this Convention and to the European Community. The Secretary General of the Council of Europe shall convene a meeting of the Standing Committee at the earliest two months following the communication of the proposal.

3.       The Standing Committee shall examine the proposal not earlier than two months after it has been forwarded by the Secretary General in accordance with paragraph 2. The Standing Committee shall submit the text approved by a majority of three-quarters of the Parties to the Committee of Ministers for adoption.

4. Any amendment to the Convention adopted in accordance with the preceding paragraph shall come into force on the thirtieth day after all the Parties have informed the Secretary General of their acceptance thereof. If an amendment has been adopted by the Committee of Ministers, but has not yet entered into force, a State or the European Community may not express their consent to be bound by the Convention without accepting this amendment at the same time.

5.       The Committee of Ministers shall determine the conditions for the entry into force of protocols to this Convention and amendments to such protocols based on the text submitted by the Standing Committee in accordance with paragraph 3.

Chapter VII – Final provisions

Article 19 – Signature, ratification, acceptance, approval

This Convention shall be open for signature by the member States of the Council of Europe, by the other States Parties to the European Cultural Convention and by the European Community. It is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 20 – Entry into force

1.       This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five States, including at least four member States of the Council of Europe, have expressed their consent to be bound by the Convention, in accordance with the provisions of Article 19.

2.       In respect of any signatory which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of its instrument of ratification, acceptance or approval.

Article 21 – Relations between the Convention and Community law

In their mutual relations, Parties which are members of the European Community shall apply Community rules and shall not therefore apply the rules arising from this Convention except in so far as there is no Community rule governing the particular subject concerned.

Article 22 – Accession by other States

1.       After the entry into force of this Convention, the Committee of Ministers of the Council of Europe, after having consulted the Parties, may invite any State which is not referred to in Article 19 to accede to the Convention, by a decision taken by the majority provided for in Article 20.d of the Statute of the Council of Europe, and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers.

2.       In respect of any acceding State, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.

Article 23 – Territorial application

1.       Any State or the European Community may, at the time of signature or when depositing the instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.

2.       Any Party may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. In respect of such territory, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.

3.       Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.

Article 24 – Reservations

No reservation may be made in respect of the provisions of this Convention.

Article 25 – Denunciation

1.       Any Party may at any time denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.

2.       Such denunciation shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of the notification by the Secretary General.

Article 26 – Notifications

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the other States which may become Parties to this Convention and the European Community:

a.       any signature;

b.       the deposit of any instrument of ratification, acceptance, approval or accession;

c.       any date of entry into force of this Convention, in accordance with Articles 20, 22 and 23;

d.       any amendment or protocol adopted in accordance with Article 18, and the date on which such an amendment or protocol enters into force;

e.       any other act, notification or communication relating to this Convention.

In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.

Done at ....... , on .......... , in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the other States Parties to the European Cultural Convention, to the European Community and to any other State invited to accede to this Convention.

DRAFT EXPLANATORY REPORT TO THE

EUROPEAN CONVENTION FOR THE PROTECTION OF

THE AUDIOVISUAL HERITAGE

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, multi-media 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

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:

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

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.

d.       “voluntary deposit body”15

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

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 rightowner’s 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.

DRAFT PROTOCOL ON THE PROTECTION OF TELEVISION PRODUCTIONS

TO THE EUROPEAN CONVENTION FOR THE PROTECTION OF THE AUDIOVISUAL HERITAGE

Preamble

The Parties to this Protocol to the European Convention for the Protection of the Audiovisual Heritage, opened for signature in ... on ... (hereinafter referred to "the Convention"),

Considering the importance of television productions as part of the European audiovisual heritage as expressed in the Convention;

Recognising the specificity of television productions, in particular with regard to their virtually universal availability, their quantity and their role as a mirror of all sectors and aspects of society;

Resolved to ensure an adequate preservation of television productions for cultural, scientific and research purposes in the public interest;

Taking account of the international treaties in force for the protection of copyright and neighbouring rights;

Referring to Article 3 and Article 18 of the Convention,

Have agreed as follows:

Article 1 (Definitions)

For the purposes of this Protocol:

a.       "television productions" means any moving image material other than cinematographic works, which has been produced for transmission via terrestrial transmitter, cable, satellite or other means, for reception by the public, with the exception of moving image material transmitted on individual demand and interactive moving image material;

b.       "depository body" means any institution, including archive bodies, designated by a Party to carry out the functions related to legal or voluntary deposit;

c.       "broadcaster" means any natural or legal person who has editorial responsibility for the composition of television productions and who transmits them, by whatever means, or has them transmitted by a third party for reception by the public.

Article 2 (Scope of application)

1.       The Parties to this Protocol agree to apply the provisions of the Convention to television productions subject to the following exceptions:

- Article 3 of this Protocol shall be applied instead of Article 5 of the Convention;

- Article 4 of this Protocol shall be applied instead of Article 11 of the Convention;

- Article 5 of this Protocol shall be applied instead of Article 6 of the Convention; and

- Article 7 of this Protocol shall be applied instead of Article 8 of the Convention.

2.       The provisions of Article 1 of this Protocol shall be regarded as an addition to Article 2 of the Convention.

Article 3 (Legal deposit)

1.       Each Party shall implement, by legislative or other appropriate means and subject to paragraphs 2 and 3 of this Article, the obligation to deposit television productions forming part of its audiovisual heritage, which have been transmitted by broadcasters under its jurisdiction for the first time to the public after the entry into force of this Protocol.

2.       Each Party may provide for a system of appraising, selecting or sampling of television productions which are under the obligation of being deposited, in order to define and preserve the television elements of its audiovisual heritage adequately.

3.       Each Party shall be free to provide for an exemption from the legal deposit if a television production is legally deposited in one of the other Parties.

4.       Each Party shall determine who is under the obligation of legal deposit in accordance with this Protocol.

Article 4 (Voluntary deposit)

1.       Each Party may encourage and promote the voluntary deposit of television productions which do not qualify under Article 3.

2.       Voluntary deposit may be extended to ancillary material.

Article 5 (Designation of depository bodies)

With regard to the deposit of television productions, each Party may:

b.       designate by agreement and/or establish one or more other depository bodies.

Article 6 (Financial and technical means of depository bodies)

Each Party shall ensure that depository bodies under Article 5 of this Protocol have the necessary means for carrying out the functions of legal deposit as defined in Article 3, and shall examine the appropriate financial arrangements to this effect.

Article 7 (Conditions of deposit)

Each Party shall determine the conditions necessary for the deposit of television productions with depository bodies in accordance with this Protocol.

Article 8 (Final provisions)

1.       This Protocol shall be open for signature by Signatories to the Convention. It is subject to ratification, acceptance or approval. A Signatory may not ratify, accept or approve this Protocol unless it has previously or simultaneously ratified, accepted or approved the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

2.       This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five States, including at least four member States of the Council of Europe, have expressed their consent to be bound by the Protocol in accordance with the provisions of paragraph 1 of this Article.

3.       From the date of its entry into force, this Protocol shall form an integral part of the Convention.

4.       In respect of any Signatory which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.

5.       After the entry into force of this Protocol, any State which has acceded to the Convention may also accede to this Protocol.

6.       Accession shall be effected by the deposit with the Secretary General of the Council of Europe of an instrument of accession which shall take effect on the first day of the month following the expiration of a period of three months after the date of deposit.

7.       No reservation may be made in respect of the provisions of this Protocol.

8.       Any Party may at any time denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe.

9.       Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.

10.       The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the European Community, any Signatory, any Party and any other State which has been invited to accede to the Convention of:

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at ....... , on ....... , in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the other States party to the European Cultural Convention, to the European Community and to any other State invited to accede to the Convention.

DRAFT EXPLANATORY REPORT TO

THE PROTOCOL ON THE PROTECTION OF TELEVISION PRODUCTIONS

TO THE EUROPEAN CONVENTION FOR THE PROTECTION OF THE AUDIOVISUAL HERITAGE

I.       Introduction

1. At its …. meeting in [Strasbourg] on ……… 2000, the Committee of Ministers of the Council of Europe opened for signature the European Convention for the Protection of the Audiovisual Heritage (hereinafter: the Convention) and its Protocol on the Protection of Television Productions (hereinafter: the Protocol). On the same day, the Committee of Ministers authorised the Secretary General to publish this Explanatory Report to the Protocol.

2. The Convention carries the number ……. of the European Treaty Series (ETS) and the Protocol the number ……. of the European Treaty Series. They are kept at the Council of Europe in Strasbourg. Other related treaties are the European Convention on Transfrontier Television of 1989 (ETS No. 132) as amended by the Protocol of 1998 (ETS No. 171) and the European Convention on Cinematographic Co-production of 1992 (ETS No. 147).

3. The Protocol provides specific rules for the application of the general principles of the Convention to television productions.

4. This Explanatory Report to the Protocol is neither part of the Protocol itself, nor is it legally binding upon the Contracting Parties or the member States of the Council of Europe. It is rather an explanation of the legal history and reasoning of the Protocol and a source for the interpretation of the provisions of the Protocol.

5. The initiative to draw up the Convention and its Explanatory Report came from the Council for Cultural Co-operation (CDCC) and its Culture Committee (CC-Cult). The Steering Committee on the Mass Media (CDMM) was subsequently involved in this work, as the draft Convention prepared under the authority of the CDCC was intended to cover not only cinematographic works but also television productions. Both steering committees (CDCC and CDMM) decided to set up the Joint CDCC-CDMM Working Party on the Protection of the Audiovisual Heritage (GT-PA), entrusted with the preparation of an additional Protocol concerning television productions and the finalisation of the Convention.

II.       General considerations

6. During the elaboration of the Convention, the CDCC and the CDMM came to the conclusion that it would be advisable to have a general treaty on the protection of the audiovisual heritage which could then be complemented by additional Protocols concerning “moving image material other than cinematographic works”. Television productions were identified as constituting the largest sector of moving image material and thus being of highest relevance to the audiovisual heritage as defined by the Convention. At the same time, it was noted that television productions have a number of specificities, as compared with cinematographic works. Therefore, the CDCC and the CDMM requested the GT-PA to draft such an additional Protocol addressing the specific question of the protection of television productions. The major differences of television productions as compared to cinematographic works can be found in their quantity, the ephemeral nature of a large number of programmes, their modes of transmission and recording, their nearly universal availability, and their impact on individuals and society as a whole. Other additional Protocols might be drawn up in the future, once the CDCC or the CDMM identify other new developments in the field of audiovisual media which may require specific provisions for the protection of the audiovisual heritage.

7. The initiative to define a common European framework for the protection of television productions was spurred by several developments which have characterised the television environment in the last decade. The number of broadcasters has increased in Europe, especially as a result of the granting of broadcasting licences to private broadcasters, as well as the daily hours of broadcasting, hence leading to a growing amount of television productions. The introduction of cable, satellite and digital broadcasting has enlarged this amount and widened the range of television productions. At the same time, the archives of older broadcasters have been facing the progressive deterioration of old productions and the need to spend more resources for the maintenance of steadily growing archives.

8. On the other hand, the development of digital information technologies has made it technically possible, in particular for broadcasters, to copy and archive much larger volumes of television productions at lower costs, and to make them easily available for “cultural, scientific and research purposes in the public interest”, subject to respect for copyright and neighbouring rights.

9. In some member States, film archive bodies have started to archive television productions. For example, France has widened the scope of its Institute National de l’Audiovisuel (National Audiovisual Institute) by creating the Inathéque de France for the legal deposit concerning television broadcasting. In the same vein, some broadcasters have decided to archive their own television productions.

10. The advantage of having a common European framework through this Protocol was seen, for example, in providing member States with the possibility of joining in a pan-European effort for preserving important sectors of their national audiovisual heritage. In the same vein, the Protocol should lead to the effect of having broadcasters in Europe and other depository bodies operate under similar obligations and opportunities.

III.       Commentary on the provisions of the Protocol

11. The Preamble of the Protocol makes reference to the specificity of television productions and their major importance for audiovisual heritage and refers to Article 3 and 18 of the Convention, which concern Protocols to the Convention.

12. In the fifth paragraph, the Preamble refers to “international treaties in force for the protection of copyright and neighbouring rights”. The drafters of the Protocol had in particular mind the Berne Convention for the Protection of Literary and Artistic Works, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, the European Agreement on the Protection of Television Broadcasts and the European Convention relating to Questions on Copyright Law and Neighbouring Rights in the Framework of Transfrontier Broadcasting by Satellite. This reference is to be understood in the light of Article 4 of the Convention, which indicates that nothing in this Convention and its Protocols shall be interpreted as limiting or derogating from the respective international obligations of the Parties (see also Article 4 of the Convention).

13. The Protocol uses all the terms of the Convention as defined by the latter instrument.

14. In addition, the following new terms are defined by Article 1 of the Protocol:

(a)       “television productions” 15

15. Television productions are covered by the general term “moving image material”, but they are not “cinematographic works” under the meaning of Article 2 of the Convention. The specific feature of television productions is that they have been “produced for transmission via terrestrial transmitter, cable, satellite or other means, for reception by the public”, while cinematographic works are defined by the fact that they are primarily intended to be shown in cinemas. Moving image material “transmitted on individual demand”, such as video-on-demand, is excluded as well as “interactive moving image material”, i.e. audiovisual productions which allow the viewer to contribute to the content, for example video games via Internet.

16. The Protocol uses this term to cover “any institution, including archive bodies, designated by a Party to carry out the functions related to legal or voluntary deposit”. In practice, this will include specialised depository bodies, such as public archives, as well as broadcasters who agree to maintain their archives in accordance with the provisions of the Protocol and the Convention as implemented at the national level (see also Articles 5 and 6 of the Protocol).

17. The Protocol defines and, therefore, uses the term “broadcaster” along the lines of the definition used in the European Convention on Transfrontier Television. The major elements are (i) the “editorial responsibility for the composition of television productions”, (ii) the direct or indirect transmission of television productions, and (iii) their “reception by the public”. Editorial responsibility does usually not lie with, for example, cable network operators or operators of transmission facilities.

18. The aim of this Protocol is to provide specific rules for the application of the general principles of the Convention to television productions. Due to the specificity of television productions, it is necessary to have specific provisions in addition to the Convention, some of which may be applied instead of the respective provisions of the Convention as far as television productions are concerned.

19. Therefore, Article 2 of the Protocol specifies that:

20. Article 3 of this Protocol (legal deposit) shall be applied instead of Article 5 of the Convention (general obligation of legal deposit);

21. Article 4 of this Protocol (voluntary deposit) shall be applied instead of Article 11 of the Convention (promotion of voluntary deposit);

22. Article 5 of this Protocol (designation of depository bodies) shall be applied instead of Article 6 of the Convention (designation and tasks of archive bodies);

23. and Article 7 of this Protocol (conditions of deposit) shall be applied instead of Article 8 of the Convention (conditions of legal deposit).

24. The terms defined in Article 1 of this Protocol shall be regarded as additional definitions with respect to Article 2 of the Convention.

25. Paragraph 1 of Article 3 provides the specific rules for the legal deposit of television productions (as regards the conditions governing the deposit, see Article 7 of the Protocol.)

26. The obligation of legal deposit is made subject to the provisions of paragraphs 2 and 3 of Article 3, which are hence to be read together with paragraph 1.

27. Legal deposit shall be implemented “by legislative or other appropriate means”. A public obligation on natural or legal persons will typically require national law, which can comprise legislation by national parliament or secondary law. Paragraph 1 of Article 3 allows the contracting Parties to select also “other appropriate means”, such as administrative measures or contractual arrangements between the Parties and the depository bodies. This may also include a system of self-regulation which is binding upon the respective natural or legal persons and which has sufficient means of enforcing the obligation, similar to an obligation under law.

28. The obligation of legal deposit applies to all television productions which fulfil certain requirements:

29. (i)       The television productions must be part of the audiovisual heritage of the contracting Party. The Protocol does not attempt to define audiovisual heritage, but leaves it to the contracting Parties.

30. (ii)       The television productions must have been transmitted by broadcasters under the jurisdiction of a contracting Party. The stipulation and enforcement of a public obligation usually requires that the obliged is under the jurisdiction of the respective government or public authority. The Protocol thus does not set up a regime which allows for an external application of the obligation of legal deposit. The definition of the jurisdiction is left to national or international law, such as the European Convention on Transfrontier Television.

31. (iii)       Furthermore, the television productions must be transmitted “for the first time to the public after the entry into force of this Protocol”. The entry into force of the Protocol is regulated in Article 8, paragraphs 2, 4 and 6 of the Protocol. Public transmission is to be understood as in the definition of television productions. Accordingly, transmission on individual demand would not suffice. The obligation of legal deposit applies only to the first transmission. Re-transmissions or later repetitions, even if it were for the first time after the entry into force of the Protocol, would not fall under this obligation. Slight modifications to television productions, such as the addition of sub-titles or dubbing would generally not be sufficient to regard a modified television production as a new television production which would fall under the obligation of legal deposit when transmitted for the first time.

32. The immense amount of television productions which are part of the audiovisual heritage may be such that it would be technically impossible to deposit them all, to preserve them and to offer adequate access to them. Furthermore, not all television productions are worth preserving, in particular where they are of a repetitive nature. Therefore, the Protocol makes it possible for the contracting Parties to “provide for a system of appraising, selecting or sampling of television productions”, notably for those which are similar or are part of a wider series of productions. This system shall define and preserve the television elements of the contracting Party’s audiovisual heritage “adequately”. This definition is necessary in order to make the general obligation under paragraph 1 of Article 3 precise enough for its application. The actual choice by a contracting Party might depend on, for example, the financial resources available to depository bodies in this Party (see also Article 6 of the Protocol) as well as the national tradition.

33. The system of appraising, selecting or sampling can involve national governmental authorities, national archive bodies, cultural, educational or television institutions as well as the television industry and broadcasters. Contracting Parties might create specific bodies or committees for this purpose.

Paragraph 3

34. Paragraph 3 allows the contracting Parties to introduce an exemption from the obligation of legal deposit “if a television production is legally deposited in one of the other Parties”. Unless a contracting Party has introduced such an exemption, the obligation of legal deposit applies in this Party to television productions which are legally deposited in other Parties. This exemption from the obligation of legal deposit requires that the respective television production is deposited in another contracting Party, while the deposit in States which have not signed and ratified the Protocol would not be sufficient. The deposit has to be a legal deposit, i.e. it has to comply with the provisions of the Protocol concerning legal deposit. A voluntary deposit would thus not suffice, because voluntarily deposited television productions could, for instance, be withdrawn from the deposit.

Paragraph 4

35. For the implementation of the obligation of legal deposit under Article 3, paragraph 1, it is necessary to define the persons who are under this obligation. Therefore, paragraph 4 provides the obligation for the contracting Parties to “determine who is under the obligation of legal deposit”. The contracting Parties have discretion in this respect.

36. The legal deposit as such does not affect the copyright and neighbouring rights to the respective television production, and it is thus not necessary to oblige the rights holders directly. In practice, the contracting Parties might select broadcasters, because they are under the jurisdiction of the respective contracting Party, they are always known to the national authorities through their licence, they themselves know which television production is transmitted for the first time and which is re-transmitted or repeated, and they could also be designated as depository body for their transmitted television productions under Article 5 of the Protocol.

37. When determining who shall be under the obligation to deposit television productions, the Parties should take account of the ownership of the material and should not impose any obligations which cannot be implemented in practice.

38. The voluntary deposit takes place outside the obligation of legal deposit. Therefore, voluntary deposit applies to television productions which do not qualify under Article 3 of the Protocol. This can be the case, for example, because the particular television productions are not part of the audiovisual heritage, they have been transmitted for the first time before the entry into force of this Protocol, they have been transmitted for the first time by a broadcaster outside the jurisdiction of a contracting Party, they have been produced but not transmitted, or they are already legally deposited in another contracting Party.

39. The voluntary deposit may even include television productions which are part of the audiovisual heritage but which would have not been appraised, selected or sampled under the system referred to in Article 3, paragraph 2 of the Protocol.

40. Paragraph 1 of Article 4 mentions the possibility to “encourage and promote the voluntary deposit”. The individual means of encouraging and promoting are at the full discretion of the Parties. The contracting Parties might, for example, provide specific means and resources to depository bodies or specific incentives for the voluntary deposit (see also Article 6 of the Protocol).

41. The voluntary deposit of television productions requires a voluntary act of making the television production available to a depository body as well as the voluntary agreement of a depository body to accept this television production. The deposit must therefore be based on an expressly or tacitly concluded mutual contract. One effect of such a contractual relation is that the contract could be cancelled later and the voluntarily deposited television production be withdrawn from the deposit.

Paragraph 2

42. Ancillary material may also be included in the voluntary deposit. Typical ancillary material might be, for example, a manuscript by the author, a plan of the stage or camera positions, an advertisement, information on the costs and the realisation of the television production, the contract between the producer and the broadcaster, critiques drafted at the time of the first transmission or the schedule of a television production.

43. The Protocol does not attempt to provide a detailed definition of ancillary material. Ancillary material can only be deposited on a voluntary basis, and it is therefore in the hands of the depositing person and the depository body to agree on what material will be voluntarily deposited.

44. The designation of one or more depository bodies by a contracting Party is a necessary requirement for the introduction of the obligation of legal deposit. Without the establishment or designation of depository bodies under Article 5, the legal and the voluntary deposit could not be achieved.

45. Article 5 leaves the contracting Parties the choice whether to designate one or more broadcasters as depository bodies or to designate or establish one or more other depository bodies, such as specific archive bodies. Broadcasters do not fall under the definition of Article 6 of the Convention, which requires that the designated bodies “shall not be controlled directly or indirectly by any individual or legal person principally engaged in profit-making activities in the media sector”, since many broadcasters do not qualify as non-profit organisations. The provisions of the Convention concerning the legal deposit are, however, limited to cinematographic works and thus Article 6 of the Convention does not restrict the designation of depository bodies for television productions under Article 5 of the Protocol.

46. The designation of broadcasters as depository bodies requires their agreement. Therefore, the Protocol may not be taken as a basis for a mandatory and unilateral designation of a broadcaster by a contracting Party. This agreement should stipulate the rights and obligations of the broadcaster as depository body, as well as the possible rights and obligations of the contracting Party and its authorities. It should, in particular, specify the requirements for a secure preservation of the deposited television productions and the conditions for accessing them, with due respect for copyright and neighbouring rights (see also Articles 6 and 7 of the Protocol).

47. Broadcasters can typically operate as depository bodies for their own television productions. However, Article 5, paragraph (a) of the Protocol allows for the designation of a broadcaster as depository body for television productions of other broadcasters “if both sides agree”, i.e. the broadcaster acting as depository body and the depositing broadcaster as far as the latter is entitled to act on behalf of the actual rights holders in the television productions which are to be deposited. For different reasons, and in particular due to direct competition, broadcasters might not want to deposit their television productions with other broadcasters. Therefore, it seems inappropriate to oblige broadcasters to accept that the legal deposit is received by another broadcaster.

48. Article 6 of the Protocol stipulates the obligation for the contracting Parties to “ensure that depository bodies (…) have the necessary means for carrying out the functions of legal deposit as defined in Article 3” and to “examine the appropriate financial arrangements to this effect”. It is in the discretion of each contracting Party to decide on how “the necessary means” of depository bodies can be ensured.

49. In order to carry out the functions related to legal or voluntary deposit in accordance with this Protocol (see Article 1, paragraph b, definition of “depository body”), depository bodies must meet certain requirements as to their ability to preserve television productions and to provide access to them. Such requirements comprise the technical equipment and documentary resources for the receipt and storage of television productions, the knowledge and skills necessary for their secure storing and archiving, a system of documentation as well as the technical and human resources necessary for providing access by third parties to the deposited television productions. This will also entail costs on the side of the depository body. The contracting Parties should include these requirements in the agreement to be concluded under Article 5 of the Protocol and refer to the conditions of deposit under Article 7 of the Protocol.

50. The provision of the means necessary for carrying out the functions related to legal or voluntary deposit by depository bodies will generally entail costs for depository bodies. The contracting Parties are therefore obliged under Article 6 of the Protocol, to “examine the appropriate financial arrangements” in order to allow depository bodies to fulfil their tasks. These tasks are regulated in the Protocol and should be defined in the agreement referred to in paragraph 46 above.

51. The obligation to “examine” the financial arrangements does not imply any obligation for the contracting Parties to provide financial support. It is rather meant that the Parties shall examine and decide, at their own discretion, how to ensure that depository bodies have the necessary financial resources to carry out their functions (see also Article 7 of the Protocol).

52. Article 7 of the Protocol provides the obligation for the contracting Parties to “determine the conditions necessary for the deposit of television productions (…)”. With due respect for copyright and neighbouring rights, these modalities might include, for example, whether the depository bodies shall be provided with recorded copies of television productions or be authorised to record them directly when they are transmitted by a broadcaster, which time obligation for the deposit shall apply, which regulations shall apply if the depository bodies become unable to fulfil their functions, in which cases and under which conditions television productions may be removed from the stock of depository bodies as well as which financial support mechanisms shall possibly be established for depository bodies. This indicative list is only intended to provide guidance to the contracting Parties.

53. The respective determination under Article 7 of the Protocol can be made through the “legislative or other appropriate means” referred to in Article 3, paragraph 1 of the Protocol and paragraph 27 above. The contracting Parties might base their determination, for example, on the examination of the “necessary means” and the “appropriate financial arrangements” referred to in Article 6 of the Protocol.

54. The conditions of deposit under Article 7 of the Protocol are an essential part of the obligation of legal deposit as well as the possibility of voluntary deposit. It is therefore indispensable for the contracting Parties to specify the conditions necessary for the deposit of television productions and to determine their particularities.

55. Paragraphs 1 to 10 of Article 8 of the Protocol correspond to the model final clauses for conventions and agreements concluded within the Council of Europe which were approved by the Committee of Ministers of the Council of Europe, as well as to the final clauses of the Convention.

56. Article 21 of the Convention on the relations between the Convention and European Community law is also applicable to the Protocol.

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).